Amendment and replacement of legislation

Amendment and replacement of legislation

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This precedent has been authored by Ilija Vickovich, Lecturer, Macquarie Law School and updated by Dr. Gordon Hughes, Principal, Davies Collison Cave Law.

Introductory note

Where agreements refer to statutes or subordinate legislation, it is not uncommon for a clause to be inserted expressing how the parties intend the agreement to be affected. Where no express term is used, a reference to legislation will be presumed to be a reference to it as repealed or amended. However, parties should consider whether this is what is intended. Changes to legislation after the formation of a contract may have an impact on the contract's performance that is unintended as far as the parties are concerned. An appropriate boilerplate provision would minimise such unintended effects.

Where the parties intend to incorporate by reference a statutory definition, they may do so but should specify whether the reference is to the original statute only or to any amended definitions in the statute up to the date of the agreement. It is often the case that parties may or may not wish at the same time to exclude any subsequent amendments to the statutory definition.

Parties may also intend that any reference to legislation in the contract extend also to all relevant and existing subordinate legislation, regulations and statutory instruments.