Page 2191 - Week 07 - Thursday, 17 June 1993

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MADAM SPEAKER, THIS BILL DEALS WITH WHAT IS TO HAPPEN TO A.C.T. LEGISLATION WHICH IS HELD TO BE UNCONSTITUTIONAL, THAT IS, OUTSIDE THIS ASSEMBLYS LEGISLATIVE POWER. THE BILL BRINGS THE A.CT. LAW ON THIS QUESTION INTO LINE WITH THAT OF THE COMMONWEALTH, THE STATES AND THE NORTHERN TERRITORY.

AT COMMON LAW THE PRESUMPTION IS THAT WHEN A LEGISLATURE PASSES A LAW TT IS INTENDED THAT THE LAW WILL OPERATE AS A WHOLE. ACCORDINGLY, IF ANY OF IT IS FOUND TO BE OUTSIDE POWER THE WHOLE ACT IS LIKELY TO BE INOPERATIVE.

THIS PRESUMPTION HAS INCONVENIENT CONSEQUENCES IN A FEDERAL SYSTEM, SUCH AS AUSTRALIAS, WHERE LEGISLATIVE POWER IS DIVIDED BETWEEN THE COMMONWEALTH, THE STATES AND THE SELF-GOVERNING TERRITORIES.

TO AVOID THIS INCONVENIENCE THE COMMONWEALTH, THE STATES AND THE NORTHERN TERRITORY HAVE ENACTED WHAT ARE REFERRED TO AS "SEVERABILITY CLAUSES". THESE CLAUSES IN EFFECT REVERSE THE COMMON LAW PRESUMPTION WITH THE RESULT THAT SUBSTANTIAL PORTIONS OF A LAW CAN BE HELD TO BE OUTSIDE POWER AND STILL LEAVE OTHER PORTIONS IN OPERATION.

MADAM SPEAKER, THIS BILL WILL INSERT A SEVERABILTTY CLAUSE IN THE ACTS INTERPRETATION ACT.

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