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Friday, 30 March 1984
Page: 963


Senator GARETH EVANS (Attorney-General)(10.01) —in reply-I thank the Senate for the broad bipartisan support which has been given to this measure, the Acts Interpretation Amendment Bill 1984, albeit not entirely without qualification in some instances, especially so far as Senator Harradine is concerned. Before saying just a few quick things about the centrepiece of the legislation, which is proposed new section 15AB dealing with extrinsic aids to the interpretation of statutes, might I for the record quickly correct a misleading statement that was contained in one point in the second reading speech. In relation to the provisions governing attainment of age-proposed new section 25E, which has nothing to do with the matters that have been engendering controversy in this debate-it was said by me in the second reading speech:

A provision along these lines has already been included in the Superannuation Act 1976.

By 'these lines' I was referring to a new provision to remove the rather mediaeval notion that a person attains a particular age at the first moment of the day immediately before the anniversary of his birth, rather than actually on his birthday. In fact that is wrong. The Superannuation Act does not contain a provision of that kind. The difficulty was that the obscurity of its drafting led my advisers to think that it did. I think the Superannuation Act is a classic example of the kind of legislation that needs all the help it can get when it comes to its interpretation by the courts or anyone else.

Turning to the question of extrinsic aids, I am pleased to note that there has been a general recognition around the chamber that on many occasions courts need to look beyond the strict terms of legislation if they are in fact to be able to discover with any degree of confidence what the Act means, or more particularly, perhaps, what the begetters of the Act would have wanted it to mean had they been confronted with a particular set of circumstances in facing the later interpreter.

There has been a general acceptance, it seems to me, of the validity and utility of setting out, as permissible aids to interpretation, the material that is listed in sub-section (2) of the proposed new section 15AB. I think there has been, however, insufficient attention given in the debate, particularly to those who are critical of the width of the range of material that would be now accessible, to the threshold hurdle requirement that is set out in sub-section ( 1) of the proposed new section 15AB, and also the further qualification that is contained in sub-section (3).

I remind the Senate that the only circumstances in which the extrinsic material identified in sub-section (2) can properly be looked at by the courts, if sub- section (1) is to have any force, are twofold. There are only two such circumstances. The first is where consideration is designed:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context . . . and the purpose or object underlying the Act--

That is the first context in which one would look to extrinsic aids. The second context is in accordance with proposed section 15AB paragraph (1) (b):

to determine the meaning of the provision when-

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text . . . leads to a result that is manifestly absurd or unreasonable.

The significance of that threshold hurdle that has to be jumped before we get into the water of sub-clause (2) has perhaps been a little understated in the course of the debate, as I indicated by way of interjection on Senator Harradine . The other thing that perhaps has been understated is the further qualification in sub-clause (3), which says that in determining whether consideration should be given to the extrinsic material in accordance with the threshold requirements in sub-clause (1), or in considering the weight to be given to any such material , regard shall be had . . . to two other things:

(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 . . . and the purpose or object underlying the Act; and

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

There is a real point to the notion that courts, and more particularly perhaps those advising clients, ought to be able to rely reasonably confidently on material readily to hand when they are interpreting legislation rather than necessarily in every instance having to go to a library-something which may be very difficult indeed for a practitioner in the bush or the outer suburbs. The force and utility of sub-clause (3) was well acknowledged by Lord Wilberforce, who has played such a prominent part in our deliberations here in developing this notion. I asked him to comment on the final draft of the Bill as it had emerged and, in a letter of 21 March, he said:

Naturally, I am very pleased that you have been able to go so far along the path designated by the Symposium.

That was a reference to the Symposium on Statutory Interpretation organised by Senator Durack and held here early last year. Lord Wilberforce went on:

I like, particularly, subsection (3) of the new section 15AB.

That is very high judicial endorsement indeed for the approach here adopted from one of the most respected jurists in the common law world. I believe that ought to be acknowledged.

The final thing I have to say concerns the independence of the judiciary. I do not think any challenges to this legislative strategy based on that idea really have much foundation. As I said in my second reading speech, section 15AB does its job:

. . . in a way that respects the independence of the judiciary. Judges are neither required to nor prohibited from looking at any materials.

All that is happening here is that the Parliament is endeavouring to give a clear lead to the courts as to the way in which extrinsic materials can best be used-extrinsic materials which often feature in judicial interpretation at the moment-without, as I said, imposing undue burdens on the users of the legislation or the legal system generally. This is a very important measure; its significance ought to be in no way underestimated by the brevity of this debate. I commend it to the Senate and hope it will have a speedy passage.

Question resolved in the affirmative.

Bill read a second time.