Michelle Rowland (Greenway, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Link to this | Hansard source

As I was saying before the interruption, the primary genesis of the proposals in this bill was a statutory review undertaken by Anthony Blunn AO, Mr Ian Govey and Professor John McMillan AO—all of course eminent individuals. There were 46 recommendations made in that report. What I would like to focus on in the bill before us is the proposal that the First Parliamentary Counsel be given powers to make editorial changes and other changes.

A Senate inquiry looking into this bill is in fact due to report today. I do not think the report has been released yet but, if the minister knows otherwise, I am happy to be corrected. I would like to turn to the submission made to that inquiry by the Clerk of the House, Mr David Elder. Mr Elder made some salient points that I think the House should be aware of. I would like to acknowledge the exemplary quality of parliamentary officers in this chamber and the value of Mr Elder's comments. He said:

Proposed new section 15V(6) specifically prohibits the First Parliamentary Counsel from making a change to an act or instrument that would change the effect of the act or instrument, and proposed new section 15X clearly defines editorial change. These provisions would appear to ensure that no changes of a substantive nature could be effected to legislation without passing through the established parliamentary processes.

In terms of the parliament's role in correcting errors in bills before the bills are presented for assent, the bill does not appear to have any effect on current practice. At present, if an error is discovered in a bill before parliament the usual practice is first to determine whether the required correction is editorial or substantive. In the case of editorial changes the Deputy Speaker or Deputy President authorises the responsible department to make the necessary change in preparing the bill for transmission to the other House or for assent by the Governor-General.

Fair enough, I think the comments about section 15V(6) and 15X are absolutely correct. But I do believe we need to turn to paragraph 2 and the logical steps which Mr Elder identified. If there is an error, there are two options: if it is an editorial error, the Deputy Speaker or Deputy President authorises the department to make changes; if it is a substantive error, corrections are made via amendment during the passage of a bill or subsequent to the bill coming into effect.

At this stage, I would like to turn to the definition of 'editorial change'. As the shadow Attorney-General alluded to in his comments, the notion of reporting back to the parliament on any actions that the First Parliamentary Counsel may have taken in relation to these provisions would probably not be seen as novel; it is the principle that agencies report to parliament on circumstances in which their powers exercised outside the parliament. Surely, this is not seeking to undermine the principle. We are the law-makers in this place and we should know when a piece of statute law has been changed, however slight that change may be. There is no intention in this bill to do anything contrary to that. The reason I raise it is in terms of understanding the context and the importance of us being here today looking at this bill to ensure that there are no unintended consequences arising from that exercise.

I will now turn to the two new concepts within the scope of powers of the First Parliamentary Counsel in the bill. The first is about the power to make editorial change and the second is about what precisely an editorial change is. In relation to the powers contained in proposed section 15V, the explanatory memorandum states:

Making changes in this way —

that is, editorial and presentational changes to a compilation of an act or instrument—

will conserve limited parliamentary time and other resources.

In other words, among other things it would not necessarily need to be presented to the parliament and debated—that is one way of reading this. I believe it is important to be clear on two things. Firstly, we should recognise that the proposed powers of the First Parliamentary Counsel apply to preparing a compilation of an act—and that is contained in section 15V(1). That is supported by the following comment at page 46 of the explanatory memorandum:

Editorial changes can only be made to a compilation — the original version ‘as made’ by the Parliament o r rule-maker cannot be changed.

The second point I want to make is to again reinforce the confidence we have in the skill and dedication of the Office of Parliamentary Counsel. I am on the record on many occasions in this place on the issue of statute law and other legislative reform expressing precisely that sentiment, and I am happy to do so today.

It is instructive to note, however—and this is the reason why I raise this—that these proposals go precisely to the wording being advanced in section 15X(2)(a), because often minor editing can change the meaning of a bill. Here I am talking about the definition of editorial change, in section 15X subparagraph 2: 'An editorial change to an act, legislative instrument or notifiable instrument is a change made by the first parliamentary counsel that, a) goes only to a matter of spelling, punctuation, grammar or syntax and the use of conjunctive and disjunctives.' The reason why I raise this provision is because this can precisely make a difference in judicial interpretation. Issues of punctuation, as have been shown in judicial interpretation and specifically case law tell us so. I think it would be prudent for the parliament not only to be made aware of when these powers are invoked but also to closely examine the findings of the Senate report and any consequential recommendations for any amendments that arise from that.

I did allude to specific cases where punctuation has made a difference. Again, as I did in my Statute Law Revision Bill contribution on 22 August 2012, I do want to highlight what I think is probably one of the most instructive cases on this point. That is the case of a comma in a contract being capable of being interpreted in such a way that it can make millions of dollars of difference. I believe this is relevant, so I am happy to quote exactly as I did on that occasion.

This was a case from 2006. A headline in The New York Times reported on 25 October 2006, describing it as a case of 'The comma that cost $1 million'. The issue at stake was a 14-page contract between Rogers Communications of Toronto, Canada's largest cable TV provider, and Bell Aliant, a telephone company in Atlantic Canada. The question of whether a single comma was placed in the right position led to a difference of Can$1 million. I will quote from the New York Times summary: 'Citing the rules of punctuation, Canada's telecommunications regulator recently ruled that the comma allowed Bell Aliant to end its five-year agreement with Rogers'—this was about the use of telephone poles—'at any time with notice.' The dispute was over this sentence: 'This agreement shall be effective from the date it is made and shall continue in force for a period of five years from the date it is made, and thereafter for successive five-year terms, unless and until terminated by one year prior notice in writing by either party.' The regulator concluded that the second comma, after 'successive five-year terms' meant that the part of the sentence describing the one year notice for cancellation applied to both the five-year terms as well as its renewal. Therefore, the regulator found, the phone company could escape the contract by as little as one year. Following this, Rogers commissioned a 69-page affidavit as part of its case—mostly about commas—from Kenneth Adams, a lawyer from Garden City in New York who is apparently the author of two books on contract language. You can see, as I am sure the shadow Attorney-General does, the impact of punctuation and judicial interpretation. I have a genuine constructive point for the minister at the table who introduced this and will be wrapping it up shortly: I would be very interested in knowing what other jurisdictions do this and confer such power on their equivalent Office of Parliamentary Counsels. In what other legislatures does this practice occur, in what circumstances does it occur and what are the lessons and safeguards that we should put in place?

Again, as I said, I make these comments in the absence of knowing the outcome of the Senate inquiry. Perhaps it is the case that the reservations I have mentioned could be alleviated by reporting to parliament about whether these provisions are editorial and whether these amendments are activated.

In the short period of time that I have left I would like to mention, since we are talking about statute law, the fact that Justice Susan Crennan, Justice of the High Court, is in fact going to retire on 3 February 2015, which is before parliament resumes. Justice Crennan was the second woman appointed to the court after Justice Mary Gaudron replaced Justice Michael McHugh. From her official biography on the High Court website:

Susan Maree Crennan AC was appointed to the Court in November 2005. At the time of her appointment she was a judge of the Federal Court of Australia, having been appointed to that office in February 2004.

…   …   …

Justice Crennan AC was admitted to the New South Wales Bar in 1979 and joined the Victorian Bar in 1980. She was appointed a Queen’s Counsel in 1989. Justice Crennan AC was President of the Australian Bar Association 1994–95, Chairman of the Victorian Bar Council in 1993–94, and a Commissioner for Human Rights in 1992. Justice Crennan AC was appointed a Companion in the General Division of the Order of Australia in 2008.

I think it is very opportune and instructive on this occasion, since we are discussing issues of statute law interpretation, so I took the time to have a look at one of Justice Crennan's illuminating articles which she wrote in February 2010: the Statute Law Society paper entitled 'Statutes and the contemporary search for meaning'. She said, regarding statutory interpretation: 'Contemporary approaches to statutory interpretation preclude sacrificing meaning to inflexible theories or principles.' She discusses, very interestingly, three factors that go towards statutory interpretation: the will of the parliament, context and purpose, and the principle of legality. I think that, in the context of discussing the will of the parliament here and to ensure that we, as representatives and the statute makers in this place, do not have any unforeseen consequences arising from this bill, it is most pertinent to have a look at Justice Crennan's comments which she makes there. I would encourage all members to visit it. There are some fundamental issues that she raises here about the separation of powers, the will of the parliament and how courts interpret that will. They are certainly very wise words. I wish to place on record thanks to Justice Crennan for her service to the law and I wish her well. She has been an adornment to the court and will continue to be so until her actual retirement.

In conclusion, I have commended the Office of Parliamentary Counsel for their most instructive operation. I think all members would also be well advised over the break—I know they will print this off and read it—by the revised legislative instruments handbook, which is most illuminating, and, as I have referred to previously, the OPC's guide to reducing complexity in legislation, both of which I think lend themselves to a quote Nick Horne did a paper on legislative drafting in Australia, New Zealand and Ontario: 'Notes on an informal survey'. He noted that our Office of Parliamentary Counsel's plain language guide is the most detailed, practical legislative council manual currently available. I commend them for that and support the bill, subject to those reservations which both the shadow Attorney-General and I have mentioned.

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

I thank all honourable members for their contributions to debate on this bill. I particularly admire the member for Greenway's enthusiasm for acts and instruments, which I was unaware of until her contribution. We are very pleased to facilitate and support the passage of the Acts and Instruments (Framework Reform) Bill 2014. The bill provides an opportunity for significant reforms to align the legislative frameworks for Commonwealth acts and instruments. Importantly, this bill will promote the principle of access to justice by enhancing the accessibility of Commonwealth laws. It will also create administrative efficiencies and help reduce beige tape for government agencies. It will also facilitate efforts to reduce red tape. I would like to thank the Office of Parliamentary Counsel for its significant commitment to preparing this bill and for seeking to improve the clarity and operation of the legislative instruments regime. I therefore commend the bill to the House.

Question agreed to.

Bill read a second time.