STATUTE LAW REVISION BILL 2008

Despite the overtly uncontroversial nature of this legislation, the Statute Law Revision Bill 2008 does make important changes to ensure effective and accessible laws for the Australian public. Like all statute law revision legislation, it amends minor and technical errors in acts, it amends and removes errors within existing acts and it updates acts to remove descriptions of defunct and completed programs.

 

Despite the overtly uncontroversial nature of this legislation, the Statute Law Revision Bill 2008 does make important changes to ensure effective and accessible laws for the Australian public. Like all statute law revision legislation, it amends minor and technical errors in acts, it amends and removes errors within existing acts and it updates acts to remove descriptions of defunct and completed programs.

The greatest significance of this bill is that it will also amend a number of acts to remove gender specific language and replace it with gender neutral language in over 500 changes in 88 different acts. Examples of such language include using the term ‘chair’ as opposed to ‘chairperson’ or ‘chairman’ when establishing new officers. It is also important to avoid gender specific words such as ‘policeman’ and replace them with neutral terms such as ‘police officer’. As law makers of this country we should seek to simplify the laws we enact to make them accessible to the public but we should also seek to ensure that the language we use to draft laws is gender neutral. We do not wish to reinforce gender stereotypes.

Sandra Peterson of the Victoria University in Wellington, New Zealand, in a paper she wrote in theStatute Law Review in 1999, compared gender neutral drafting in Commonwealth jurisdictions ranging from the United Kingdom, New Zealand and Canada to Australia. She describes the reform that has occurred as being at two levels throughout these jurisdictions; the first level is through the amendment of interpretation legislation, whilst the second has been the adoption of gender neutral language policies. An example of the first level of reform is section 23 of the Acts Interpretation Act, which is the provision that says ‘words importing a gender include every other gender’, which Peterson calls the ‘all gender rule’. This was introduced in 1984 by the Labor government, followed by New South Wales in 1987, Queensland in 1991, Victoria in 1993 and Western Australia in 1994. The intent of amending that act to reflect the provision I have just read out was summarised by former Labor Attorney-General Gareth Evans as intended to alter ‘this sexist way of dealing with matters of gender’. It is well known that, within older legislation, individuals are still referred to in male-specific terms.

The all-gender approach in the Acts Interpretation Act is an important step in limiting the potential for any ambiguity in the interpretation of law, but interpretation legislation, as the name suggests, is only about aiding judges and decision makers in understanding legislation. It does not direct how legislation should be drafted, and this underlines the key importance of adopting gender neutral language to ensure that gender neutral terms are continually introduced.

The law and policy development of gender neutral language has unfortunately been stunted at times by different administrations. The Howard government in 1997 attempted to roll back the term ‘chairperson’, to be replaced by the gender specific ‘chairman’ when introducing the Productivity Commission Bill into the parliament. This has allowed a slow creep of such terms back into the common vernacular. Section 18 of the Acts Interpretation Act now lists ‘chair’, ‘chairperson’, ‘chairman’ and ‘chairwoman’ for how chairs and deputy chairs may be referred to, which I would suggest shows the somewhat hypocritical manner in which the gender neutral policy of drafting executed by the Office of Parliamentary Counsel is contrasted with a gender specific statute. As the Australian Law Reform Commission stated in its 1994 report entitled Equality before the law: justice for women:

… the existence of a policy does not … mean that it is always implemented.

The policy, as found in drafting direction No. 2.1, released in May 2007 by the Office of Parliamentary Counsel, provides guidance to the drafters with regard to gender neutral language. Interestingly, it refers to the use of the third person singular when drafting—that is, not using pronouns and instead repeating the noun. It also provides policy direction, against the former Prime Minister’s wishes, to use the term ‘chair’ or ‘chairperson’ instead of ‘chairman’. There is also a discussion as to whether to include feminine pronouns when drafting. There is recognition by the Office of Parliamentary Counsel that there are many masculine pronouns on the statute book without equivalent female pronouns. Some of these are not amended as they refer to other documents or agreements which have gender specific language, the acts have little or no future operation or the acts refer to masculine pronouns deliberately for a policy purpose. An example of this would be the use of the term ‘seaman and masters’ in the Navigation Act, which is required due to the many relevant international treaties and agreements.

The Hon. Jack Straw, current Lord Chancellor and Justice Secretary in the United Kingdom, referred to gender neutral language as having no more than a reasonable cost to brevity or intelligibility. In March 2007 the British Labour government introduced gender neutral drafting policies into the British parliament.

I take this opportunity to commend the Office of Parliamentary Counsel for their work in collating these changes. Understandably there are probably many more to do, but this is an active attempt to start the process of changing language and how it affects the way in which the law is interpreted.

This amendment, though uncontroversial and highly technical, has the opportunity to change the manner and form of laws that as law makers in this place we deal with on an everyday basis. This is good progress to ensure that our statute books are gender neutral, and I look forward to seeing many more of these changes put in place in future. I commend this bill to the House.

Sandra Peterson of the Victoria University in Wellington, New Zealand, in a paper she wrote in theStatute Law Review in 1999, compared gender neutral drafting in Commonwealth jurisdictions ranging from the United Kingdom, New Zealand and Canada to Australia. She describes the reform that has occurred as being at two levels throughout these jurisdictions; the first level is through the amendment of interpretation legislation, whilst the second has been the adoption of gender neutral language policies. An example of the first level of reform is section 23 of the Acts Interpretation Act, which is the provision that says ‘words importing a gender include every other gender’, which Peterson calls the ‘all gender rule’. This was introduced in 1984 by the Labor government, followed by New South Wales in 1987, Queensland in 1991, Victoria in 1993 and Western Australia in 1994. The intent of amending that act to reflect the provision I have just read out was summarised by former Labor Attorney-General Gareth Evans as intended to alter ‘this sexist way of dealing with matters of gender’. It is well known that, within older legislation, individuals are still referred to in male-specific terms.

The all-gender approach in the Acts Interpretation Act is an important step in limiting the potential for any ambiguity in the interpretation of law, but interpretation legislation, as the name suggests, is only about aiding judges and decision makers in understanding legislation. It does not direct how legislation should be drafted, and this underlines the key importance of adopting gender neutral language to ensure that gender neutral terms are continually introduced.

The law and policy development of gender neutral language has unfortunately been stunted at times by different administrations. The Howard government in 1997 attempted to roll back the term ‘chairperson’, to be replaced by the gender specific ‘chairman’ when introducing the Productivity Commission Bill into the parliament. This has allowed a slow creep of such terms back into the common vernacular. Section 18 of the Acts Interpretation Act now lists ‘chair’, ‘chairperson’, ‘chairman’ and ‘chairwoman’ for how chairs and deputy chairs may be referred to, which I would suggest shows the somewhat hypocritical manner in which the gender neutral policy of drafting executed by the Office of Parliamentary Counsel is contrasted with a gender specific statute. As the Australian Law Reform Commission stated in its 1994 report entitled Equality before the law: justice for women:

… the existence of a policy does not … mean that it is always implemented.

The policy, as found in drafting direction No. 2.1, released in May 2007 by the Office of Parliamentary Counsel, provides guidance to the drafters with regard to gender neutral language. Interestingly, it refers to the use of the third person singular when drafting—that is, not using pronouns and instead repeating the noun. It also provides policy direction, against the former Prime Minister’s wishes, to use the term ‘chair’ or ‘chairperson’ instead of ‘chairman’. There is also a discussion as to whether to include feminine pronouns when drafting. There is recognition by the Office of Parliamentary Counsel that there are many masculine pronouns on the statute book without equivalent female pronouns. Some of these are not amended as they refer to other documents or agreements which have gender specific language, the acts have little or no future operation or the acts refer to masculine pronouns deliberately for a policy purpose. An example of this would be the use of the term ‘seaman and masters’ in the Navigation Act, which is required due to the many relevant international treaties and agreements.

The Hon. Jack Straw, current Lord Chancellor and Justice Secretary in the United Kingdom, referred to gender neutral language as having no more than a reasonable cost to brevity or intelligibility. In March 2007 the British Labour government introduced gender neutral drafting policies into the British parliament.

I take this opportunity to commend the Office of Parliamentary Counsel for their work in collating these changes. Understandably there are probably many more to do, but this is an active attempt to start the process of changing language and how it affects the way in which the law is interpreted.

This amendment, though uncontroversial and highly technical, has the opportunity to change the manner and form of laws that as law makers in this place we deal with on an everyday basis. This is good progress to ensure that our statute books are gender neutral, and