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Speech: Legislation Interpretation Bill - Second Reading

The Hon. T.A. FRANKS (16:51): I rise on behalf of the Greens to indicate broad support on the Legislation Interpretation Bill 2021; however, I do note some concerns with the absence of extrinsic materials, and the Greens will be moving an amendment on that matter.

Extrinsic materials, as used by the legislative and executive arms of government, are any materials that are external but are closely related to and provide relevance to the interpretation of legislation. When interpreting legislation, there are two techniques that are regularly employed: purposive and contextual. These are used to provide distinction between discovering the purpose of the act and what its intentions were, as well as establishing parliamentary intention in relation to certain provisions. These techniques help to resolve ambiguity in the words and language used.

In 1981 and 1983, the federal government of the time arranged a gathering of distinguished members of the legal professions, including High Court chief justices, to discuss the statutory interpretive approaches of the time and the use of parliamentary materials. With bipartisan support, the federal government was able to enact sections 15AA and 15AB of the Acts Interpretation Act 1901 (commonwealth), to provide authority for the use of extrinsic materials of statutory provisions. South Australia was the only state which did not follow suit by passing their own state amendments.

Extrinsic materials are now 'routinely examined' with regard to attributing meaning to legislation objectives. However, the Acts Interpretation Act 1901 (commonwealth) and the common law take different approaches to how and when extrinsic material should be used in these processes. The first is the South Australian common law approach. In order to meet the standards of the modern approach to statutory interpretation, South Australia has had to apply statutory precedents. This has been developed alongside the legislation amendments and to provide remedy to the existing precedent in the common law.

The modern approach to statutory interpretation was founded by the joint judgement of the majority in CIC Insurance Ltd v Bankstown Football Club (CIC Insurance), which provided that:

If the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.

The principal resulting from CIC Insurance works independent to section 15AB of that act and construes itself to include parliamentary materials, as well as the history of the relevant law, parliamentary history of the statute and historical context. However, this principle has its parameters in its consideration of two purposes. One is the consideration of the existing state of the law, its history—including amendments and repealed acts—the other is identifying the mischief of the relevant statutory provision or act. In this context, 'mischief' refers to the intention of legislation when enacting it, not just the literal interpretation. I note that the High Court itself on occasion has been more than accepting of this approach.

However, the case of Saeed v Minister for Immigration and Citizenship [2010] shows why this approach has flaws, and I note the significance that this decision should have on this particular bill. In that particular case, the case came before the High Court on appeal, where proceedings were brought under section 39B of the Judiciary Act, with the appellant claiming she was denied common law procedural fairness. It involved the consideration of section 51A of the Migration Act 1958 (commonwealth), where the appellant was an offshore application for a skilled independent visa. The legislation specified the consideration of an onshore applicant; however, the appellant argued there was room for open interpretation of any offshore applicant.

One of the eligibility criteria for a visa of this kind was retaining employment in a skilled occupation for at least 24 months in the 24-month period prior to lodging the application. The applicant provided information to the minister's delegate, demonstrating that she met the criteria by working as a cook in Pakistan. The immigration officers in Pakistan investigated her claims but found no evidence she had completed this work, as no employee records were kept at the restaurant. They were also given 'adverse information', which stated that no woman had ever worked in the kitchen.

On 16 July 2008, the minister's delegate refused her application on this basis. In this case, the High Court had to consider whether the amendment of section 51A of the Migration Act was that those 'exhaustively stated' principles of natural justice were limited to the 'matter to which this act applies'. The joint judgement provided that:

It is only when the meaning of the text is doubtful…that consideration of extrinsic material [may] be of assistance.

However, the plurality then stated:

…it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction.

This statement caused a disturbance amongst the legal profession, which had an interest in statutory interpretation. Members of the judiciary noted the majority statement and criticised it as a more restrictive approach.

Mr President, I note this judgement to you to help support the need for legislation that moves into the modern era and does not limit itself to the natural, ordinary meaning of words. The bill before us needs to open itself to materials that can adapt and change as the needs of our society change, otherwise we are left with statutes that are no different than they were over 100 years ago. South Australia, as I have said, is the only state that is this far behind in the approach to the interpretation of legislation. It is our role, as representatives of the community, to ensure that the laws that govern us are not limited by language that keeps us outdated.

In its submission to this bill, the Law Society of South Australia noted that the aim of this particular bill is to bring it 'into step with modern legislative practice'. The Law Society provided the importance of including extrinsic materials, stating that when material is not limited to relevant reports, explanatory memoranda and speeches it avoids the need for prolonging legal proceedings, as well as giving reliance for persons to look further than the ordinary meanings of the text. That is why I rise today to introduce and foreshadow this amendment to make this bill inclusive of extrinsic materials in the interpretation of a provision or a legislative instrument.

The Greens' amendment will address those concerns raised by the Law Society. In comparison to other states, our act does appear weak, and the inclusion of such an amendment would support the submissions that were made in relation to the consultations on this bill, as well as assisting in the ambiguity of any act or legislative instrument. With that in mind, the Greens' amendment would also bring into legislation what is already recorded in common law and, more specifically, the precedent set in Owen v South Australia. This includes the use of parliamentary debates, as well as a minister's statement of purpose and any relevant reports of a royal commission or a law reform commission.

With the lack of a section replicating section 15AB of the commonwealth act, the common law approach I spoke about earlier will need to be continuously relied upon. In order for South Australia to match other Australian jurisdictions, the Law Society suggested the opportunity to amend the bill in this draft stage. To include extrinsic materials is fundamentally making South Australia catch up with modern statutory practices, and the Greens' amendment would bring that suggestion into action.

We did note and do thank the government for their briefing on this bill and we were told that agreement could not be reached on this particular matter of principle. However, it did not seem to us, in talking to the stakeholders who were consulted, that any follow up was done or a real effort made to try to find a landing space on this particular matter. So we put it before this parliament in the hopes that perhaps that conversation will continue rather than be stymied.

The government cannot ignore the facts and the suggestion of the courts themselves, as well as the submissions presented by those who will benefit from this bill the most. In this particular council I believe we must take the right steps to create laws that will help South Australians in the future. With that, I commend the bill.

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