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

I am delighted to be able to make a contribution to this Statute Law Revision Bill 2013. As you may well know, Madam Acting Deputy Speaker, I have a very healthy obsession with the proposed statute stocktake legislation as and when it comes before the House. As any practitioner would know, it is always a source of great angst to be attempting to interpret provisions in legislation and to advise clients when there are things like grammatical errors and incorrect cross-referencing. Often this has the potential to change the meaning of the intention of the parliament itself.

Madam Acting Deputy Speaker, as you would well remember—you were in the chair when I made my last contribution on this matter in August 2012—I specifically discussed Ireland's statute law revision project, which identified more than 3,225 statutes that required repeal or amendment, which is probably the largest single repealing process that has ever been enacted. Thankfully, because we have such excellent people in Australia looking after this area, such as the Office of Parliamentary Counsel, we do not have such a requirement, and bringing on these regular statute law updates means that we are in a constant position where we can update our statute law in a most timely and robust way.

I want to talk about a few thing to do with this bill. Schedule 1 has a very diverse list of principal acts that are to be amended, ranging from the Australian Meat and Live-Stock Industry Act, the Competition and Consumer Act, the old Trade Practices Act, the Native Title Act, the Telecommunications (Interception and Access) Act—a very diverse range. Some of the items that are being amended are to do with things that are redundant—redundant section items, items that are consequential on previous items that may have been made redundant, incorrect punctuation, updating of references, grammatical errors, incorrect cross-referencing, and incorrect concepts and spelling errors. So I think it is very appropriate that we should be amending legislation to account for things such as these.

I would note that it is very useful that we have in the bill itself some notes to state why certain things are being amended. It is something that goes to an issue that I will talk about in a minute—consequence clauses of legal complexity. It is a real tribute to the drafting quality that we have in Australia that we have these very useful notes. I would also like to point out schedule 2 of the bill, which goes to misascribed or redundant amendments or errors contained in amending acts. Again, it is very appropriate that we look at the wide range of issues that can arise and the unintended consequences that can often arise from such errors.

I want to look to some of the guidance that is given by the Office of Parliamentary Counsel, specifically the issue of causes of legal complexity and strategies to address them. There are some very useful documents that I think all members of this place and anyone who is tuning in and is interested in the development of statute law would be interested in some very useful documents published by the Office of Parliamentary Counsel that are very readily able to be accessed. I will give some examples of the causes of legal complexity because I think they are instructive for all of us.

The Office of Parliamentary Counsel states some of the drivers of complexity in legislation and gives some common examples, which I think are useful to quote.

The examples are:

Principles based legislation is the underlying mantra of the Westminster system. They go on:

I think it is also very useful to look at a couple of the strategies the Office of Parliamentary Counsel outlines to address the causes of complexity. Again, I think these are useful universal rules. They mention things such as consulting drafters early in the policy development process; making sure legislation is comprehensible—enabling people to read bills—making sure instructing officers have access to the necessary training and guidance materials; and, where it is necessary, review entire legislation.

I think it is very important to note, particularly since we are looking at some problems that have been caused by amending acts, that amending legislation often makes patchwork amendments to existing legislation, and in some cases more than one area of the same department may be working on several items of legislation that amend the principal legislation, and a lack of coordination would have detrimental outcomes.

I also think it is useful to examine some of the techniques that have led to where we are today in terms of a strategy for statue law revision. I took the time to have a look at an article by Jonathan Teasdale in the European Journal of Law Reform. I will give the citation because I know people are very eager to read it. It is in volume 11, No. 2, page 157. Teasdale makes some really good points. He talks about how statue law revision started systematically in the United Kingdom in the 1860s, and it had two aims: to remove from the statute books enactments that had ceased to be enforced or that had become unnecessary, and to produce a revised edition of what they called live statutes, which I think today would equate to a consolidated version of a particular statute.

I agree with the conclusion that is set out very succinctly in Jonathan Teasdale's abstract. His conclusion is:

… statute law 'revision' delivers more than the sum of its parts …

I think that is a very apt description of what this particular bill before us does. I would like to take the time to quote, because I think it is really important for us to remember that we in this place are lawmakers and we should look at some of the principles of statute law.

Teasdale says that statute law is enacted so that society can have access to it, which means that it must be physically accessible, reliable and in a format which is comprehensible. He says that the user needs to be able to access a statute book which has integrity, which is up to date, and which makes sense. These are minimum requirements for a society which is governed through representative and binding democracy. I think that it is useful for all of us to remember, and to remind ourselves, that we are lawmakers in this place—as I said—and to look at things that might help us become better lawmakers when it comes to legislative drafting.

One of the other very useful items that I find from the Office of Parliamentary Counsel, is its excellent summary on plain language. One of the most valuable legislative techniques, I believe, is the ability to draft in plain language. I know I have regaled this place on many occasions with my expeditions in the Pacific, the Middle East and South-East Asia drafting laws and regulations, but I think it is very useful to remember that one of the reasons Australians are often called on to take up consultancy or advisory positions—and why the government is called on to provide capacity-building to other countries to develop their legal systems—is that we do it so well. And I think it is important for us to pat ourselves on the back.

And the Office of Parliamentary Counsel note that they use the term 'plain language' rather than 'plain English' because they believe it covers a wider range of techniques and practices. The OPC quotes a landmark paper given to the Emerging Trends in Legislative Drafting conference in Dublin, where Professor Ruth Sullivan of the University of Ottawa gave a description of plain language. She said:

Plain language drafting refers to a range of techniques designed to create legislation that is readable and easy to use by the relevant audience(s) for that legislation.

At the level of vocabulary, plain language drafters try to use words and expressions that are familiar to everyone … At the level of syntax, plain language drafters try to create sentence patterns that are easy for the average person to process.

… … …

Plain language drafters also draw on the research and insights of experts in document design. They pay as much attention to fonts and white space as they do to choice of words. They try to devise methods of presenting material visually that will assist the reader to use the statute book effectively, and with minimum effort.

Finally, plain language drafters try to provide information that will help readers to interpret the text. Such information typically takes the form of purpose statements, explanatory notes, examples, summaries, overviews and the like

Taking all that into account, I would like to conclude with what I think is a very practical example of the accessibility where statute law intersects with technology. There is a great example of innovation in Australia, as I have been talking about, in our legal practice. I want to mention the launch earlier this year of the telco iPad app by my good friends Gilbert and Tobin lawyers in Sydney who have launched Telco Navigator, an iPad app that provides a one-stop shop for all legislative and regulatory documents for people in the telco industry. As anyone who has worked in this sector knows, there is a lot of legislation and a lot of regulation.

It is a co-regulatory scheme so not only do we have the hard regulation in the form of acts and also regulations arising out of those acts but also codes of practice, standards and many other elements in between. I think what is so innovative about the design of this is that I do not know of any other such apps. It is available for free. You can access it from the Apple App Store. It also has a function which enables push-up dates so that legislation can be updated automatically. As I said, I think it is an excellent example of innovation and of accessibility.

I did happen to mention Peter Waters, the lead partner in this project, in one of my previous contributions on the statute law revision measures last year in the context of drafting the first competition law in Hong Kong. I congratulate Peter and everyone at Gilbert and Tobin who was involved in the development of this app. I would encourage anyone who is listening to check it out if you are interested in telecommunications law. I know you will be interested in this, Mr Deputy Speaker Symon. It has a very detailed design which covers the transition from copper world to the NBN fibre world. I am sure you will enjoy it very much. I commend the bill to the House.

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