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September 21, 2007
That the Bill Be Read a Second Time... More Thoroughly
While conducting some research on extraterritorial copyright infringement, I noticed a new bill that was tabled in the Commonwealth Parliament today. The Cross-Border Insolvency Bill 2007 (Cth) (second fireading speech) is essentially designed to transplant the Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law into Australian law. Among its more interesting provisions are an implied repeal of the Corporations Act 2001 (Cth) to the extent of inconsistency and the availability of various procedural rights to foreign creditors. However, I found this (art 21(g) of sch 1) rather amusing:
(g) Granting any additional relief that may be available to [insert the 30 title of a person or body administering a reorganization or liquidation under the 31 law of the enacting State] under the laws of this State.
Although, by s 11 of the bill, these references are to be taken as referring to the trustee or liquidator under Australian insolvency law, it looks like the Attorney-General’s department forgot to fill out the Treaty template completely. I would be most aggrieved if it was enacted in its present form — never mind the woeful indentation and improper numbering formats. Such criticisms are not mere pedantry — from a federal legislature enacting law of definite application one expects better.
Posted by Jaani at September 21, 2007 4:34 PM
Comments
Jaani, while such incredible incompetence in the A-G’s department is entirely plausible, I don’t think what happened here was forgetfulness. Rather, Schedule 1 contains the model law as it was passed by the GA. There are generic bracketed clauses throughout that law and they are reproduced verbatim in schedule 1. The operative provisions of the bill then substitute the generic references for relevant Australian ones as they enacts the model law as an Australian law. So, the inclusion of the generic clauses in the schedule is deliberate.
That doesn’t make it forgivable though. There’s at least one reason why the present approach is bad: it’s hard to read, and presumably impossible for non-lawyers. There’s no reason why the Model Law couldn’t simply have been reproduced directly in the body of the bill as operative provisions, with the relevant substitutions made.
Posted by: Jeremy ![[TypeKey Profile Page]](http://www.jaani.net/nav-commenters.gif)
at October 18, 2007 4:47 PM
Yeah, I realise that the generic references are intended to be substituted with their Australia-specific equivalents. I certainly agree with you that this substitution method hampers readability. Indeed, with due respect to our erstwhile legislators, it strikes me as a rather lazy way to implement foreign law (amounting essentially to a cut and paste job) — hence this weblog post.
I can identify only two possible justifications for such an approach. First, I thought initially that it might stem from deference to the Model Law — a desire not to appear to be rewriting its contents unilaterally. However, as you note, the negative impact on clarity more than outweighs any abstract benefits of ‘comity’. Second, it may reflect an intention to ensure absolute consistency with the original text. Although an admirable objective, a court would — in the absence of intervening considerations — aim to reach such an outcome by its interpretation anyway, so this also seems like a fairly insubstantial benefit.
Posted by: Jaani at October 18, 2007 7:37 PM
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