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Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1396 ..

MR STEFANIAK (continuing):

In working out the meanings of an Act, any relevant material not forming part of the Act may be considered.

The committee report states:

The Committee pointed, in the first place, to an "access to law perspective", in that "the wider the range of materials that may be used to give meaning to the words of a law, the less the reader of a law is able to work out what those words mean simply by reading the text of the law". Secondly, the Committee pointed to "a separation of powers perspective, in that the greater the scope for the courts to mould the words of a law to achieve the 'purpose' of the law, the more the courts are made part of the legislative process".

The Chief Minister responded, and the committee made a further report, No 9, as a result of his response. The committee said that the Assembly might be further assisted by a reply from the committee. I am not going to read all the report, but it is worth highlighting certain parts of it. The committee said:

The insertion into the Legislation Act 2001 of proposed new section 142 raises the distinct prospect that the courts will interpret all the legislation of the Territory in a distinctly different fashion to their current mode of approach. In turn, counsel who appear before the ACT courts, and those who prepare opinions on the meanings of ACT laws, will need to adjust their mode of approach.

The committee further commented on three areas:

The Attorney-General notes that "the use of extrinsic materials is now a long-established reality in Australia" and argues that proposed new section 142 "reflects the current position both under the Interpretation Act 1967, section 11B and the common law".

In response, the committee detailed what section 11B, which the courts have been using now for over 20 years, is all about. In reference to subsection 11B (2), the committee said:

If regard were paid only to the 9 paragraphs of subsection 11B (2), it would be clear that under the Interpretation Act 1967, the extrinsic material to which section 11 refers is that which would provide guidance as to what those who drafted the statutory provision in question were seeking to achieve by that provision. It is suggested that this is how the concept of 'extrinsic material' has generally been understood from the 1980s, the time from which, as the letter of the Chief Minister correctly notes, nearly all Australian jurisdictions have enacted law similar to section 11B.

The committee went on to say:

Given that paragraph 11B (2) (b) specifies "any treaty or other international agreement that is referred to in the Act" as an extrinsic source, it is arguable that this specific reference to some kinds of treaties indicates that when the Assembly enacted section 11B, it did not have in mind other kinds of treaties.

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