1 Short title

This Act may be cited as the Acts Interpretation Act 1931 .

2 Repeal

The Interpretation Act 1906 , the Interpretation Act 1916 , and the Northern and Southern Divisions Act 1903 , are hereby repealed.

2A Meaning of "regulation"

*[Section 2A Inserted by No. 11 of 1962, s. 2 ]*In this Act, unless the contrary intention appears,

regulation includes rule and by-law.

3 Acts to be construed subject to legislative powers of State

Every Act shall be read and construed subject to the limits of the legislative powers of the State and so as not to exceed such powers, to the intent that, where any enactment thereof, but for this provision, would be construed as being in excess of such powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of such powers.

4 Application of Act

(1)  Except where otherwise expressly provided, the provisions of this Act shall be applied in the interpretation and construction of every Act whenever passed (including this Act) and of all regulations made under any Act, except in so far as –

(a) any provision of this Act is inconsistent with or repugnant to the true intent and object of the particular Act or regulation to be interpreted; or, in case of a regulation, with the true intent and object of the Act under which such regulation purports to have been made;

(b) the interpretation which any provision of this Act would give to anything contained in such particular Act or regulation is inconsistent with the context thereof or with any definition or interpretation contained in such particular Act or regulation or in the Act under which such regulation is made.

(1A)  *[Section 4 Subsection (1A) inserted by No. 39 of 1981, s. 4 ]*For the purposes of applying this Act in the interpretation and construction of regulations made under an Act –

(a) a reference in this Act to the passing of an Act, or to the time of the passing of an Act, shall be construed as a reference to the making of the regulations or the time when the regulations are made, as the case may be;

(b) a reference in this Act to the Minister of the Crown for the time being administering an Act or enactment shall be construed as a reference to the Minister of the Crown administering the Act or enactment under which the regulations are made; and

(c) a reference in this Act to a section or other division of an Act or to a subsection or other division of a section shall be construed as a reference to –

(i) in the case of regulations, a regulation or other division of the regulations or, as the case may be, a subregulation or other division of such a regulation;

(ii) in the case of rules, a rule or other division of the rules or, as the case may be, a subrule or other division of such a rule; or

(iii) in the case of by-laws, a clause or other division of the by-laws or, as the case may be, a subclause or other division of such a clause.

(2)  Where in this Act reference is made to an Act passed after any specified date, such reference shall include every such Act, whether passed before or after the commencement of this Act.

(3)  This Act shall be binding on the Crown.

(4)  [Section 4 Subsection (4) omitted by No. 11 of 1962, s. 15 and Sched. 1 ].  .  .  .  .  .  .  .

5 Meaning of word "Act"

(1)  The word

Act used in relation to a legislative enactment, shall include all Acts and ordinances which have been duly made and passed by the Parliament of Tasmania or by any council or authority empowered to make and pass laws in Tasmania, and to which assent has been duly given by or on behalf of the Sovereign.

(2)  *[Section 5 Subsection (2) substituted by No. 39 of 1981, s. 5 ]*In any Act, including this Act, a reference to an Act (including a reference to the Act in which the reference occurs) or to an Imperial Act or a Commonwealth Act includes a reference to any regulation made under that Act, Imperial Act, or Commonwealth Act.

6 General provisions as to legislative enactments

(1)  Every section of an Act shall have effect as a substantive enactment without introductory words.

(2)  The headings of the parts, divisions, and subdivisions, into which any Act is divided shall be deemed to be part of the Act.

(3)  *[Section 6 Subsection (3) amended by No. 4 of 1990, s. 10 and Sched. 1 ]*Every schedule and appendix to an Act (including any heading of such a schedule or appendix or of any part, division or subdivision into which such a schedule or appendix is divided) shall be deemed to be part thereof.

(4)  *[Section 6 Subsection (4) substituted by No. 4 of 1990, s. 10 and Sched. 1 ]*Except as provided in subsections (2) and (3)  –

(a) a heading to a provision of an Act; or

(b) a marginal note, footnote or endnote in an Act (other than a footnote appended to a prescribed form) –

shall not be taken to be part of the Act.

(5)  An Act may be altered, amended, or repealed in the same session of Parliament as that in which it was passed.

(6)  No Act shall be binding on the Crown or derogate from any prerogative right of the Crown unless express words are included therein for that purpose.

(7)  Every Act passed after 5th August 1853 shall be a public Act and shall be judicially noticed as such unless the contrary is expressly provided by that Act.

7 Meaning of "prescribed"

*[Section 7 Substituted by No. 39 of 1981, s. 6 ]**[Section 7 Amended by No. 68 of 1994, s. 3 and Sched. 1 ]*In any Act, the expression prescribed –

(a) means prescribed by, or by regulations made under, the Act in which the word appears; and

(b) where reference is made to anything prescribed by an Act other than the Act in which the word appears, includes anything prescribed by any regulation made under that other Act.

7A Construction of references to provisions of Acts, &c.

[Section 7A Substituted by No. 39 of 1981, s. 7 ]

(1)  Where in an Act reference is made to a Part, division, section, Schedule, or form without anything in the context to indicate that a reference to a Part, division, section, Schedule, or form of some other Act is intended, the reference shall be construed as a reference to a Part, division, section, Schedule, or form of the Act in which the reference is made.

(2)  Where in a section of an Act reference is made to a subsection, paragraph, subparagraph, or other division without anything in the context to indicate that a reference to a subsection, paragraph, subparagraph, or other division of some other section or provision is intended, the reference shall be construed as a reference to a subsection, paragraph, subparagraph, or other division of the section in which the reference is made.

(2A)  *[Section 7A Subsection (2A) inserted by No. 51 of 1985, s. 4 and Sched. 2, Pt. I ]*For the purposes of the application of subsections (1) and (2) to regulations, "section" and "subsection" shall be read as "regulation" and "subregulation", respectively.

(3)  Where in a Schedule or part of a Schedule to an Act reference is made to a clause, subclause, paragraph, subparagraph, or other division without anything in the context to indicate that a reference to a clause, subclause, paragraph, subparagraph, or other division of some other provision is intended, the reference shall be construed as a reference to the clause, subclause, paragraph, subparagraph, or other division of the Schedule or the part of the Schedule in which the reference is made.

8 Acts amending other Acts to be incorporated therewith

(1)  Every Act passed for the purpose and with the object of amending a previous Act shall be read and construed with, and subject to the provisions of, the amended Act, as modified by the amending Act, and shall be deemed to be incorporated therewith, and with every Act amending the same, unless the contrary is expressly provided therein.

(2)  Where any Act is amended as aforesaid, the expression

the Principal Act in any such amending Act, unless the contrary is expressly provided, shall mean the Act so amended, and shall be deemed to apply to the earliest of the series of Acts upon the same subject, even though the amendment consists only of some alteration in, or modification of, a previous amending Act.

8A Regard to be had to purpose or object of Act

[Section 8A Inserted by No. 20 of 1992, s. 4 ]

(1)  In the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object.

(2)  Subsection (1) applies whether or not the purpose or object is expressly stated in the Act.

8B Use of extrinsic material in interpretation

[Section 8B Inserted by No. 20 of 1992, s. 4 ]

(1)  Subject to subsection (2) , in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation –

(a) if the provision is ambiguous or obscure, to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or

(c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.

(2)  In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be given to –

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging legal or other proceedings without compensating advantage; and

(c) other relevant matters.

(3)  In this section –

extrinsic material in relation to a provision of an Act, means material not forming part of the Act, including –

(a) material that is set out in the document containing the text of the Act as printed by the Government Printer; and

(b) a relevant report of a Royal Commission, Law Reform Commission or Commissioner, board or committee of inquiry, or a similar body, that was laid before either House of Parliament before the provision concerned was enacted; and

(c) a relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the provision was enacted; and

(d) a treaty or other international agreement that is mentioned in the Act; and

(e) [Section 8B Subsection (3) amended by No. 29 of 2018, s. 9, Applied:10 Dec 2018] [Section 8B Subsection (3) amended by No. 29 of 2018, s. 9, Applied:10 Dec 2018] any explanatory note, clause note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given or otherwise made available to the members of, either House of Parliament by the member bringing in the Bill before the provision was enacted; and

(f) the speech made to a House of Parliament by a member of the House in moving a motion that the Bill be read a second time; and

(g) relevant material in the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament; and

(h) a document that is declared by an Act to be a relevant document for the purposes of this section;

ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose or object of the Act.

9 Commencement

[Section 9 Amended by No. 40 of 1985, s. 4 ][Section 9 Amended by No. 4 of 1990, s. 10 and Sched. 1 ][Section 9 Amended by No. 40 of 1985, s. 4 ]**[Section 9 Amended by No. 4 of 1990, s. 10 and Sched. 1 ]

(1)  [Section 9 Subsection (1) omitted by No. 4 of 1990, s. 10 and Sched. 1 ].  .  .  .  .  .  .  .  

(2)  *[Section 9 Subsection (2) substituted by No. 39 of 1981, s. 8 ]*Every Act to which the Royal Assent has been given by the Governor for or on behalf of the Sovereign before the commencement of section 8 of the Acts Interpretation Amendment Act 1981 shall, unless the contrary intention appears in the first-mentioned Act, be deemed to have come into operation on the day on which that Act received the Royal Assent.

(3)  *[Section 9 Subsection (3) substituted by No. 39 of 1981, s. 8 ]*Every Act to which the Royal Assent is given by the Governor for and on behalf of the Sovereign on or after the date of commencement of section 8 of the Acts Interpretation Amendment Act 1981 shall, unless the contrary intention appears in the first-mentioned Act, come into operation on the fourteenth day after the day on which that Act receives the Royal Assent.

(3A)  [Section 9 Subsection (3A) inserted by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] Despite subsection (3) , if a provision of an Act provides that the Act or a portion of the Act commences on a day, or a day or days, to be proclaimed, that provision and the provision providing for the short title of the Act come into operation on the day on which the Act receives the Royal Assent unless the Act expressly provides otherwise.

(4)  *[Section 9 Subsection (4) inserted by No. 39 of 1981, s. 8 ]*Every Act reserved for the signification of the Sovereign's pleasure after the commencement of section 8 of the Acts Interpretation Amendment Act 1981 shall, unless the contrary intention appears in that Act, come into operation on the day after the day on which a proclamation of the Governor signifying the Sovereign's assent is published or notified in the Gazette.

(5)  *[Section 9 Subsection (5) inserted by No. 39 of 1981, s. 8 ]*Where an Act, or a regulation or other instrument or document made, issued, or granted under an Act, is expressed to commence, come into operation, or take effect on a particular day, it shall commence, come into operation, or take effect immediately on the expiration of the last preceding day.

10 Evidence of commencement

[Section 10 Amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] The date appearing on the copy of an Act produced under section 6(10) of the Legislation Publication Act 1996 and purporting to be the date on which the Governor assented thereto, or made known the Sovereign's assent thereto, shall be evidence that such date was the date on which the Governor so assented or made known such assent, and shall be judicially noticed.

10A Meaning of "must", "is to" and "may"

[Section 10A Inserted by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000]

(1)  In any Act –

(a) the word "must" is to be construed as being mandatory; and

(b) the words "is to" and "are to" are to be construed as being directory; and

(c) the word "may" is to be construed as being discretionary or enabling, as the context requires.

(2)  Subsection (1) applies only in respect of a provision of an Act if that provision is passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act 2000 .

11 Anticipatory exercise of powers

[Section 11 Substituted by No. 39 of 1981, s. 9 ]

(1)  Where a provision of an Act does not commence on the passing of the Act and that provision would, if it had commenced, confer power to –

(a) make an instrument of a legislative or administrative character;

(b) give or serve a notice or other document;

(c) appoint a person to a specified office;

(d) establish a specified body of persons, whether incorporated or not; or

(e) do any other thing for the purposes of the Act –

then, unless the contrary intention appears, the power may, notwithstanding that that provision has not commenced, but subject to subsections (3) and (4) , be exercised at any time after the passing of the Act to the extent that it is necessary or expedient for the purpose of bringing the Act, or specified provisions of the Act, into operation, or giving full effect to the Act, or specified provisions of the Act, when or after that provision commences.

(2)  Where –

(a) a provision of an Act does not commence on the passing of the Act and the provision would, if it had commenced, amend another Act; and

(b) a provision of that other Act would, if the first-mentioned provision had commenced, confer power to –

(i) make an instrument of a legislative or administrative character;

(ii) give or serve a notice or other document;

(iii) appoint a person to a specified office;

(iv) establish a specified body of persons, whether incorporated or not; or

(v) do any other thing for the purposes of that other Act –

then, unless the contrary intention appears, the power may, notwithstanding that the first-mentioned provision has not commenced, but subject to subsections (3) and (4) , be exercised at any time after the passing of the Act in which the first-mentioned provision is contained to the extent that it is necessary or expedient for the purpose of giving full effect to that other Act, or specified provisions of that other Act, when or after the first-mentioned provision commences.

(3)  Where a power to make an instrument of a legislative or administrative character, or to give or serve a notice or other document, is exercised as provided in subsection (1) or in subsection (2) , that instrument, notice, or document shall take effect –

(a) on the day on which the provision referred to in subsection (1) or, as the case may be, the provision first-mentioned in subsection (2) commences; or

(b) on the day on which it would have taken effect, if at the time when the instrument was made or the notice or document was served, the provision so mentioned or first-mentioned had commenced –

whichever is the later.

(4)  Where a power to appoint a person to a specified office, or to establish a specified body of persons, is exercised as provided in subsection (1) or subsection (2) , the person so appointed may act in that office, or, as the case may be, the body so established may meet and perform and exercise its functions, duties, and powers, but only for a purpose referred to in subsection (1) or subsection (2) (whichever of those subsections is applicable).

12 Reference to Acts

[Section 12 Subsection (2) amended by No. 39 of 1981, s. 10 ]

(1)  *[Section 12 Subsection (1) amended by No. 39 of 1981, s. 10 ]*An Act passed by the Parliament of Tasmania may, in any Act, instrument, or document, be referred to by the word "Act" alone.

(2)  *[Section 12 Subsection (2) amended by No. 11 of 1962, s. 4 ]*An Act passed by the Parliament of the United Kingdom or the Parliament of England, as the case may be, may, in any Act, instrument, or document, be referred to by the term "Imperial Act".

(3)  *[Section 12 Subsection (3) amended by No. 39 of 1981, s. 10 ]*An Act passed by the Parliament of the Commonwealth may, in any Act, instrument, or document, be referred to by the term "Commonwealth Act" or "Act of the Commonwealth".

13 Citation of Acts

[Section 13 Subsection (1) amended by No. 20 of 1992, s. 5 ]**[Section 13 Amended by No. 20 of 1992, s. 5 ]

(1)  *[Section 13 Subsection (1) amended by 11 Geo. VI No. 43, s. 2 ]*In any Act, instrument, or document –

(a) [Section 13 Subsection (1) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] an Act may be cited –

(i) by its short title or by reference to the regnal year or calendar year in which it is passed; and

(ii) by its number;

(b) any Imperial Act may be cited by its short title, if any, or by reference to the regnal year in which it was passed and its chapter, together with a reference to the United Kingdom; and

(c) [Section 13 Subsection (1) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] any Commonwealth Act may be cited by its short title, if any, or by reference to the calendar year in which it was passed and its number, together with a reference to the Commonwealth; and

(d) any Act or Ordinance of another State or Territory may be cited –

(i) by its short title, if any; or

(ii) in such other manner as is sufficient in an Act or Ordinance of that State or Territory –

together with a reference to that State or Territory.

(2)  *[Section 13 Subsection (2) amended by No. 20 of 1992, s. 5 ]*Any enactment may be cited by reference to the Part, section, subsection, or other division of the Act, Imperial Act, Commonwealth Act or Act or Ordinance of the State or Territory in which it is contained.

(3)  [Section 13 Subsection (3) substituted by No. 20 of 1992, s. 5 ][Section 13 Subsection (3) substituted by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] Any reference referred to in subsections (1) and (2) is to be made –

(a) in the case of an Act of this State on the database, within the meaning of the Legislation Publication Act 1996 , according to a copy of the Act produced or purporting to be produced under section 6(10) of the Legislation Publication Act 1996 ; and

(b) in the case of any other Act of this State, according to a copy of the Act printed or purporting to be printed by the Government Printer; and

(c) in the case of any other Act or Ordinance, according to a copy of the Act or Ordinance printed by the official printer for the Government of the United Kingdom, the Commonwealth or the State or Territory.

(4)  A description or citation in any Act of a portion of another Act shall be construed as including the words, sections, or other parts mentioned or referred to as forming the beginning and the end respectively of the portion comprised in the description or citation.

(5)  *[Section 13 Subsection (5) amended by No. 11 of 1962, s. 5 ]*In any Act any reference to or citation of an Act shall be deemed to include a reference to or citation of all subsequent enactments passed in amendment or substitution of the Act so referred to or cited, whether those subsequent enactments are, or any of them is, passed before or after the passing of the Act in which the reference or citation occurs.

(6)  *[Section 13 Subsection (6) inserted by No. 39 of 1981, s. 11 ]*In any Act, a reference to or citation of an Imperial Act, a Commonwealth Act or an Act or Ordinance of another State or Territory shall be deemed to include a reference to or citation of all subsequent enactments passed in amendment or substitution of the Imperial Act, Commonwealth Act or Act or Ordinance of the State or Territory so referred to or cited, whether those subsequent enactments are, or any of them is, passed before or after the passing of the Act in which the reference occurs.

14 Repeal of repealing Act not to revive prior enactments

(1)  Where an Act, passed after 5th August 1853, repeals an enactment by which any former enactment was repealed, it shall not have the effect of reviving such former enactment unless express words for that purpose are included in such repealing Act.

(2)  Where an enactment is expressed to expire, or to cease to operate, on a specified day, or to remain in force until a specified day, the operation thereof shall continue until the last moment of the day so specified.

15 Continuance of provisions pending operation of those substituted and continuance of existing regulations

[Section 15 Amended by No. 11 of 1962, s. 15 and Sched. 1 ]

(1)  Where an Act repeals, wholly or in part, a former Act and substitutes provisions in lieu thereof, the repealed provisions shall remain in force until the substituted provisions come into operation.

(2)  Where the repealing Act contains power to make any regulations, all regulations made under the repealed Act, so far as the same are not inconsistent with the repealing Act, shall remain in force until rescinded under the repealing Act, and shall be deemed to have been made for the purposes of the repealing Act and may be altered, amended, or rescinded under that Act.

(3)  Where regulations made under a repealed Act have remained in force after the repeal of such Act, any general regulations made under any Act which has been substituted for the repealed Act shall supersede and have the effect of rescinding those made under the repealed Act, unless the contrary is expressly provided.

16 Effect of repeal, expiry, &c.

(1)  Where an Act repeals any other enactment then, unless the contrary is expressly provided, such repeal shall not –

(a) revive anything not in force or existing at the time such repeal took, or shall take, effect;

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed;

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so repealed;

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid –

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed.

(2)  *[Section 16 Subsection (2) substituted by No. 39 of 1981, s. 12 ]*Where an enactment expires or has expired, then, unless the contrary is expressly provided, the expiry shall not –

(a) revive anything not in force or existing at the time the expiry took, or takes, effect;

(b) affect the previous operation of any enactment so expired or anything duly done or suffered under any enactment so expired;

(c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under any enactment so expired;

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so expired; or

(e) affect any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment –

and any such investigation, legal proceeding, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the enactment had not expired.

(3)  [Section 16 Subsection (3) substituted by No. 39 of 1981, s. 12 ] Subsections (1) and (2) apply to and in relation to any regulations that –

(a) are rescinded or expire; or

(b) cease to have effect owing to the repeal or expiry of the enactment under which the regulations are made –

in the same way as those subsections apply to and in relation to enactments that are or have been repealed or, as the case may be, that expire or have expired.

(4)  *[Section 16 Subsection (4) inserted by No. 39 of 1981, s. 12 ]*Where an Act, or a regulation or other instrument or document made, issued, or granted under an Act, is expressed to expire or cease to have effect on a particular day, it shall expire or cease to have effect at the end of that day.

17 References to repealed provisions

Where an Act repeals and re-enacts, with or without modification, any provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as references to the provisions so re-enacted.

18 Effect of repeal by consolidating Acts

Where an Act repeals and consolidates, with or without amendment, enactments relating to any subject and enacts provisions substantially corresponding to those so repealed, for –

(a) the constitution or setting up of –

(i) any districts, areas, or local divisions;

(ii) councils, corporations, boards, trusts, or other executive bodies; or

(iii) any office;

(b) the appointment of officers or the appointment or election of members of any body constituted as aforesaid; or

(c) the making or issuing of proclamations, orders, warrants, certificates, or other documents of authority –

everything done under such repealed provisions, and existing or in force at the time of such repeal, shall continue in force, so far as is not inconsistent with the repealing Act, and all such districts, areas, divisions, bodies, offices, officers, and documents in existence, in office, or in force shall be deemed to have been constituted, elected, appointed, made, or issued respectively under and for the purposes of the repealing Act.

18A Continuing Act to operate from expiration of continued Act

*[Section 18A Inserted by No. 11 of 1962, s. 6 ]*When a Bill for continuing a temporary enactment has been introduced into Parliament, and, at the date of the expiration of the temporary enactment, has not been passed, that Bill, upon receiving the Governor's assent for and on behalf of the Sovereign (or, if reserved for the signification of the Sovereign's pleasure, upon the Sovereign's assents thereto being proclaimed by the Governor) shall, unless the contrary intention appears therein, be deemed to have taken effect in continuing the temporary enactment on and from the date of the expiration thereof; but no person is liable, or shall be subjected, to any punishment, penalty, or forfeiture for or in respect of anything done or omitted to be done by him, contrary to any provision of the temporary enactment, between the date of its expiration and the date of that assent.

19 Construction of statutory instruments

Where an Act confers power to make, grant, or issue any regulation or other instrument, all expressions used in any such instrument shall have the same respective meanings as in the Act conferring the power.

20 Exercise of powers and performance of duties

*[Section 20 Amended by No. 29 of 1984, s. 3 and Sched. 1 ]*Where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed –

(a) from time to time as occasion may require; and

(b) [Section 20 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] if conferred or imposed on the holder of any office, position or appointment as such, by the holder for the time being of such office, position or appointment.

21 Power to appoint includes power to remove, &c.

(1)  *[Section 21 Subsection (1) substituted by No. 92 of 1986, s. 4 ]*Where an Act confers a power to make any appointment to an office or a position, the power includes a power –

(a) to suspend or remove a person appointed under that power;

(b) to reinstate or reappoint any person so suspended or removed;

(c) to appoint some other person, temporarily, in the place of the person so suspended or removed; or

(d) to appoint some other person, temporarily, to the office or position –

(i) where a person previously appointed is, for any reason, unable to carry out the duties of the office or position; or

(ii) where the office or position is vacant.

(1A)  [Section 21 Subsection (1A) inserted by No. 39 of 1981, s. 13 ]**[Section 21 Subsection (1A) omitted by No. 92 of 1986, s. 4 ].  .  .  .  .  .  .  .  

(1B)  *[Section 21 Subsection (1B) inserted by No. 39 of 1981, s. 13 ]*Where the power to appoint a person to an office or position is exercisable only on the recommendation, or with the approval or consent, of some other person, the powers conferred by subsection (1) are exercisable only on such a recommendation or, as the case may be, with such an approval or consent.

(2)  *[Section 21 Subsection (2) amended by No. 39 of 1981, s. 13 ]*Any person appointed under a power referred to in subsection (1) , by writing under his hand, addressed to the person who appointed him, may resign the office or position to which he was so appointed, and on acceptance of such resignation by the appointing person the office or position shall be vacated.

(3)  *[Section 21 Subsection (3) substituted by No. 11 of 1962, s. 7 ]*Where, under a power conferred by an Act, a person is appointed to an office or place for a fixed term, then, unless the contrary is expressly provided in that Act –

(a) he may be reappointed to that office or place at the expiration of that term if he is still qualified as prescribed by that Act; or

(b) if he is not so reappointed and no other person is appointed in his stead, the first-mentioned person may, until –

(i) the date on which some other person is appointed in his stead; or

(ii) a date not later than 6 months after the expiration of that term –

whichever is the earlier date, continue to exercise and perform all the powers, authorities, functions, and duties conferred or imposed upon, or appertaining to, the holder of that office or place as validly and effectually for all purposes as if he had been duly reappointed thereto.

21A Performance of duties, &c., in absence

[Section 21A Inserted by No. 4 of 1990, s. 10 and Sched. 1 ]

(1)  [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] Where –

(a) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] by any enactment, instrument, contract or agreement, any duty, obligation, right or power is imposed or conferred on the holder of an office, position or appointment –

(i) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] arising from the appointment or employment of a person under the State Service Act 2000 ; or

(ii) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] being the office or position of a member, officer or employee of a State authority within the meaning of that Act; or

(iii) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] being a statutory office or any other office or position in the service of the Crown; and

(b) for any reason –

(i) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] the holder of that office, position or appointment is unable to perform or exercise the duty, obligation, right or power; or

(ii) [Section 21A Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] that office, position or appointment is vacant –

that duty, obligation, right or power may be performed or exercised by any eligible person so directed in writing by the appointing authority in the same manner and to the same extent in all respects as if that eligible person were the holder of that office, position or appointment.

(2)  In this section –

[Section 21A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] appointing authority, in relation to an office, position or appointment, means –

(a) [Section 21A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] in the case of an office, position or appointment to which appointments are required by or under an enactment to be made by the Governor – the Minister administering that enactment; and

(b) [Section 21A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] in any other case – the person by whom appointments to that office, position or appointment are authorized to be made;

[Section 21A Subsection (2) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] eligible person, in relation to an office, position or appointment, means a person who possesses the qualifications required by law to be possessed by the holder of that office, position or appointment;

enactment means –

(a) an Act; or

(b) any other instrument of a legislative character; or

(c) any provision of an Act or of an instrument referred to in paragraph (b) .

22 Power to make regulations, &c., includes power to rescind, &c.

*[Section 22 Amended by 25 Geo. V No. 78 ]*Where an Act confers a power to make any proclamations, rules, orders, regulations, or other instruments of a like nature, the power shall be construed as including a power exercisable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend, or vary any such instrument.

22A Power to grant right includes power to vary or revoke

[Section 22A Inserted by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] A power in an Act to grant a right includes a power exercisable in a like manner and subject to the same consent and conditions, if any, to vary or revoke the right.

23 Power to determine includes power to administer an oath

*[Section 23 Amended by 25 Geo. V No. 78 ]*Any court, judge, justice, officer, commissioner, arbitrator, or other person authorized by law or by consent of parties to hear and determine any matter, shall have authority to receive evidence, and examine witnesses, and to administer an oath to, or take an affirmation from, all witnesses lawfully called before them respectively.

23AA Delegation

[Section 23AA Inserted by No. 20 of 1992, s. 6 ]

(1)  If an Act confers a power on a person to delegate a function or power, the person may, in accordance with the Act, delegate the function or power to –

(a) a person by name; or

(b) [Section 23AA Subsection (1) amended by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999] the holder of a particular office or position by reference to the title of the office or position concerned, whether or not the office or position is vacant at the time of the delegation.

(2)  A delegation –

(a) may be general or limited; and

(b) must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorized by the body for that purpose; and

(c) may be revoked, wholly or partly, by the delegator.

(3)  A delegated function or power may be exercised only in accordance with any conditions to which the delegation is subject.

(4)  A delegated function or power that is duly exercised by a delegate is to be taken to have been exercised by the delegator.

(5)  If a function or power is delegated to a particular officer or the holder of a particular office or position –

(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office or position when the function or power was delegated ceases to be that officer or the holder of that office or position; and

(b) the function or power may be performed or exercised by the person for the time being occupying or acting in the office or position concerned.

(5A)  [Section 23AA Subsection (5A) inserted by No. 29 of 2017, Sched. 1, Applied:05 Sep 2017] If a function or power is delegated by a particular officer or the holder of a particular office or position –

(a) the delegation does not cease to have effect merely because the person who was the particular officer or the holder of the particular office or position when the function or power was delegated ceases to be that officer or the holder of that office or position; and

(b) the authority of the delegate to exercise that power or perform that function continues until that authority is terminated by notice in writing by the particular officer or the holder for the time being of the relevant office or position.

(6)  A function or power that has been delegated may, notwithstanding the delegation, be exercised by the delegator.

(7)  This section applies to a sub-delegation of a function or power in the same way as it applies to a delegation of a function or power, but only so far as the Act that authorizes the delegation of the function or power also authorizes the sub-delegation of the function or power.

(8)  In all courts and before all persons acting judicially, an instrument purporting to be executed by a delegate in the capacity as a delegate is to be received in evidence as if it were an instrument executed by the delegator and is to be taken to be an instrument executed by the delegator.

23AAB Power to delegate includes power to authorise

[Section 23AAB Inserted by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] If in an Act a power to delegate a function or power is conferred on a person, the power to delegate the function or power includes a power to authorise another person to perform the function or exercise the power on behalf of the person giving the authorisation and sections 23AA and 23A apply in respect of the authorisation as if it were a delegation.

23A Exercise of certain powers and functions by a delegate

[Section 23A Inserted by No. 11 of 1962, s. 8 ]

(1)  Where, under an Act, the exercise of a power or function by a person is dependent upon the opinion, belief, or state of mind of that person in relation to a matter and that power or function has been delegated in pursuance of that Act, that power or function may be exercised by the delegate upon the opinion, belief, or state of mind of the delegate in relation to that matter.

(2)  Where the operation of a provision of an Act is dependent upon the opinion, belief, or state of mind in relation to a matter of a person specified in that Act and any of the powers or functions of that person have been delegated, in pursuance of that Act, to some other person, that provision may operate upon the opinion, belief, or state of mind of the delegate in relation to that matter.

23AB Formation of statutory bodies

*[Section 23AB Inserted by No. 4 of 1974, s. 4 ]*Where, by or under any Act, there is required to be, or there may be, established, constituted, or appointed any board, commission, committee, or other body of persons (whether incorporated or unincorporated) and the Governor is satisfied that it is necessary for that body to enter upon its functions forthwith but that it is not practicable for the full number of members of the Board to be elected or appointed within a reasonable time he may declare that Board to be duly established, constituted, or appointed if there are sufficient persons appointed or elected as members thereof to constitute a quorum at a meeting of that body; and on the making of that declaration that body shall, accordingly, be deemed to be duly constituted, established, or appointed.

23B Temporary appointments to vacancies on boards, &c.

[Section 23B Inserted by No. 11 of 1962, s. 8 ]

(1)  Where –

(a) by or under an Act, there is established, constituted, or appointed any board, commission, committee, or other body of persons (whether incorporated or unincorporated) consisting of or including any members to whose appointment nomination by any person or election by any persons is a condition precedent; and

(b) it becomes necessary for any reason to replace a member of the board, commission, committee, or body and it appears to the Governor that it is not practicable for a nomination or an election to be made or held within a reasonable time –

the Governor may, by proclamation setting out the circumstances requiring action, appoint some person to hold office as a member of the board, commission, committee, or body until the vacancy can be regularly filled; but, where the nomination or election is required to be made by a body of persons having a general committee, committee of management, executive committee, or other like institution that can conveniently be consulted, the Governor shall, if it is reasonably practicable so to do, obtain the assent of that committee or institution to the appointment.

(2)  [Section 23B Subsection (2) amended by No. 54 of 2000, Sched. 4, Applied:01 Dec 2001] No proclamation under this section shall be questioned in any court except by an order of review made under the Judicial Review Act 2000 ; and if on the hearing of the information judgment of ouster is given, all the acts of the person ousted purporting to be done by virtue of his appointment before the date of judgment shall, notwithstanding the judgment of ouster, be deemed to be as valid for all purposes as if he had been lawfully appointed to the board, commission, committee, or body of persons.

23C Power of statutory bodies to act during vacancies in membership

*[Section 23C Substituted by No. 4 of 1974, s. 5 ]*Where pursuant to any Act there is established, constituted, or appointed any board, commission, committee, or other body of persons (whether incorporated or unincorporated) comprising 2 or more members that Act shall, unless the contrary intention appears therein, be deemed to empower that board, commission, committee, or other body to function, and the members, or persons empowered to act as members thereof, to act, notwithstanding any vacancies in the membership thereof, so long as there are sufficient members to constitute a quorum at a meeting of that board, commission, committee, or other body.

23D Payment of persons appointed before commencement of Act

*[Section 23D Inserted by No. 11 of 1962, s. 8 ]*Where a person is appointed to any office or place under or for the purposes of an Act before the commencement of that Act that person may, during the period between the date of his appointment to that office or place and the date of the commencement of that Act, be paid such remuneration and such sums by way of reimbursement of expenses as he could have been paid if the Act had commenced on the date of his appointment.

23E Exercise of power of Governor to approve, &c., remuneration of office holders

[Section 23E Inserted by No. 20 of 2013, s. 4, Applied:20 Jun 2013] Where an Act provides the Governor with the power to approve, determine or otherwise fix the remuneration, expenses or other emoluments payable to the holder of an office, that power may also be exercised by –

(a) a Minister; or

(b) any other person authorised in writing by the Governor for that purpose.

24 Construction of certain references, expressions, and words

*[Section 24 Amended by 25 Geo. V No. 78 ]**[Section 24 Amended by No. 39 of 1981, s. 14 ]*In any Act –

(a) references to the Sovereign reigning at the time of the passing of that Act, or to the Crown, shall be construed as references to the Sovereign for the time being;

(b) expressions referring to writing shall be construed as including references to any mode of representing or reproducing words, figures, or symbols in a visible form;

(ba) [Section 24 Amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] expressions referring to printing shall be construed as including references to typewriting and writing reproduced by lithography or by any mechanical, electrical or electronic means;

(bb) references to a document shall be construed as including references to –

(i) any paper or other material on which there is printing or writing or on which there are marks, symbols, or perforations having a meaning for persons qualified to interpret them; and

(ii) [Section 24 Amended by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999] a disc, tape, or other article from which sounds, images, writing, or messages are capable of being reproduced; and

(c) [Section 24 Amended by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999] .  .  .  .  .  .  .  .  

(d) words in the singular shall include the plural and words in the plural shall include the singular –

and where any word is defined every derivative of that word shall have a meaning corresponding with such definition.

24A Genders

[Section 24A Inserted by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999]

(1)  A word or expression that indicates one or more particular genders is taken to include every other gender.

(2)  A word in either the masculine or feminine gender includes a body corporate or unincorporate.

25 References to Minister

Where in any Act any Minister is referred to, such reference, unless the contrary intention appears, shall be deemed to include any Minister for the time being acting for and on behalf of such Minister.

26 References to an officer in general terms

Where in any Act reference is made in general terms to any person holding a particular office or position, such reference shall be deemed to include all persons who at any time occupy for the time being such office or position.

27 References to particular officers, &c.

*[Section 27 Amended by No. 29 of 1984, s. 3 and Sched. 1 ]*In any Act –

(a) references to any officer or office shall be construed as references to such officer or office in and for this State;

(ab) [Section 27 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] references to any employee, position or appointment shall be construed as references to such employee, position or appointment in and for this State; and

(b) references to localities, jurisdictions, and other matters and things shall be construed as references to such localities, jurisdictions, and other matters and things in and of this State.

28 Measurement of distance

In the measurement of any distance for the purposes of any Act, that distance, unless the contrary is expressly provided, shall be measured in a straight line on a horizontal plane.

29 Reckoning of time

[Section 29 Substituted by No. 11 of 1962, s. 9 ]

(1)  *[Section 29 Subsection (1) amended by No. 39 of 1981, s. 15 ]*Where by or under any Act any period of time, dated or reckoned from a given day, act, or event, is prescribed or allowed for any purpose that period of time shall be reckoned exclusively of that day, or of the day of that act or event, as the case may be.

(2)  Where by or under an Act a period is expressed to be a specified number of clear days or a specified number of days at least, that period shall be reckoned exclusively both of the given day or of the day of the specified act or event and also of the day on which the purpose is to be fulfilled.

(3)  [Section 29 Subsection (3) amended by No. 82 of 2000, Sched. 1, Applied:13 Dec 2000] Where any time, or the first or last day (according as it is reckoned backwards or forwards) of any period of time, prescribed or allowed for the doing of any act or thing falls on a Sunday or on any day which is a statutory holiday as defined in the Statutory Holidays Act 2000 or a public holiday throughout the State or in that part of the State where the act or thing is to be, or may be, done (which days are in this section referred to as excluded days) the act or thing –

(a) if the time or period of time is reckoned forwards, shall be considered as done in due time if it is done on the next day afterwards, not being an excluded day; and

(b) if the time or period of time is reckoned backwards, shall not be considered as done in due time unless it is done on the next day before, not being an excluded day.

(4)  Where the last day of the period prescribed or allowed for the filing or registration of a document or instrument falls on a day on which the office in which the filing or registration is to be effected is not open, the document or instrument may be filed or registered on the next ensuing day on which the office is open.

(5)  Where any act or proceeding is directed or allowed to be done on a particular day so fixed or prescribed that subsection (3) is not applicable, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day.

(6)  When an act or proceeding is directed or allowed to be done or taken within any time not exceeding 6 days, excluded days shall not be reckoned in the computation of time.

29A Application of national standards of weights and measures

[Section 29A Inserted by No. 11 of 1962, s. 9 ]

(1)  On and after the date from which, by virtue of the operation of the Commonwealth Act , the Commonwealth legal units of measurement of a physical quantity are the sole legal units of measurement of that physical quantity, a reference in any Act to a unit of measurement of that physical quantity shall, if there is a Commonwealth legal unit of measurement of that physical quantity of the same name and unless the contrary intention appears, be read as a reference to that Commonwealth legal unit of measurement.

(2)  In this section –

Commonwealth Act means the National Measurement Act 1960 of the Commonwealth, and includes that Act as amended from time to time and any Commonwealth Act passed in substitution for that Act;

Commonwealth legal unit of measurement means a unit of measurement prescribed under the Commonwealth Act .

29AB Service of notices and other documents

[Section 29AB Inserted by No. 20 of 1992, s. 7 ]

(1)  If an Act authorizes, requires or permits a notice or other document to be served on a person, whether the expression "serve", "deliver", "give" or "send" or any other expression is used, without directing it to be served in a particular manner, the notice or document may be served –

(a) on a natural person –

(i) by giving it to the person; or

(ii) by leaving it at, or sending it by post to, the person's residential or postal address or place or address of business or employment whichever is last known to the server of the notice or other document; or

(b) on any other person by leaving it at, or sending it by post to, the person's principal or registered office or principal place of business.

(2)  Nothing in subsection (1)  –

(a) affects the operation of any other law that authorizes or requires the service of a notice or document otherwise than as provided by that subsection; or

(b) affects the power of a court or person acting judicially to authorize service of a notice or document otherwise than as provided in that subsection.

30 Effecting service by post

(1)  [Section 30 Subsection (1) amended by No. 29 of 2018, s. 10, Applied:10 Dec 2018] [Section 30 Subsection (1) amended by No. 29 of 2018, s. 10, Applied:10 Dec 2018] *[Section 30 Subsection (1) amended by No. 20 of 1992, s. 8 ]*Where any Act, including this Act, authorizes or requires any notice or other document to be given, sent, served, or delivered by post, such giving, sending, serving, or delivery shall be deemed to be effected by properly addressing and posting the document as a letter and paying for that postage (whether before or after the letter is posted) and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.

(2)  [Section 30 Subsection (2) amended by No. 29 of 2018, s. 10, Applied:10 Dec 2018] [Section 30 Subsection (2) amended by No. 29 of 2018, s. 10, Applied:10 Dec 2018] *[Section 30 Subsection (2) substituted by No. 11 of 1962, s. 10 ]*When an Act authorizes or requires any notice or other document to be given, sent, served, or delivered by registered post, the giving, sending, serving, or delivery thereof shall be deemed to be effected by properly addressing and posting the notice or document as a letter and paying for that postage (whether before or after the letter is posted) –

(a) duly registered; or

(b) unless the contrary intention appears in that Act, sent by means of the certified mail service –

as provided by the postal regulations as in force for the time being, and, unless the contrary is proved, shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course of post.

(3)  *[Section 30 Subsection (3) added by 25 Geo. V No. 78 ]*Except where otherwise provided any such letter as aforesaid may be addressed to the usual or last known address of the person to whom it is to be sent.

30A Electronic service of infringement notices

[Section 30A Inserted by No. 38 of 2015, s. 4, Applied:13 Oct 2015] An infringement notice –

(a) may be served electronically if the intended recipient of the notice consents to such service; and

(b) is taken to have been served on the intended recipient if it is sent electronically to an address or number provided for that purpose.

31 Public notices and advertising

(1)  Where by any Act it is provided that public notification or notice shall be given of any matter not required by law to be published in full, such provision shall be construed to mean that a notice comprising the essential features of such matter shall be published in the Gazette or in a newspaper, or in both, as may be indicated by the context.

(2)  Where by any Act it is provided that any matter shall be advertised, then, unless the contrary intention appears, such matter shall be published in such publications, if any, as may be specified by such provision, and if no particular publication is specified therein, the same shall be published in a newspaper.

(3)  Where no number of publications is prescribed in any such provision as aforesaid, it shall be sufficient to publish the prescribed matter once in each of the ways prescribed by such provision, or, if no other way is prescribed, in a newspaper.

(4)  For the purposes of this section and of any such provisions as aforesaid, the term

newspaper shall mean a daily newspaper generally circulating in the district or place to which the matter required to be published relates or in which it arises.

32 Alternative procedure in respect of offences

Except as otherwise provided by the Criminal Code Act 1924 , where an act or omission constitutes an offence under each of 2 or more Acts or both under an Act and at common law, the offender shall be liable to be prosecuted and punished under either or any of such Acts or at common law, but shall not be liable to be punished twice for the same offence.

33.

[Section 33 Amended by 25 Geo. V No. 78 ] [Section 33 Repealed by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998]

34 Attempt to commit any offence to be an offence

Where by any Act an offence is constituted, any attempt to commit such offence shall be an offence and be punishable in the same manner as the offence constituted by such Act.

35 Corporations

(1)  Every provision of an Act relating to offences punishable upon indictment or upon summary conviction shall be construed to apply to bodies corporate as well as to individual persons.

(2)  Where under any Act any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate where such body is the party aggrieved.

36 Crimes and offences where similar to be similarly dealt with

(1)  Where an act or omission constitutes a crime under the provisions of any Act and the like act or omission constitutes an offence punishable summarily under the provisions of some other Act, the principles of criminal responsibility applicable in relation to such crime shall be applied in relation to such offence, and all terms and expressions used in relation to such offence shall have the same meaning and construction as when similarly used in relation to such crime.

(2)  In any such case as aforesaid, the provisions of the Criminal Code, so far as the same are applicable and to the extent hereinbefore provided, shall be applied in relation to any such offence.

37 Effect of specifying penalties in Acts

[Section 37 Substituted by No. 39 of 1981, s. 16 ]

(1)  Where in an Act a penalty is specified in respect of a contravention of, or a failure to comply with, that Act or a provision of that Act, then, unless the contrary is expressly provided, that specification indicates that the contravention or failure to comply is an offence punishable by a penalty not exceeding that so specified.

(2)  Where in an Act a penalty is specified in respect of an offence against that Act, or a provision of that Act, then, unless the contrary is expressly provided, that specification indicates that the offence is punishable by a penalty not exceeding that so specified.

(3)  *[Section 37 Subsection (3) amended by No. 68 of 1994, s. 3 and Sched. 1 ]*Where in an Act a penalty –

(a) is specified without qualification at the foot of a section of an Act;

(b) is specified at the foot of a subsection of a section of the Act, but not at the foot of the section; or

(c) is specified at the foot of a section of the Act and expressed to apply to a specified subsection or specified subsections of the section –

then, unless the contrary is expressly provided, that specification indicates that a contravention of, or failure to comply with, the section or subsection, or, as the case may be, any of the subsections, is an offence and that the offence is punishable by a penalty not exceeding that so specified.

(4)  Where in an Act a maximum penalty and a minimum penalty are specified in respect of an offence against the Act or a provision of the Act, that specification indicates that the offence is punishable by a penalty not less than that minimum nor greater than that maximum.

(5)  *[Section 37 Subsection (5) substituted by No. 43 of 1991, s. 5 and Sched. 1 ]*Where in an Act a penalty or a fine specified in respect of an offence against the Act, or a provision of the Act, is referred to as being a daily penalty or a daily fine, that reference indicates that a penalty or a fine not exceeding that daily penalty or daily fine may, in addition to any other penalty or fine that may be imposed in respect of the offence, be imposed for each day or part of a day during which the offence continues.

(5A)  [Section 37 Subsection (5A) inserted by No. 65 of 2007, s. 4, Applied:01 Jan 2008] Where in an Act a penalty specified in respect of an offence against the Act or a provision of the Act is a fine or term of imprisonment, the offence is, unless the contrary is expressly provided, punishable by the fine, or by the term of imprisonment, or both.

(6)  *[Section 37 Subsection (6) added by No. 13 of 1987, s. 5 and Sched. 1 ]*Nothing in the Penalty Units and Other Penalties Act 1987 affects or prejudices the application of this section in respect of the specification of a penalty in an Act, whether or not that penalty was so specified before, or that penalty is so specified on or after, the day on which the Penalty Units and Other Penalties Act 1987 receives the Royal Assent.

38 Summary proceedings, proceedings by indictment, &c.

[Section 38 Substituted by No. 39 of 1981, s. 17 ]

(1)  [Section 38 Subsection (1) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] Where a provision of an Act expressly or by implication provides –

(a) that any matter or proceeding is to be heard and determined, or dealt with, summarily or by or before justices or a court of summary jurisdiction; or

(b) that an offence is punishable on summary conviction or that a person is liable on summary conviction to a specified penalty or to a penalty not exceeding a specified penalty –

the matter or proceeding shall be heard and determined, or shall be dealt with, or, as the case may be, the proceedings in respect of the offence shall be taken, in accordance with the Justices Act 1959 , and any penalty imposed in respect of the matter, proceeding, or offence may be enforced and recovered as provided by the Sentencing Act 1997 .

(2)  Where a provision of an Act –

(a) constitutes a crime;

(b) makes an offence punishable on indictment; or

(c) makes an offence punishable by imprisonment for a term exceeding 3 years without specifying or indicating that the offence is to be dealt with summarily –

proceedings in respect of the crime or offence shall be by indictment in accordance with the provisions of the Criminal Code .

(3)  Subject to subsection (2) , where –

(a) by a provision of an Act an offence not declared expressly or by implication to be a crime is constituted or made punishable, or any penalty or forfeiture may be imposed in respect of any matter; and

(b) that Act does not contain provisions relating to the manner in which proceedings in respect of the offence shall be taken, or the matter shall be heard and determined –

the proceedings in respect of the offence shall be taken, or, as the case may be, the matter shall be heard and determined, in accordance with the Justices Act 1959 , and any penalty or forfeiture which may be imposed in respect of the offence or matter may be enforced and recovered as provided by that Act.

(4)  [Section 38 Subsection (4) inserted by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] Where a provision of an Act provides that an infringement notice may be issued for an offence, any such infringement notice is to be dealt with in accordance with the Monetary Penalties Enforcement Act 2005 .

38A Publication, &c., of proclamations, orders-in-council, and other instruments

[Section 38A Substituted by No. 40 of 1985, s. 6 ]

(1)  Except as provided in subsection (3) , the provisions prescribed in subsection (2) apply in respect of –

(a) every proclamation or order-in-council made in the exercise of a prerogative right of the Crown;

(b) every proclamation or order-in-council made under an Act or Imperial Act; and

(c) every prescribed instrument made under an Act.

(2)  For the purposes of subsection (1) , the following provisions are prescribed as the provisions that apply in respect of every proclamation or order-in-council referred to in that subsection and in respect of every prescribed instrument:

(a) [Section 38A Subsection (2) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] if the proclamation, order-in-council, or prescribed instrument is not a statutory rule within the meaning of the Rules Publication Act 1953 or is exempted from the operation of that Act, the proclamation, order-in-council, or prescribed instrument shall be published in the Gazette;

(b) if the proclamation, order-in-council, or prescribed instrument is a statutory rule within that meaning, the making of the proclamation, order-in-council, or prescribed instrument shall be notified in the Gazette;

(c) in the case of –

(i) a proclamation made under an Act that fixes the day of the commencement of that Act or a provision of that Act;

(ii) an order-in-council made under an Act that fixes the day of the commencement of a provision of that Act; or

(iii) a prescribed instrument that fixes the day of the commencement of a provision of an Act –

the day so fixed shall be a day on or after the date of publication of the proclamation, order-in-council, or prescribed instrument in the Gazette or, as the case may be, a day on or after the date of notification in the Gazette of the making of the proclamation, order-in-council, or prescribed instrument;

(d) except in the case of any proclamation, order-in-council, or prescribed instrument to which paragraph (c) applies, the proclamation, order-in-council, or prescribed instrument shall take effect –

(i) on or from a day or date that is specified for the purpose in the proclamation, order-in-council, or prescribed instrument or that is ascertainable by reference to a period of time reckoned prospectively or retrospectively from the date of publication of the proclamation, order-in-council, or prescribed instrument in the Gazette or, as the case may be, the date of notification in the Gazette of the making of the proclamation, order-in-council, or prescribed instrument; or

(ii) if no such day or date is so specified or ascertainable, on the date of publication of the proclamation, order-in-council, or prescribed instrument in the Gazette or, as the case may be, on the date of notification in the Gazette of the making of the proclamation, order-in-council, or prescribed instrument –

but the proclamation, order-in-council, or prescribed instrument shall not be expressed to take effect on or from a day or date preceding that date of publication or notification in the Gazette where, if the proclamation, order-in-council, or prescribed instrument were so to take effect –

(iii) the rights or privileges of a person (other than the Crown in right of the State, or any department, instrumentality, authority, or agency of the State) existing at the date of that publication or notification would be prejudiced; or

(iv) liabilities or obligations would be imposed on any person (other than the Crown in right of the State, or any department, instrumentality, authority, or agency of the State) in respect of anything done or omitted to be done on or before that date of publication or notification.

(3)  The provisions prescribed in subsection (2) do not apply in respect of any proclamation or order-in-council made under an Act or Imperial Act or in respect of a prescribed instrument made under an Act where that Act or Imperial Act expressly provides otherwise.

(4)  In this section,

prescribed instrument means an instrument of a legislative character, other than any proclamation or order-in-council referred to in subsection (1) or a regulation.

39 Proclamations, &c., to be judicially noticed

Judicial notice shall be taken of every proclamation and order-in-council by the Governor made or purporting to be made in pursuance of any Act or Imperial Act and published in the Gazette.

39A Regulations to be judicially noticed

[Section 39A Inserted by No. 40 of 1985, s. 7 ]

(1)  Subject to subsection (2) , judicial notice shall be taken of regulations made or purporting to be made under an Act –

(a) that are published in the Gazette, in the case of regulations that are not statutory rules within the meaning of the Rules Publication Act 1953 ; or

(b) the making of which is notified in the Gazette, in the case of regulations that are statutory rules within that meaning.

(2)  Notwithstanding subsection (1) , a court, judge, or justice may require proof of the making of any regulations referred to in that subsection or of their publication in the Gazette, or, as the case may be, of the notification in the Gazette of their making.

39B Judicial notice of orders

[Section 39B Inserted by No. 43 of 1994, s. 4 ]

(1)  Subject to subsection (2) , judicial notice is to be taken of any order made under an Act by a Minister –

(a) that is published in the Gazette, in the case of an order that is not a statutory rule within the meaning of the Rules Publication Act 1953 ; or

(b) the making of which is notified in the Gazette, in the case of an order that is a statutory rule within the meaning of that Act.

(2)  A court, judge or justice may require proof of –

(a) the making of an order; or

(b) the publication of an order in the Gazette; or

(c) the notification in the Gazette of the making of an order.

40 Conditions precedent need not be recited

[Section 40 Amended by No. 11 of 1962, s. 12 ][Section 40 Substituted by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999]

(1)  In this section,

statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority.

(2)  If by any Act the Governor, a Minister, a statutory authority, a rule-making authority or any specified officer is empowered to make or issue any proclamation, order-in-council, order, warrant or other instrument, it is sufficient to cite in the proclamation, order-in-council, order, warrant or instrument the Act authorising its making or issuing, and it is not necessary to recite or set forth any facts or circumstances or the performance of any conditions precedent upon which that power depends or may be exercised.

40A Changes in names of bodies and offices

*[Section 40A Inserted by No. 40 of 1985, s. 8 ][Section 40A Subsection (4) amended by No. 29 of 1984, Sched. 1 ][Section 40A Repealed by No. 4 of 1990, s. 10 and Sched. 1 ]*If a body referred to in an Act changes its name, a reference in the Act to the former name of the body is to be read as a reference to the changed name of the body.

41 Connotation of certain phrases

(1)  [Section 41 Subsection (1) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] In any Act the expressions person and party respectively shall include any body of persons, corporate or unincorporate, other than the Crown.

(2)  *[Section 41 Subsection (2) amended by No. 10 of 1994, s. 3 ]*The expression

committed for trial, used in any Act in relation to a person, shall mean committed to prison with the view of being tried as for a crime or admitted to bail and be so tried.

(3)  The words oath and affidavit, used in any Act in relation to a person allowed by law to affirm in lieu of swearing, shall include affirmation and declaration, and the word swear in the like case shall include affirm and declare.

42.

[Section 40A Substituted by No. 68 of 1962, s. 3 ] [Section 42 Repealed by No. 30 of 1995, s. 3 and Sched. 1 ]

43 Meaning of certain titles, &c.

(1)  *[Section 43 Subsection (1) amended by No. 39 of 1981, s. 19 ][Section 43 Subsection (1) amended by No. 4 of 1990, s. 10 and Sched. 1 ][Section 43 Subsection (1) amended by No. 20 of 1992, s. 9 ]*In any Act –

Australia means the Commonwealth of Australia and, when used in a geographical sense, does not include an external Territory;

British possession shall mean any part of the Sovereign's dominions, exclusive of the United Kingdom, and, where parts of such dominions are under both a central and a local legislature, all parts under such central legislature shall be deemed, for the purposes of this definition, to be one possession;

Central Plan Register means the central plan register established under the Survey Co-ordination Act 1944 ;

coastal waters, when used in relation to Tasmania, has the same meaning as the expression "coastal waters of the State" has in relation to Tasmania under the Coastal Waters (State Powers) Act 1980 of the Commonwealth;

external Territory means a Territory, other than an internal Territory, for the government of which as a Territory, provision is made by a Commonwealth Act;

foreign country means any country, whether or not an independent sovereign State, outside Australia and the external Territories;

[Section 43 Subsection (1) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] Government Printer includes a person –

(a) authorised by the Government of this State to print any matter; or

(b) approved by the Chief Parliamentary Counsel under section 6(10) of the Legislation Publication Act 1996 ;

internal Territory means the Australian Capital Territory, the Jervis Bay Territory or the Northern Territory;

Jervis Bay Territory means the Territory referred to in the Jervis Bay Territory Acceptance Act 1915 of the Commonwealth;

Northern Division, or words of similar import, used in relation to this State, shall be deemed to refer to all that part of the State situate or lying to the north of the forty-second parallel of latitude;

Northern Territory means the Northern Territory of Australia;

Southern Division or words of similar import, used in relation to this State, shall be deemed to refer to all that part of the State situate or lying to the south of the forty-second parallel of latitude;

State means a State of the Commonwealth;

Territory means a Territory of the Commonwealth;

the Commonwealth shall mean the Commonwealth of Australia;

the Governor shall mean the Governor of this State, or the person for the time being administering the government of this State, acting with the advice of the Executive Council;

[Section 43 Subsection (1) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998]

the United Kingdom shall mean the United Kingdom of Great Britain and Northern Ireland.

(1A)  *[Section 43 Subsection (1A) inserted by No. 39 of 1981, s. 19 ]*In any Act, a reference to the State, this State or Tasmania is a reference to the State of Tasmania and its dependencies.

(2)  *[Section 43 Subsection (2) substituted by No. 30 of 1995, s. 3 and Sched. 1 ]*In any Act –

northern area or northern region means that part of the State comprising the city of Launceston and the municipal areas of Break O'Day, Dorset, Flinders, George Town, Meander Valley, Northern Midlands and West Tamar;

north-western area or north-western region means that part of the State comprising the cities of Burnie and Devonport and the municipal areas of Central Coast, Circular Head, Kentish, King Island, Latrobe, Waratah-Wynyard and West Coast;

southern area or southern region means that part of the State comprising the cities of Hobart, Clarence and Glenorchy and the municipal areas of Brighton, Central Highlands, Glamorgan-Spring Bay, Huon Valley, Kingborough, New Norfolk, Sorell, Southern Midlands and Tasman.

(3)  [Section 43 Subsection (3) omitted by No. 30 of 1995, s. 3 and Sched. 1 ].  .  .  .  .  .  .  .

44 Legislative references

*[Section 44 Amended by No. 43 of 1992, s. 4 ]*In any Act –

Australia Acts means –

(a) the Australia Act 1986 of the Commonwealth; and

(b) the Australia Act 1986 of the United Kingdom;

Commonwealth Parliament shall mean the Parliament of the Commonwealth of Australia;

Imperial Parliament shall mean the Parliament of the United Kingdom of Great Britain and Ireland or the Parliament of the United Kingdom of Great Britain and Northern Ireland, according as it relates to a matter before or since 12th April 1927;

Parliament shall mean the Parliament of this State;

sitting-days, used in relation to either House of Parliament, shall mean days on which the House to which the term relates actually sits, whether or not all such days, to which, in any case, reference is made, occur in the same session of Parliament.

45 Administrative terms

[Section 45 Subsection (1) amended by No. 54 of 1986, s. 3 and Sched. 1 ]**[Section 45 Subsection (1) amended by No. 4 of 1990, s. 10 and Sched. 1 ]

(1)  *[Section 45 Subsection (1) amended by No. 11 of 1962, s. 13 ]*In an enactment –

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] Appropriation Act means an Act which authorizes the issue and application of any money from the Public Account to meet –

(a) the cost of the ordinary annual services of the Government; or

(b) expenditure on public works or any property required for public purposes; or

(c) the making of a loan authorized by law;

commencement, in relation to an enactment, means the time of coming into operation, or taking effect, of that enactment;

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019]

the Department means the department that is responsible, in relation to the administration of the enactment in which the expression occurs, to the Minister to whom the administration of that enactment is assigned;

Financial Agreement shall mean the agreement made between the Commonwealth and the States and ratified by the Financial Agreement Act 1927 , and includes that agreement as varied from time to time and any agreement made in substitution therefor;

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] financial year, in respect of any matter relating to the Public Account, or to money provided by Parliament, or to the Treasury, or to taxes or finance, or to accounting or reporting to the Treasurer as to public money, shall mean the period of 12 months terminating on the last day of June;

Gazette, Hobart Town Gazette, Hobart Gazette, Government Gazette, or Tasmanian Government Gazette, respectively shall mean the Tasmanian Government Gazette published, or purporting to be published, by or under the authority of the Government of this State;

gazetted shall mean published in the Gazette;

the Minister shall mean the Minister of the Crown for the time being administering the enactment in which, or in respect of which, the expression is used;

order-in-council shall mean an order made by the Governor in Council;

proclaim means fix, declare or specify by proclamation;

proclamation shall mean a proclamation made by the Governor and published or notified in the Gazette;

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] the Public Account means the Public Account established under the Financial Management Act 2016 ;

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019] the responsible Department, in relation to an enactment other than the enactment in which the expression occurs, means the department that is responsible, in relation to the administration of that other enactment, to the Minister to whom the administration of that other enactment is assigned.

[Section 45 Subsection (1) amended by No. 4 of 2017, Sched. 1, Applied:01 Jul 2019]

(2)  *[Section 45 Subsection (2) added by No. 4 of 1990, s. 10 and Sched. 1 ]*Where –

(a) the administration of an enactment (in this subsection referred to as "the relevant enactment") is assigned, in different respects, to separate Ministers; and

(b) reference is made –

(i) in the relevant enactment to the Minister or to the Department; or

(ii) in another enactment to the Minister administering the relevant enactment or to the responsible Department in relation to the relevant enactment; and

(c) that reference relates to the respects in which the administration of the relevant enactment is assigned to a particular Minister –

that reference shall be interpreted accordingly.

(3)  *[Section 45 Subsection (3) added by No. 4 of 1990, s. 10 and Sched. 1 ]*For the purposes of this section –

assigned means assigned by order under section 4 of the Administrative Arrangements Act 1990 ;

department has the same meaning as in the Administrative Arrangements Act 1990 ;

enactment means –

(a) an Act; or

(b) any other instrument of a legislative character; or

(c) any provision or part of an Act or of an instrument referred to in paragraph (b) .

45A.

[Section 45A Inserted by No. 61 of 1996, s. 3 ] [Section 45A Repealed by No. 10 of 2010, Sched. 1, Applied:27 Jul 2010]

46 Definitions of certain common phrases

*[Section 46 Amended by 25 Geo. V No. 78 ][Section 46 Amended by No. 68 of 1962, s. 4 ][Section 46 Amended by No. 4 of 1974, s. 8 and Sched. 1 ][Section 46 Amended by No. 39 of 1981, s. 20 ][Section 46 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 46 Amended by No. 13 of 1987, s. 6 and Sched. 2 ][Section 46 Amended by No. 20 of 1992, s. 10 ][Section 46 Amended by No. 30 of 1995, s. 3 and Sched. 1 ][Section 46 Amended by No. 62 of 1996, s. 3 and Sched. 1 ]*In any Act –[Section 46 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000]

[Section 46 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Australian lawyer has the same meaning as in the Legal Profession Act 2007 ;

[Section 46 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] Australian legal practitioner has the same meaning as in the Legal Profession Act 2007 ;

[Section 46 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] authorised deposit-taking institution means a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959 of the Commonwealth;

[Section 46 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004]

[Section 46 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 46 Amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017] Building Regulations has the same meaning as in the Building Act 2016 ;

[Section 46 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] commissioned police officer means a commissioned police officer as defined in the Police Service Act 2003 ;

[Section 46 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] Commissioner of Police means the Commissioner of Police as defined in the Police Service Act 2003 ;

[Section 46 Amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] contravene includes fail to comply with;

[Section 46 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000]

council means a council within the meaning of the Local Government Act 1993 ;

[Section 46 Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000]

crime shall mean an offence punishable upon indictment as provided by the Criminal Code , and where in any Act any offence is declared to be a felony or is made punishable upon information, the same shall be deemed to be a crime;

[Section 46 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] enrolled nurse means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession whose name is entered on Division 2 of the Register of Nurses, kept under that Law, as an enrolled nurse;

estate, used in reference to land, shall include any estate or interest, easement, right, title, claim, demand, charge, lien, or encumbrance in, over, to, or in respect of such land;

[Section 46 Amended by No. 62 of 2000, Sched. 1, Applied:14 Nov 2000] fail to comply with includes contravene;

Federal Court means the Federal Court of Australia;

[Section 46 Amended by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999] fee unit has the same meaning as in the Fee Units Act 1997 ;

High Court means the High Court of Australia;

[Section 46 Amended by No. 72 of 2007, Sched. 1, Applied:28 Apr 2008] infringement notice means an infringement notice within the meaning of the Monetary Penalties Enforcement Act 2005 ;

instigate, used in relation to any offence, shall mean counsel, procure, or command;

[Section 46 Amended by No. 67 of 2009, s. 109, Applied:01 Oct 2010] Integrity Commission means the Integrity Commission established under the Integrity Commission Act 2009 ;

judge means –

(a) in relation to a specified court, a judge of that court; or

(b) in any other case, a judge of the Supreme Court;

justice shall mean a justice of the peace;

land shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure and any estate or interest therein;

local authority means the council exercising jurisdiction in the locality to which the context relates;

Magistrates Court means the Magistrates Court of Tasmania;

[Section 46 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] medical practitioner means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the medical profession;

[Section 46 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] [Section 46 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] mental disorder means mental illness, within the meaning of the Mental Health Act 2013 , arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind;

month shall mean calendar month;

municipal area means a municipal area within the meaning of the Local Government Act 1993 ;

newspaper shall mean a newspaper as defined by the Printers and Newspapers Act 1911 ;

offence means any contravention of, or failure to comply with, a law for which a person is liable to be punished, whether summarily or otherwise;

[Section 46 Amended by No. 23 of 2022, s. 4, Applied:24 Oct 2022] paramedic means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the paramedicine profession;

[Section 46 Amended by No. 23 of 2022, s. 4, Applied:24 Oct 2022] pharmacist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the pharmacy profession;

[Section 46 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004]

[Section 46 Amended by No. 26 of 2003, Sched. 1, Applied:01 Jul 2004] [Section 46 Amended by No. 12 of 2016, Sched. 1, Applied:01 Jan 2017] Plumbing Regulations has the same meaning as in the Building Act 2016 ;

[Section 46 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] police officer means a police officer as defined in the Police Service Act 2003 ;

[Section 46 Amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] Police Service means the Police Service established under the Police Service Act 2003 ;

[Section 46 Amended by No. 32 of 1996, Sched. 1, Applied:01 Nov 1999] psychopathic disorder means a persistent disorder or disability of mind (whether or not including subnormality of intelligence) that results in abnormally aggressive or seriously irresponsible conduct on the part of a person and requires or is susceptible to medical treatment;

public place shall mean any place to which, at the relevant time, the public have access, whether on payment of money for admission thereto or otherwise;

[Section 46 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] registered nurse means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the nursing profession whose name is entered on Division 1 of the Register of Nurses, kept under that Law, as a registered nurse;

[Section 46 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service means the State Service constituted by the State Service Act 2000 ;

[Section 46 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service Agency means an Agency within the meaning of the State Service Act 2000 ;

[Section 46 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service employee means an employee within the meaning of the State Service Act 2000 ;

[Section 46 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service employment means employment pursuant to an appointment as an officer or employee under the State Service Act 2000 ;

[Section 46 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service officer means an officer within the meaning of the State Service Act 2000 ;

statutory declaration or solemn declaration shall mean a declaration made and taken –

(a) [Section 46 Amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] in this State, in accordance with the Oaths Act 2001 ;

(b) in the United Kingdom or any British possession beyond this State, before a justice, notary public, or other person authorized by law to take a declaration therein;

(c) in any other place, before a British consul or vice-consul or other person having authority under any Act or Imperial Act to take a declaration;

Supreme Court shall mean the Supreme Court of Tasmania, and shall include the Supreme Court as first constituted under letters patent under the Great Seal of the United Kingdom, dated 13th October 1823;

[Section 46 Amended by No. 18 of 2021, s. 4, Applied:05 Nov 2021] Tasmanian Civil and Administrative Tribunal means the Tasmanian Civil and Administrative Tribunal established by section 8 of the Tasmanian Civil and Administrative Tribunal Act 2020 ;

town shall mean any place proclaimed or declared to be a town under any law authorizing such proclamation or declaration;

will shall include a codicil.

46AA References to Corporations Law and ASIC Law

[Section 46AA Inserted by No. 41 of 1990, s. 98 ][Section 46AA Amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] [Section 46AA Substituted by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] In any Act –

ASC Law has the same meaning as "ASIC Law";

ASC Regulations has the same meaning as "ASIC Regulations" has when ASIC Regulations is used in relation to the ASIC Law;

ASIC Law has the meaning provided for by Part 11 of the Corporations (Tasmania) Act 1990 ;

ASIC Act means the Australian Securities and Investments Commission Act 2001 of the Commonwealth;

ASIC Regulations, when used in relation to –

(a) the ASIC Law, has the meaning provided for by Part 11 of the Corporations (Tasmania) Act 1990 ; and

(b) the ASIC Act, means regulations made, or that have effect as if they were made, under the ASIC Act;

Corporations Act means the Corporations Act 2001 of the Commonwealth;

Corporations Law has the meaning provided for by Part 3 of the Corporations (Tasmania) Act 1990 ;

Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies;

Corporations Regulations, when used in relation to –

(a) the Corporations Law, has the meaning provided for by Part 3 of the Corporations (Tasmania) Act 1990 ; and

(b) the Corporations Act, means regulations made, or that have effect as if they were made, under the Corporations Act.

46A References in laws of the State to Australian citizens

[Section 46A Inserted by No. 4 of 1972, s. 2 ]

(1)  *[Section 46A Subsection (1) amended by No. 4 of 1974, s. 8 and Sched. 1 ]**[Section 46A Subsection (1) amended by No. 88 of 1986, s. 3 and Sched. 1 ]*Subject to subsection (2) , a reference in a law of the State –

(a) to an Australian citizen, shall be read as a reference to a person who is an Australian citizen within the meaning of the Commonwealth Act ; and

(b) to an alien, shall be read as a reference to a person who is not an Australian citizen within the meaning of the Commonwealth Act.

(2)  *[Section 46A Subsection (2) substituted by No. 88 of 1986, s. 3 and Sched. 1 ]*Where a rule of law applies to or in relation to, or has effect with respect to an alien, that rule of law applies to or in relation to, or has effect with respect to, a person who is not an Australian citizen within the meaning of the Commonwealth Act.

(3)  *[Section 46A Subsection (3) amended by No. 88 of 1986, s. 3 and Sched. 1 ]*In this section –

Commonwealth Act means the Australian Citizenship Act 1948 of the Commonwealth;

law of the State means –

(a) an Act and any other law in force in the State;

(b) an instrument (including regulations) having effect by virtue of such an Act; and

(c) an instrument having effect by virtue of an instrument to which paragraph (b) of this definition relates.

46B.

[Section 46B Inserted by No. 10 of 1992, s. 38 ] [Section 46B Amended by No. 66 of 1997, Sched. 1, Applied:01 Feb 1998] [Section 46B Repealed by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000]

46BA.

[Section 46BA Inserted by No. 103 of 1995, s. 3 ] [Section 46BA Amended by No. 63 of 1996, s. 3 ] [Section 46BA Repealed by No. 77 of 2009, Sched. 1, Applied:01 Jul 2010]

46C Declaration of validity of certain laws

[Section 46C Inserted by No. 43 of 1992, s. 5 ]

(1)  In this section, written law means –

(a) an Act; or

(b) any other instrument of a legislative character.

(2)  Each provision of a written law enacted or made or purporting to have been enacted or made before the commencement of the Australia Acts  –

(a) has the same effect as it would have had; and

(b) is as valid as it would have been –

if the Australia Acts had been in force at the time of its enactment or making or purported enactment or making.

47 Regulations

[Section 47 Amended by 25 Geo. V No. 78 ]**[Section 47 Amended by 11 Geo. VI No. 43, s. 5 ]

(1)  *[Section 47 Subsection (1) amended by No. 39 of 1981, s. 21 ][Section 47 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 47 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ]*Where in any Act it is provided that the Governor or any specified authority may make regulations under or for the purposes thereof, those regulations may prescribe –

(a) any matter or thing not inconsistent with the provisions of that Act and not repugnant to any express enactment in force, which –

(i) that Act expressly or by implication empowers or directs to be prescribed; or

(ii) is necessary or convenient for giving effect to the provisions or objects of that Act;

(b) any forms to be used for the purposes of that Act;

(c) the duties of any officers or employees appointed by or under that Act and directions for the administration of the provisions thereof;

(d) as an offence any specified contravention of, or failure to comply with, any of the regulations; and

(e) a penalty or a fine in respect of any such offence of an amount not exceeding such maximum as may be specified in that Act or, where no maximum amount is so specified, not exceeding 20 penalty units and, if the offence is of a continuing nature, a daily fine of such maximum amount as may be specified in that Act or, where no such maximum amount is so specified, not exceeding 5 penalty units.

(2)  Where forms are prescribed by or under any Act, it shall be intended that any document in the prescribed form or to the like effect shall be a sufficient compliance with such Act, provided that any deviation therein from the prescribed form shall not be calculated to mislead or prejudice any person concerned.

(3)  *[Section 47 Subsection (3) substituted by No. 39 of 1981, s. 21 ]**[Section 47 Subsection (3) amended by No. 40 of 1985, s. 9 ]*The following provisions apply to regulations made under the authority of an Act unless the authorizing Act expressly provides otherwise:

(a) [Section 47 Subsection (3) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] [Section 47 Subsection (3) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] if the regulations are not statutory rules within the meaning of the Rules Publication Act 1953 or are exempted from the operation of that Act, the regulations shall be published in the Gazette within 21 days after the day on which they are made;

(b) [Section 47 Subsection (3) amended by No. 69 of 2003, Sched. 1, Applied:15 Dec 2003] if the regulations are statutory rules within that meaning, the making of the regulations shall be notified in the Gazette within 21 days after the day on which they are made;

(c) the regulations shall be laid before each House of Parliament within the first 10 sitting days of the House after the regulations are so published or, as the case may be, the making of the regulations is so notified;

(d) the regulations shall take effect –

(i) on or from a day or date that is specified for the purpose in the regulations or that is ascertainable by reference to a period of time reckoned prospectively or retrospectively from the date of publication of the regulations in the Gazette or, as the case may be, the date of notification in the Gazette of the making of the regulations; or

(ii) if no such day or date is so specified or ascertainable, on the date of publication of the regulations in the Gazette or, as the case may be, on the date of notification in the Gazette of the making of the regulations –

but the regulations shall not be expressed to take effect on or from a day or date preceding that date of publication or notification in the Gazette where, if the regulations were so to take effect –

(iii) the rights or privileges of a person (other than the Crown in right of the State, or any department, instrumentality, authority, or agency of the State) existing at the date of that notification or publication would be prejudiced; or

(iv) liabilities or obligations would be imposed on any person (other than the Crown in right of the State, or any department, instrumentality, authority, or agency of the State) in respect of anything done or omitted to be done on or before that date of notification or publication.

(3A)  *[Section 47 Subsection (3A) substituted by No. 40 of 1985, s. 9 ]*Where –

(a) regulations are not published in the Gazette as required by subsection (3) (a) ;

(b) the making of regulations is not notified in the Gazette as required by subsection (3) (b) ; or

(c) regulations in relation to a matter referred to in subsection (3) (d) (iii) or (iv) are expressed to take effect on or from a day or date preceding the date of publication of those regulations in the Gazette or, as the case may be, on or from a day or date preceding the date of the notification in the Gazette of the making of those regulations –

those regulations are void.

(4)  If either House of Parliament passes a resolution, of which notice has been given within the first 15 sitting days of such House after any regulation is laid before it, that such regulation be disallowed, such regulation thereupon shall be void and thenceforth shall cease to have effect except as regards anything done thereunder prior to the passing of such resolution.

(5)  Notice of the passing of every such resolution shall be gazetted forthwith by the Clerk of the House by which the same was passed.

(6)  Where in any such resolution any section, division, or part of a regulation is expressed to be disallowed, the resolution shall have the effect of annulling only such section, division, or part, and in every other case such disallowance shall extend to the whole of such regulation.

(7)  Where a regulation, or any part thereof, has been disallowed as aforesaid by either House of Parliament, no regulation to the same, or substantially the same, effect made within 12 months after such disallowance shall take effect until the same has been laid upon the table of such House and 30 sitting days of such House have elapsed after the same was so laid, unless such House shall have sooner passed a resolution allowing the same.

(8)  Where by any Act it is provided that regulations may be made thereunder, and the authority by whom the same are to be made is not specified, the same shall be made by the Governor.

(9)  [Section 47 Subsection (9) omitted by No. 30 of 1992, s. 16 ].  .  .  .  .  .  .  .  

(10)  [Section 47 Subsection (10) amended by No. 63 of 1997, Sched. 1, Applied:23 Mar 1998] Every regulation made after the passing of this Act and before the commencement of the Legislation Publication Act 1996 shall be filed and recorded in the office of the Attorney-General, but no regulation shall be challenged, or the validity thereof impugned, on the ground of the non-observance of this provision, nor shall it be necessary to prove compliance therewith in any proceedings under or in relation to such regulation.

(11)  [Section 47 Subsection (11) omitted by No. 11 of 1962, s. 14 ][Section 47 Subsection (11) inserted by No. 63 of 1997, Applied:23 Mar 1998] Every regulation made on or after the commencement of the Legislation Publication Act 1996 is to be filed and recorded by the Chief Parliamentary Counsel in the responsible Department in relation to the Legislation Publication Act 1996 .

(12)  [Section 47 Subsection (12) inserted by No. 63 of 1997, Applied:23 Mar 1998] A regulation may not be challenged, or its validity may not be impugned, on the ground of the non-observance of subsection (11) and it is not necessary to prove compliance with that subsection in any proceedings under or in relation to that regulation.

48 Rules of court

(1)  In any Act the expression

rules of court, used in relation to any Court, shall mean rules made by the authority having, for the time being, power to make rules or orders regulating the practice and procedure of such court.

(2)  The power of such authority to make rules of court shall include power to make rules of court for the purposes of any Act which directs or authorizes anything to be done by rules of court.

48A Savings and transitional provisions

Schedule 1 has effect.

49.

[Section 49 Repealed by No. 11 of 1979, s. 10 ]

SCHEDULE 1 - Savings and trans SCHEDULE 1 - Savings and transitional provisions

1.   Savings and transitional – section 4

Section 4 as amended by section 4 of the Acts Interpretation Amendment Act 1981 applies in the interpretation and construction of regulations that –

(a) are in operation at the commencement of the lastmentioned section; or

(b) take effect after that commencement.

2.   Savings and transitional – section 5

Section 5 as amended by section 5 of the Acts Interpretation Amendment Act 1981 applies to a reference to an Act that –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation at that commencement –

and whether the reference is contained in an Act passed before or after that commencement.

3.   Savings and transitional – section 7

Section 7 as substituted by section 6 of the Acts Interpretation Amendment Act 1981 applies to a reference to the expression "prescribed" where the expression appears in an Act –

(a) passed before and in force at the commencement of the lastmentioned section; or

(b) passed after that commencement.

4.   Savings and transitional – section 7A

Section 7A as substituted by section 7 of the Acts Interpretation Amendment Act 1981 applies to and in relation to an Act that –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation after that commencement.

5.   Savings and transitional – section 11

A power conferred by section 11 , as substituted by section 9 of the Acts Interpretation Amendment Act 1981 , the exercise of which is dependent on the existence of a provision of a kind referred to in section 11 (1) or, as the case may be, first referred to in section 11 (2) , is exercisable where the Act in which the provision is contained –

(a) is passed after the commencement of section 9 of the Acts Interpretation Amendment Act 1981 ; and

(b) was passed before that commencement but the provision had not come into operation before that commencement.

6.   Savings and transitional – section 13

Section 13 as amended by section 11 of the Acts Interpretation Amendment Act 1981  –

(a) applies to a reference to an Imperial Act or a Commonwealth Act that –

(i) is in operation at the commencement of the lastmentioned section; or

(ii) comes into operation after that commencement –

and whether the reference is contained in an Act passed before or after that commencement; and

(b) applies, in the case of a reference contained in an Act that came into operation before the commencement of the lastmentioned section, whether or not the reference is followed by words indicating that the reference includes subsequent amendments of the Imperial or Commonwealth Act referred to.

7.   Savings and transitional – section 16

Section 16 as amended by section 12 of the Acts Interpretation Amendment Act 1981 applies only –

(a) to an Act, whether passed before or after the commencement of the lastmentioned section, which expires after that commencement; and

(b) to regulations, whether made before or after that commencement, which are rescinded, expire or cease to have effect after that commencement; and

(c) to any other instrument or document, whether made before or after that commencement, which expires or ceases to have effect after that commencement.

8.   Savings and transitional – section 21

(1) Section 21 as amended by section 13 of the Acts Interpretation Amendment Act 1981 applies to an Act which confers a power to appoint a person to an office or position where the Act conferring the power –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation after that commencement.

(2) Section 21 (1) as amended by section 5 of the Acts Interpretation Amendment Act 1985 applies to an Act which confers a power to appoint a person to any office or position where the Act conferring the power –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation after that commencement.

9.   Savings and transitional – section 24

Section 24 as amended by section 14 of the Acts Interpretation Amendment Act 1981 applies to and in relation to the interpretation and construction of expressions and references referred to in section 24 whether the Act in which those expressions or references are contained was passed before or after the commencement of section 14 of the Acts Interpretation Amendment Act 1981 .

10.   Savings and transitional – section 37

Section 37 as substituted by section 16 of the Acts Interpretation Amendment Act 1981 applies to and in relation to a penalty specified in an Act that –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation after that commencement.

11.   Savings and transitional – section 38

Section 38 as substituted by section 17 of the Acts Interpretation Amendment Act 1981 applies to a provision of an Act that –

(a) is in operation at the commencement of the lastmentioned section; or

(b) comes into operation after that commencement.

12.   Savings and transitional – section 38A

(1) Section 38A as substituted by section 18 of the Acts Interpretation Amendment Act 1981 applies to a proclamation or an order-in-council that –

(a) is made after the commencement of the lastmentioned section; or

(b) has been made before that commencement but has not taken effect before that commencement –

and, where made under an Act or Imperial Act, so applies whether the Act or Imperial Act was passed before or after that commencement.

(2) Section 38A as substituted by section 6 of the Acts Interpretation Amendment Act 1985 applies to any proclamation or order-in-council or to a prescribed instrument within the meaning of section 38A that –

(a) is made after the commencement of section 6 of the Acts Interpretation Amendment Act 1985 ; or

(b) has been made before that commencement but has not taken effect before that commencement –

and, in the case of –

(c) a proclamation or order-in-council was made under an Act or Imperial Act, so applies, whether the Act or Imperial Act was passed before or after that commencement; or

(d) a prescribed instrument, so applies, whether the Act under which the instrument is made was passed before or after that commencement.

13.   Savings and transitional – section 39A

Section 39A as inserted by section 7 of the Acts Interpretation Amendment Act 1985 applies to regulations referred to in subsection (1) of section 39A that –

(a) are in force at the commencement of section 7 of the Acts Interpretation Amendment Act 1985 ; or

(b) come into force after that commencement.

14.   Savings and transitional – section 40A

Section 40A as inserted by section 8 of the Acts Interpretation Amendment Act 1985 applies to a reference in an Act within the meaning of section 40A that –

(a) is in operation at the commencement of section 8 of the Acts Interpretation Amendment Act 1985 ; or

(b) comes into operation after that commencement.

15.   Savings and transitional – section 46

Section 46 as amended by section 20 of the Acts Interpretation Amendment Act 1981 applies to and in relation to the interpretation and construction of the expression "offence" whether the Act in which that expression occurs was passed before or after the commencement of the lastmentioned section.

16.   Savings and transitional – section 47

(1) Section 47 as amended by section 21 of the Acts Interpretation Amendment Act 1981 applies to regulations made after the commencement of the lastmentioned section and so applies whether the Act under which they are made was passed before or after that commencement, and section 47 (as in force before that commencement) continues to apply to regulations made before that commencement as if section 21 of the Acts Interpretation Amendment Act 1981 had not been enacted.

(2) Section 47 as amended by section 9 of the Acts Interpretation Amendment Act 1985 applies to regulations made after the commencement of the lastmentioned section and so applies whether the Act under which they are made was passed before or after that commencement.