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Legislative Assembly for the ACT: 2002 Week 2 Hansard (21 February) . . Page.. 454..


MR STANHOPE (continuing):

The effect of section 61 being an alternative provision is that, if another act or statutory instrument provides for the making of an instrument, that must be registered under the Legislation Act, for example, regulations. But ordinarily the instrument must be notified in accordance with section 61.

The only situation where section 61 would not apply would be where the other act or statutory instrument uses express words or a manifest contrary intention to indicate that section 61 should not apply. The purpose of this is to ensure that section 61 will always apply unless it has been very clearly excluded in one of these ways. Because section 61 lays down such an important rule, it should not be lightly set aside by another law.

In addition to section 61 there are a number of other Legislation Act provisions that the bill could also declare to be determinative provisions. This is all very riveting and important, but I think that I should read it again, just to make a point, unless you can read it back to me.

Mr Smyth: You read it as many times as you want, Chief Minister.

MR STANHOPE: It is just quite riveting. Mr Speaker, I have indicated that the bill contemplates that at least some of the provisions of the Legislation Act will be declared determinative provisions. The other provisions of the Legislation Act, that is, the non-determinative provisions, are also intended to apply to laws and statutory instruments. The difference is that non-determinative provisions may be displaced more easily than determinative provisions.

We have already noted that a determinative provision may only be displaced by express words or a manifest contrary intention. A non-determinative provision, on the other hand, like the provision of the Interpretation Act, may be displaced by a contrary intention. Members may reasonably ask: what is the difference between a manifest contrary intention and a contrary intention?

Mrs Dunne: I was going to, actually.

MR STANHOPE: Don't you dare. An approximate answer would be to say that, while a manifest contrary intention will usually require a clear contradiction of the relevant Legislation Act provision for it to be displaced, a mere contrary intention may be indicated by something akin to a hint.

In this regard, I draw members' attention to section 6 in the bill, where the distinction is more clearly drawn. I believe that, while the distinction is very subtle when being discussed in the abstract such as I am doing now, in practice it will be more easily grasped. It may be helpful to see the notion of contrary intention as a continuation of the same concept that applied under the Interpretation Act, while manifest contrary intention is intended as a new concept requiring a significantly clearer indication.

I should also point out that the displacement provisions of the bill represent an accommodation. Under our constitutional system, this present Assembly cannot bind its successors except as allowed by section 26 of the self-government act. On the other hand, the displacement provisions seek to flag certain provisions of the Legislation Act,


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