(x) If, contrary to (viii), there is authority from the Interpretation Act 1987 to consider statements made to Parliament in 1993 about the meaning of what became s72(2), those statements do not permissibly assist in the present issue. Nor do common law principles stemming (in the United Kingdom at least) from the decision in Pepper v Hart [1993] AC 593. This composite tenth proposition requires elaboration.
158 Proposition (x) contains a major and a minor premise. The major premise involves a very broad constitutional and jurisprudential issue about the capacity of words spoken in one chamber of Parliament to inform, let alone guide, the interpretation of the words subsequently enacted by the Legislature. I have addressed the topic in an article "The intent of legislators: How judges discern it and what they do if they find it" (2006) 27 Aust Bar Review 253. A revised and updated version of the article was given as a speech at the Institute of Advanced Legal Studies in London on 2 November 2006 and it may be found on the Supreme Court Website.
159 There are many authoritative statements that legislation must be construed by reference to what Parliament has said through its enactment, as distinct from what others, including ministers, may wish or think Parliament intended (see Nolan v Clifford (1904) 1 CLR 429 at 449; Re Bolton; Ex parte Bean (1987) 162 CLR 514 at 518; Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at 499[55]; Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816 esp at [66], [139], [178]).
160 It does not follow that reference to the intention of Parliament is meaningless. On the contrary, the duty of courts is to give effect to that intention, but only as it is expressed in legislation (see Re Bolton at 518 per Mason CJ, Wilson J and Dawson J; Singh v Commonwealth [2004] HCA 43, 222 CLR 322 at 335[19] per Gleeson CJ). Lord Reid expressed it pithily in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613:
We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.
161 There will always be situations in which a court can be satisfied that the intention of the maker of a document is not reflected in the text chosen. Sometimes even Parliament can miss its intended target in a manner where that target is nevertheless plain, in which event a court should endeavour, if possible, to do more than record that the target has been missed (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 424).
162 Statements in Parliament, even by ministers during the second reading debate, will however seldom be available to elucidate the meaning of the later-enacted text. Identification of mischief and purpose is one thing, statement of meaning is another. Pepper involved the plainest of assurances being given to Parliament about the effect of a taxing statute and a later attempt by the Crown to argue for a contrary meaning. It was and, to my mind, remains a controversial decision. Its facts are unlikely to be replicated. Pepper has been the springboard for a stream of English cases in which courts have paid regard to ministerial statements about a range of matters upon bases that have showed some inconsistency in the principles applied. I am unaware of any authoritative Australian decision that goes as far as Pepper or its English progeny.
163 Lord Steyn has suggested that Pepper rests upon notions of estoppel and admissions by the Executive against interest (see R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 at 68[45]; McDonnell v Congregation of Christian Brothers Trustees & Ors [2003] UKHL 63, [2004] 1 AC 1101 at 116[29]. See also R v A (No 2) at 79 [81] (Lord Hope)). This of course would not assist the present respondents. But in any event, the notion that the meaning of a statute might turn upon such private law notions strikes me, with respect, as constitutionally untenable. The idea has, in my view, been convincingly answered in the academic literature (see A Kavanagh "Pepper v Hart and Matters of Constitutional Principle" (2005) 121 Law Quarterly Review 98 at 116-118; S Vogenauer "A Retreat from Pepper v Hart? A Reply to Lord Steyn" (2005) 25(4) Oxford Journal of Legal Studies 629-674; P Sales, "Pepper v Hart: A Footnote to Professor Vogenauer's Reply to Lord Steyn" (2006) 26 Oxford Journal of Legal Studies 585-592).
164 An extreme instance of the Pepper v Hart jurisprudence in the law of the United Kingdom is Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1. In that case, the House of Lords held that the damages-capping provisions of the MACA 1999 did not apply to tort claims arising out of accidents in New South Wales that are litigated in England. The statute in question was the Private International Law (Miscellaneous Provisions) Act 1995. Their Lordships in Harding were not troubled by invoking Pepper in private litigation that had nothing to do with governmental rights. (This shows the difficulty in Lord Steyn's approach to Pepper.) But what is significant, was their readiness to examine a statement by the Lord Chancellor in the nature of a blanket assurance about how English courts would continue to deal with the assessment of damages with regard to foreign torts. The Chancellor was then the head of the judiciary but he was, on any view, dealing with a complex aspect of the evolving common law.
165 The Lord Chancellor's statements in Committee deflected an amendment that would have put the matter beyond doubt. There was, however, no reference in the reasons for judgment in Harding as to what might have been said in the Commons where, on my researches, the Bill passed without any debate (admittedly later than the legislative proceedings in the House of Lords).
166 This resort to the minutiae of Hansard shows the practical as well as the constitutional problems of using Pepper v Hart to justify the reasoning in Harding.
167 It is in my view both unlikely and unprovable that the members of one House of a bicameral legislature will have read speeches made in the other chamber. This in itself raises large issues about the correctness of Pepper to the extent that it goes beyond allowing resort to ministerial statements to discern the context of the Bill in question and the mischief to which it is addressed. Professor J H Baker raised this very matter in an early and significant challenge to the correctness of Pepper itself (J H Baker, "Case and Comment: Statutory Interpretation of Parliamentary Intention" (1993) 52 Cambridge Law Journal 353-357).
168 On my understanding, the law is clear in Australia that a minister's understanding of the effect of a statute or the state of the common law cannot give the Bill he or she is promoting an effect inconsistent with its terms as construed by the court. In Re Bolton; Ex parte Beane, three justices of the High Court of Australia went further in refusing to give any weight to a minister's unambiguous second reading speech that contradicted the text. Mason CJ, Wilson J and Dawson J stated (at 518):
The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
169 These three justices were former Solicitors-General who may perhaps be taken to have had some awareness of the capacities of busy ministers seeking to expound a Bill and/or persuade the Parliament to pass it to be prone to the gamut of human imperfections to which we are all subject.
170 I would respectfully adopt and apply the following passage in the judgment of Kirby J in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11, 228 CLR 529 (at 555-556[82], citations omitted):
This court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law.
171 In Insurance Commission of Western Australia v Container Handlers Pty Ltd [2004] HCA 24, 218 CLR 89, McHugh J cited (at 103[33]) the passage from Re Bolton quoted above in support of the statement that "while statements in Second Reading Speeches concerning legislative intent are a guide - often a useful and sometimes a definitive guide - as to the meaning of the legislation, they do not replace the words of the Act". It is not entirely clear to me what his Honour was referring to when he spoke of "legislative intent" and for that reason I refrain from going beyond indicating that I see some tension between McHugh J's statement and the passage he cites.
172 I do not consider the Interpretation Act 1987 or the common law of statutory interpretation in Australia to permit resort to a minister's speech to guide the meaning of legislation beyond identifying its purpose (Nominal Defendant v GLG Australia Pty Ltd at 538[22] per Gleeson CJ, Gummow, Hayne and Heydon JJ). However broadly the notion of "purpose" or even "intent" is itself pressed, it does not, in my view, require or even permit a court to give any weight to a statement directly addressing the intended meaning of the provision that is in the course of being enacted. It certainly does not do so where, as here, the plain meaning of the enacted text is at variance with the meaning that the minister is giving or appear to be giving to it.
173 In Plaintiff S157/2002 v Commonwealth the High Court declined to give effect to the Minister's understanding of the operation of a privative clause as expounded in his second reading speech (see at 499[55] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
174 I now move to the minor premise in the tenth proposition. Whatever possible leeway the principles in Pepper may offer to a court in this country, the ministerial statements that were taken into account in Geaghan did not, in my opinion, provide a clear or principled basis for reading down the plain meaning of the enacted text.
175 It is to be remembered that Stein JA had arrived at the point in his reasoning where he detected nothing in the objects of the legislation stated in ss2A, 2B, 68A and 72(1) of the MAA 1988 that provided any specific mention of limiting claims by reference to weekly hours of assistance (see Geaghan at 544[19]-[21]).
176 Stein JA had discerned a legislative purpose of reducing premiums by inserting a threshold as to the intensity and length of domestic care services that were to be compensable (see at 546[35]-[36]). So much may readily be accepted. The insertion of clause (2) into a Bill that had been introduced in May 1993 with no provision addressing that subject matter was an obvious step taken to control the cost of the scheme. One would not need the minister's statement to the Legislative Council to confirm this, but the statement does so in any event.
177 It is one thing to recognise that Parliament addressed the particular topic for cost-saving reasons, it is another to decide how tight were the screws that were enacted. I do not understand any of the reasoning in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26, 221 CLR 568 (which the respondents has cited) to point to the contrary position, with the possible exception of a dictum of Callinan J at 609[135].
178 I have already set out the key passages of the Attorney General's statements to the Legislative Council about his understanding of the effect of the amendment he was about to introduce in the Committee stage (ie the provision that became s72(2) of the MAA 1988 and the precursor of s15(3) of the CLA). The primary thrust of his comments was to emphasise that "the six hours six month threshold" was to be restored but in a form that did not exclude compensation for the first six hours or six months.
179 I nevertheless accept that the Attorney was also implicitly representing that, subject to the identified change, the threshold in the earlier form of s72 was intended to be restored. The form of the earlier s72 (with its separate subsections (2) and (4)) made it tolerably clear that a plaintiff had to leap both hurdles in order to avoid the statutory command that "no compensation shall be awarded".
180 It is conceivable that the drafter of the new s72 thought (like the Attorney apparently did) that merging two subsections into one was a convenient device that did not change the effect of the old provision in this regard. But that, in my opinion, cannot control the plain meaning of what was enacted and the force of the "and" inserted between paras (a) and (b).
181 On this basis, I construe s15(3) as a preclusion upon the award of Griffiths v Kerkemeyer damages unless the plaintiff can overcome one of the two thresholds by showing either that the gratuitous services are provided for a long period (ie more than six months) or that the services are provided for a significant period of time (ie more than six hours per week). In my opinion, the six months are required to run together as a six month period. There is nothing in the section to suggest that the six month threshold can be met by aggregating a series of lesser periods. If either threshold is met, then the plaintiff can recover for the whole of the gratuitous services provided, or to be provided, subject to compliance with the other subsections of s15.
182 In my view, the idea that a Minister can stamp his or her interpretation upon an Act of Parliament by no more than (and I emphasise "no more than") stating a view as to its meaning is constitutionally unacceptable. Nor is it supported by legitimate canons of statutory construction. The Attorney was, in my view, mistaken when he implicitly represented that the new provision replicated the old in the presently relevant context. That mistake cannot control the proper interpretation of the enacted provision.
183 This follows as much as a matter of evidence as from the principles of constitutional law and statutory interpretation. By this I mean that it would be wrong for this Court to infer, even if it were minded to do so, that the members of the Legislative Council who voted to support the amendment in Committee shared the Attorney General's view as to its meaning. As Scalia J once put it in relation to the Supreme Court of the United States in Pennsylvania v Union Gas Co (1989) 491 US 1 at 30:
It is our task, as I see it, not to enter the minds of the Members of Congress - who need having nothing in mind in order for the votes to be both lawful and effective - but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times.
184 A similar point was delicately put by Lord Nicholls in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; [2004] 1 AC 816 at 843[66]:
… the courts must be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight.
It should not be supposed that members necessarily agreed with the minister's reasoning or his conclusions.
185 In the same case, Lord Hobhouse said (with the concurrence of Lord Rodger) that it was a "fundamental error of principle to confuse what a minister or a parliamentarian may have said (or said he intended) with the will and intention of Parliament itself" (at 864[139]).
186 When he was a member of the Court of Appeal, Gleeson CJ observed that (Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99):
This Court is not bound by its own decisions and makes no claim to infallibility.
187 His Honour then proceeded to expound the applicable principles of stare decisis in an extended passage (at 99-100) that concluded that:
… making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decisions it must entertain a strong conviction as to the incorrectness of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice.
188 We recently concluded that similar principles should apply both when this Court is asked to depart from one of its own decisions that are in point and when this Court is confronted with a decision of an Australian intermediate appellate court of comparable jurisdiction with reference to substantially similar legislation (Tillman v Attorney General for the State of New South Wales [2007] NSWCA 327). I was in dissent, but I regard myself as bound by that decision although I observe that the High Court has subsequently endorsed an arguably different test (Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5, 242 ALR 383 at [31]). Tillman did not involve a case like the present where the tugs of comity pulled in opposite directions.
189 At the end of the day I am comfortably satisfied that we should overrule the two earlier decisions. I am reinforced by the emphatic clarity of the appellate decisions from Queensland and Victoria to which reference has been made.
190 I propose the following orders: