Page 1481 - Week 05 - Wednesday, 10 May 2006
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There has been discussion in the past, both in this Assembly and in the Standing Committee on Legal Affairs, about the form and content of explanatory statements that accompany bills. We would all, I am sure, like to see changes in those documents that would help this Assembly and others that need to interpret statutes to understand the meaning and intent of proposed and existing legislation.
It has been commonly accepted that the principal purpose of an explanatory statement is to assist the reader to understand the legal meaning and policy intent of a bill. This proposal would change the nature of the document so it would serve as a vehicle for demonstrating that certain members of the community have, in some undefined way, been informed about the bill. In fact, the intent of this bill is not clear, even though the apparent concern to be addressed, in Dr Foskey’s words, is:
There is a perception, wrong or otherwise, that government and other members are not including a thorough consultation process in the development of legislation and are missing out on valuable expert advice and important community opinion. Thus, the outcome of the legislation can be inherently flawed and often fails to provide the optimum solution to the policy problems that it seeks to solve.
To address this concern, it is proposed by Dr Foskey that a consultation report be included in the explanatory statement, with the intent that the Assembly and interested people can simply discover what consultation has and has not already been undertaken or from what consultative processes the bill has emerged, and thus assist them in their consideration of the bills.
The notes to proposed new section 38C of the bill set out some examples of consultation, such as community groups. Dr Foskey’s explanatory statement for this bill states that consultation occurred with the Law Society of the ACT, the office of the Attorney-General, the office of the shadow Attorney-General, ACTCOSS and the Conservation Council of the South East Region and Canberra.
The difficulty the government has is that this new element in the explanatory statement is not the least bit explanatory. The heading and the names leave me baffled. I am unsure what Dr Foskey has done and whether this is intended to exemplify compliance with her bill. Indeed, I am not at all sure that a consultation report requires necessarily setting out the names of every person or organisation consulted, or how the inclusion of such a report assists in understanding the bill.
Consultation reports are required to be included in certain explanatory papers in other jurisdictions. For example, in the commonwealth, subordinate laws—not bills—must be accompanied by a report on consultation. Queensland takes a different approach, requiring explanatory statements, including consultation details, to be presented with all bills and subordinate laws that impose appreciable costs on the community. However, failure to do so does not invalidate the proposed legislation.
In those two jurisdictions, a consultation report for a subordinate law is considered desirable because it serves the specific purpose of ensuring that business in particular, and also other sectors of the community, is not subjected to unnecessary red tape through subordinate legislation not debated by the parliament. In contrast to this, in New South
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