Chapter-4 Australian Courts: Parliamentary Debates Part-4-20

Chapter-4

Australian Courts: Parliamentary Debates

Part-4-20

It is permissible to refer to Hansard as an extrinsic aid for interpretation[1].

‘However, any inferences to be drawn from the parliamentary debates must in all the circumstances be unreliable. We prefer to rest our decision on the inferences to be drawn from the Act itself. We therefore leave for another day any comments as to the relevance of "the intention of Parliament" to a charge of abuse of process, where that intention is not discernible in the legislation itself.[2]’ This Court was furnished by counsel for the appellant and the respondent with material relating to the history of the relevant legislation and statements made at the time s.49(1)(f) was introduced. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic.) requires a construction "that would promote the purpose or object underlying the Act". Section 35(b) permits consideration to be given "to any matter or document that is relevant", including, but not limited to, reports of Parliamentary proceedings and explanatory memoranda or other documents laid before or otherwise presented to Parliament[3].

Extrinsic materials such as Second Reading Speeches, Explanatory Memoranda or Reports of Law Reform Commissions may throw light upon the purpose of a statute and even in some cases the meaning to be given to its words.[4][34] In CIC Insurance Ltd v Bankstown Football Club Ltd,[5] it was observed: It is well settled that at common law ... the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.[6]

The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes[7]. In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision[8]. The relevant extrinsic material is the Attorney-General's Second Reading Speech introducing the amendments which led to the enactment of s 28A. This material may be considered to determine the purpose of the section as an aid to its construction. That does not mean that the words of the Attorney-General can be substituted for its text[9]. That caution is apposite in the present case.

The use of extrinsic materials were discussed by French CJ in K-Generation v Liquor Licensing Commission[10][supra] as follows:

The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[11] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[12]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes "the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy.[13]"

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[1] See Owen v. State of SA (1996) 66 SASR 251; [1996] SASC 5574, para.12, (per COX J) para 12 reads as The first question is whether we may have regard to the Hansard extract at all. It was for a long time the unqualified rule that the courts would not

look to proceedings in Parliament or to parliamentary debates as an aid to the construction of a statute.

In Commiss ioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 51 ALJR 715 it was held that the rule

Was too deeply entrenched to permit of any exception, even though this curial act of self denial might on occasions produce eunintended results. Any change in the common law position was peculiarly a matter for Parliament. See, for example, per Mason J at 729. However, the tide was turning and in Wacando v Commonwealth of Australia (1981) 56 ALJR 16, at 25-26 and Commissioner of Taxation v Whitfords Beach Pty Ltd [1982] HCA 8; (1982) 56 ALJR 240, at 246-7, Mason J himself said that there were grounds for making an exception to the general rule for the case where a bill was introduced to remedy a mischief. His

Honour considered that to have regard to the purpose for which the legislation was enacted, as stated by the Minister in charge of the bill, would conform to the rule that extrinsic material is admissible to show the mischief which a statute is designed to remedy. However, in Devine v Solomijczuk (1983) 32 SASR 538 a majority of the Full Court held, notwithstanding Mason J's observation,

that it was not permissible for the Court to have regard in that case to a Minister's second reading speech even for the limited purpose of discerning the mischief that the legislation in question was designed to remedy. They relied on the Charles Moore Case. See per Mitchell J at 541 and per Zelling J at 545. Since that time, however, and despite the stand taken in Charles Moore, there have been many decisions in other State Courts and in the Federal Court in which recourse has been had to Hansard to identify the mischief or

purpose of disputed legislation. See Pearce and Geddes, Statutory Interpretation in Australia (4th ed.) par.3.2. In Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 the High Court, in the absence of any objection, was prepared to assume for the purposes of that case that the Court was entitled to refer to ministerial statements to identify the mischief or purpose of a section of the Criminal Law Consolidation Act. In many places the curial development of the interpretation rules has been overtaken by statutory changes that go further than our Acts Interpretation Act, and an occasion for the High Court to re-examine its position on the common law rule as stated in Charles Moore has evidently not arisen. However, things have not stood still. In 1992 the House of Lords greatly modified the traditional rule so as to permit reference to Parliamentary material as an aid to statutory construction where the legislation is ambiguous or obscure or would lead to absurdity, and thereby departed radically from the decision in Hadmor Productions Ltd v

Hamilton (1983) 1 AC 191 which was an authority that Zelling J had cited in Devine v Solomijczuk. See Pepper v Hart [1992] UKHL 3; (1993) AC 593. Closer to home, the Full Court of this State in two recent decisions, Workers Rehabilitation and Compensation Corporation v Lu (1995) 183 LSJS 193 and Workcover Corporation of SA v Summers, Judgment No. 5278, 2 November 1995, unreported, held that it was permissible for the Court to have regard to Hansard to ascertain the purpose which Parliament in the relevant legislation sought to achieve. See also the earlier decision of White J in State Government Insurance Commission v Paneros

(1989) 51 SASR 213, at 221-2. The judgments in those cases do not refer to the earlier decision of the Full Court in Devine v Solomijczuk or to the rule of practice that inhibits a Full Court from overruling an earlier decision of another Full Court unless it was plainly decided per incuriam or was inconsistent with higher authority or was, in the opinion of the second Full Court, clearly wrong. It may be that Devine v Solomijczuk was not cited to the Court in those cases or that the Court considered that the inhibitory rule

of practice does not apply in this area. Be that as it may, the fact is that we are now faced with conflicting decisions of the Full Court on the subject and are obliged to choose between them. Young v Bristol Aeroplane Co Ltd (1944) KB 718, 729. I have no doubt, for the reasons that have generally prevailed in other places since Devine v Solomijczuk was decided, that that case should now be regarded as having been overruled or, preferably perhaps, superseded in this respect. It is permissible to look at the Minister's

second reading speech on the 1995 amendment to s20 of the Truth in Sentencing Act in order to identify the purpose of the amendment. :; see also WorkCover v. Lu (1995) 183 LSJS 193 at 201 (per DOYLE CJ), WorkCover v. Summers (1995) 65 SASR 243, Rann v. Olsen (2000) 76 SASR 450; [2000] SASC 83 , para. 95 (per DOYLE CJ) para 95 reads as :” To assist in arriving at the proper meaning of s 16(3), it is permissible to consider the context in which it was enacted, and the mischief with which it was intended to deal. A court may do that to determine the operation of the Act, and not just to resolve an ambiguity that might arise in relation to it: CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; (1997) 187 CLR 384 at 408. A consideration of that context, and of the intended mischief, invites attention to the Second Reading speech on the Parliamentary Privileges Bill”, MSP Nominees v. Commissioner of Stamps [1999] HCA 51, para 25, n.18--cf Devine v. Solomijczuk (1983) 32 SASR 538

[2] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 (27 February 1990) ,HIGH COURT OF AUSTRALIA per MASON C.J. AND TOOHEY J.

[3] Mills v Meeking [supra]

[4] Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 at 255-256; Thomas v Mowbray [2007] HCA 33; (2007) 237 ALR 194 at [525] per CALLINAN J

[5] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per BRENNAN CJ, DAWSON, TOOHEY and GUMMOW JJ articulated the principle.

[6] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg Aktiengesellschaft [1975] UKHL 2; [1975] AC 591 at 614, 629, 638; Wacando v The Commonwealth [1981] HCA 60; (1981) 148 CLR 1 at 25-26; Pepper v Hart [1992] UKHL 3; [1993] AC 593 at 630.

[7] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 104 per Mason J, 111 per Wilson J; [1985] HCA 11; Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 360-361; [1989] HCA 33.

[8] Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 at 256-257 per Cox J, 257 per Prior J; see also Nemer v Holloway (2003) 87 SASR 147 at 166-167 per Vanstone J and generally, in relation to South Australia, Pearce and Geddes, Statutory Interpretation in Australia, 6th ed (2006) at 70-71 [3.6].

[9]Re Bolton; Ex parte Bean [1987] HCA 12; (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; [1987] HCA 12

[10] K-Generation v Liquor Licensing Commission [2009] HCA 4 at [51] - [53]

[11] Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R [1989] HCA 33; (1989) 167 CLR 348 at 360–1.

[12] Owen v South Australia [1996] SASC 5574; (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.

[13] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408