The Senate

Second Reading Speech

Senator Durack (Western Australia-Attorney-General)(4.56)

- I move: That the Bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows-

The Statute Law Revision Bill 1981 has three purposes. First, it is designed to correct some printing and drafting errors that have been found to exist in a number of Acts. Secondly, it provides for the repeal of a number of Acts and provisions of Acts the operation of which is exhausted or which are no longer required. Thirdly, it makes a number of technical or minor amendments which, whilst having some substance, are regarded as being of a non-controversial nature. The Government has decided to introduce Statute Law Revision Bills into the Parliament on a regular basis, at least once in each year and, if required, once in each sitting. This will enable the prompt correction of mistakes and errors and removal from the statute book of expired laws. In the absence of the regular passage of Bills of this kind, the correction of an error in an Act can only be achieved by having a special Bill passed for that purpose or waiting until the Act needs to be amended for some other more important purpose. An objection sometimes made to omnibus amending Bills is that they result in so-called 'hidden' amendments. However, the Government Printer now issues monthly tables of Acts passed by the Parliament and these tables indicate clearly whenever an Act is amended by an omnibus Act such as a Statute Law Revision Act.

The provisions of the present Bill that deal with the correction of errors and the repeal and amendment of expired laws do not call for particular comment. I propose to explain in some detail the nature and effect of the provisions of substance.

Acts Interpretation Act 1901

The Bill provides in Schedule 1 for the insertion in the Acts Interpretation Act of a provision that i w relevant to the whole body of statute law. The provision is to the effect that, in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act, whether that purpose or object is expressly stated in the Act or not, shall be preferred to a construction that would not promote that purpose or object. Mr President, under our constitutional arrangements it is the function of an independent judiciary to interpret the law and no proposals which we make can or should undermine the freedom that this function requires. Nevertheless the general approach to be adopted to statutory interpretation is something which this Parliament can-and at this stage should- address. The volume and complexity of legislation are assuming daunting proportions and the task of understanding and applying it grows in proportion. Increasingly the more significant decisions our courts are called upon to make turn on a point of statutory interpretation. Our problems are not unique. They are shared, for example, by the British Parliament, to which proposals have been made along the lines now proposed by this Bill. The British proposals, I should add, have been initiated and supported by very distinguished law Lords, including Lord Scarman and Lord Wilberforce.

The effect of the provision to be inserted in the Acts Interpretation Act will be to confirm that in interpreting provisions regard is to be had to the object or purpose underlying the Act in question. I am not among those who would say that the general approach of our courts is at present overly legalistic, but I do think that there is scope for expressly stating that the statutes we make are to be interpreted in a purposive manner. Tax decisions constitute a topical and important example that will come readily to all senators' minds, but the matter has wider implications that extend to many other statutes. I therefore commend the provision to the Senate, but before moving on I should invite the Senate's attention to some related questions. Explanatory material is often provided by the Government to assist senators and members, and subsequent users of legislation. The material is of particular value where legislation is complex or specialised in subject matter or both. 2.

I think that we need to consider placing this practice on a more regular basis, even to the extent of having an explanatory memorandum approved by the Parliament and able to be taken into account by the courts in interpreting difficult provisions in the Act. The memorandum could not and would not be controlling. However, apart from contributing to the ease with which an Act can be understood by the public as well as by senators and members, such a practice offers the hope that the draftsman, when faced with the difficult choice of either using general language which might, however, leave the courts without sufficient guidance, or introducing lengthy detailed provisions, could feel some security in choosing the former course if he knew that a memorandum approved by the Parliament would embody its intent.

A cognate question arises where an Act is based on an expert report tabled in the Parliament for example by the Law Reform Commission. Courts can at present consider such reports, but the precise way in which they can use them has been the subject of dispute. The fear has been expressed that the use of extraneous materials such as reports and explanatory memoranda will increase the cost and length of legal proceedings. Certainly the possible disadvantages have to be considered and weighed against the benefits that would flow from the use of such materials. The time has come, however, when the matter should be fully explored and I take the opportunity of stating to the Senate that I propose to do so with a view to developing specific proposals that can be brought into the Parliament for further consideration. In the meantime, the present position on the use of extraneous materials is preserved by stating in the proposed new provision that it is not to be construe n as authorising the consideration of extraneous materials for any purpose for which they could not be considered if the new provision had not been enacted.

Administrative Appeals Tribunal 1975

Part II of the Bill repeals the provisions of the Schedule to the Administrative Appeals Tribunal Act 1975 that confer jurisdiction on the Administrative Appeals Tribunal in matters arising under various other Acts, and other parts of the Bill re-enact the provisions concerned as part of those other Acts. In the course of transferring these provisions from one Act to another, Part IV omits the requirement that the Tribunal be constituted by a presidential member sitting alone when a decision is being reviewed under section 20 of the Australian Capital Territory Taxation (Administration) Act 1969. That section empowers the Commissioner of Taxation to revoke a banker's authority to issue cheque forms that are pre-stamped with the duty payable under that Act if the banker is convicted of an offence against that Act. Part XI provides for the Tribunal to have jurisdiction to review decisions of the Collector of Customs under sections 22 and 23 of the Distillation Act 1901. Those sections relate to the renewal of licences to distil spirits. In all other respects these amendments do not make any change in substance to the jurisdiction of the Tribunal.

Schools Commission Act 1973, Tertiary Education Commission Act 1977

The Bill provides for the word 'Commonwealth' to be included at the beginning of the names of the Schools Commission, the Schools Commission Advisory Boards and the Tertiary Education Commission and provides for these bodies to perform the same functions in relation to the Northern Territory as they perform in relation to a State. Clause 117 amends references in various Acts to the former names of these bodies.

Defence Act 1903, Air Force Act 1923 and Naval Defence Act 1910

The amendments made by Parts III, X and X and clause 116 give effect to recommendations made by the Millar Committee report on the Citizen Military Forces in 1974 regarding the title and structure of the Army Reserve. The Millar Committee recommended that the Citizen Military Forces be retained as the country's immediate reserve of Army units and be renamed the Australian Army Reserve. The Committee also recommended that the members of the Regular Army Reserve, the Regular Army Emergency Reserve and the Reserve Citizen Military Forces be brought into this single Army Reserve organisation. On 4 April 1974, the report was tabled in the House of Representatives by the then Minister for Defence, who announced approval of these two recommendations. It was not appropriate to proceed with formal amendment to the titles and structures of the Reserve Forces until the Government had considered a further recommendation of the Committee that the Army Reserve be available for service in situations short of a proclaimed time of defence emergency. Honourable senators will recall that in January 1980 the Minister for Defence (Mr Killen) announced that the Government had decided not to vary the availability for service of the Army Reserve. 3.

In recommending a change to the title of the Citizen Military Forces, the Millar Committee recognised the concern within that force that the existing title misrepresented the nature of the Citizen Military Forces. It was considered that the essential nature of the force was more accurately reflected in the title 'Australian Army Reserve'. The validity of the Committee's view is shown by the general acceptance of the title 'Army Reserve', except where the use of the present formal title 'Citizen Military Forces' is dictated by legal requirements. Before legislation could be introduced to reflect the new title, it was necessary to consider whether corresponding title changes should be made to the Citizen Naval Forces and the Citizen Air Force. It was also necessary to consider the structures of the Citizen Forces of all three Services because some of the elements of those forces bore derivative titles such as Active Citizen Military Forces and Active Citizen Air Force.

The Bill amends the Defence Act to rename the Active Citizen Military Forces as the Active Australian Army Reserve and the Reserve Citizen Military Forces as the Inactive Australian Army Reserve. The Regular Army Reserve, which is a non-training element of the Permanent Military Forces, is abolished and its members are transferred to the Inactive Reserve. In the context of Reserve Forces, 'Active' denotes those elements the members of which have specific training obligations. The Bill also removes from the Defence Act reference to the unattached list and the Reserve of Officers. These relate to the internal administrative arrangements of the Active and Inactive Reserves, respectively, which are matters of administrative detail appropriate to be dealt with by the regulations or by determinations under section 33 of the Defence Act. It has been decided not to incorporate the Regular Army Emergency Reserve into the Australian Army Reserve as recommended by the Millar Committee. The Emergency Reserve comprises former members of the Regular Army who agree to become members on cessation of their Regular Army service. Members may be called out by the Governor-General when he considers it desirable to do so.

The enactment of the provisions of the Bill to which I have referred will bring to finality implementation of the recommendations of the Millar Committee, except for those few recommendations with which the Government has chosen not to proceed. Parts III and XV of the Bill amend the Air Force Act 1923 and the Naval Defence Act 1910 to make amendments in relation to the Air Force and the Navy corresponding to the amendments made in respect of the Army. The Bill renames the Citizen Air Force as the Australian Air Force Reserve. It also restructures the Reserve so that the Active Citizen Air Force becomes the Air Force Active Reserve, the Air Force Reserve become the Air Force General Reserv m and an additional element, the Air Force Specialist Reserve, is introduced. The Air Force Specialist Reserve will comprise officers and airmen having specialist skills, such as doctors, dentists, lawyers and chaplains. Members of the General Reserve and the Specialist Reserve will not usually have peace time training obligations. The Bill renames the Citizen Naval Forces as the Australian Naval Reserve. It does not deal with the elements into which that body is divided because this is dealt with in regulations under the Act.

The opportunity has been taken to revise the provisions of the Defence Act, the Air Force Act and the Naval Defence Act with regard to the rendering of service - other than continuous full time service - by members of the Reserve Forces. The revised provisions are more closely tailored to the needs of the Reserves and provide more accurately for the regulations relating to obligatory and voluntary periods of non-continuous service. Clause 116 amends references in various Acts to the former titles of the Reserve Forces and to 'continuous full time service'.

Federal Court of Australia Act 1976

Schedule 1 amends the Federal Court of Australia Act 1976 so as to permit an affidavit to be sworn before a district registrar and a deputy district registrar of the court. It also amends that Act so as to enable a reserved judgment to be delivered at any subsequent sitting of the Court, whether or not the Court is sitting as a full court.

Historic Shipwrecks Act 1976

Part XIII amends sub-section 3(5) of the Historic Shipwrecks Act 1976. The Amendment relates to the description of the area adjacent to Queensland contained in the Petroleum (Submerged Lands) Act 1967 and is, consequential on an alteration that is proposed to be made to that description by another Bill during the present sittings.

Migration Act 1958

The purpose of the amendments made to the Migration Act 1958 by clause 59 is to overcome problem resulting from the amendments of section 16 of the Act that were made by the Migration Amendment Act 1979. Section 16 deems to be a prohibited immigrant a person who, for the purpose of securing entry into Australia, produces or produced to an officer an official document that 4. was not issued to him or was forged or obtained by false representation. A doubt has arisen as to whether section 16 would apply to a person who produced a visa or return authority to an officer before 1 November 1979, which was the date on which the amending Act came into force, in a case where the visa or return authority was not a separate document but was stamped in the person's passport. The amendment will make it clear that the section will apply in such a case. Clause 2 will make the amendment retrospective to 1 November 1979.

Navigation Act 1912

Schedule 1 amends the Navigation Act 1912 so as to enable judges of the Federal Court to sit on courts of marine inquiry without the need for special authorisation by the Governor-General.

Parliamentary Counsel Act 1970

Schedule 1 amends the Parliamentary Counsel Act 1970 to remove any doubts as to the validity of the long-standing practice of making dormant acting appointments to the offices of First and Second Parliamentary Counsel. These are appointments that are made in anticipation of any absences from duty of the holders of those offices and are designed to take effect automatically whenever an absence occurs during the currency of the relevant acting appointment.

Pig Industry Research Act 1971

Schedule 1 inserts the word 'Australian' at the commencement of the name of the Pig Industry Research Committee, which is constituted under the Pig Industry Research Act 1971. This will bring the name of the Committee into line with similar committees established under other Acts.

Public Service Act 1922

Clause 79 corrects an obsolete cross-reference in sub-section 82(6B) of the Public Service Act 1922. That sub-section provided that the services of a temporary employee to whom Commonwealth Employees (Redeployment and Retirement) Act 1979 applied could not be dispensed with except on the ground that the employee had been guilty of conduct which, if he were an officer, would constitute an offence referred to in sub-section 55(1) of the Public Service Act. However, on 15 March 1981 the provisions of sub-section 55(1) were replaced by the new disciplinary provisions of Division 6 of Part III of the Act. Clause 79 therefore omits the reference to the repealed sub-section 55(1) and replaces it with a reference to specified grounds of dismissal, which are the same grounds as are set out in the new Division 6 of Part III of the Act. Clause 2 provides that clause 79 is to be deemed to have come into operation on 15 March 1981.

Social Services Act 1947

Schedule 1 amends the Social Services Act 1947 to enable claims for age, invalid or widows pension, or sheltered employment allowance, to be lodged with any registrar. That Act presently requires such claims to be lodged with the registrar whose office is nearest the place of residence of the claimant.

Trade Union Training authority Act 1975

In 1979 the Australian Council of Salaried and Professional Associations and the Australian Council of Trade Unions were amalgamated and the former body ceased to exist. Part XXIII provides for the abolition of the offices of the persons representing the former body on the Australian Council for Union Training, and on each of the State Councils for Union Training, established under the Trade Union Training authority Act 1975, but it increases by one the number of persons representing the ACTU on each of those councils. I commend the Bill to the Senate.