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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1406 ..

MR STANHOPE (continuing):

also indicated that he has some serious concerns about it. So an adjournment of a week is quite acceptable to the government.

In Scrutiny Report No 9, the Standing Committee on Legal Affairs-Mr Stefaniak went into this in detail-made further comments on proposed new section 142 in the bill. These comments were made in light of the government's response to the committee's earlier comments in Scrutiny Report No 4.

Proposed new section 142 in the bill applies to the use of extrinsic material by the courts when working out the meaning of legislation. Extrinsic material is material that does not form part of an act. It may include, for example, explanatory memoranda and parliamentary documents relating to the enactment of the legislation in question. It may also include different kinds of documents, such as Law Reform Commission reports and international treaties to which Australia is a party.

The committee perceives that proposed new section 142-Mr Stefaniak expressed these concerns-may bring about a distinct change in the way ACT courts interpret legislation. The government does not believe that to be the case. The committee believes that the courts would, as a matter of course, refer to documents such as the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights when working out the meaning of an act.

The committee's view is that this would not be confined to situations where the language of the law is ambiguous or obscure. The committee says that this raises issues of access to the law and the proper role of the courts, and that it has implications for the cost of litigation. Report No 9 reiterates the points made by the committee in report No 4.

These matters were addressed in detail in the explanatory memorandum to the bill and in the response I made on behalf of the government to report No 4. I do not see any point in revisiting the matters in great detail. They are covered explicitly in the explanatory memorandum; they are covered explicitly in the government's detailed response to report No 4.

At this stage, the government does not share the committee's concerns. I have been advised by my department and by parliamentary counsel that in practice the proposed new section will not have any significant effect on the use of extrinsic materials by the courts. My office has had discussions with Mr Harris, as has Mr Stefaniak. I have received a note from the president of the Bar Association indicating that they wish to make formal comments on the operation of proposed section 142. I understand that those comments will be available by Monday. Of course I am more than happy to share them with all members of the Assembly. That is another good reason for delaying conclusion of this debate until next week.

Although the details of proposed section 142 are perhaps complex, the overriding principles are relatively straightforward. I will briefly outline the basis for the government's view that proposed section 142 has very little effective impact on the way laws are currently interpreted.

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