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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1397 ..

MR STEFANIAK (continuing):

The committee had concerns about proposed new section 142 and the great widening of interpretation it would lead to. The committee went on to say:

... subsection 11B (1) permits reference to treaties such as the human rights instruments such as the Universal Declaration of Rights-section 142 approaches the topic in a very different way. Section 142 is simply open-ended in what it allows an interpreter to make reference to. The only guidance given by the words of the Act is in the phrase "any relevant material not forming part of the Act ...". By comparison with section 11B (which provision is noted in the heading to section 142 as a predecessor) it is apparent from the text of section 142 that it is no longer concerned with whether the extrinsic material is of the kind that will provide guidance as to what those who drafted the statutory provision in question were seeking to achieve by that provision. Such a concern is of course reflected in 7 of the 8 examples which are appended to the text of section 142. But example 7, which illustrates how the Universal Declaration might be used, makes it plain that this concern does not limit the scope of section 142.

On this point, the committee concluded:

In the end, one can see how section 11B of the Interpretation Act 1967 is a predecessor to proposed new section 142 ... The committee does consider, however, that section 142 represents a distinct change in emphasis, in particular in view of the inclusion of example 7.

The Committee must stress that modification of the proposed new section 142 to align it more closely with existing section 11B of the Interpretation Act 1967 would not preclude the courts adopting the kind of reasoning employed by Justice Kirby. Clearly, some judges do take his approach, although it is also clear that many do not.

It went on to say a bit more about that. There are great concerns as to how widely proposed section 142 will be construed, what types of material can be used and how much further proposed section 142 is taking us. It is a quantum leap from what was in section 11B of the Interpretation Act.

The second point the committee raised was on the question of equity. It said:

The Committee is concerned that use of extrinsic materials, in particular of kind such as the Universal Declaration, will add to the cost of litigation. This will be so in terms not only of the work of lawyers, but of the time the courts that will be taken up in working out just how statements of rights can guide the meaning of a particular provision of the Act.

This concern was in the minds of those who drafted section 11B of the Interpretation Act, the act which now applies. Subsection 11B (3) of that act provides:

(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to-

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