Australian Law Omitted Legislation - Still Enforceable?

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Mctinman

Member
14 October 2014
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Good Afternoon,

If a provision within an Act has been omitted, yet still referenced to in various journals. Is it still enforceable Australian law even though it cannot be located in up to date legislation?

I am referring to the ADR provisions in ss100-120 of the Supreme Court of QLD Act 1991.

Thanks for the assistance.
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
If the provision has been amended or repealed, then the old version is no longer in force. The amended version of the legislation is the one taking effect. Where an act/incident happened prior to the amendment, it will still be subject to the provision (pre-amendment). This is because retrospective actions cannot apply. Where an act/incident happened after the amendment, it will no longer be subject to the provision (post-amendment). Every amendment/repeal is made by an amendment/repealing act. You will need to locate this act (it is usually identified in the margins of the effective legislation) and in this act, it will tell you when this amendment takes effect.

Journals and books may be old and reflect older versions of the law. Always check the date of the journal and books and best to use them as a reference guide only. Always use the original source (i.e. the legislation or case law) where possible.
 

Mctinman

Member
14 October 2014
3
0
1
If the provision has been amended or repealed, then the old version is no longer in force. The amended version of the legislation is the one taking effect. Where an act/incident happened prior to the amendment, it will still be subject to the provision (pre-amendment). This is because retrospective actions cannot apply. Where an act/incident happened after the amendment, it will no longer be subject to the provision (post-amendment). Every amendment/repeal is made by an amendment/repealing act. You will need to locate this act (it is usually identified in the margins of the effective legislation) and in this act, it will tell you when this amendment takes effect.

Journals and books may be old and reflect older versions of the law. Always check the date of the journal and books and best to use them as a reference guide only. Always use the original source (i.e. the legislation or case law) where possible.

Thanks for the help, but I am still having issues understanding. This act stipulated the provisions have been omitted not repealed or amended. Could it be said the omission of a provision is akin to it being repealed?

Thanks
 

Sarah J

Well-Known Member
16 July 2014
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Melbourne, Victoria
1. Are you sure the legislation is quoted correctly in the journal/books?
2. If the provision is not in the current version of the legislation then it is no longer enforceable and has been repealed. An omission, if it was indeed in the previous version of the legislation, means that it is no longer in effect.
3. However, it may still be applicable to incidents/matters arising before the repeal.
 

Mctinman

Member
14 October 2014
3
0
1
Yes it has been referenced in several articles.
The provisions remain in the annotations of the Act not in full form. Just labeled Ie S 112. Omitted 2011.
However the key within the Act's annotations also has the term 'repealed', which weren't applied to the omitted provisions.

Would it be the case both terms in the annotations were drafted to have the same effect on provisions?

Thanks again
 

Sarah J

Well-Known Member
16 July 2014
1,314
250
2,389
Melbourne, Victoria
Yes, it would have the same effect, namely that it is no longer operation and is no longer law.