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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 572 ..

The amendment to clause 2 is a simplification of the language. As ordinary legislation, the Human Rights Act is subject to the Legislation Act 2001 and the rules of interpretation in chapter 14 of that act. Section 139 of the Legislation Act requires that where there is a choice to be made, the interpretation at best achieves the purpose of the legislation of the one to be adopted. This means that, where a human rights consistent interpretation is in conflict with interpretation that achieves legislative purpose, the latter will prevail.

MS TUCKER (11.05): This amendment corrects a potential problem in interpreting the law. In the bill as tabled, there were two potentially conflicting directions, one directing that in interpreting territory laws an interpretation that is consistent with human rights is to be preferred to any other interpretation. That could be a substantive effect of this bill. However, subclause (2) provides that, if there is a conflict between section 139 of the Legislation Act and human rights, that only section 139 is to be applied, and that substantially weakens the effect of subclause (1) because it is either/or.

The amendment, which was also suggested to me by Professor Peter Bailey, directs instead that an interpretation consistent with human rights is preferred as far as possible. The government amendment changes the requirement in subclause (1) to be “as far as possible”, and shortens subclause (2) to a reference to the Legislation Act. At the very least this makes it clear but it also allows some scope for shades of meaning.

MRS DUNNE (11.06): I will dwell further on the problem that has been created by clause 30(3)(b). In many ways, clauses 28 and 30 are the teeth of this act.

MR SPEAKER: Why don’t you wait until we get to 33B?

MRS DUNNE: No. I am referring to clause 30 (3) (b)—subclause (3) of clause 30. This clause is about the way in which interpreting of the law is to be done. The Attorney-General’s amendment goes some way to clarify it, but it does not address the issue of what clause 30 (3) (b) means. We are saying that interpreting law is to be done in a way that is consistent with human rights, as defined in the bill. It is particularly defined by clause 28. It includes confirming or displacing the apparent meaning of the law.

I don’t know how this sits in apposition to clause 28 or, looking ahead, to clause 32 (3) (a) as well. There seem to be a whole lot of internal contradictions here. Despite the assurances that the existing law won’t be overturned, it appears that it will be interpreted favourably in this bill and interpretation includes, by definition, overturning the current plain meaning. This gives you the possibility for Humpty Dumpty legal advice and interpretation. Suddenly law will not mean what the plain meaning of the law means but what some lawyer or judge, yet undefined, will choose to have it mean on a particular day, depending on what he had for breakfast.

Amendment agreed to.

Clause 30, as amended, agreed to.

Clause 31.

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