Sunday, 13 November 2011

Considering pending legislation

I just came across this interesting little tidbit about statutory interpretation: in Campbell v Employers Mutual Ltd and Others [2011] 110 SASR 57 the Full Court of the South Australian Supreme Court held that courts can and should take into account enacted legislative amendments that had not yet commenced. The particular references are at [68] – [69], citing New South Wales v Commonwealth (1990) 169 CLR 482 and Queensland v Central Queensland Land Council Aboriginal Corporation (2002) 125 FCR 89 at [60].

At [184], White J said:

I consider that the following propositions should guide this Court in relation to the use to be made of the unproclaimed s 98F(3):

(1) An unproclaimed provision forms part of the statute or amending statute when that statute or amendment was enacted.

(2) Accordingly, although not yet in force, the unproclaimed provision forms part of the statute to be construed and a court can, and should, have regard to it in construing the statute. It would be a curious result if a court could have regard, for example, to extraneous materials to discern the true legislative intention concerning the provisions in a statute, but not to a provision which the legislature itself had enacted at the same time as part of the statutory scheme.

(3) Subject to the propositions which follow, a court should strive to construe the statute, including the unproclaimed provision, as a whole, taking into account the effect which the unproclaimed provision has in the statutory scheme. That does not mean that the court must proceed on the basis of a fiction, that is, on the basis that the unproclaimed provision is in fact in force.

(4) The court should allow for the possibility that the legislature intended that some elements of a statutory scheme should come into operation at different times, and that the scheme should operate differently upon the coming into force of the later provisions. Just as the legislature may intend an amending Act to alter the meaning of a statute, so may it intend provisions enacted at the same time, but to come into operation at a later time, to have that effect; and

(5) Like Waddell J, I consider that it is permissible for the court to take into account that an unproclaimed provision may never be proclaimed and accordingly never be in force.

I can't remember coming across this before (though I don't have my copy of Pearce & Geddes with me right now).

I wonder just how far this principle goes? Clearly, it suggests that new provisions yet to commence can assist with understanding how the legislation is supposed to operate. But does that mean it can make decisions based on what the legislation will be? For example, when Road Safety Act s 30 was amended to remove mandatory jail for a subsequent driving when disqualified offence, would it have been legitimate for a Court to adjourn a case in anticipation of that amendment commencing?

It seems to me that that goes beyond mere interpretation, but after reading the extract above, I'm not sure one way or the other.

Anyone out there know the answer?


Anonymous said...

The encroachment of retrospectivity seeps further in to the judicial psyche. we live in dangerous times.

porgi said...

Where I am, sect 34(1)(a) of the ACT (Sentencing) Act 2005 says "a law that has not commenced" is an irrelevant consideration that courts cannot take into account to raise a penalty. So on the one hand there is a rule that applies here but from what your saying the same rule is not in other juridsictions?