Legislative Assembly for the ACT: 2002 Week 5 Hansard (9 May) . . Page.. 1403 ..
MS TUCKER (continuing):
The wider use of extrinsic materials could also increase the cost of litigation as more time is taken up by lawyers and courts in working out how the extrinsic material, particularly international treaties, can guide the meaning of a particular provision of an act. One could get caught in an endless circle of argument about the interpretation of a particular international treaty and the documents and case law that surround it.
The committee also raised a concern that the courts may decide that the provisions of an international treaty override the intentions of the legislators as expressed in other extrinsic documents such as an explanatory memorandum. This may not be a bad thing, if the legislation is in contradiction to a document like the Universal Declaration of Human Rights. I want to make it quite clear that I am not saying there is not a place for us to have regard for international treaties, but the Assembly does need to be clear that complications could arise from passing this legislation.
Current section 11B attempts to limit such extensive use of extrinsic material through the restrictions contained in subsection 11B (3), but no corresponding provision is contained in the new section 142. These restrictions refer to the desirability of giving more weight to the ordinary meaning and purpose of an act and the need to avoid prolonging legal proceedings where little advantage is likely to arise.
I am happy to support this bill in principle, but I want a bit more time to consider the implications of proposed section 142 in particular. I understand that the government is prepared to adjourn the debate after the in-principle stage so that members can have more time to discuss whether this proposed section needs amendment.
Mr Stefaniak said he wanted a committee inquiry into the bill. I have not made up my mind on whether that is necessary. I definitely want more time, which we are getting. Before next week we will make a decision about whether a committee inquiry is warranted.
MS DUNDAS (11.36): I rise to add the support of the Australian Democrats to this bill. The public access to legislation project set out by this bill is a great step forward. It certainly places the ACT at the forefront of access to legislation. The Internet site provides free public access to authorised versions of our legislation and other legislative material and is kept up to date. This project significantly enhances access to the text of ACT laws and subordinate laws and instruments that would normally be accessed only via the Government Gazette.
The bill before us today has been scrutinised by the scrutiny of bills committee, and they have raised some concerns which Mr Stefaniak has again raised today. I am not convinced that we need a further committee inquiry. It is true that there are concerns, but perhaps we need to adjourn the debate for a couple of days, as has been flagged, to spend more time speaking to the legal fraternity.
The debate is largely one on the difference between judge-made law and parliament-made law. This is a debate that has been going on for centuries. I see this bill as putting the onus back on law makers rather than judges. I see this debate as a reminder that we need to be careful as legislators.