Page 2312 - Week 08 - Tuesday, 17 August 1993
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As the Minister pointed out in his presentation speech:
This presumption has inconvenient consequences in a federal system, such as Australia's, where legislative power is divided between the Commonwealth, the States and the self-governing Territories.
One of the inconvenient consequences of this provision is that from time to time courts strike down legislation or parts of legislation, and this presumption operates to bring the rest of the legislation crashing down with the particular provision that might have been found invalid by a court. One example of this quite recently for the ACT was the High Court decision in Capital Duplicators v. the ACT, in which the High Court invalidated an ACT law, or at least part of a law, declaring that the Business Franchise ("X" Videos) Act 1990 was an excise and therefore ultra vires the ACT Legislative Assembly. In cases such as this it is obviously undesirable that schemes which are capable of independent operation, apart from particular provisions which are identified by the court as being for various reasons unable to stand, should themselves collapse for the same reason.
This Bill will provide that an assumption should be created that an invalid provision of a Bill should be excised from that Bill. It should not be necessary for a whole Bill to collapse if a part which is bad can be removed from it without destroying the integrity of the rest of the Bill. It is inconvenient, obviously, for Acts of the Assembly to be struck down in this way and thus perhaps putting us in a position where, for example, legislation has been invalidly passed and requiring us to consider retrospective legislation, which we all abhor. This Bill allows for that excision.
It is necessary, however, I would submit, for the Government to review legislation very carefully, as quickly as possible after it has come under the scrutiny of a court which might have ruled a particular part of it to be invalid. Obviously, it will be up to the court to decide whether the particular provisions can be excised or not. That might be a process which leaves the Government in an inconvenient position. We should therefore make sure that we quickly examine legislation after such scrutiny by courts to see whether it should be rejigged, that is, through amendments or passage in a different form, so that we have the legislation in the form which is intended by the Assembly, not what is intended by a court which may have looked at it.
MR CONNOLLY (Attorney-General, Minister for Housing and Community Services and Minister for Urban Services) (8.50), in reply: I thank the Opposition for their support for this measure. We actually did some delving into the annals to try to find why the ACT did not have this provision in its original Interpretation Act. It has been a feature of the Commonwealth Interpretation Act from 1901 and it has been a feature of every State Interpretation Act. The law in relation to severability is a standard part of a constitutional law course in every Australian university. Every law student is taught about severability and the importance of severability provisions, and nobody could recall why a severability provision was not inserted in the original ACT Interpretation Act. It seemed to have been a policy oversight when self-government was being established. It is an important provision to have in.
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