Legislation Interpretation Act 2021

The Act consolidates a number of interpretative concepts and operating defaults that drafters, administrators and courts will apply when construing South Australian legislation.

Standard definitions. Section 4 supplies a long list of definitions that are to be read into "every Act and legislative instrument", unless a contrary intention appears (s 4, s 6). This includes definitions that resolve cross‑references to Commonwealth statutes and institutions (for example, "ADI" referring to the Commonwealth Banking Act, "Australia Acts", "Commonwealth", and references to particular courts and tribunals), as well as definitions of commonly used administrative terms such as "function", "entity", "document", "Minister", "Crown" and "person". Many definitions import external materials by reference, for example the Health Practitioner Regulation National Law (s 4, s 5).

Digital material and modern forms. Section 8 treats words describing physical forms as including digital forms where the information can be produced digitally (s 8(1)-(2)). It imposes a practical requirement where information is kept digitally: a person obliged to produce information must produce a document that reproduces the information in a form capable of being understood by the recipient unless otherwise authorised (s 8(3)(c)-(d)). The Act therefore prescribes a default obligation to make digital records intelligible to the requesting body.

Interpretative approach. Section 14 requires preference for the interpretation that best achieves the purpose or object of an Act or instrument (subject to s 14(2) which expressly rules out creation or extension of criminal liability). Section 16 authorises consideration of extrinsic materials to confirm ordinary meaning, to resolve ambiguity or obscurity, or to avoid a manifestly absurd or unreasonable result. The list of permissible extrinsic material is explicit and includes explanatory memoranda for Bills and the second reading speech (s 16(2)(e)-(f)), reports of commissions and parliamentary committees (s 16(2)(b)-(c)), treaties referred to in the Act (s 16(2)(d)), and other declared documents (s 16(2)(g)). Section 17 declares that an Act or instrument "speaks" at all times so that provisions expressed in the present or future tense apply to circumstances as they arise.

Power limits and legislative competence. Section 15 requires construction of Acts and instruments so they operate to the full extent of, but do not exceed, the legislative power of the State. If a provision would otherwise be in excess of power, it is valid only to the extent not in excess (s 15(3)).

Delegation and appointments. The Act sets rules for appointment powers (s 41) and delegation (s 43). Delegations may be conditional and revocable (s 43(2)), by reference to office title or name (s 43(7)), and a delegation of all functions is read as excluding the power to delegate unless expressly provided (s 43(3)). A delegate’s exercise of a function dependent on opinion, belief or state of mind is taken to be dependent on the delegate’s state of mind (s 43(4)). Delegated acts are treated as acts of the delegator (s 43(5)).

Crown liability and agents. Section 22 establishes a default that Acts or instruments passed after 20 June 1990 bind the Crown unless a contrary intention appears, but not so as to impose criminal liability on the Crown (s 22(1)). It also specifies how to determine whether amendments to older Acts bind the Crown (s 22(2)-(3)) and extends Crown immunity rules to agents of the Crown (s 22(4)-(5)).

Gender balance in nominations. Section 42 prescribes procedural content for Acts or instruments that provide for appointments by nomination from non‑government entities: panels must include at least one woman and one man and, as far as practicable, be gender‑balanced (s 42(2)-(3)). The section defines "woman" and "man" to include persons who self‑identify (s 42(5)).

Service, forms and timing. Section 51 sets a hierarchy for permissible methods of serving documents on individuals and bodies (personal delivery, physical posting to a designated address or last known address, or electronic transmission in a manner agreed to) and establishes a presumption about when posted documents are taken to be served (s 51(2)-(5)). Section 52 permits use of forms to the same effect as a prescribed form provided deviations are not calculated to mislead. Section 44 defines detailed rules for calculating time periods described in Acts and instruments.

Penalties. The Act standardises penalty language by mapping division descriptors to maximum fines, imprisonment terms and expiation fees (s 54) and sets out effect and timing rules for penalties (s 53). Fines recovered under Acts are to be paid to the Treasurer and form part of the Consolidated Account (s 55). The Act authorises any person to take proceedings to recover a fine, penalty or forfeiture unless a right is vested in a particular officer (s 57).

Regulations and transitional rules. Section 60 grants the Governor power to make regulations necessary or expedient to give effect to the Act and to make saving or transitional provisions. Schedule 1 contains transitional provisions affecting operation of s 19 (material that is part of Acts and instruments) and s 44 (calculation of time) for specified pre‑commencement situations (Schedule 1, cls 24-25).

The Act establishes default interpretative and operational rules that affect several groups directly by changing how statutes and instruments are read and administered, and indirectly by altering administrative practice and litigation posture.

Parliament and drafters. The Act imposes defaults that will apply unless Parliament indicates a contrary intention (s 3(3)). That means drafters must decide whether to displace defaults , for example, to state expressly whether the Crown is bound (s 22), how commencement will operate (s 27), or whether "may" is to be read as discretionary or mandatory contrary to s 11. The Act also changes the effect of including examples (s 20) and headings (s 31), and introduces new mechanics such as the "always speaking" principle (s 17) which will influence drafting choices.

Ministers and the Executive. The Act prescribes how the Governor acts (s 21) and provides express delegation rules for functions and appointments (ss 41, 43). It also governs performance of functions when an office is vacant or when a provision is not yet in operation (ss 37-38). Executive actors deciding whether to delegate, appoint or fix commencements will act under these statutory defaults.

Statutory bodies and non‑government nominators. Bodies whose constituting Acts provide for appointment by nomination from non‑government entities are affected by the gender balance prescription in s 42. Non‑government entities making nominations must submit panels that include at least one woman and one man and be, as far as practicable, gender balanced (s 42(2)-(3)). The drafters note that the provision does not derogate from assessing merit (s 42(4)).

Administrative staff and record holders. Section 8’s rules for digital material and s 51’s rules on service create practical obligations on persons and organisations that hold records or are required to serve documents. Anyone required under an Act to produce or make information available who keeps it in digital form must provide that information in a form capable of being understood by the receiving body unless the receiving body authorises otherwise (s 8(3)(c)-(d)). Service can be effected electronically where the recipient has designated or agreed a method (s 51(2)(c), (3)(b)).

Courts and litigants. The courts and parties in litigation are directly affected by the Act’s interpretative provisions. Courts may prefer an interpretation that best achieves the statutory purpose (s 14), consider extrinsic material enumerated in s 16 (including explanatory memoranda and second reading speeches), and apply the "always speaking" rule (s 17). The Act also clarifies that re‑enactment of a provision that has been previously construed does not create a presumption of parliamentary approval of that interpretation (s 18), which affects how litigants and courts treat earlier judicial constructions.

Private parties and business. Businesses and individuals are affected through operational defaults. For example, the rounding down rule for monetary amounts in s 50 affects the construction of statutes or instruments that prescribe calculation and payment of taxes, fees, charges or other amounts. Time calculation rules in s 44 and service rules in s 51 change when obligations are treated as performed and when notices or documents are taken to be received. Entities that must nominate candidates for appointments must comply with s 42’s panel composition rules.

The Crown and Crown agents. The Act’s default on whether an Act binds the Crown depends on enactment date relative to 20 June 1990 and the expression of contrary intention; it also extends Crown immunity to agents in some cases (s 22). Agencies acting on behalf of the Crown fall within s 22’s definitions of "agent" for the purposes of Crown immunity (s 22(6)(b)-(c)).

Regulatory authorities. Authorities with power to make legislative instruments will be affected by the Act’s deeming provisions that legislative instruments are subject to the same interpretative rules (s 3(1)(c), s 12) and by s 40, which makes clear that a power to make an instrument includes power to amend or repeal it.

Across-the-board legal practitioners. Lawyers advising on commencement, repeal effects, service of documents, delegation of powers, or penalties will need to factor in the Act’s defaults and the specific exceptions or limiting rules contained in Parts 3-9.

The Act furnishes a menu of duties, discretions and rights that operate as default statutory obligations and interpretative entitlements. They are expressed as prescriptive rules (musts), permissive rules (mays), and interpretative rights accorded to courts and persons.

Default interpretative duty. Section 14 imposes a statutory duty on interpreters to prefer the construction that best achieves the Act’s purpose or object. It directs that, when selecting among possible constructions, the one that best achieves the purpose is to be preferred, but it expressly does not create or extend criminal liability (s 14(2)). The practical effect is a judicial duty to give purposive weight to statutory texts where purpose is ascertainable.

Discretionary and mandatory conferrals. Section 11 sets the default meaning of "may" as conferring discretion and "must" or "shall" as conferring an obligation. This applies to Acts and instruments passed after 1 January 1873 (s 11(4)). That creates a baseline to resolve whether a power is permissive or mandatory in the absence of an express statutory definition.

Use of extrinsic material. Section 16 permits consideration of extrinsic materials that are capable of assisting interpretation. It specifies the circumstances in which such material may be used: to confirm ordinary meaning, to resolve ambiguity or obscurity, or to avoid a result that is manifestly absurd or unreasonable (s 16(1)(a)-(b)). The Act enumerates the kinds of extrinsic materials that may be considered (s 16(2)), including explanatory memoranda and second reading speeches (s 16(2)(e)-(f)). Subsection 16(3) requires regard to general principles including the desirability that persons be able to rely on ordinary meaning and the need to avoid unnecessary prolongation of proceedings, when deciding whether and with what weight to consider extrinsic material.

Obligations on executives and delegates. Sections 41-43 set out duties and rights concerning appointment and delegation. Section 41(2) gives appointers discretion to determine terms and conditions of appointment, to terminate or suspend appointments, and to make temporary appointments. Section 43(2) permits conditions and limitations on delegations, and subsection 43(6) reserves the delegator’s ability to exercise a delegated function notwithstanding the delegation. Subsection 43(3) presumes that delegations of the power of delegation cannot be made unless expressly provided otherwise.

Service and production duties. Section 51 prescribes modes by which documents may be served and creates a presumption as to the time of service for posted documents (s 51(4)-(5)). Section 8 imposes a duty on persons who keep information digitally and are required to produce it, to reproduce the information in a form capable of being understood by the recipient (s 8(3)(c)-(d)). Section 52 places a duty to avoid forms that are calculated to mislead where a prescribed form exists.

Time‑calculation duties. Section 44 supplies detailed rules for calculating periods specified in legislation. It contains rules that determine whether specified days are included or excluded in calculating periods, and provides for business‑day extensions where the last day falls on a non‑business day (s 44(2)). Subsection 44(3) imposes a default duty that, where no period for doing a thing is specified, the thing must be done "as soon as is reasonably practicable".

Penalties as legal consequences. Sections 53-55 define the relationship between offences and penalties, timing of increased or reduced penalties (s 53(2)), and direct that fines recovered are to be paid to the Treasurer (s 55). Section 54 maps penalty class descriptors to specific maximum imprisonment terms, fines or expiation fees.

Rights to pursue recovery and proceedings. Section 57 grants any person the right to take proceedings to recover fines, penalties or forfeitures imposed by an Act, unless the right is vested in a specified officer. Section 58 standardises references to summary proceedings, complaints and related procedural terms by linking them to the Criminal Procedure Act 1921.

Governor/Executive constraints. Section 21 construes a Governor’s power to act on the Governor’s own as meaning acting with advice and consent of Executive Council for Acts passed after 1 January 1873. This imposes a procedural constraint on exercises of powers styled as exercises by the Governor.

Crown rights and immunities. Section 22 creates a default that Acts and instruments passed after 20 June 1990 bind the Crown unless a contrary intention appears, but not so as to impose criminal liability on the Crown (s 22(1)). It also provides that, where an Act binds the Crown but not so as to impose criminal liability on it, the Crown’s immunity from criminal liability extends to an agent of the Crown when acting within the scope of the agent’s obligations (s 22(4)).

Right to interpret Acts in light of context. Sections 6 and 7 give a right to read definitions in context (s 6) and to give defined words corresponding grammatical forms (s 7). Combined with s 16, this gives courts and users a statutory entitlement to contextualised and purposive interpretation, supported by authorised extrinsic materials.

Regulatory discretion. Section 60(2)(d) expressly allows regulations to provide that a matter in respect of which regulations may be made is to be determined according to the discretion of the Minister or another specified person, which is a delegated decision‑making mechanism available to the executive.

The Act centralises how penalties are to be understood and enforced across South Australian legislation by providing construction rules, standard scales, and recovery powers.

Construction of penalty provisions. Section 53(1) explains the meaning of a penalty expressed at the end of a provision: where an offence is mentioned the penalty is the maximum on conviction; where no offence is mentioned a contravention is an offence punishable by a penalty not exceeding the amount set. Section 53(2) governs temporal application of penalty changes, so increases apply only to offences committed after they take effect and reductions can extend to past conduct if the reduced penalty is imposed after reduction (s 53(2)(a)-(b)). Section 53(3) clarifies that "penalty" includes "punishment".

Standard penalty scales. Section 54 provides a schedule of standard scales that map division descriptors to maximum imprisonment terms, fines and expiation fees. For instance, "Division 1 imprisonment" maps to a term not exceeding 15 years and "Division 1 fine" maps to a fine not exceeding $75,000; the schedule goes down through divisions with corresponding maxima and specific expiation fees for intermediate divisions (s 54). Where an Act or instrument uses an expression taken from the left column in a penalty designation, the right column’s maximum applies unless a specific amount is otherwise provided.

Payment and consolidation of fines. Section 55 requires that fines, penalties and forfeitures recovered under any Act must be paid to the Treasurer and form part of the Consolidated Account. That creates an administrative flow and identifies the financial destination of recovered monetary penalties.

Recovery and who may prosecute. Section 57 gives any person the right to take proceedings to recover fines, penalties or forfeitures imposed by an Act or instrument unless the Act vests the right in particular officers or persons. This opens private enforcement avenues for monetary recoveries where the primary Act does not exclude private recovery actions.

Proceedings classification and procedural linking. Section 58 links statutory references to "summary proceedings", "complaints", and similar charging apparatus to the Criminal Procedure Act 1921. Subsections 58(1)-(4) convert those traditional drafting terms into contemporary procedural forms that map to the Criminal Procedure Act, and subsection 58(5) makes explicit that references to "complaint" should be read to reflect the post‑2016 practice of charging on information.

Concurrent offences and single punishment. Section 59 allows prosecution under any of multiple applicable Acts or at common law if the same act or omission is an offence under more than one law, but prevents double punishment for the same offence unless a contrary intention appears. This allocates prosecutorial discretion across co‑existing statutory and common law offences and limits multiple punishments.

Interpretation of offence references. Section 56 clarifies that a reference to an offence punishable by a specified term or more includes offences punishable by life imprisonment or indefinite terms.

Effect of repeal on penalties and proceedings. Section 32 ensures that repeal, amendment or expiry does not affect previous operations, rights, liabilities, or ongoing investigations and remedies (s 32(2)(b)-(f)). It explicitly provides that investigations and proceedings may be continued and penalties imposed as if repeal had not occurred (s 32(3)), and preserves continuing existence of offices or bodies for the completion of proceedings when necessary (s 32(4)). It therefore protects enforcement machinery and substantive consequences undertaken under prior provisions.

Expiation fees. The schedule in s 54 sets specific expiation fee amounts for various divisions and cross‑references the Expiation of Offences Act 1996 in the notes to s 53. Persons enforcing summary offences must therefore reconcile a statute’s stated expiation framework with s 54’s mapping where the statute uses the division labels rather than explicit amounts.

Regulatory scope. Section 60 permits the Governor to make regulations contemplated by, or necessary or expedient for, the purposes of this Act, including provisions of a saving or transitional nature (s 60(1)-(2)(c)). Regulations may also delegate discretionary determinations to Ministers or specified persons (s 60(2)(d)), which can affect the enforcement and penalty frameworks when exercised under delegated instruments.

The Act is expressly designed to operate as a cross‑cutting interpretative code for South Australian enactments and legislative instruments and to enable reference‑linking to both domestic and external legal materials.

Primacy subject to contrary intention. Section 3 provides that the Act applies to every other Act and legislative instrument (s 3(1)(b)-(c)) and applies to those made before or after its commencement (s 3(2)). That application is expressly subject to any contrary intention in the Act or instrument being interpreted (s 3(3)). Practically, the Act supplies default rules that will be displaced where a later Act expressly or implicitly says otherwise.

References to other enactments and amendments. Sections 35 and 36 govern citation and references to other enactments. A reference in an Act or legislative instrument to another Act includes regulatory instruments made under that Act (s 35(3)). Section 36 treats references to Acts, instruments or provisions as references to them "as amended from time to time" and, where replaced, "as replaced and amended from time to time" (s 36(2)). This creates an interpretative mechanism that treats linked enactments as living texts unless a contrary intention appears in the referencing text.

Imported Commonwealth and external material. Section 4 includes numerous definitions that import Commonwealth statutes, external Territories and national laws into South Australian statutory language. For example, "ADI" is defined with reference to the Banking Act of the Commonwealth; "Health Practitioner Regulation National Law" is referenced and section 5 prescribes how references to named health professions should be read to align with the National Law (s 5(1)-(3)). These importations operate by definition and can bind the construction of South Australian statutory terms to Commonwealth regulatory frameworks.

Use of extrinsic materials including parliamentary materials. Section 16 explicitly lists extrinsic materials that may be considered in interpretation, including explanatory memoranda to Bills and second reading speeches (s 16(2)(e)-(f)). Subsection 16(3) imposes a constraint on their use by requiring regard to the desirability that persons be able to rely on ordinary meaning and to the need to avoid prolonging proceedings. That affects how courts may integrate parliamentary materials and other extrinsic sources in construing provisions.

Amendments as part of principal text. Section 19A, inserted in 2025 (Legislative history), requires that an Act or legislative instrument that amends another Act or instrument must be construed with the other as part of that other Act or instrument (s 19A). This makes amending instruments part of the text for construction purposes and affects the chaining of amendments.

Commencement and legislative instruments. Section 27 deals with commencement of Acts and provides the Governor power to fix commencement by proclamation (s 27(3)). The note directs readers to the Legislative Instruments Act 1978 for commencement of legislative instruments, signalling a cross‑statutory relationship.

Repeal and savings interaction. Section 32 prescribes how repeal, amendment or expiry interacts with ongoing rights, actions and bodies; it preserves rights, liabilities, proceedings and the continued existence of offices for purpose of completing proceedings (s 32(2)-(5)). Section 33 provides that administrative acts done under replaced provisions will be saved if not inconsistent with the replacement (s 33(1)-(2)). These provisions therefore create continuity across statutory transitions.

Electronic communications and evidence statutes. Section 13 refers readers to the Electronic Communications Act 2000 in relation to electronic signing of documents, and s 51’s note cross‑references the Electronic Communications Act 2000 in relation to time and place of service of electronic documents. Section 52’s treatment of forms interacts with any Acts that prescribe forms; the Act allows forms of the same effect so long as deviations are not calculated to mislead.

Crown binding and constitutional limits. Section 15 requires construction so as not to exceed the legislative power of the State. Section 22’s rules about whether an Act binds the Crown are sensitive to enactment dates relative to 20 June 1990 and to expression of contrary intention; this interacts with Crown immunity doctrines and the scope of State legislative competence.

Penalty frameworks and procedural Acts. Section 58 maps traditional statutory references to modern charging and summary procedures by linking them to the Criminal Procedure Act 1921. Section 54’s penalty scales will interact with the Expiation of Offences Act 1996 (note to s 53) and other Acts that specify penalties by division or by labels the Act maps to numeric maxima.

Regulation‑making power and subordinate legislation. Section 60 provides a general head of power for regulations needed for the Act’s implementation and allows regulations to allocate discretionary determination power. That creates a route by which further interaction rules or procedural mechanisms may be established under delegated legislation, subject to the limits and the terms of the principal Act.

The Act’s legislative history is set out within the source and records both the principal enactment and subsequent amendments recorded in the legislative history table. The principal Act, Legislation Interpretation Act 2021 (No 36 of 2021), received assent on 30 September 2021 and commenced on 1 January 2022 (Gazette 23.12.2021 p 4619). The Act repealed the Acts Interpretation Act 1915 (Legislation repealed by principal Act).

Subsequent amendments and consequential changes recorded in the legislative history include:

• Public Holidays Act 2023 (No 39 of 2023), which amended definitions relevant to "bank holiday", "part‑day public holiday" and "public holiday" in s 4. The Public Holidays Act 2023 received assent on 7 December 2023 and changes to those definitions took effect on 1 January 2024 (Sch 1 cl 11 and the itemised "Provisions amended" showing effective dates).

• Statutes Amendment (Attorney‑General's Portfolio) Act 2025 (No 55 of 2025) inserted s 19A (amending Act or instrument to be construed as part of amended Act or instrument). The amendment took effect on 20 November 2025 (s 7, Pt 5).

The legislative history notes that parts 1-6 were omitted under the Legislation Revision and Publication Act 2002 as of 1 January 2024 (Legislation history, "Provisions amended" lists "Pts 1,6 omitted under Legislation Revision and Publication Act 2002 1.1.2024"). The history also lists the specific provisions altered and the devices used to amend definitions (for example, the three definitions amended by 39/2023 Sch 1 cl 11, effective 1.1.2024).

Schedule 1 of the Act contains transitional provisions. In particular:

• Schedule 1, Part 7, clause 24 deals with bills introduced before commencement of section 19: it preserves the prior rule that section headings to amending provisions do not form part of an Act if the Bill for that Act was introduced before commencement of section 19 (Sch 1 cl 24(1)). This is a transitional indulgence for pre‑commencement Bills.

• Schedule 1, Part 7, clause 25 provides that section 44’s time calculation rules do not alter periods that commenced before the Act’s commencement (Sch 1 cl 25). That avoids retrospective disruption to time periods already running.

The history lists consequential amendments to other Acts (Evidence Act 1929; Legislation (Fees) Act 2019; Legislation Revision and Publication Act 2002; Subordinate Legislation Act 1978) effected by the principal Act. It notes that references in legislation may not be automatically updated by the revision and publication program and may therefore be obsolete, prompting careful cross‑checking where necessary.

The Act’s amendment mechanics also enable future changes: s 60 gives the Governor the power to make regulations necessary or expedient for the purposes of this Act, including saving and transitional provisions (s 60(1)-(2)). That provides an administrative route for consequences of future legislative change to be managed through subordinate instruments where appropriate.

The text of the Act as provided contains no judicial decisions, reported cases or litigation material. The Act itself contains provisions that affect litigation practice and the materials courts may consider, but the source does not list or refer to any cases decided under it.

Two provisions in the Act have immediate litigation relevance and therefore will shape how future litigation develops, even though no cases are recorded in the source:

• Section 16 establishes when and what extrinsic material may be considered in statutory construction, enumerating specific classes of materials such as explanatory memoranda, second reading speeches and reports of inquiries (s 16(2)(b)-(f)). Section 16(3) requires consideration of the desirability of relying on ordinary meaning and the need to avoid prolonging proceedings, which may affect admissibility and weight of extrinsic materials in disputes about statutory meaning.

• Section 18 abrogates any presumption that a later enactment or re‑enactment of a provision evidences parliamentary approval of a prior judicial construction (s 18). That provision will be relevant in litigation where parties argue that re‑enactment after a judicial interpretation should be taken to incorporate that interpretation.

The Act’s litigation‑related procedural conversion provisions in s 58 map archaic statutory references (for example "complaint") to the Criminal Procedure Act 1921 processes and modern practice (s 58(1)-(5)). That will affect charge drafting and procedural posture in criminal and quasi‑criminal statutory enforcement matters.

Section 32 preserves the validity of prior acts and the continuation of pending proceedings after repeal or amendment, including authorising continuation of investigations and remedies as if the Act had not been repealed (s 32(2)(f), (3)-(4)). That provision has direct litigation consequences for transitional disputes and for the validity of proceedings commenced under superseded statutes.

Because the source contains no recorded decisions under the Act, practitioners must rely on these statutory provisions and the enumerated extrinsic materials in s 16 when litigating questions of statutory construction. The Act’s interpretative framework and its specific constraints on extrinsic materials (s 16(3)) and on criminal liability expansion (s 14(2)) will be central to early litigation over the meaning of provisions drafted after the Act’s commencement.

The Act contains several drafting and operational defaults that can produce unintended consequences if drafters, decision‑makers or regulated parties do not affirmatively address them in subordinate legislation or in the principal Acts.

Contrary intention caveat. Although the Act applies broadly to Acts and legislative instruments (s 3(1)-(2)), it is expressly subject to a contrary intention (s 3(3)). Drafters who intend to depart from the defaults must include an express contrary intention; failing to do so leaves the default rules in place. That is both a power and a hazard: defaults bind unless otherwise stated.

"May" vs "must" default. Section 11 treats "may" as discretionary and "must/shall" as obligatory for Acts passed after 1 January 1873 (s 11(1), (3)-(4)). If an older Act uses "may" with a different intended meaning, the differing intention should be made explicit. Conversely, modern drafters who assume "may" creates an obligation for administrative convenience must express a mandatory term explicitly.

Two‑year proclamation default. Section 27(6) creates a default that an Act or provision to be brought into operation by proclamation will be taken to come into operation on the second anniversary of assent unless brought into operation earlier (s 27(6)). If a government intends an indefinite or longer delay, the substantive Act must provide for that; otherwise the two‑year default will trigger commencement. This could cause inadvertent commencement of provisions if the executive does not act and drafters have not provided an explicit alternative.

Digital‑format production requirement. Section 8(3) requires persons keeping records in digital form to produce documents that reproduce information in a form capable of being understood by the body unless authorised otherwise (s 8(3)(c)-(d)). Entities that do not have systems to generate human‑readable outputs may face operational burdens unless they secure authorisation or adjust systems.

Rounding down monetary amounts. Section 50 requires calculated amounts relating to tax, fees, charges or other amounts to be rounded down to the nearest lower multiple of 5 cents where the calculated amount is not an exact multiple of 5 cents (s 50). That rule benefits payers to a small extent and may conflict with expectations where other rounding conventions are assumed. Drafters specifying fines, fees or charges by calculation formulas should be aware of this default.

Remote meetings exceptions. Section 39 permits meetings or transactions that would otherwise require physical presence to occur remotely using audiovisual or audio means (s 39(1)), but expressly excludes requirements that a person be physically present to witness signing, execution, certification or stamping of a document or to take an oath, affirmation or declaration in relation to a document (s 39(2)). Bodies relying on remote participation must ensure they do not inadvertently rely on s 39 for actions statutorily required to be physically witnessed.

Delegation and sub‑delegation trap. Section 43(3) presumes that sub‑delegation is not permitted unless expressly allowed by the Act or legislative instrument (s 43(3)). A delegator that intends delegatees to sub‑delegate must ensure the enabling instrument expressly permits sub‑delegation; otherwise purported sub‑delegations could be invalid.

Gender balance nomination mechanics. Section 42 requires nomination panels by non‑government entities to include at least one woman and one man and, where a panel is not specified, to be not less than twice the number of members to be appointed plus one and gender balanced "as far as practicable" (s 42(3)(a)-(b)). The "as far as practicable" qualifier may produce disputes about compliance in tight candidate pools. The provision also includes self‑identification definitions for gender (s 42(5)), which affect how nominating entities classify candidates.

Service presumption pitfalls. Section 51(5) creates a presumption that posted documents are served at the time they would be delivered in the ordinary course of post unless the contrary is proved (s 51(5)). Parties relying on postal service must consider possible disputes about timing and the applicability of electronic service options where designated.

Editorial and legislative history excluded. Section 19(2) excludes editorial notes and material under the heading "Legislative History" from being treated as part of the Act (s 19(2)(a)-(b)). Drafters who expect legislative history to be treated as part of the operative text may be misled.

Re‑enactment not evidence of approval. Section 18 nullifies any presumption that re‑enacting a provision manifests parliamentary approval of prior judicial interpretation (s 18). Users who rely on re‑enactment as evidence of statutory meaning will need other extrinsic materials authorised under s 16.

Penalty division labels. If a statute or instrument uses the division labels mapped in s 54 rather than specifying numeric penalties, the numeric maxima in s 54 apply. Drafters must check whether they intend those maxima or intend to set a specific amount. Expiation fees are explicit for certain divisions; failure to choose explicit amounts can inadvertently import the schedule’s default fees.

Commencement time of day. Section 28 states that if an Act or instrument comes into operation on a particular day, it comes into operation at the beginning of that day (s 28). Timing assumptions about midnight or particular hours should be adjusted accordingly.

Savings and prejudice in repeal. Section 32 preserves previous operations and ongoing proceedings despite repeal, amendment or expiry (s 32(2)-(5)). Parties engaged in transitional matters must be alert to which proceedings and rights are preserved and which fall away, and to the operation of s 33’s saving of administrative acts (s 33(1)-(2)).

This section sets out practical steps for drafters, public officials and practitioners to align their instruments, processes and litigation strategy with the Act’s defaults and avoid the "gotchas" above. Citations are included to the relevant sections.

1. Identify and express contrary intentions where necessary. Because the Act’s provisions apply unless a contrary intention appears (s 3(3)), any provision intended to displace a default must be expressed clearly in the principal Act or instrument. Common examples: specifying whether the Crown is bound, redefining "may/must" uses, or stipulating commencement rules contrary to the s 27 defaults.

2. Draft commencement clauses deliberately. If an Act is to be brought into force by proclamation, consider whether the default two‑year commencement in s 27(6) is acceptable. If an indefinite or extended delay is required, expressly provide for it. Use s 27(3)-(5) powers to allow staggered commencements and, if necessary, a provision exempting the Act from s 27(6) (s 27(7) notes how subsection 6 may be excluded).

3. Use precise mandatory language where obligation is intended. Because s 11 defaults "may" to discretion and "must/shall" to obligation for Acts passed after 1 January 1873 (s 11(1), (3)-(4)), ensure that statutory duties use "must" or equivalent where a mandatory obligation is intended. Where discretion is required, "may" suffices.

4. Account for digital record production and service. For persons and agencies keeping data digitally, ensure record systems can produce human‑readable reproductions if required to produce documents (s 8(3)(c)-(d)). For service of documents, designate appropriate physical and electronic addresses and agree upon electronic methods for service to ensure s 51’s electronic service options are available and recognised (s 51(2)(c), (3)(b)).

5. Provide explicit delegation parameters. If a power to delegate is to include the power of delegation, or if sub‑delegation is desirable, draft the enabling provision expressly to permit delegation of the power of delegation (s 43(3)). Specify whether delegations are revocable, conditional, and to whom the delegations may be made (s 43(2), (7)-(8)).

6. Draft nomination and appointment processes with gender balance compliance in mind. Where an Act provides for appointment by nomination of non‑government entities, incorporate the s 42 requirements or account for them in practice: require nominating entities to give panels that include at least one woman and one man and, as far as practicable, equal numbers of women and men; and ensure merit assessment procedures remain explicit (s 42(2)-(4)).

7. Prescribe forms carefully and avoid misleading deviations. If a form is prescribed, ensure that alternative forms are "to the same effect" and do not contain deviations calculated to mislead (s 52). Maintain records of authorised deviations to defend compliance.

8. Calculate time and dates using s 44 rules. Apply the specific rules for inclusion or exclusion of days, the business day extension in s 44(2) when deadlines fall on non‑business days, and the "as soon as reasonably practicable" default when no period is specified (s 44(3)). For cross‑jurisdictional activities, use legal time in the relevant jurisdiction (s 45).

9. Specify penalties numerically where necessary. If a statute or instrument intends to impose a particular monetary penalty, specify the amount. Otherwise, statutory uses of division labels will import the maxima in s 54 (s 54). Pay attention to expiation fees mapped in the schedule where those are used.

10. Manage repeal and transitional arrangements. When designing repeal, expiry or replacement mechanisms, ensure transitional and saving provisions are drafted to preserve intended rights, obligations and ongoing proceedings consistent with s 32 and s 33 (s 32(2)-(6); s 33(1)-(3)). Use s 60(2)(c) to provide saving or transitional regulation where appropriate.

11. Prepare extrinsic materials to support purposive construction. If a particular purposive interpretation is expected to be necessary, prepare and publish relevant extrinsic materials authorised by s 16(2) (for example, detailed explanatory memoranda and clear second reading speeches) and bear in mind s 16(3)’s constraints on their use and weight.

12. Consider Crown binding expressness. If the intention is that the Crown be bound or not bound by certain provisions, say so expressly. Section 22 provides defaults and special rules depending on enactment date and whether an Act amends an earlier Act (s 22(1)-(3)). Where Crown criminal liability is intended to be excluded or modified, make that explicit.

13. Plan for electronic witnessing or physical witnessing. Where witnessing of signatures or taking oaths is statutorily required, ensure processes comply with s 39’s exclusion of remote satisfaction for witnessing and related items (s 39(2)). Coordinate with the Electronic Communications Act 2000 where electronic signatures or time and place of electronic communications are relevant.

14. Preserve records of service. To benefit from the presumption in s 51(5) about posted items, maintain proof of proper addressing, prepayment and posting. Where electronic service is used, ensure the method is designated or agreed to by the recipient.

15. Use regulation power where appropriate. The Governor’s regulation‑making power (s 60) allows secondary legislation to set out details, exceptions and transitional rules. When particular operating details are impracticable to put in the principal Act, prepare draft regulations and look to s 60(2) to delegate matters that need to be determined by Ministerial discretion.

These compliance steps are practical translations of the statutory defaults and should be implemented in drafting checklists, administrative manuals and operational policy documents to reduce the risk of inadvertent non‑compliance with the Act’s interpretative and operational defaults.