What is the 'it'?

Second reading speeches are the things where the relevant Minister stands up in Parliament and extols the virtues of some proposed piece of legislation before putting it to the House for a vote. Courts can refer to these to ascertain the intention of Parliament when faced with legislation that is – perish the thought – ambiguous or unclear in its meaning.

Where I work, the rule for citing these is simply as a Hansard reference, giving the name of the House, the date, and the page on which the cited passage appears.

A judgment I was working on recently had references to three second reading speeches – for three different Bills, and delivered in three different years. The puzzling thing was that most of the pinpoints that the judge had cited seemed to be wrong. That in itself may or may not be unusual. What was unusual was that the ones that were wrong were consistently out by one page: the judge had given a page number that was one before the Hansard page that I had found the cited passage on.

What was going on? The consistent nature of the error suggested something other than fat-fingered typing. There was a pattern. When I find a pattern in errors I am seeing, my first thought is that the judge and I have been looking at different versions of the same thing.

Wait. Are there variant Hansards out there?

The short answer is yes, there are, but those are usually the result of a very recent daily Hansard not yet having coalesced into the “official” version. The three I was looking at were old enough that that wasn’t going to be the problem. And the version that I had for each was the “official” daily Hansard, from the Parliament of Australia website.

I eventually discovered that, in each case, the judge was looking at something else: a separate, short document, entitled “Second Reading Speech”, and containing (as the name suggests) only the relevant speech. These, too – I now know – emanate from the Parliament of Australia website. In each case, this separate document purported to commence with the same page number that the speech started on in the official Hansard.

So, you ask, why were the judge’s references consistently out by one page?

The answer is ultimately very simple. In the official Hansard, a speech will often enough commence some way into the page, whereas in the separate document it starts at the top of the first page. Also, the typography differs. The upshot is that a reader of the official Hansard, when they turn over to the second page of the speech, will be reading text that may well sit on the first page of the separate document. And so on. Maybe the judge was just unlucky, but almost every passage they referred to had some variant of this problem.

So, in a sense, we again find ourselves in the situation we were recently in with footnote numbering of High Court judgments: whichever of the two available documents a reader goes to – and bear in mind they are both primary sources – there is a good chance that what they are looking for will be on a different page from where the judge’s citation sent them.

This seems unhelpful. It would also seem to have been avoidable. Things would actually have been less prone to confusion if the separate document commenced at page 1. If things had been done that way, the differences in pagination would usually be readily apparent, and the reader could adjust their bearings accordingly. But to hold out the first page of the separate document as, say, page 2541 surely carries with it a reasonable inference that the pagination is going to match the larger document from which it has been drawn.

Yes, I do feel bad for complaining about the work done by people who were, after all, only wanting to be helpful. (Of course it would be a lot easier to find a second reading speech if it existed as a separate document, rather than having to work through hundreds of pages of parliamentary blather.) Admittedly, three is a small sample size. But all three did have the same problem. (I also conducted a few other spot checks, with the same result.) I am pretty confident that the issue is systemic.

There are bigger problems in the world, admittedly. And I know not everything has to be about me. But in my world this is a problem. And if you are judge’s associate (or even a reader of judgments), it is likely to be your problem, too.