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Legislative Assembly for the ACT: 1995 Week 10 Hansard (5 December) . . Page.. 2674 ..

MR CONNOLLY (continuing):

Mr Humphries was critical, but in a circumspect way, of the decision of the Tenancy Tribunal, which is fitting, given that he holds office as Attorney-General. I no longer hold that office, so I can perhaps be a little less circumspect. I find it extraordinary that any officer in a judicial or quasi-judicial position - any judge, magistrate or tribunal holder - would take a narrow, grammatical construction of a phrase or sentence in preference to the clearly expressed will of this legislature. Some 10 years ago the Commonwealth Parliament and then other State and Territory parliaments passed amendments to the Acts Interpretation Act to provide that a court can look at the proceedings of parliament in order to resolve any ambiguity. That overruled a very longstanding rule which courts had imposed upon themselves and which said that a court could not look at what was said in a parliament.

There was a lot of academic and parliamentary debate about those amendments to the Acts Interpretation Act, but they were carried with bipartisan support and they became part of the package that we inherited upon self-government. The Interpretation Act was one of the first Acts put through this place in the first period of government under Ms Follett. In fact, Ms Follett was Attorney-General. The ACT legislation very clearly mirrored the Commonwealth legislation. Every State and Territory has similar legislation. As a legal officer for the Commonwealth arguing a number of cases in tribunals around the country and on one occasion appearing as part of a team arguing a matter in the High Court, it was my experience that that was very rarely of any practical benefit because the facts are that when you get an ambiguity in a statute very rarely does recourse to the parliamentary debates help you. In most cases the parliamentary debate on a statute tends to be a bit of a political diatribe in which we bash each other around the head. While the Government's second reading speech expresses the broad generality of policy, by its very nature it rarely goes down to very detailed issues. When we argue a point before a court or a tribunal we often get down to a very fine level of detail. Try as you will, second reading speeches or parliamentary debates are of little help.

In this case, nothing could have been clearer. The question of the extent to which the retail code of practice should be retrospective was a very hotly argued political issue. Mr Moore and other Independents in the then Assembly wished to make virtually the whole process of the code of practice retrospective. The then Government, which I was a member of, was sympathetic to that point of view but also accepted the reality that business people had entered into arrangements under the law as it then stood and that to retrospectively impose a code of practice on contracts that had been entered into under the pre-existing law could be seen as harsh. We sought a compromise, which was to exclude the general operation of the code from retrospective operation but to allow harsh and unconscionable issues to be litigated before the tribunal when the conduct arose after 1 January 1995, even though the contract had been entered into prior to that date.

The then Opposition, with Mr Humphries as the spokesperson, supported that point of view. The speeches very clearly expressed the conflicting arguments - on the one hand, that we should support small businesses and, on the other hand, that contracts had been entered into under an existing set of legal arrangements and that, as a matter of principle, it would be unreasonable to retrospectively impose a code of conduct. The issue of whether a tribunal could entertain a claim for conduct arising after 1 January 1995 in respect of a contract entered into before 1 January 1995 was clearly the subject of a very

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