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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1407 ..

MR STANHOPE (continuing):

Firstly, use of extrinsic materials in statutory interpretation is now a long-established reality in Australia. We all know that. It is not something new. Since the 1980s, legislation in all jurisdictions except South Australia has permitted access to extrinsic materials. In the ACT, the statutory provision currently permitting access to extrinsic materials is section 11B of the Interpretation Act 1967. It was inserted into the Interpretation Act in 1985. Proposed new section 142 in this bill simply replaces section 11B.

Secondly-and this goes to the nub of the government's rejection of the height of the concerns expressed by the committee and Mr Stefaniak-since the 1980s several High Court decisions have firmly established that the use of extrinsic materials in interpreting legislation is permitted not only under statutory provisions such as section 11B but also at common law.

These decisions are discussed in the explanatory memorandum to the bill. See in particular paragraphs 96 and 98 of the explanatory memorandum, which go into detail on the application of common law rules to statutory interpretation. When these matters were explicitly raised in the explanatory memorandum, it is a pity that they were not discussed or mentioned in either of the committee's reports.

These decisions of the High Court make it clear that restrictions on the use of extrinsic materials under statutory provisions such as section 11B do not apply to the use of extrinsic materials at common law. As a result, section 11B has been overtaken by the common law, and section 11B of the Interpretation Act is effectively redundant. It is no longer needed. It no longer affects practice. The High Court has dealt explicitly with the use of extrinsic materials at common law, to the extent that section 11B, the provision we are replacing, is now effectively redundant.

Thirdly, not only have the courts established that it is legitimate to use human rights instruments in interpreting statutes in appropriate cases; they have also confirmed the use of international agreements in interpreting legislation with which the agreements have no explicit connection. Again, this is not something new. The position is illustrated in the passage from Australia's leading text on statutory interpretation-Mr Stefaniak would know it as well as I do-Pearce and Geddes Statutory Interpretation in Australia, 5th edition 2001. There is not a practitioner in Australia who does not regard Pearce and Geddes as the bible on statutory interpretation in this country. That was mentioned in the government's response to Scrutiny Report No 4, and the committee's response ignored that point as well.

Fourth, it should be stressed that proposed new section 142 permits, but does not require, relevant extrinsic material to be considered in working out the meaning of a statute. It therefore remains for the courts to decide when extrinsic material may be considered. In this regard, in relation to the new section 142, there is no change to the common law position at all. The courts will determine when to have regard to extrinsic material. They will do it whether section 142 exists or not. They will do it on the basis of the common law.

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