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Legislative Assembly for the ACT: 2003 Week 4 Hansard (3 April) . . Page.. 1368 ..

MS TUCKER (continuing):

circulated a submission indicating its concurrence with the views of the standing committee and raising some additional concerns of its own.

The government agreed that the reform should be deferred and undertook to pursue this reform in consultation with the ACT Bar Association with a view to revising chapter 14 along lines similar to those originally proposed, but addressing the concerns raised by the scrutiny of bills committee and the Bar Association in relation to the previously proposed chapter 14. The current bill is the product of the consultation process. The minister has stated that the Bar Association has confirmed that it is satisfied with the modified proposals. We have had confirmation of that as well.

The main concerns expressed by the scrutiny committee and the Bar Association in relation to chapter 14 of the 2002 bill can be summarised as follows. Firstly, access to law: would the revised non-legislative material provisions tend to make the law less accessible and more costly? This concern is addressed by the preservation and reinforcement of existing safeguards against inappropriate regard being had to non-legislative material in interpreting legislation. A court will need to consider the ordinary meaning of a statutory provision in its legislative context and the cost of prolonging proceedings unnecessarily.

Secondly, the separation of powers: would the mandate given by the revised provision to consult a wide range of non-legislative material give the courts too much leeway to mould the law in a way that trespasses on the doctrine of separation of powers? This concern is addressed by the retention and reinforcement of the principles mentioned that safeguard against inappropriate use of non-legislative material.

Thirdly, presumptions of common law: would the best purpose rule, as drafted in the proposed section 139, extinguish common law presumptions regarding the interpretation of legislation? An example would be the presumption against interference with the liberty of the citizen. It was never intended to extinguish the operation of the common law in this sense. To ensure that there is no suggestion that this will be a consequence of the reforms, previously proposed provisions for the Legislation Act principles to have effect despite any rule or presumption of common law to the contrary have been dropped from the bill. The result will be to enable common law rules and presumptions to continue to operate in conjunction with the principles stated in the Legislation Act.

The scrutiny of bills committee, in its report No 30, stated:

The Committee makes no comment warranting consideration of any clause of the Bill. It acknowledges that its comments on an earlier version of this Bill, made in Scrutiny Reports No 4 (5 March) and No 9 (7 May) of 2002 have been taken into account in the drafting of this bill.

Based on the report from the scrutiny of bills committee and the comments from the bar and law societies, it appears that the concerns expressed in the 2002 debate have been addressed. I understand that Mr Stefaniak has made clear that he is now happy as well.

MR STANHOPE (Chief Minister, Attorney-General, Minister for Community Affairs and Minister for the Environment) (4.06), in reply: Mr Speaker, as members have indicated, this bill will bring an important stage in the government's public access to law

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