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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-05-25 Daily Xml
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Legislation Interpretation Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 May 2021.)

The Hon. K.J. MAHER (Leader of the Opposition) (16:26): I rise to speak on this bill and to outline a couple of concerns with elements of the bill, but indicate that we agree with what the government has said. It is largely uncontroversial. As outlined by the Treasurer, he is now introducing bills into this chamber that change the legal system, so his reliance on the phrase that he is not a lawyer and cannot possibly know what is going on in legal bills will be wearing a bit thin.

As outlined by the Treasurer when he introduced this bill for the first time in this parliament to the Legislative Council, the bulk of this bill essentially repeals and replaces the Acts Interpretation Act. Some language is modernised and definitions are added. The large bulk of this bill appears to be what is already in the Acts Interpretation Act in some way and will disappear in this new act, and a lot of the updating makes a lot of sense.

We do need to be careful when we are changing an act like this that directs courts how to interpret our legislation because any changes we make have the potential to impact on all legislation that comes before the courts. As I have said, this bill appears for the most part to be a restatement of the old Acts Interpretation Act to codify current practice and interpretations that may not have existed—I think in 1915—when the Acts Interpretation Act was introduced and when subsequent amendments were made over time.

There is one part of this bill that is not merely an update or codifying practice, and that is clause 18. Clause 18 changes current practices where headings within legislation are simply administrative. This clause will make—and retrospectively make in acts that are already on the statute books—these headings part of the act. In practice, what it means is that the court will be able to use headings when interpreting legislation and what the parliament meant by that legislation.

These headings at the moment can be added or omitted by the Commissioner for Legislation Revision and Publication. This means that someone can put, knowingly or otherwise, material into an act without the consideration of parliament, which could now have a real impact on how a court may interpret the legislation that the parliament has turned its mind to.

I thank the Attorney-General's office for providing a briefing last week about this bill and particularly about why this change was being put forward. We were told in the briefing that we were the only jurisdiction in Australia that did not include headings as something that could be interpreted by courts as part of legislative interpretation. It is disappointing that it turns out that this was not the case, that we were not the only jurisdiction in Australia that did not allow for headings to be included in what could be interpreted by courts, but it appears that it is very far from that.

In further information, upon questioning this from the briefing we received, we have now been advised it is only the commonwealth that includes all headings as items that can be interpreted. Tasmania and Western Australia do not include headings at all, New South Wales does in some circumstances and what we are now informed is that Victoria, Queensland, the Northern Territory and the ACT only include headings if the act was enacted or the heading was inserted or amended after the change in their interpreting legislation. The interpreting legislation for all those I mentioned occurred between 1991 and 2006.

It appears, from the change in views we have had between a briefing last week and further emails in the last couple of days, if we are to rely on the most recent views put forward, that we are not the only jurisdiction that does not have headings included in what can be interpreted; in fact, it would appear we are to become the very first jurisdiction that retrospectively has headings included in what can be interpreted.

In effect, when the chambers of parliament sit down and debate legislation and the nature and effect of the words in the legislation, we have never given consideration to what a heading might say or what it might mean in relation to the legislation because that has never been included in the Acts Interpretation Act as something that is open for courts to interpret as part of the act. What this is going to do, as has been explained in the briefing and in the second reading explanation given by the government, is that all legislation that has had headings put in or retrospectively inserted will now form part of what can be interpreted.

Regardless of what may have been meant by the parliament when we have debated things, the heading as put in, perhaps without parliament turning its mind to it, can now be interpreted as part of that act. We have some difficulties with that, and there will be a lot more questions asked about this when we get to the committee stage, but if it is the case that we are to become the only jurisdiction that will retrospectively allow headings, regardless of the fact that parliament had not intended them to form part of the way the bill might be interpreted, then I think that would be a difficulty in relation to which we will need the government to explain why we are the only jurisdiction to do that.

With that being said, clause 18 I think will need some very significant explanation and there are a number of other sections whose operation we might need to consider. We reserve our right on the bill and what happens to the bill once it further progresses through the chamber.

Debate adjourned on motion of Hon. T.J. Stephens.

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