Interpretation Act 1987 (NSW)

Interpretation Act 1987 No 15 An Act relating to the interpretation, construction, application and operation of the legislation of New South Wales; to enact certain provisions of a common or general nature; to make provision with respect to the exercise of certain statutory functions; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Interpretation Act 1987. 2 Commencement (1) Sections 1 and 2 shall commence on the date of assent to this Act. (2) Subject to this section, this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette. (3) Section 23 shall commence on such day, being a day occurring after the day appointed and notified under subsection (2), as may be appointed by the Governor and notified by proclamation published in the Gazette. (4) Section 81 and Schedule 1 shall commence— (a) on the day appointed and notified under subsection (2), or (b) on the day fixed by proclamation for the purposes of section 2 (2) of the Australian Citizenship Amendment Act 1984 of the Commonwealth, whichever is the later. 3 Definitions (1) In this Act— instrument means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. (2) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty. (3) The Dictionary in Schedule 4 defines certain terms used in Acts and instruments. 4 Act binds Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. 5 Application of Act (1) This Act applies to all Acts and instruments (including this Act) whether enacted or made before or after the commencement of this Act. (2) This Act applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned. (3) Wherever appropriate, this Act applies to a portion of an Act or instrument in the same way as it applies to the whole of an Act or instrument. (4) Nothing in this Act excludes the application to an Act or instrument of a rule of construction applicable to it and not inconsistent with this Act. (5) This section does not authorise a statutory rule to exclude or modify the operation of Part 6 (statutory rules and certain other instruments). (6) The provisions of sections 24, 28, 29, 30, 30B, 33, 42, 43, 69A, 75 and 80 that apply to a statutory rule also apply to an environmental planning instrument. Part 2 Words and expressions 6 Definitions to be read in context Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires. 7 Cognate words If an Act or instrument defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings. 8 Gender and number In any Act or instrument— (a) a word or expression that indicates one or more particular genders shall be taken to indicate every other gender, (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form, (c) a reference to a word or expression in the plural form includes a reference to the word or expression in the singular form, (d) a reference to a person does not exclude a reference to a corporation merely because elsewhere in the Act or instrument there is particular reference to a corporation (in whatever terms expressed), and (e) a reference to a person does not exclude a reference to an individual merely because elsewhere in the Act or instrument there is particular reference to an individual (in whatever terms expressed). 9 Meaning of may and shall (1) In any Act or instrument, the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion. (2) In any Act or instrument, the word "shall", if used to impose a duty, indicates that the duty must be performed. 10 Construction of amending Acts and instruments Words and expressions that occur in an Act or instrument that amends or repeals some other Act or instrument have the same meanings as they have in the other Act or instrument. 11 Words etc in instruments under an Act have same meanings as in the Act Words and expressions that occur in an instrument have the same meanings as they have in the Act, or in the relevant provisions of the Act, under which the instrument is made. 12 References to New South Wales to be implied (1) In any Act or instrument— (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. (2) In any Act or instrument, a reference to a body constituted by or under an Act or instrument need not include the words "New South Wales" or "of New South Wales" merely because those words form part of the body's name or title. 13 Sovereign and Crown In any Act or instrument— (a) a reference to the Sovereign (whether the words "Her Majesty" or "His Majesty" or any other words are used) is a reference to the Sovereign for the time being, and (b) a reference to the Crown is a reference to the Crown in right of New South Wales. 13A NSW Government agencies and statutory bodies representing the Crown (1) If an Act provides that a body is— (a) a NSW Government agency, or (b) a statutory body representing the Crown, the body has the status, privileges and immunities of the Crown. (2) If an Act provides that a body— (a) is not or does not represent the Crown, or (b) is not a NSW Government agency or a statutory body representing the Crown, the body does not have the status, privileges and immunities of the Crown. (3) This section extends (without limiting its operation)— (a) to a provision that is expressed to be made for the purposes of any Act or more generally, and (b) to privileges and immunities conferred by law expressly or as a matter of construction. (4) In any Act or instrument— (a) a reference to a NSW Government agency includes a reference to a body that is declared to be a statutory body representing the Crown, or (b) a reference to a statutory body representing the Crown includes a reference to a body that is declared to be a NSW Government agency. (5) In this section, the Crown includes the State and the Government of the State. 14 Governor In any Act or instrument, a reference to the Governor is a reference to the Governor with the advice of the Executive Council, and includes a reference to any person for the time being lawfully administering the Government. 15 Minister (1) In any Act or instrument— (a) a reference to a Minister is a reference to a Minister of the Crown, and (b) a reference to a particular Minister includes a reference to any other Minister who is acting for or on behalf of the Minister. (2) In any Act, a reference to "the Minister" is a reference to— (a) the Minister administering the Act, (b) if different Ministers are administering the Act in different respects—the Minister administering the Act in the relevant respect, (c) if different Ministers are administering different portions of the Act—the Minister administering the relevant portion of the Act, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act—any one of the Ministers administering the Act or portion of the Act. (3) In any instrument, a reference to "the Minister" is a reference to— (a) the Minister administering the Act under which the instrument is made, (b) if different Ministers are administering that Act in different respects—the Minister administering that Act in the respect in relation to which the instrument is made, (c) if different Ministers are administering different portions of that Act—the Minister administering the portion of that Act under which the instrument is made, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering that Act or a portion of that Act—any one of the Ministers administering the Act or the portion of the Act under which the instrument is made. (4) In an Act or instrument, a reference to the Minister administering another Act means— (a) the Minister administering the other Act, or (b) if different Ministers are administering the other Act in different respects—the Minister administering the other Act in the relevant respect, or (c) if different Ministers are administering different portions of the other Act—the Minister administering the relevant portion of the other Act, or (d) if paragraphs (b) and (c) do not apply and 2 or more Ministers are administering the other Act or a portion of the other Act—any 1 of the Ministers administering the other Act or portion of the other Act. 16 British subjects and aliens (1) In any Act or instrument— (a) a reference to a British subject, or to a natural-born or naturalised subject of Her Majesty or to any other similar expression, is a reference to— (i) an Australian citizen, or (ii) any other person who would, had the relevant Commonwealth law continued in force, be a person who has the status of a British subject or the status of a British subject without citizenship, and (b) a reference to an alien is a reference to a person who would, had the relevant Commonwealth law continued in force, be a person who is an alien within the meaning of that law. (2) If a rule of law applies to or in relation to, or has effect with respect to, a British subject, the rule of law shall apply to or in relation to, or have effect with respect to— (a) an Australian citizen, and (b) any other person who would, had the relevant Commonwealth law continued in force, be a person who has the status of a British subject or the status of a British subject without citizenship, as if the Australian citizen or other person were a British subject. (3) If a rule of law applies to or in relation to, or has effect with respect to, an alien, the rule of law shall apply to or in relation to, or have effect with respect to, a person who would, had the relevant Commonwealth law continued in force, be a person who is an alien within the meaning of that law. (4) In this section, a reference to the relevant Commonwealth law is a reference to— (a) the Australian Citizenship Act 1948 of the Commonwealth, as in force immediately before the commencement of this subsection, and (b) the regulations in force immediately before the commencement of this subsection under the Australian Citizenship Act 1948 of the Commonwealth, as so in force. 17 Public Seal of the State In any Act or instrument, a reference to— (a) the Great Seal of the State, or (b) the Seal of the State, shall be read as a reference to the Public Seal of the State. 18 Sitting days In any Act or statutory rule— (a) a reference to a sitting day, in relation to a House of Parliament, is a reference to a day on which the House actually sits, and (b) a reference to a number of sitting days, in relation to a House of Parliament, is a reference to that number of sitting days, regardless of whether those days occur within the same or within different sessions of Parliament. 18A Tabling of documents (1) In an Act or statutory rule, a reference to tabling a document in a House of Parliament includes taking any action allowed or required under the Standing Rules or Orders of the House to table the document when the House is not sitting. (2) This section applies in relation to the tabling of a document before or after the commencement of this section. 19 Holders of offices (1) In any Act or instrument, a reference to a particular officer or to the holder of a particular office includes a reference to the person for the time being occupying or acting in the office concerned. (2) The office of chairperson, chairman or chairwoman may be referred to by whichever of those words is appropriate in relation to the particular holder of that office. 20 References to statutory rules etc In any Act— by-law means a by-law made under the Act in which that word occurs. ordinance means an ordinance made under the Act in which that word occurs. prescribed means prescribed by, or by a statutory rule made under, the Act in which that word occurs. regulation means a regulation made under the Act in which that word occurs. rule means a rule made under the Act in which that word occurs. 21 References to Colony and punishments for offences (1) (Renumbered as Schedule 4) (2) In any Act passed before the commencement of this Act, and in any instrument made under such an Act— Colony, in relation to any part of Australia, means the State or Territory that corresponds to that part of Australia. the Colony means the State of New South Wales. (3) In any Act or instrument— (a) a reference to an offence that is punishable by imprisonment for a specified term or more includes a reference to a common law offence, and (b) a reference to an offence that is punishable by imprisonment for a specified term or more includes a reference to an offence punishable by imprisonment for life. 21A, 21B (Repealed) 21C References to de facto partners and de facto relationships (1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if— (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) the person is in a de facto relationship with the other person. (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if— (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else. (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case— (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple. (4) Meaning of "related by family" For the purposes of subsection (2), 2 persons are related by family if— (a) one is the child (including an adopted child) of the other, or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or (c) they have a parent in common (including an adoptive parent of either or both of them). (5) Subsection (4) applies— (a) even if an adoption has been declared void or is of no effect, and (b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children. (6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order. 21D References to health practitioners (1) In any Act or instrument, a reference to a named class of health practitioner in a health profession within the meaning of the Health Practitioner Regulation National Law (NSW) means a person who, under that Law, is registered (other than as a student) and is authorised to use that name. (2) However, if the reference is to a registered nurse this is taken not to include a reference to a person who is registered under that Law as an enrolled nurse. Part 3 Commencement of Acts and instruments 22 References to enactment etc of Acts (1) In any Act or instrument, a reference to the enactment of an Act or the passing of an Act is a reference to the fact of the Act's having received the Royal Assent. (2) The date purporting to be the date of assent to an Act, as appearing on a copy of the Act published on the NSW legislation website, is admissible in any legal proceedings as evidence of the date of assent to the Act. 23 Commencement of Acts (1) An Act shall commence, or shall be deemed to have commenced— (a) except as provided by paragraphs (b) and (c)—on the day occurring 28 days after the date of assent to the Act, (b) if the Act provides for its commencement, whether by proclamation under the Act or otherwise—on the day or days specified in, or ascertained in accordance with, that provision, or (c) if a day is appointed for its commencement by a proclamation under subsection (2)—on the day so appointed. (2) The Governor may, by proclamation, appoint a day for the commencement of an Act that does not provide for its commencement, being a day that occurs— (a) no earlier than the date of assent to the Act, and (b) no later than the day occurring 28 days after the date of assent to the Act. (3) A power to appoint by proclamation a day on which an Act shall commence does not include power to appoint a day prior to the day on which the proclamation appointing the day is published. (4) A power to appoint by proclamation a day on which an Act shall commence does not include power to appoint different days for different portions of the Act unless express provision is made in the Act for that purpose. (4A) A power to appoint by proclamation different days for the commencement of different portions of an Act includes the power to appoint different days for the commencement of the repeal of different portions of any previous Act or instrument repealed by a provision of the Act. (5) A proclamation appointing a day on which an Act shall commence does not fail merely because the proclamation is not published until after that day but, in that event, the Act shall not commence on that day but shall commence— (a) except as provided by paragraph (b)—on the day on which the proclamation is published, or (b) in the case of a proclamation under subsection (2)— (i) on the day on which the proclamation is published, or (ii) on the day on which the Act would have commenced had the proclamation not been made, whichever is the earlier. (6) An Act may be referred to by its short title (or name) even though the provision that specifies the short title (or name) has not commenced. (7) If an Act provides for its commencement, whether by proclamation under the Act or otherwise— (a) that provision has effect for the purposes of subsection (1) (b), and (b) in the case of an Act that provides for its commencement by proclamation under the Act—such a proclamation may be made and shall have effect, even though that provision has not commenced. (8) In this section, published means published on the NSW legislation website. 24 Time of commencement of Acts and statutory rules If an Act or statutory rule provides that it shall commence, or be deemed to have commenced, on a particular day, it shall commence, or be deemed to have commenced, at the beginning of that day. 25 References to commencement of Acts and instruments If an Act or instrument provides that all of its provisions, with specified exceptions, shall commence, or be deemed to have commenced, at the same time, a reference in any other Act or instrument to the commencement of the firstmentioned Act or instrument shall be read as a reference to the commencement of all of its provisions, with those specified exceptions. 26 Exercise of certain powers between enactment and commencement of Acts and making and commencement of instruments (1) If an Act (in this section referred to as the Act concerned) that does not commence on its enactment would, had it commenced— (a) confer a power, or (b) amend some other Act in such a manner that the other Act, as amended, would confer a power, that must or may be exercised by the making of an instrument of a legislative or administrative character, then— (c) such an instrument may be made, and (d) any thing may be done for the purpose of enabling such an instrument to be made or of bringing such an instrument into effect, before the Act concerned commences, as if the Act concerned had commenced. (2) A provision of an instrument made by virtue of subsection (1) shall take effect— (a) on the day on which the Act concerned commences, or (b) on the day on which the provision would have taken effect had the Act concerned commenced when the instrument was made, whichever is the later. (3) If— (a) this section applies to an Act that would, had it commenced, amend some other Act as referred to in subsection (1) (b), and (b) the other Act has not commenced, this section has effect as if the references in subsections (1) and (2) to the commencement of the Act concerned were references to the commencement of the other Act, as amended by the Act concerned. (4) This section applies to an instrument that does not commence on its making in the same way as it applies to an Act that does not commence on its enactment. For that purpose, a reference in this section to an amendment of some other Act includes a reference to an amendment of some other instrument. Part 4 Amendments and repeals 27 Acts may be amended etc in the same session of Parliament An Act may be amended or repealed in the same session of Parliament as that in which it was passed. 28 Repealed Acts and statutory rules not revived An Act or statutory rule that has been repealed by some other Act or statutory rule is not revived merely because the other Act or statutory rule is subsequently amended or repealed or subsequently ceases to have effect. 29 Repealed Acts and statutory rules continue in force If an Act or statutory rule repeals some or all of the provisions of some other Act or statutory rule and enacts new provisions in substitution for the repealed provisions, the repealed provisions continue in force until the new provisions commence. 29A Revocation of repeal of Acts and instruments (1) The Governor may, by proclamation published on the NSW legislation website, revoke the repeal of an Act or instrument if the revocation of the repeal is authorised by this section. In that case, the Act or instrument is taken not to be, and never to have been, repealed. (2) The revocation of the repeal of an Act or instrument is authorised only if, at the time of the repeal, the Act or instrument effecting the repeal— (a) stated that this section applied to the repeal or otherwise authorised the Governor to revoke the repeal, or (b) described the repeal (in a heading or otherwise) as the repeal of redundant, spent or unnecessary Acts or instruments. (3) The revocation of the repeal of an Act or instrument under this section does not operate so as— (a) to affect in a manner prejudicial to any person (other than the State or an authority of the State) the rights of that person existing before the revocation of the repeal, or (b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the revocation of the repeal. 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not— (a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (d) affect any penalty incurred in respect of any offence arising under the Act or statutory rule, or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect— (a) the proof of any past act or thing, or (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or (c) any amendment or validation made by the Act or statutory rule, or (d) the operation of any savings or transitional provision contained in the Act or statutory rule. (3) This section applies to the amendment or repeal of an Act or statutory rule in addition to, and without limiting the effect of, any provision of the Act or statutory rule by which the amendment or repeal is effected. (4) In this section, a reference to the amendment or repeal of an Act or statutory rule includes— (a) a reference to the expiration of the Act or statutory rule, (b) a reference to an amendment or repeal of the Act or statutory rule effected by implication, (c) a reference to the abrogation, limitation or extension of the effect of the Act or statutory rule, and (d) a reference to— (i) the exclusion from the application of the Act or statutory rule, or (ii) the inclusion within the application of the Act or statutory rule, of any person, subject-matter or circumstance. 30A Transferred provisions (1) This section applies where a provision is transferred from an Act or statutory rule to another Act or statutory rule and an Act or statutory rule states that the provision is a transferred provision to which this section applies. (2) The transfer does not affect the operation (if any) or meaning of the provision, and accordingly the provision is to be construed as if it had not been so transferred. (3) This section applies whether or not the provision is modified, but has effect subject to any such modification. 30B Effect of amendment of instrument by an Act The amendment of an instrument by an Act does not prevent its later amendment or repeal by another instrument. 30C Automatic repeal of amending Acts that have commenced (1) In this section— amending Act means— (a) a whole Act that directly amends or repeals other Acts or instruments and that contains no other provisions apart from ancillary provisions, or (b) a section or subsection of an Act, a schedule or subschedule to an Act or a provision of any such schedule or subschedule that directly amends or repeals other Acts or instruments and that contains no other provisions apart from ancillary provisions. ancillary provision of an amending Act means the long title of the Act, a preamble to the Act, a provision that specifies the short title or name of the Act, a provision that provides for the commencement of the Act, a provision that declares that notes in the Act do not form part of the Act or a provision that gives effect to or describes a schedule to the Act. (2) An amending Act is repealed on the day after all of its provisions have commenced (except as provided by subsection (3)). (3) If an amending Act commences before the date of assent, the amending Act is repealed on the day after the date of assent. (4) The repeal by this section of an amending Act does not, because of the operation of section 30, affect any amendment or repeal made by the amending Act. (5) This section does not apply to an amending Act that makes provision for the repeal of the amending Act. (6) This section applies only to an amending Act enacted after 1 January 2009. 30D Time of repeal of Acts and instruments If an Act or instrument, or a provision of an Act or instrument, is repealed on a day, the Act or instrument, or provision, is repealed at the beginning of the day. Part 5 Construction of Acts and instruments 31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament (1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament. (2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament— (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected. (3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument. 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made. (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made— (a) it shall be a valid provision to the extent to which it is not in excess of that power, and (b) the remainder o