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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1398 ..

MR STEFANIAK (continuing):

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act, and,

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

The committee noted that there was no corresponding provision in the amendments proposed to the Legislation Act and said:

This again represents a change of emphasis, and might indeed lead the courts to conclude that the matters referred to in subsection 11B (3) are no longer relevant.

I have a note from a legal practitioner who was concerned about equity issues and the increased cost of litigation. I will mention that later.

The third point the committee had a concern about was the separation of powers in relation to proposed section 142. The committee report stated:

[The Committee] noted that "the greater the scope for the courts to mould the words of a law to achieve the 'purpose' of the law, the more the courts are made part of the legislative process", and that it would "confer on the courts, and others who interpret the words of a law, a great deal more room for choosing the interpretation that they think desirable".

The committee considered a case involving Justice Kirby and Justice Handley of the New South Wales Court of Appeal, the case to which example 7 in proposed section 142 relates. I will not go into that. There are about three or four pages on that. Suffice it to say the committee had considerable concerns about how some extraneous documents could prevail over documents such as explanatory memorandums, which are a much more specific guide to what the legislature meant when it enacted a provision of any act.

The committee said that utilising a lot of extraneous documents and documents such as the Universal Declaration of Human Rights showed "how a particular rights analysis is often an incomplete approach even in terms of what such an approach would suggest". It then said:

Thirdly, it suggests that the wording of Example 7 presents an incomplete analysis of just how rights arguments might be applied in the example. This is a point that is not addressed in the amendment proposed by the Chief Minister to the wording of Example 7.

The committee drew attention to those aspects of the new section 142, because it perceived that the provisions as shown in example 7 may bring about a very distinct change in the way the courts of the ACT interpret legislation. It said:

That this might be so is apparent in the face of section 142, and gains greater likelihood if section 142 is compared to the existing section 11B of the Interpretation Act 1967.

They are some of the concerns the committee had.

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