The Honourable Murray Gleeson AC
To the extent that Pepper v Hart permits such use of Hansard the point is uncontroversial. A difficulty has, however, arisen about the true ratio of Pepper v Hart. It is certainly at least authority for the proposition that a categorical assurance given by the Government in debates as to the meaning of the legislation may preclude the Government vis-à-vis an individual from contending to the contrary. This may be seen as an estoppel or simply a principle of fairness . . . There is, however, a possible broader interpretation of Pepper v Hart, viz that it may be possible to treat the intention of the Government revealed in debates as reflecting the will of Parliament. This interpretation gives rise to serious conceptual and constitutional difficulties.”
In Australia, s 15AB of the Acts Interpretation Act provides that consideration may be given to extrinsic material, if it is capable of assisting in the ascertainment of the meaning of a provision, when the provision is ambiguous or obscure or the ordinary meaning conveyed by the text, taking into account purpose and context, leads to a result that is manifestly absurd or unreasonable. Extrinsic material may also be used to confirm that the meaning is the ordinary meaning conveyed by the text, taking into account purpose and context. Extrinsic materials include Ministerial speeches and explanatory memoranda. The statutory condition is that the material is capable of assisting in finding the meaning of the text. It is the text, understood in context and in the light of the purpose of the enactment, that is controlling. Whether, for example, an explanatory memorandum or a Ministerial speech fulfils that condition is a question of logic and common sense. Often, the reason why legislation is ambiguous or obscure is that the particular problem that arises for decision has not been foreseen and addressed. Furthermore, explanatory memoranda and parliamentary speeches are themselves not always models of clarity. The essential point is that the task is to find the meaning of the language of the statute, not to work out what the Government, or the Parliament, (and it should not be forgotten that they are two different entities), thought the language meant, assuming they thought at all about the particular issue that the court has to decide.
© The Honourable Murray Gleeson AC, Chief Justice of New South Wales 1988-1998, Chief Justice of Australia 1998-2008