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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1400 ..

MR STEFANIAK (continuing):

This also raises an access and equity issue. The more matters allowed into evidence, the better placed will be people who can afford the time and money to conduct this sort of research to find and construe the relevant legislation, rather than relying principally on the terms of the Act.

Moreover, assume you're a small solicitor having to advise a client of the meaning of an ACT statute. A prudent solicitor should probably research all the extrinsic material (as well as the statute) to advise the state of the law. That costs money.

He poses a question:

Is it desirable to encourage the establishment of a system that could raise the cost of justice, without a clear proportionate public benefit?

He goes on to say:

The Bill also claims it's anticipating developments of the common law. The anticipated development is clearly the increased use of extrinsic aids as a first resort, and not a last resort, when construing legislation.

He poses the questions:

Is it desirable for the ACT to attempt to second-guess the development of the common law? Why should it be (yet again) a social laboratory?

Is it appropriate to so change the way in which the law is interpreted without a wide public debate?"...

Has the case been made out for the partial codification of the law relating to the interpretation of statutes? Given the common law's current stage of development, wouldn't it be better to allow the common law to evolve?

Mr Harris also said to me that with a quick look at the bill he had concerns about areas of the bill apart from proposed section 142.

The other practitioner had some comments on the determinative and non-determinative provisions in clause 6:

The Bill provides that some rules of construction are so important they can only be displaced by a "manifest contrary intention".

Others can be only displaced by means of a "contrary intention".

There's no philosophical problem with the concept that some rules are so important they can only be removed by a "manifest contrary intention".

As for other rules, the usual test is that a rule can be displaced by "necessary implication".

This is a lesser test than a "contrary intention" test invoked in common law; it is invoked where there is no intention capable of being evinced, but some device needs to be resorted to to make a legislative scheme work.

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