Statutory interpretation 101

Statutory interpretation 101 – how to ace statutory interpretation when you never studied the subject at law school

In the modern world most law is contained in statute. If the area of law is not currently statutory it likely soon will be. At work as a graduate I would use the principles I learned in this subject on a daily basis. It is unbelievable that Interpretation is not a compulsory subject at law school.

For those of you who were not able to study Interpretation, my heart goes out to you. But it is not too late. You can start by using this article on statutory interpretation basics:

THE PRINCIPLES

You need to know that there was an old approach to statutory interpretation called the “Golden Rule”. The “Golden Rule” held that the meaning of statute would be the literal meaning unless this produced an absurd result. Only if an absurd result was produced could the broader context and purpose be considered. Now you can forget about the old approach, because there is a new approach.

The modern, purposive approach to statutory interpretation was outlined in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. The reason I have bolded this case is because it stands for many of the modern propositions of statutory interpretation and if you are being put under pressure by a judge, you can just sight it. It is the Tasmanian Dams of interpretation.

So what is the Project Blue Sky purposive approach?

1.    Absurdity is not required before looking at context and purpose.

2.    The text must always be considered in light of the purpose (this repeats (1) somewhat but is a very important point).

3.    Purpose involves finding legislative intention. The legislative intention can be found by looking at the words parliament have used in the Act. See section below on “Purpose” for more details.

Note that the purposive approach cannot be used to override the meaning of the text. The purposive meaning of the text must still be within the frame of interpretation or the possible meaning of the texts.

There will be a literal meaning of the text and a legal meaning of the text. In my experience it is rare they are the same. This is because the modern approach requires an examination of the context of the words and purpose of the statute or section.

A simple way to remember how to approach statutory interpretation is the motherhood statement “text, context, purpose”. No I did not invent this memory aid. Justice Hayne and Justice Kirby have both described the modern approach to statutory interpretation in this manner. The key is to conduct the examination in this order. The mantra should perhaps be extended to “text, context, purpose, text”, as the inquiry must both start and end with the text.

TEXT

The process of interpretation starts with the text itself. This proposition reflects an underlying principle that the ordinary person should be able to know what the law is by reading the statutory text. There are copious references in the case law to the need to give effect to the “clear words” of the statute.

The literal meaning often turns out not to be the legal meaning.

Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 490

The literal meaning and legal meaning may not correspond, but one should first start with working out the literal meaning of the text.

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22 per McHugh J

If the literal/grammatical meaning does not conform to the legislative purpose as ascertained from the statute as a whole – court can give effect to that purpose by addition to, omission from or clarification of the particular provisions. If the text is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on the meaning, the grammatical meaning “is the ordinary meaning” to be applied. Court cannot depart from the ordinary meaning of a legislative provision simply because that meaning produces anomalies.

Certain Latin principles may/may not assist:

• Nosti tora socius - a thing is known by its associates
• Sub rule: General words following a list of specific instances of a particular class are to be construed as operating within that class, not at large
• Espressio unius: to specifically mention one thing is to exclude another

Isaacs J: principle of logic that where framers of the document expressed intentions as to a given subject it can not be said they have left their intentions elsewhere Connor

• Expressio facet cecera tecet: that which is expressed puts an end to that unspoken: implication cannot be made on a topic in respect of which express provision has been made.

Rule in Anthony Horden (1932) 47 CLR 1: proposition is that when legislation expressly confers power by a particular provision that prescribes way the power is exercised it excludes expression of general proposition in same instrument otherwise relied upon.

How useful are dictionaries?

Not very useful. Though they are often used to determine the range of meanings, it does not mean you are bound by them. If you are really stuck, use the dictionary definitions to get your brain moving.

Fact: courts generally do not find dictionary definitions impressive.

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at 505 (“church”)

Meaning of the word “church” in a very old development plan.

Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560D per Mahoney J:

"The meaning of the words used in a statute or document is not merely the sum of the individual meanings of the words used, ascertained from dictionaries. To adapt a much cited comment of Holmes J, a word is the skin of a living thought, and it is the thought which the court must ascertain and apply."

Start with the ordinary and natural meaning of the word

Question: does this mean the contemporary meaning or the meaning when the statute was enacted? Ie should you use the contemporary meaning or the historical meaning of the word?

Answer: If society changes such that the natural and ordinary meaning of the word changes, then the contemporary meaning rather than the historical meaning should be applied.

CONTEXT

In a nutshell:

Read the text in context. Most of the debate is about how wide the context is. For example, would the context be as wide as looking at parliamentary debates leading to the passing of the legislation?

For the severely underaquanted, there are Acts that exist to assist with interpretation.

For Commonwealth statutes see the Acts Interpretation Act 1901 (Cth).

For New South Wales statutes see the Interpretation Act 1987 (NSW).

While the provisions are not identical, they are similar enough that I will just deal with the NSW sections.

Section 34 of the Interpretation Act 1987 (NSW) outlines when and how extrinsic material can be used in the interpretation process to assist with context:

Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Note:

1. Extrinsic aids may be taken into account even where the provision is ‘clear on its face’.
2. BUT if the provision is clear on its face, extrinsic material may only be used to confirm the ordinary meaning the interpretation that the court without reference to those materials, would place upon the provision.
3. For a reference to extrinsic materials to have the potential to change an interpretation of legislation the court would not otherwise have arrived at, must meet a condition:

-ambiguous

-obscure

-or taking account of context and underlying purpose leads to an ordinary meaning that is manifestly absurd or unreasonable.

4. Australian courts have traditionally been reluctant to rely too heavily on extrinsic material. Where extrinsic material has been examined or relied upon, it has usually been legislative history including second reading speeches where there has been a contest based on the extent to which the law has changed.
5. High Court: has predominantly used parliamentary debates, particularly reports of the second reading speech of the minister who introduced the bill and EM.
6. Federal Court: has had frequent reference to the second reading speeches and EM.

PURPOSE

S33 of the Interpretation Act 1987 (NSW) requires regard to be had to the purpose or object of the Act. An interpretation promoting the purpose of the Act is to be preferred to a construction that would not promote the purpose of the Act. 

Section 33 (and s15AA Cth Act) reflect the Project Bluesky position of the purposive approach to interpretation.

Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J

Before s15AA was enacted, it was generally accepted the common law purposive approach to interpretation should only be resorted to if there was an ambiguity or doubt as to the meaning.

Section15AA requires the purpose to be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act is clear.

But

S33/s15AA does not permit the court to ignore the actual words of a statute

R v L (1994) 49 FCR 534 at 538

Only meaningful where two constructions otherwise open – not a warrant for reading the legislation as redrafted nearer to the assumed desire of the legislature.

“The requirement that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature

Sometimes the underlying purpose or object of a provision may not be discoverable

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ:

“The choice directed by s35(a) of the Interpretation of Legislation Act is not as to the construction which “will best achieve” the object of the Act.

Rather it is a limited choice between ‘a construction that would promote the purpose or object of the Act’ and one ‘that would not promote that purpose or object’

Note the difference between:

1. Legislative purpose: statutory interpretation is concerned with the purpose the text advances.

2. Subjective purpose: what a Minister states the purpose to be in a second reading speech, explanatory memorandum, policy note, etc.

Statutory interpretation is concerned with legislative purpose not the subjective purpose. Legislative purpose involves looking at what the text does to advance the purpose to be found in the instrument as a whole.

Legislative intention is ascertained by interpreting the statute, not by quoting a Second Reading Speech or explanatory memorandum. All these sources can be considered, but the search must begin and eventually end with the words of the Act concerned. You will see in most judgments, although sources like EMs and Second Reading speeches were considered, the judge would ultimately place little emphasis on them.

Kirby J talks about the danger of “parliamentary intention” in:
Yarmirr v Northern Territory (2001) 208 CLR 1 at [262]

Danger of talking of parliamentary “intention” is that use of this fiction slips very easily into a search for the intention of the Minister, the Government, or the Members of Parliament who spoke on the Bill that became the law in question. Would be preferable for courts to drop altogether the fiction of parliamentary intention.

The more objective word “purpose” reminds the searcher that the object of the inquiry is something other than the subjective intentions (if any) of the legislators.

The court seeks to ascertain the purpose of the law, ultimately derived objectively from the language in which the law is expressed.

Elkin on ‘Legislative intention’ – two types:

1. Narrow purpose – the work the section has to do;
2. Broad purpose –what the section is intended to achieve.

Where the object is stated in the Act:

Is this statement of purpose sufficient or do you have to look at the larger legislative intention?

What if the purpose in the Object section and the larger legislative purpose conflicts? The purpose is meant to be derived from a consideration of the way the Act operates as a whole (Hayne J).

Just because there is an Object section does not mean you have found the legislative intention.

Russo v Aiello (2003) 215 CLR 643 at 645

Where the Objects section purpose and a more specific purpose derived from an examination of other provisions in the Act conflict, the more specific purpose is to prevail.

PARTS OF STATUTE

Preamble:

Wacando v The Commonwealth (1981) 141 CLR 1 per Mason J:

Where the enacting part of a statute is clear and unambiguous, it cannot be cut down by the preamble.

Recourse to preamble can throw light on statutory purpose but cannot cut down clear enacting words that follow the preamble.

If preamble is narrow does not mean rest of Act needs to be narrow.

Earlier provisions contradicting later provisions:

Anthony Horden & Sons Ltd

Where you have earlier provision then contradicted by a subsequent provision or general provision subsequently cut down by a special provision then the special provision or the subsequent provision that controls the meaning of the statute in that context.

Start general and add to greater specificity-general statement at beginning must give way to narrower statement at the end - respect convention legislation towards the end becomes narrower and narrower.

Headings, marginal notes, footnotes and endnotes, examples:

Yorta Yorta Peoples v Victoria [2002] HCA

Headings do not necessarily control the substantive meaning of the terms

Hopefully you found my article on Statutory Interpretation useful. If there is a major step you believed I have missed or a key case I have not mentioned, please comment below.