Bills

Legislation Interpretation Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 June 2021.)

The Hon. R.I. LUCAS (Treasurer) (15:25): I thank honourable members for their contributions to the second reading. On behalf of the government, I make a second reading reply. I would like to take this opportunity to make some comments in response to the second reading contribution from the shadow attorney-general to hopefully provide some further explanation for why the government has taken the approach it has in relation to clause 18.

As members would be aware, clause 18 provides that all material is taken to be part of the act or legislative instrument, aside from administrative information such as editorial notes. A key aspect of this change is that section headings will now form part of the act or instrument. Historically, sections in an act did not have headings, and when section headings were introduced they were inserted administratively to make reading legislation easier.

Currently at common law, section headings constitute extrinsic material and so can be used to interpret a provision where there is ambiguity. This is the current situation in South Australia. What the government is seeking to do in clause 18 is to make headings relevant in all cases and no longer require legal argument to use headings in the interpretation of an unclear clause.

The natural assumption of a person picking up an act or instrument and reading it would be that all the material that appears in the act is part of it. So it is the view of the government that we should accept that reality and be as clear as possible about it.

If in the end it is the will of this parliament to apply the new rule to headings only enacted after the passage of this bill, that will be a step forward but will create other issues. In the government's view, the reality of lawyers, self-represented persons and courts having to research when a heading was inserted to determine its status is an unnecessary complexity in the legal process.

Examination of when a heading was enacted would be required to determine whether the heading can be automatically considered as part of the act or instrument in the interpretation of a clause. Alternatively, it would need to be specifically argued that the meaning of the clause is unclear and that the heading should be introduced as extrinsic material.

It would be far more helpful for the users of legislation if there was a single rule covering all headings. Whilst other state jurisdictions have decided to treat headings differently depending on when they were enacted or inserted, this should not be our approach. It is the government's view it is better to follow the commonwealth's equivalent provision, which applies both retrospectively and prospectively for ease of legislative interpretation.

I hope this further explanation is of assistance to members and clearly illustrates the reasons for the government's approach to clause 18.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I move:

That progress be reported.

The Hon. R.I. Lucas: Can you explain why?

The Hon. C. BONAROS: I can explain why, if the Treasurer would like.

The CHAIR: No, there is no debate.

Members interjecting:

The CHAIR: No, there is no debate. If someone moves that progress be reported, I have to put that question.

Ayes 10

Noes 11

Majority 1

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 12, table, entry relating to 'enrolled nurse', column 2, paragraph (a) [clause 5(1)]—Delete 'and midwifery'

Parliamentary counsel has advised that amendments Nos 1 to 4—they are all consequential; they should stand or fall together—are required due to the commonwealth making amendments to the Health Practitioner Regulation National Law (the national law). Clause 5 of the bill replicates the definitions of various health practitioners who are registered under the national law. Since the drafting of the bill commenced, the commonwealth has updated definitions relating to nurses and midwives due to some changes in the registration requirements for midwives. Therefore, amendments Nos 1 to 4 are required to update these definitions in clause 5.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Treasurer–1]—

Page 12, table, entry relating to 'midwife', column 2 [clause 5(1)]—Delete the contents of column 2 and substitute:

a person registered under the Health Practitioner Regulation National Law to practise in the midwifery profession as a midwife (other than as a student)

Amendment No 3 [Treasurer–1]—

Page 12, table, entry relating to 'nurse', column 2 [clause 5(1)]—Delete 'and midwifery'

Amendment No 4 [Treasurer–1]—

Page 13, table, entry relating to 'registered nurse', column 2, paragraph (a) [clause 5(1)]—Delete 'and midwifery'

Amendments carried.

The Hon. R.I. LUCAS: I move:

Amendment No 5 [Treasurer–1]—

Page 13, after line 3—After subclause (2) insert:

(3) If a regulation is made under section 4(4) of the Health Practitioner Regulation National Law (South Australia) Act 2010 that modifies the Health Practitioner Regulation National Law (South Australia) text, the Governor may, by regulation under this Act, make any amendments to the table in subsection (1) that are considered by the Governor to be necessary to ensure that the modification has proper effect under the law of South Australia.

I am told that this is a very close relative of the last four, although not directly consequential. This amendment is closely related to the previous government amendments. It will allow the definitions in clause 5 that mirror the definitions in the Health Practitioner Regulation National Law to be updated by regulation. As South Australia has no control over the timing and frequency of updates to the definitions, as they originate from the commonwealth, allowing amendments by regulation will be a more efficient, faster process to make sure the definitions are accurate.

Amendment carried; clause as amended passed.

Clauses 6 to 15 passed.

New clause 15A.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–1]—

Page 15, after line 27—Insert:

15A—Use of extrinsic material in interpretation

(1) In the interpretation of a provision of an Act or a legislative instrument, if any material not forming part of the Act or instrument is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); or

(b) to determine the meaning of the provision—

(i) if the provision is ambiguous or obscure; or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision includes the following:

(a) all matters not forming part of the Act or instrument that are set out in the document containing the text of the Act or instrument as printed or published by the Government Printer or as published under the Legislation Revision and Publication Act 2002;

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the provision was enacted or made;

(c) any relevant report of a committee of the Parliament or of either House of the Parliament before the provision was enacted or made;

(d) any treaty or other international agreement that is referred to in the Act;

(e) any explanatory memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made;

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House;

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section;

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard must be had, in addition to any other relevant matters, to—

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or instrument and the purpose or object underlying the Act or instrument and, in the case of a legislative instrument, the purpose or object underlying the Act under which the instrument was made); and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

I note that I covered this quite extensively in my second reading. This amendment allows for the use of extrinsic material in the interpretation going forward, should it pass. I draw to the attention of members of the council that, since my second reading speech, the Law Society's correspondence of 21 June to the Attorney-General has also, I believe, been circulated to all members of this council, and in that the Law Society expresses their strong support for this particular amendment.

The Hon. R.I. LUCAS: The government indicates that it will be supporting this amendment. The blue-green alliance strikes again! During the development of the bill the issue of whether to include an extrinsic materials clause was carefully considered by the Attorney-General's Department and the Office of Parliamentary Counsel.

The government also received very thorough research from the Solicitor-General and his office on the issue of the use of extrinsic materials. The research indicated common law is sufficient to allow for the consideration of every type of extrinsic material that is covered in the amendment. The other advantage of relying on common law is that common law can adapt over time to new situations or new types of extrinsic materials, as necessary.

For these reasons, the conclusion was reached that including an extrinsic materials clause was not necessary. In saying this, the government acknowledges that there were some differences of opinion from some stakeholders as to whether it was necessary to include such a clause in the bill, and in particular that the Law Society is supportive of including an extrinsic materials clause in the bill. As the clause is closely based on the commonwealth provision and does no harm by being included in the bill, the government is happy to support the amendment.

New clause inserted.

Clauses 16 and 17 passed.

Clause 18.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 16, line 2 [clause 18(1)]—Delete 'subsection (2)' and substitute 'this section'

This was spoken about at some length in the second reading contributions. I outlined then that in our briefing from the Attorney's people on this bill it was said that headings form a part, and retrospectively so, in the interpretation of acts in all other jurisdictions. That was not actually the case, when we looked at this a little deeper. In fact, we crafted an amendment, and it is the amendment now before us, that headings would only be part of the interpretation of the bill if they were inserted in acts after this bill commenced; that is, there would not be that retrospective effect of the administrative act of putting headings into bills, and not having been considered by the members of parliament who passed that bill would not form part of the bill, and that is the case in a number of other states.

The Treasurer might have mentioned that it would be difficult to go back and look at all the acts and work out when headings were put in. We are not suggesting that you go back to a point in time in the past to look at whether that is the cut-off point for headings. What we are suggesting is that it be any headings that are put in after the commencement of this new bill. It is a point in time looking forward. You would know if you are putting headings in a bill from this point onwards. You would not need to go back, as the Treasurer might have suggested, and do volumes of research. In effect, that is what other jurisdictions do.

I point to section 14 of the Queensland Acts Interpretation Act, which only includes headings if they are in the bill after 30 June 1991. In Victoria, section 36(2A) of the Interpretation of Legislation Act only provides for headings to be interpreted for interpretation purposes if they are in a bill after 1 January 2001. Similarly, in the relevant provision in the NT Interpretation Act, section 55 provides that headings are only to be considered from 1 July 2006. In the ACT Legislation Act, section 126 provides that their headings are only to be considered in such a manner if they are inserted after 1 January 2000.

It is not as we were told in the briefing, that this is in all other jurisdictions. In fact, the ones I have mentioned have that cut-off date, and headings are to be interpreted as part of the act only if they were inserted after the dates that I have given. It is not as I think was represented when this bill was put forward. In quite a number of jurisdictions—Victoria, Queensland, the NT and the ACT—headings only form part of the bill for interpretation purposes from a point in time. This clause merely says that that would be the case here from the passing and commencement of this legislation.

The Hon. R.I. LUCAS: As I indicated in the second reading reply, but given the fact that this particular amendment, whichever way it goes, will be of great interest to legal scholars and counsel going forward, I will place on the record again the government's position in relation to opposition to the amendment and the reasons why.

The government indicates that it will oppose the amendment. In doing so, I refer to my second reading reply on behalf of the Attorney and the government. We believe clause 18 of the bill as currently drafted is the preferable way of dealing with the inclusion of section headings in the act or instrument. In the government's view, the reality of lawyers, self-represented persons and courts having to research when a heading was inserted to determine its status is an unnecessary complexity in the legal process.

A search of when a heading was enacted would be required to determine whether the heading can be automatically considered as part of the act or instrument in the interpretation of a clause. Alternatively, it would need to be specifically argued that the meaning of the clause is unclear and that the heading should be introduced as extrinsic material under common law.

It will be far more helpful for the users of the legislation if there was a single rule covering all headings. Whilst other state jurisdictions have decided to treat headings differently depending on when they were enacted or inserted, the government believes this should not be our approach.

In the government's view, it is better to follow the commonwealth's equivalent provision, which applies both retrospectively and prospectively for ease of legislative interpretation. This would be a much clearer and simpler approach to the inclusion of section headings. The opposition's amendment, if successful, would unnecessarily complicate the interpretation of legislation by lawyers, the courts and persons interacting with the legal system.

Further advice from government advisers that I have been provided with is as follows. To mitigate against this complexity that I have just referred to, should this amendment pass the parliament, parliamentary counsel will likely have to add a schedule to each amendment bill as they come to parliament and make all headings a part of that act. Accordingly, as parliament considers bills, those amended acts would have headings considered a part of an act. Of course, this would not assist those acts that never change. Those headings would never be a part of the act.

If this amendment were to pass, an additional consequence would be a significant extra workload for parliamentary counsel and especially for the publication staff, as each heading change will need to be separately indexed, as each is a separate legislative event. For those reasons, the government is opposing the amendment.

The Hon. C. BONAROS: I rise to indicate our position on this clause but also to refer, as I understand it, to the most recent advice that has been provided by the Law Society of South Australia in relation to these changes. The Law Society has noted that, amongst other things, in relation to the concerns that were raised by the Leader of the Opposition, the proposed amendments remove the retrospective nature of clause 18 and understand that the practical effect of this change would be that the headings would form part of all acts made after the commencement of clause 18.

They note in the case of amendments to existing acts that headings inserted as part of any amendment would form part of the act, but headings elsewhere will not. They go on to point to those other jurisdictions—Victoria, Queensland, the Northern Territory and the ACT—that have this approach.

In relation to the concerns that have been raised by the Leader of the Opposition, the society notes that, while clause 18 presents a significant change, it is potentially not as significant as has been stated on the record in this place. In this regard, they note that courts can presently and do consider headings when determining the meaning of provisions.

Specifically, they have regard to Onody v Return to Work Corporation of South Australia, where the Full Court of the Supreme Court of South Australia referred to headings of provisions in order to determine the meaning of the relevant provision of subsidiary legislation. They noted that the concern expressed above may be further alleviated in any event, given the amendment proposed by Ms Franks. The Hon. Tammy Franks has already dealt with her amendment, which was successful.

They noted that clause 15A(2)(a) provides for further consideration of material as follows, which has already been dealt with. So given the potential interrelation between the amendment proposed by Ms Franks and clause 18 generally, it appears likely that headings will be considered by courts when interpreting legislation into the future and in any event. I thought that was important to place on the record.

There is further information that has been provided specifically in relation to this amendment as it relates to another issue raised by the Hon. Mr Maher about the Commissioner for Legislation Revision and Publication being able to add or omit headings. Those issues are well articulated in this letter, as are the grounds that the Treasurer has just outlined in relation to what parliamentary counsel will or will not be able to do as a result of this amendment passing.

The society ends by reiterating the importance of the bill and the potential for it to have wideranging implications for the courts, the legal profession and the general public. I think that is overwhelmingly our concern as well. While they do not express a view in relation to the amendment specifically, they have pointed out the issues that I have just alluded to. On the basis of that advice and the advice that we already have before us, I indicate for the record that we will not be supporting the amendment that has been proposed for this particular provision.

The Hon. T.A. FRANKS: The Hon. Connie Bonaros pretty much read from the same paragraphs of the Law Society's letter that I was about to, and so I will note particularly point 11. It is not that we will not be using the materials that the Hon. Kyam Maher has proposed to be used, in fact I believe that the Law Society has indicated that with the passage of that last amendment to this bill the issues raised by the Hon. Kyam Maher are addressed by that extrinsic material more fully.

I note also on the final page of the Law Society's paper 2, set 22, that they do not hold a particular position on this amendment. Given that the ground is covered by the previous amendment that has now been incorporated and supported by the Legislative Council we will not be supporting this particular amendment, but recognise that in fact the issues that the Hon. Kyam Maher brought to this council are indeed being given that support.

Amendment negatived; clause passed.

Remaining clauses (19 to 59), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (15:54): I move:

That this bill be now read a third time.

Bill read a third time and passed.