PART 7
-
POWERS, FUNCTIONS AND DUTIES
History
Pt 7 heading substituted by No 46 of 2011, s 3 and Sch 1 item 62, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. The heading formerly read:
PART VII
-
POWERS CONFERRED AND DUTIES IMPOSED BY ACTS
SECTION 33
EXERCISE OF POWERS AND PERFORMANCE OF FUNCTIONS OR DUTIES
Powers, functions and duties may be exercised or must be performed as the occasion requires
33(1)
Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.
History
S 33(1) amended by No 46 of 2011, s 3 and Sch 1 items 63 to 65, by inserting
"
or function
"
, omitting
"
, unless the contrary intention appears,
"
after
"
function or imposes a duty, then
"
and substituting
"
function or duty must be performed
"
for
"
duty shall be performed
"
, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. No 46 of 2011, s 3 and Sch 3 item 9 contains the following saving provisions:
9 Saving
-
previous interpretation preserved
9
The amendments made by items 63, 65, 67, 69, 70, 71, 72, 80, 82, 84, 85, 87, 88, 90, 104, 111, 113, 114 and 115 of Schedule 1 do not affect by implication the interpretation of:
(a)
subsection 33(1), (2), (3), (3A) or (3B) or
46(1)
or
(3)
or section
34AA
,
34AB
or
34A
of the
Acts Interpretation Act 1901
; or
(b)
subsection
13(1)
or
(3)
of the
Legislative Instruments Act 2003
;
at a time before the commencement of those items.
33(2)
(Repealed by No 46 of 2011)
History
S 33(2) repealed by No 46 of 2011, s 3 and Sch 1 item 66, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading.
S 33(2) formerly read:
33(2)
Where an Act confers a power or imposes a duty on the holder of an office as such, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed by the holder for the time being of the office.
33(2AA)
(Repealed by No 46 of 2011)
History
S 33(2AA) repealed by No 46 of 2011, s 3 and Sch 1 item 66, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading.
S 33(2AA) formerly read:
33(2AA)
In subsection (2),
office
includes a position occupied by an APS employee.
S 33(2AA) inserted by No 146 of 1999.
Meaning of
may
33(2A)
Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word
may
is used, the act or thing may be done at the discretion of the person, court or body.
Powers, functions and duties of bodies not affected by membership vacancies
33(2B)
Where an Act confers a power or function, or imposes a duty, on a body, whether incorporated or unincorporated, the exercise of the power or the performance of the function or duty is not affected merely because of a vacancy or vacancies in the membership of the body.
Power to make instrument includes power to vary or revoke etc. instrument
33(3)
Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
History
S 33(3) amended by No 46 of 2011, s 3 and Sch 1 items 67 and 68, by inserting
"
of a legislative or administrative character
"
and omitting
"
, unless the contrary intention appears,
"
after
"
the power shall
"
, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
33(3AA)
If a condition (the
ongoing condition
):
(a)
must be satisfied before the making, granting or issuing of an instrument; and
(b)
is capable of ceasing to be satisfied after the making, granting or issuing of the instrument;
subsection (3) has effect, in relation to the repeal, rescission or revocation of the instrument, as if the reference to like conditions (to the extent that the reference relates to the ongoing condition) were a reference to the ongoing condition ceasing to be satisfied.
Example:
A Minister may give a person a written permission if, among other things, the Minister is satisfied the person is of good character.
This condition is capable of ceasing to be satisfied after the giving of the permission.
The Minister may repeal, rescind or revoke the permission in the like manner if the Minister ceases to be satisfied that the person is of good character.
History
S 33(3AA) inserted by No 46 of 2011, s 3 and Sch 1 item 69, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
Scope of powers in respect of matters
33(3A)
Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters.
History
S 33(3A) amended by No 46 of 2011, s 3 and Sch 1 item 70, by inserting
"
of a legislative or administrative character
"
, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
33(3AB)
If an Act confers on a person or authority the power to make an instrument (except a legislative instrument, a notifiable instrument or a rule of court):
(a)
specifying, declaring or prescribing a matter; or
(b)
doing anything in relation to a matter;
then, in exercising the power, the person or authority may identify the matter by reference to a class or classes of matters.
Note:
This provision has a parallel, in relation to legislative instruments, and notifiable instruments, in section 13 of the
Legislation Act 2003
.
History
S 33(3AB) amended by No 10 of 2015, s 3 and Sch 1 items 101 and 102, by inserting
"
, a notifiable instrument
"
after
"
except a legislative instrument
"
and substituting
"
and notifiable instruments, in section 13 of the
Legislation Act 2003
"
for
"
in section 13 of the
Legislative Instruments Act 2003
"
in the note, effective 5 March 2016. For application, savings and transitional provisions, see note under s
46AA(1)
.
S 33(3AB) inserted by No 46 of 2011, s 3 and Sch 1 item 71, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
33(3AC)
For the purposes of subsections (3A) and (3AB),
matter
includes thing, person and animal.
History
S 33(3AC) inserted by No 46 of 2011, s 3 and Sch 1 item 71, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
33(3B)
Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall not be taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Act in relation to another aspect of that matter or in relation to another matter.
History
S 33(3B) amended by No 46 of 2011, s 3 and Sch 1 item 72, by inserting
"
of a legislative or administrative character
"
, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading. For saving provisions, see note under s 33(1).
Power to make appointment to an office or place
33(4)
Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall be construed as including a power to appoint a person to act in the office or place until:
(a)
a person is appointed to the office or place; or
(b)
the expiration of 12 months after the office or place was created or became vacant, as the case requires:
whichever first happens, and as also including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place:
Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power to make an appointment to act in an office or place or such power of removal shall only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority.
History
S 33(4) amended by No 46 of 2011, s 3 and Sch 1 item 73, by omitting
"
, unless the contrary intention appears,
"
after
"
any office or place, the power shall
"
and
"
an office or place or such power of removal shall
"
, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading.
33(4A)
(Repealed by No 46 of 2011)
History
S 33(4A) repealed by No 46 of 2011, s 3 and Sch 1 item 74, applicable on and after 27 December 2011, in relation to Acts enacted before, on or after 27 December 2011. For transitional regulations, see note under Part
1
heading.
S 33(4A) formerly read:
33(4A)
In any Act,
appoint
includes re-appoint.
Power to make instrument prescribing penalties
33(5)
Where an Act confers a power to make, grant or issue an instrument (including rules, regulations or by-laws) prescribing penalties not exceeding a specified amount or imprisonment for a specified period, that limitation on the penalties that may be prescribed does not prevent the instrument from requiring the making of a statutory declaration.
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