LSB July 2022 LR

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LEGAL INTERPRETATION Heading in a new direction? SA’s change of position on rules of construction DAVID KELLY , CIVIL LITIGATION COMMITTEE On 1 January 2022, the Legislation Interpretation Act 2021 (the 2021 Act) came into effect, repealing and replacing the Acts Interpretation Act 1915 (the 1915 Act). By force of the 2021 Act, 1 “section headings” became part of the substantive law, scrapping the approach that the community was previously required to take for more than 100 years prior. This article briefly examines the Parliament’s change of position, and some of its possible implications. The change of position Section 19(2) of the 1915 Act provided that: “the following do not form part of an Act, subject to any express provision to the contrary: (a) section headings […].” 2 As explained in D C Pearce and R S Geddes, Statutory Interpretation in Australia, 3 (Pearce and Geddes) the traditional justification for excluding section headings from the analysis was that they are inserted by the draftsperson, and may not have been debated in the Parliament. However, that policy was reversed by s 19 of the 2021 Act. Section 19(1) provides that: “except as provided in subsection (2), everything appearing in an Act or legislative instrument is part of the Act or instrument”; in turn, s 19(2) sets out the material to which s 19(1) does not apply, none of which includes section headings. 4 The change of position on section headings was deliberate. On 6 May 2021, the Legislation Interpretation Bill 2021 (the Bill) was read a second time, the speech in the Upper House recording (underlining added): 5 “This is different from the Acts 24 THE BULLETIN July 2022 Interpretation Act, which provides that section headings […] do not form part of an act […]. This change is the most significant change proposed by the bill.” The Explanation of Clauses confirmed that: 6 “This means, in particular, that section headings will now form part of an Act.” On 26 August 2021, the second reading of the Bill continued in the Lower House, to like effect. 7 The Parliament appears not to have expressly identified either the relevant “mischief ” being targeted, or its justification for the reform. However, it is possible to infer that it reflected the assessment that having regard to section headings would enhance, and provide additional guidance to those tasked with, construction. It may also be deduced that the Parliament considered that the Courts had interpreted provisions in a way that differed from how they would have been interpreted had section headings formed part of the text. Effect of s 19 of the 2021 Act The premise of s 19 of the 2021 Act is that having regard to section headings has the capacity to affect the meaning to be given to at least some provisions. It follows that there may be a need to revisit the authorities dealing with the meaning of provisions that have been construed in accordance with the 1915 Act, namely: • without having regard to section headings as part of the text; and • only having regard to section headings in the event of ambiguity, and then only as possibly informative “extrinsic material”, which is subject to entirely different principles. 8 And, because the 2021 Act preserves the 1915 Act’s extension of the approach taken to section headings in statutes to other “legislative instruments” (as defined), 9 the consequences of the reformulation are potentially very wide. In particular, in light of the broad definition of legislative instrument in s 4 of the 2021 Act, the reform may affect the construction of: • regulations; • rules; • by-laws; • proclamations; • notices published in the Gazette or under the Legislation Revision and Publication Act 2002 (the Revision Act); • a code or standard made, approved or adopted under a statute; • any other instrument of a legislative character made or in force under an Act; and • any other instrument prescribed by the Legislation Interpretation Act Regulations 2021. As the State’s argument in the Court of Appeal in Disorganized Developments Pty Ltd v South Australia 10 which concerned the validity of regulations made under the Criminal Law Consolidation Act 1935 (SA) demonstrates, dispute about the meaning of a provision by reference to a section heading continues to be a live issue. It follows that it will be important to monitor changes to section headings now that they are part of the text. Such changes
LEGAL INTERPRETATION may be demonstrated by amendments to sexual offences under the Criminal Law Consolidation Act 1935 (SA). For example, in 1994, s 74 provided for the offence of “persistent sexual abuse of a child”. In 2008, further amendments replaced the s 74 offence with a recast version in s 50, headed “persistent sexual exploitation of a child”. Later, in 2017, s 50 was amended again, including changing the heading to: “unlawful sexual relationship with child”. 11 Further examples of decided cases where the possible effect of section headings in construction has arisen include: • A Gallo Pty Lt & Ors v Hollowwood Pty Ltd & Ors 12 – which concerned the effect of the section heading “Alterations and other interference with the shop” on the ambit of s 38 of the Retail and Commercial Leases Act 1995 (SA); • Jansen & Anor v Salisbury Wrought Iron Works Pty Ltd & Anor 13 – which concerned the inconsistency between the section heading of, and operative words in, r 104 of the Magistrates Court (Civil) Rules 1992 (SA); • Pringle v Police 14 – which concerned whether use of the word “etc” in the section heading to s 47H of the Road Traffic Act 1961 (SA) meant that s 47H was not-exhaustive, such that the Governor could approve apparatus of a prescribed kind for tests and analyses beyond those set out in the section; and • Yuen v Police 15 – which concerned whether a weapon was a “fighting knife” within the meaning of those words, which were used in a section heading in the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000. In some cases, the amendment in the 2021 Act could tip the balance. For example, in Onody v Return to Work Corporation (SA), 16 the Full Court considered (in obiter) whether a heading within the “impairment assessment guidelines” made by the Minister under the Return to Work Act 2014 (SA) (i.e., a legislative instrument) was a section heading or a “chapter heading”, and therefore, part of the text. 17 Blue J and Stanley J divided on that “constructional choice”. 18 Parker J inclined to the view that the heading was not a section heading, and therefore, not part of the guidelines for the purposes of construing them. Had the 2021 Act applied, the section heading would have been part of the guidelines, potentially affecting their meaning, and the outcome for the worker, and conceivably, subsequent cases decided or compromised on the basis of the dicta in Onody. Beyond the guidelines in Onody, other legislative instruments prepared by the Executive to which s 19 of the 2021 Act would apply include, for example, the “Ministerial building standards” made under the Planning, Development and Infrastructure Act 2016 (SA). 19 Many other examples exist. Section 19 of the 2021 Act would also apply to legislative instruments prepared by bodies outside of government, such as, for example, the Building Code of Australia, which forms part of the “Building Rules”. 20 The meaning of the Building Rules is especially important because they are at the heart of defect claims in residential construction cases, which are frequently litigated. Could a section heading generate ambiguity? An unintended consequence of the 2021 Act may be that a section heading could be argued to generate ambiguity in circumstances where under the 1915 Act there was none. Ragless v Prospect District Council 21 illustrates the point. There the Supreme Court had to interpret s 47 of the Town and Development Act 1920 (SA). Section 47 appeared in a group comprising ss 44 to 49 under the heading “General provisions relating to plans of subdivision and plans of resubdivision.” The heading was relied on by the plaintiff. Albeit not dispositive of the s 47 issue, in examining the various headings throughout the statute Murray CJ observed (underlining added): 22 “The first group consists of three sections (22 to 24), with the heading “New roads of streets”. When the contents of these sections are examined, it will be seen that the heading is far from appropriate. […] The plans, however, are not confined to those which shew “new roads or streets”, and therefore, the heading imperfectly describes the contents of the group.” July 2022 THE BULLETIN 25
Page 1 and 2: THE BULLETIN THE LAW SOCIETY OF SA
Page 3 and 4: This issue of The Law Society of So
Page 5 and 6: PRESIDENT’S MESSAGE Community eng
Page 7 and 8: LAW IN THE COMMUNITY seeking assist
Page 9 and 10: LAW IN THE COMMUNITY What do you th
Page 11 and 12: WELLBEING & RESILIENCE and observe
Page 13 and 14: LAW IN THE COMMUNITY CLCSA Chair Ca
Page 15 and 16: LAW IN THE COMMUNITY • difficulti
Page 17 and 18: YOUNG LAWYERS facebook.com/YLCSA Ta
Page 19 and 20: FEATURE Spreading the word: SA laws
Page 21 and 22: LAW IN THE COMMUNITY What motivates
Page 23: EVENTS Chief Justice Kourakis cutti
Page 27 and 28: FROM THE CONDUCT COMMISSIONER Commu
Page 29 and 30: TAX FILES • The 1991 Deeds were a
Page 31 and 32: LAW IN THE COMMUNITY Urgent investm
Page 33 and 34: RISK WATCH “Are you able to confi
Page 35 and 36: FAMILY LAW CASE NOTES The appeal wa
Page 37 and 38: A roundup of recent Society meeting
Page 39 and 40: CLASSIFIEDS VALUATIONS MATRIMONIAL

LSB July 2022 LR

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