LEGISLATION ACT 2001 - SECT 47 Statutory instrument may make provision by applying law or instrument

LEGISLATION ACT 2001 - SECT 47

    (1)     This section applies if an Act, subordinate law or disallowable instrument (the authorising law ) authorises or requires the making of a statutory instrument (the relevant instrument ) about a matter.

    (2)     The relevant instrument may make provision about the matter by applying an ACT law—

        (a)     as in force at a particular time; or

        (b)     as in force from time to time.

    (3)     The relevant instrument may make provision about the matter by applying a law of another jurisdiction, or an instrument, as in force only at a particular time.

Note     For information on the operation of s (3), see the examples to s (9).

    (4)     If the relevant instrument makes provision about the matter by applying a law of another jurisdiction or an instrument, the following provisions apply:

        (a)     if subsection (3) is displaced by, or under authority given by, an Act or the authorising law—the law of the other jurisdiction or instrument is applied as in force from time to time;

Note     For the displacement of s (3), see s 6, examples 1 and 2.

        (b)     if subsection (3) is not so displaced and the relevant instrument does not provide that the law of the other jurisdiction or instrument is applied as in force at a particular time—the law or instrument is taken to be applied as in force when the relevant instrument is made.

Examples—s (4) (b)

1     The Locust Damage Compensation Determination 2003 (a hypothetical disallowable instrument) provides for the making of claims against a compensation fund. Section 43 states that disputes about claims must be decided in accordance with the Commercial Arbitration Act 1984

(NSW) (the NSW Act ) as in force from time to time. The determination is made on 1 August 2003. The Act under which the determination is made does not displace s (3). Therefore, even though s 43 purports to apply the NSW Act

as in force from time to time, the NSW Act

as in force on 1 August 2003 is applied by the determination.

2     The Locust Damage Compensation Determination 2003 (mentioned in example 1), s 43 states that disputes about claims must be decided in accordance with the Commercial Arbitration Act 1984

(NSW) (the NSW Act ), but does not state that the NSW Act

is to be applied as in force from time to time or at a particular time. The determination is made on 1 August 2003. The Act under which the determination is made does not displace s (3). Therefore, the NSW Act

as in force on 1 August 2003 is applied by the determination.

    (5)     If a law of another jurisdiction or an instrument is applied as in force at a particular time, the text of the law or instrument (as in force at that time) is taken to be a notifiable instrument made under the relevant instrument by the entity authorised or required to make the relevant instrument.

    (6)     If subsection (3) is displaced and a law of another jurisdiction or an instrument is applied as in force from time to time, the text of each of the following is taken to be a notifiable instrument made under the relevant instrument by the entity authorised or required to make the relevant instrument:

        (a)     the law or instrument as in force at the time the relevant instrument is made;

        (b)     each subsequent amendment of the law or instrument;

        (c)     if the law or instrument is repealed and remade (with or without changes)—the law or instrument as remade and each subsequent amendment of the law or instrument;

        (d)     if a provision of the law or instrument is omitted and remade (with or without changes) in another law or instrument—the provision as remade and each subsequent amendment of the provision.

    (7)     The authorising law or, if the relevant instrument is a subordinate law or disallowable instrument, the relevant instrument may provide that—

        (a)     subsection (5) or (6) does not apply to the relevant instrument; or

        (b)     subsection (5) or (6) applies with the modifications stated in the authorising law or relevant instrument.

    (8)     If a provision of an Act, subordinate law or disallowable instrument authorises or requires the application of a law or instrument, the provision authorises the making of changes or modifications to the law or instrument for that application.

    (9)     This section is a determinative provision.

Examples—s (3) and s (9)

Here are 2 examples about the operation of s (3) and (9): the first illustrates how s (3) might be displaced and the second illustrates how a law of another jurisdiction that applies as in force from time to time would operate—

1     The effect of s (3) and s (9), and s (10), def "applying", is that if it is intended to apply, adopt or incorporate a law or instrument as in force from time to time, the authorising law would need to expressly displace s (3) (as illustrated in s 6, examples of different kinds of displacement, example 1) or indicate a manifest contrary intention (as illustrated in example 2 in those examples).

2     The ABC Regulation 2001 (made under a provision like those illustrated in s 6, examples of different kinds of displacement, examples 1 and 2) provides that noise measurements are to be taken in accordance with the NSW noise control manual as in force from time to time. The effect of the ABC Regulation 2001 is that whenever the NSW noise control manual is amended in future, the noise measurements must be taken in accordance with the manual as last amended.

Note     See s 5 for the meaning of determinative provisions, and s 6 for their displacement.

    (10)     In this section:

"ACT law" means an Act, subordinate law or disallowable instrument.

Note     A reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument (see s 7, s 8 and s 9).

"applying" includes adopting or incorporating.

Note     See also s 157 (Defined terms–other parts of speech and grammatical forms).

"disallowable legislative instrument", for a Commonwealth Act, means a legislative instrument that can be disallowed under the Legislation Act 2003

 (Cwlth), chapter 3, part 2 (Parliamentary scrutiny of legislative instruments), including that part, or provisions of that part, applied by another Commonwealth law.

"instrument" includes a provision of an instrument, but does not include an ACT law or a law of another jurisdiction.

"law of another jurisdiction "means—

        (a)     a Commonwealth Act or a disallowable legislative instrument under a Commonwealth Act; or

        (b)     a State Act, or any regulation or rule under a State Act; or

        (c)     a New Zealand or Norfolk Island Act, or any regulation or rule under a New Zealand or Norfolk Island Act; or

        (d)     a provision of a law mentioned in paragraphs (a) to (c).