48Construction of Act and instruments so as not to exceed legislative power

48 Construction of Act and instruments so as not to exceed legislative power

48 Construction of Act and instruments so as not to exceed legislative power

(1) Unless a contrary intention appears, if a provision of this Act or an instrument made under this Act—

(a) would, apart from this section, have an invalid application, but

(b) also has at least one valid application,

it is the intention of the Parliament of New South Wales that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1), the provision is not to have a particular valid application if—

(a) apart from this section, it is clear, taking into account the provision’s context and the purposes or objects underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the legislative power of the Parliament of New South Wales, or

(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application, or a particular invalid application, of the provision had been within the legislative power of the Parliament of New South Wales.

(3) Subsection (2) does not limit the cases in which a contrary intention may be taken to appear for the purposes of subsection (1).

(4) This section is in addition to, and not in derogation of, section 31 of the Interpretation Act 1987.

(5) In this section—

application means an application in relation to—

(a) one or more particular persons, things, matters, places, circumstances or cases, or

(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application, in relation to a provision, means an application because of which the provision exceeds the legislative power of the Parliament of New South Wales.

valid application, in relation to a provision, means an application which, if it were the provision’s only application, would be within the legislative power of the Parliament of New South Wales.