LSB July 2022 LR

INTERPRETATION
A related, proposed amendment
The Parliament appears to have
anticipated this issue, and proposed a
related amendment to try to deal with it
by amending s 7(3) of the Revision Act to
(underlining added): “provide a mechanism
for alteration of any incorrect or
inaccurate headings etc that were included
in legislation administratively before the
enactment of this new provision.”
The second reading of the Bill
on 6 May 2021 further explained that
(underlining added): “To mitigate any risk
that may arise as a result of the change, a
savings provision has been added to allow
section headings and the like, which had
not previously formed part of the act and
had not been enacted by the parliament,
to be amended once administratively. The
amendment would be undertaken by or
under the supervision of the Commissioner
for Legislation Revision and Publication.
This is to ensure any errors in headings
that had been inserted administratively can
be corrected without having to undertake
legislative amendments.”
What is an “incorrect or inaccurate”
section heading?
As enacted, however, no such
provision premised on a section heading
being “incorrect” or “inaccurate” found
voice. Rather, Sch 1 Pt 3 cl 11 of the 2021
Act amended s 7(3) of the Revision Act to
provide that: “material that, immediately
before the commencement of [s 19 of the
2021 Act], appeared in legislation, or in
a Bill before the Parliament, but did not
form part of the legislation or Bill may be
omitted or varied when the legislation is
revised after the commencement of that
section (but may not be so omitted or
varied more than once).”
26 THE BULLETIN July 2022
One possible reason for not premising
that remedial mechanism upon a section
heading being incorrect or inaccurate may
have reflected, in the case of ambiguity,
the inherent difficulty of demonstrating
that a section heading is incorrect or
inaccurate.
In any case, even if a section heading
was so varied, room may be left to argue
that the varied section heading still
conflicts with or otherwise affects the
interpretation of the substantive text in
issue.
Additionally, and more fundamentally,
solving the problem by omission of a
section heading seems incongruous with
the intended inclusion of section headings,
which was “the most significant change”
the 2021 Act made.
Moreover, expressly allowing
administrative alteration to a section
heading seems to entrench the argument
against having regard to section headings
referenced by Pearce and Geddes on
the basis of the lack of exposure to
Parliamentary scrutiny.
There may be also attempts to
challenge or review the power, or exercise
of the power, to omit or vary (and thereby
“impliedly repeal”) section headings on the
basis that as from 1 January 2021 they are
“part of ” the text – particularly in a case
where the substantive provisions may be
drafted so as to depend upon the express
words of the section heading (e.g., the
effect of “etc” contended for in Pringle).
Implications
Whilst it is not suggested that the
change of position from the 1915 Act to
the 2021 Act as to section headings being
part of the text of Acts and legislative
instruments is “wrong”, it will require the
profession to take great care to ensure that
existing understandings of their proper
construction remains good. B
Endnotes
1 Section 19.
2 With minor exceptions, that approach prevails at
Cth level (Acts Interpretation Act 1901 (Cth), 13(3))
and in NSW (Interpretation Act 1987 (NSW), s
35(2)), NT (Interpretation Act 1987 (NT), s 55(2)),
Tas (Acts Interpretation Act 1931 (Tas), s 6(4)), Vic
(Interpretation of Legislation Act 1984 (Vic), s 36(3)),
and WA (Interpretation Act 1984 (WA), s 32(1)).
3 LexisNexis, 7 th ed, 2011, [1.27] and [4.54].
4 With minor exceptions, this approach prevails in
ACT (Legislation Act 2001 (ACT), s 126(2)) and
Qld (Acts Interpretation Act 1954 (Qld), s 14(2)).
5 South Australia, Parliamentary Debates, Legislative
Council, 6 May 2021, 3364 and following.
6 South Australia, Parliamentary Debates, Legislative
Council, 6 May 2021, 3365 and following.
7 South Australia, Parliamentary Debates, House of
Assembly, 26 August 2021, 6998 and following.
8 2021 Act, s 16. See Redman v Return to Work
Corporation (SA) [2021] SASCA 25, [100]-[112]
(Livesey JA). See further Pearce and Geddes, [3.13]-
[3.11], [3.15]-[3.28].
9 1915 Act, s 14A. 2021 Act, s 3.
10 [2022] SASCA 6, [44] (Livesey P).
11 The changes to the offence, including the
terminology of the heading of the offence, were
recently debated in the Lower House during
the Second Reading of the Statutes Amendment
(Child Sex Offences) Bill 2021: Parliamentary Debates,
Legislative Council, 19 May 2021, 306.
12 [2012] SASC 187, [37] and [47] (Nicholson J).
13 [2007] SASC 73, [38] (Anderson J).
14 [2021] SASCA 52, [57] (Kelly P, Lovell and
Doyle JJA).
15 [2012] SASC 149, [94] (White J).
16 (2019) 133 SASR 109.
17 Onody v Return to Work Corporation (SA) (2019)
133 SASR 109, [118] (Stanley J).
18 Onody v Return to Work Corporation (SA) (2019) 133
SASR 109, [50], [63], [65], [69], [73] (Stanley J).
19 Section 80.
20 Planning, Development and Infrastructure Act, ss 3(1), 79.
21 [1922] SASR 299.
22 Ragless v Prospect District Council [1922]
SASR 299, 307.