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14 May 2020

Administrative law updater: Calculating time in legislation – a matter of interpretation

By John Carroll, Neil Cuthbert and John Park

Interpretation acts will apply to the calculation of time in other legislation – subject to evidence of a contrary intention.

What is the problem decision-makers face?

In many decision-making contexts, determining the timing by which something must be done is often critical. Where legislation allows or requires something to be done, it will usually specify a date by which that act or thing is to be done. If that date happens to be a non-working day, it is often assumed that the time period specified by the legislation is extended so as to allow that thing to be done on the next working day. This assumption comes from the various interpretation acts across Australian jurisdictions, which apply to all other legislation, except where a "contrary intention" appears. When can a decision-maker be sure that the legislation they are applying has or has not shown a contrary intention to displace an interpretation act?

How did Waterfront Place Pty Ltd v Minister for Planning affect this?

In Waterfront Place Pty Ltd v Minister for Planning [2019] VSCA 156, the Victorian Court of Appeal affirmed that there must be "reasonable certainty" that a statute has shown an intention to exclude an interpretation act (see also ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1 per Justice Gageler). This means that decision-makers should start by assuming that the interpretation act applies, then either look for:

  • an express provision which excludes the relevant interpretation act; or
  • indications drawn from the structure, content and purpose of the legislation in question that the interpretation act is to be excluded.

The facts and decision in Waterfront Place Pty Ltd v Minister for Planning

Under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the Victorian Minister for Planning has a power to call in proceedings, removing them from the Victorian Civil and Administrative Tribunal (VCAT) if the Minister considers that those proceedings raise a major issue of policy the determination of which may have a substantial effect on planning objectives. However, such a notice must be given no later than seven days before the hearing date.

In Waterfront, a hearing was set for a Monday. On a strict application of the above time limit, this meant that the last day on which the notice could be given was the Sunday a week prior. The Minister relied on the general time extension rule and gave the notice on the Monday immediately after. The Applicant argued that the notice was invalid because the VCAT Act showed a contrary intention sufficient to displace the general time extension rule. The VCAT Act contains no express statement of an intention to displace the Victorian interpretation legislation, and so the question of contrary intention arose.

The Court of Appeal made clear that a "contrary intention" arises either by express legislative language or by necessary implication, observing that a "degree of stringency" was entirely appropriate . An implication will only be "necessary" if it is required to make the express provisions workable. In Waterfront, the Court of Appeal determined that no contrary intention was made out, because:

  • first, allowing the Minister to give notice on a Monday would make no difference to the VCAT's processes or to the position of the parties, because the VCAT registry is closed on Sundays in any case; and
  • second, shortening the notice period did not, in and of itself, affect the jurisdiction of the Tribunal.

After Waterfront Place Pty Ltd v Minister for Planning, here's what you need to do

The decision in Waterfront affirms that, generally speaking, interpretation acts apply such that if a specified date or time period falls on a non-working day, time will be extended to the next working day. Depending on the underlying legislation, courts may be willing to impose a relatively high bar for the exclusion of an interpretation act.

Remember that, in some cases, a contrary intention may be found in the underlying "scheme" of the legislation: Re Ross; Ex parte Australian Liquor, Hospitality and Miscellaneous Workers Union [2001] FCA 770. Although the question in Re Ross arose in the context of determining whether an accrued right existed, it is a reminder that decision-makers should always examine the structure, content and purpose of the legislation in question to ascertain the existence of a contrary intention.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.