Deeming provisions

Holdsworth v Police [2020] NSWSC 228

Deeming provisions are always read against the statutory purpose they serve10.  Did transitional rules in the 1996 Act deem a firearms prohibition order to continue in force11? The rule preserves orders ‘made under’ the 1989 Act ‘and in force immediately before’ repeal of that Act.  The original order was made under the repealed 1973 Act, even though it continued in force under the 1989 Act.

Beech-Jones J observed (at [41]) that deeming provisions frequently involve ‘artificial assumptions’ the precise limit of which is often ‘difficult or unrealistic’ to predict12.  A purposive approach confirmed the 1973 order was preserved here.

This principle is from Episode 60 of interpretation NOW!


10 Pearce 9th ed (at [4.57-4.58]), Episodes 4, 35 & 52.

11 Clause 11 in Sch 3 to the Firearms Act 1996 (NSW).

12 Jenks [1997] STC 853 (at 878), Newcastle [2014] NSWSC 1501 (at [56]).