Legislation Interpretation Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 May 2021.)

The Hon. C. BONAROS (16:28): I rise to speak on behalf of SA-Best on the Legislation Interpretation Bill 2021. The bill, as we know, seeks to repeal and replace the century-old Acts Interpretation Act 1915, the rule book for interpreting other legislative instruments. I think the Treasurer mentioned he had only just entered parliament around the time of its enactment—100 years ago, I think he said. We certainly accept that the current act requires updating, with parliamentary counsel identifying various anomalies and a need for the modernisation of language and definitions and the like.

The layout is much improved. It is intended to fit neatly alongside other related bills under the letter L—the legislative instruments act and the Legislative Revision and Publication Act—as a bit of a one-stop shop of all related legislation. As is currently the case, the contrary intention in other acts or instruments will continue to override this handbook of sorts.

We accept that many—indeed, most—aspects of the bill are uncontroversial. It does seek to reduce the size of other instruments by defining commonly used terms, words and phrases with new entrants, including SAPOL, DPP, foreign country, individual, motor vehicle, repeal and Youth Court, increasing the number of definitions by about 50 per cent.

It presents the option for the electronic publication of the Government Gazette. It introduces a new and very sensible provision allowing for certain meetings to occur remotely via audio or audiovisual links, and if COVID has shown us anything, as we have just outlined in the previous debate, it is certainly the need for this sort of flexibility. It includes a provision relevant to a small minority of our population—the birthday of a person who was born on 29 February in a leap year—which is assumed to be 1 March in non leap years, plus many more important time-related provisions similar to that.

Overall, I think the utility of the legislation has been improved. The Law Society has certainly indicated it is more simplistic. It is modern in its language, it is more streamlined and it has a clearer structure that makes it easier to follow. These are all positive changes parliamentary counsel has no doubt taken the opportunity to address and they are good measures, which no doubt make the work of the good people at parliamentary counsel who initiated the changes a lot easier.

I think it is worth acknowledging also that this is really their bread and butter. They know what needs to be done and why and I trust in that system. Indeed, we all rely on parliamentary counsel experts each and every day when it comes to drafting bills and amendments or the reasons why they tell us we cannot draft bills or amendments in certain circumstances. They certainly know better than any of us what is needed and why.

That said, though, I do believe it is important for us as members and legislators to have a thorough understanding of the workings of this bill, of the effects of any changes and so forth. I understand there may be some discussion around this bill potentially being referred for further inquiry. That is certainly not, in my view, any criticism of the hard work and talent of parliamentary counsel and their experts, who have clearly put in a lot of hard work to get this bill before us, and their efforts should be commended and are certainly appreciated.

But the act is so fundamental to the interpretation of legislative instruments that there is a good argument that it would be remiss of us to proceed without a fuller understanding of its provisions. It has already been suggested by some quarters that we may, for instance, like to hear directly the views of the judiciary, who will be relying on its content for decades to come and in ways we may not even be able to contemplate. I think that is really the important point that I would like to make.

The Hon. Tammy Franks recently filed an amendment following concerns expressed by the Law Society about the absence of a provision dealing with extrinsic material in statutory interpretation, an amendment which I understand has since been accepted by the government. It is one of those that the Law Society raised as something that ought to have been considered as part of this bill, but again one that raised questions around which approach we take on that issue.

Again, if it is the will of this parliament that we flesh these issues out on the floor, that will be the case. If it is the will of this parliament that it be referred for further inquiry, obviously we will deal with that and that would provide, I suppose, the opportunity to hear from any stakeholders or academics or the judiciary or whoever the case may be—interested parties—who do have further input on these issues.

Despite much of the bill being uncontentious, there is a new provision that certainly caught my eye and I am sure has caught the eye of other members as well. It clarifies that everything, aside from editorial notes, legislative history and appendices, forms part of an instrument. This includes headings—not an insignificant change.

Whether a heading is substantive or not has been the subject of much debate and back and forth. Indeed, the Attorney and the Legislative Review Committee have had this discussion and this back and forth a number of times now. The Treasurer correctly identified in his second reading explanation that risk headings, which may have been included in various acts for non-substantive purposes, would become substantive.

I understand from our briefing that the plan is to give parliamentary counsel one shot at amending current headings under the supervision of the Commissioner for Legislation Revision and Publication after any agencies identify that they would like that to be done. I note that just yesterday the Hon. Kyam Maher filed an amendment seeking to restrict substantive headings to those made after the commencement of the new act.

This does have the potential, I think, to complicate things, to burden legal practitioners and the judiciary unnecessarily. These are certainly issues that we want to explore further. I have just been handed a two-page brief from the Attorney's office which addresses this very issue but, again, these are issues that warrant further consideration. If it is the will of this parliament that it be referred to a committee then I think the Legislative Review Committee would be well placed to inquire into and report on these sorts of issues as part of the committee's scrutiny work.

What is clear is that, despite the very best intentions of parliamentary counsel to provide us with a very dry, technical bill, if there is one thing you can be certain of in this place it is that members will no doubt raise issues they consider important beyond the bread-and-butter stuff that parliamentary counsel would like to see addressed. Already, what was intended to be a purely technical bill has raised issues that we as members must turn our minds to. We have already seen amendments filed dealing with some of those issues. As I said, it would be remiss of us not to appropriately scrutinise those.

We were recently reminded of our immense importance as a house of review by a senior member in the other place, a minister no doubt, criticising the role of the upper house. That criticism, I might add, caused him considerable grief, I believe, within his own party room. The minister suggested that we should be scrutinising every single word, every clause, every section, to take our time and use caution. SA-Best is certainly not in the habit of waving legislation through untested and I do not believe that my parliamentary colleagues in this place are in that habit either.

It is plain to see in our regular appearance in Hansard and the regular questions I get from the Hon. Terry Stephens about how long we will be speaking for, just how deep, how thorough and how comprehensive our analysis of legislation is. Laissez-faire we are not. I give you my word that we do not wave legislation through this place ever. We are not prepared to just wave through this bill without that sort of analysis either.

With those words, I indicate our support for the second reading of this bill, whatever that may look like. If we have debate here on the floor of the chamber, then so be it; if there is a suggestion that it be referred to a committee, then so be it. We will indicate which of those options we prefer when and if we get to them.

Debate adjourned on motion of Hon. I.K. Hunter.