Heading in a new direction? SA’s change of position on rules of construction – By David Kelly

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 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

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 & Ors12 – 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 & Anor13 – 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 Police14 – 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 Police15 – 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 Council21 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.”

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).”

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, 7th 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.