Michelle Rowland (Greenway, Australian Labor Party) Share this | Hansard source

I would like to start by declaring—some may say confessing—my fascination with bills of this nature, which I enjoy reading and analysing and about which I relish the opportunity to provide comment. While some may take the view that the process of typographical review, repealing defunct legislation and correcting referencing errors in statute law is a tedious yet necessary exercise, I think it epitomises a robust, best-practice approach to law-making, which is one of the foundations of the democratic processes of this parliament.

Members of parliament, legal practitioners, government agencies, regulators and the public generally have a right to assume that the law as printed is error-free, that it accurately reflects its legislative intention and that its ambiguity is minimised by factors such as the inaccurate placement of punctuation. Indeed, it was a year ago to the day that I rose in this place to extol the merits of the Legislative Instruments (Sunsetting) Bill 2011, which I described as dealing with a fundamental piece of statutory interpretation and rule making— namely, the Legislative Instruments Act 2003. It has certainly been a big year. Just to add to my form in bills of this nature, I was also pleased to add my support on 23 June last year to the Statute Stocktake Bill (No.1) 2011.

And so it is the case for this Statute Law Revision Bill. It is instructive to peruse the website of the Office of Parliamentary Counsel and learn about its functions and the principles which guide its practice for producing clearer laws. I would particularly like to mention the five points set out in its commentary on clearer Commonwealth law, which provide a concise statement of best-practice law-making. It states:

Policymakers, instructing agencies and drafters should apply the following general principles when developing Commonwealth legislation:

1.   Consider all implementation options—don't legislate if you don't have to.

2.   When developing policy, reducing complexity should be a core consideration.

3.   Laws should be no more complex than is necessary to give effect to policy.

4.   Legislation should enable those affected to understand how the law applies to them.

5.   The clarity of a proposed law should be continually assessed—from policy development through to consideration by Parliament (for Acts) or consideration by the rule-maker (for legislative instruments).

It is no wonder, then, that Australian legal drafting is recognised as some of the best in the world. Certainly, in our region, I am aware that Australia's overseas assistance through capacity-building projects to establish legal institutions and draft legislative instruments is first class. In my former life as a legal practitioner, I was fortunate to work on a number of such projects for overseas regulators, companies and governments—sometimes privately funded but in many cases facilitated by donor agencies, such as the World Bank and the Asian Development Bank.

The reputation for Australian law and legal drafting is indeed very high. Let me give some examples. Malaysia's Communications and Multimedia Act has at its core an access regime whose drafting mirrors that of part 11(c) of the Trade Practices Act. I was fortunate to work on a review and expansion of the access list determination, again providing a great opportunity to undertake a consultative process and the drafting of such instruments.

In Samoa I was involved in drafting regulations regarding radio communications and telecommunications, and I assisted on what was known as the Mekong Project, headed by then partner of Gilbert + Tobin, Angus Henderson, who drafted a number of groundbreaking regulations for telecommunications in the Lao PDR, Cambodia and Vietnam.

Our piece de resistance was our work in Ramallah, drafting a new telecommunications law and establishing a regulator. I can say with great confidence that, whenever we did go to these areas of the world, we found that the reputation of Australian law-making and drafting was held in very high regard.

Since I have the opportunity to talk about law drafting here, I would also like to mention a groundbreaking piece of law-making, which occurred recently in Hong Kong and on which I also had the pleasure of working. It was one of the last matters I worked on at Gilbert + Tobin and something that has come to fruition quite recently. I would like to pay tribute to the work of partner Peter Waters, who headed the team advising the Hong Kong government on its policy development, which formed the basis of Hong Kong's first cross-sector competition bill. It was gazetted shortly after I left the firm, and on 14 June this year it was finally enacted into Hong Kong law.

I have placed on record before that Peter Waters is one of the great legal teachers I have had. In a similar vein to the best-practice drafting that I noted for the Office of Parliamentary Counsel, he said of the competition law:

The Bill is built around three principles. First, it should reflect modern economic thinking about competition and regulation—for example, it does not automatically outlaw any conduct (i.e. on a per se basis). Second, it should also reflect Hong Kong's unique characteristics as a small, open market, which is the reason for the law to have a modest scope. Third, it should be capable of delivering business certainty, which is reflected in the mechanisms for individual and block exemptions.

I would like to pay tribute again to a great example of legislative drafting, consistent with Australia's drafting generally of statue law, which has had overseas influence and I am sure will continue to be the case.

I took the opportunity to have a look at some of the statute law revision projects occurring around the world. One that I found very interesting—I know you will be interested in this, Madam Deputy Speaker O'Neill—is the case of Ireland. Ireland is undertaking a phased statute law revision project to ultimately lead to the codification of the Irish statute book. The project has undertaken an analysis of all legislation of the various Irish, English, British and UK parliaments which exercised authority over Ireland prior to Ireland becoming independent as well as legislation that was passed since 1922.

It identified a staggering 63,000 statutes that came within its remit for examination. A number of acts on statute law revision have passed since the project commenced. The 2005 act repealed a total of 207 specifically identified pre-independence public general acts. In 2007 a similar act provided a list of no fewer than 1,364 statues which were to remain in force after enactment of the bill. Apart from those statutes, all other pre-independence public general acts were repealed. The office of the Attorney-General in Ireland states:

The effect of this was that more than 3,225 statutes were expressly repealed by the Act—

the 2007 act—

making it the largest statute law revision measure ever to apply in Ireland, and, so far as the Government is aware, the largest single repealing Act ever enacted anywhere.

In 2009 a similar statute law revision act expressly repealed a total of 1,351 acts and a further 8,965 acts were implicitly repealed by the 2009 act. My understanding now is that the project is in the process of undertaking—or perhaps is close to completing—public consultation on a similar 2012 bill. This is the final phase of the review, which I will be following closely, as I am sure you will, Madam Deputy Speaker. Subject to consultation, the government has proposed to retain approximately 800 such acts enacted between 1750 and 1922. It will repeal about 2,900 acts and implicitly repeal approximately 19,000 acts which would no longer be deemed to apply to Ireland. That gives an indication of the scale and importance of statute law revision bills of this type.

I talked about how this bill proposes to correct a number of typographical errors. I remember one celebrated case from 2006—maybe not celebrated by some—that gives an example of grammar gone wrong. As the headline in an article from the New York Times from 25 October 2006 very accurately describes it, it is a case of 'The comma that costs $1 million (Canadian)'. 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. As the New York Times article states:

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—

about the use of telephone poles—

at any time with notice.

…      …   …

The dispute is over this sentence: “This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) 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 (5) year terms'—

meant that the part of the sentence describing the one-year notice for cancellation applied to both the five-year term as well as its renewal. Therefore, the regulator found, the phone company could escape the contract after as little as one year.

This case is really interesting. Rogers commissioned a 69-page affidavit, mostly about commas, from Kenneth Adams, a lawyer from Garden City in New York, who is the author of two books on contract language. You can see how, again, the issue of punctuation can make an incredible difference to both contract interpretation and, in turn, statutory interpretation.

I would like to conclude in the time left to me by congratulating Stephen Gageler on his recent appointment to the High Court, where I am sure he will do an absolutely exemplary job. I had some exposure to Stephen Gageler—he will not remember me at all; I was a mere minion—in my first year as a lawyer. He was giving an opinion on something to do with Hong Kong law—just by coincidence. It was the first barrister's opinion that I ever read. I remember coming back from his chambers and one of my colleagues asking me, 'What was it like going to his chambers and hearing him talk about his brief?' I remember saying something like, 'This man has an enormous brain.' It was quite something to be in his company.

A lot has been written about Stephen Gageler recently and the Attorney-General and others have made very positive comments about the fact that he is a very highly regarded, very highly respected member of the legal profession. It is worth noting that Mr Gageler is a product of the public education system, which I think is a wonderful thing.

He attended Giants Creek Primary School and Muswellbrook High School in Muswellbrook. The fact that people such as Stephen Gageler are being elevated to the High Court demonstrates how important our public school system is. I have been speaking about Gonski to a lot of schools in my area recently, and, as I did in my maiden speech, I often tell the story of my own husband: this bloke who grew up in a public housing area of Mount Druitt and went to Shalvey Primary School and Shalvey High School. He could not even speak English when he started school, and it was thanks to teachers taking an interest in him, encouraging him at every step of the way and—even to this day—staying in contact with him and seeing how he was progressing that he was able to get into Sydney University and get first-class honours in not one but two degrees: economics and law. He is now a partner with Corrs Chambers Westgarth. Today, unfortunately for me, he is in Melbourne because he is now lecturing in a new superannuation course which Melbourne University is running.

It is a marvellous thing to reflect on people who come through our public school system and on their achievements. I congratulate Stephen Gageler on his appointment to the High Court.

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