LEGAL INTERPRETATION
Heading in a new direction? SA’s change of position on rules of construction DAVID KELLY , CIVIL LITIGATION COMMITTEE
O
n 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 Australia10 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
