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)).