Keeping cyclists safe – do minimum passing distance laws go far enough?

I never used to pay much attention to bicycle laws until I started commuting to work on my bike. In South Australia, cars must leave at least one metre of space when passing a bicycle (if the car is traveling at 60km/hr or less). It quickly became clear to me that this does not always happen. Some states in Australia do not even have minimum passing distance laws. About 17% of Australians ride a bike each week, with about 5.1% using their bike for commuting and 14.1% using their bike for recreation or exercise. The overlap in figures is caused by Australians who use cycling for both commuting and leisure/exercise. The average Australian household has 1.5 functioning bicycles. This is a significant amount of the population that our road laws should be keeping safe.

As road laws fall within the jurisdiction of states and territories, laws are not uniform, though the model Australian Road Rules attempt to unify road rules as much as possible. There are currently two different categories of overtaking laws in Australia, the “safe overtaking distance” (SOD) and the “minimum passing distance” (MPD). The SOD is a general law applying to all vehicles overtaking other vehicles and provides there needs to be a safe overtaking distance with the other vehicle such as to avoid collision and avoid obstructing the path of that vehicle. The SOD also applies to the overtaking of bicycles where there is no more specific law such as the MPD in that jurisdiction. Generally cars overtaking bicycles in jurisdictions with the SOD underestimate the SOD and pass dangerously close to the bicycle rider. I know this from personal experience. Campaigners and lobbyists (such as the Amy Gillett Foundation with the “A Metre Matters” campaign) have pushed for safer passing laws for a number of years and their hard work is starting to pay off as a number of jurisdictions have adopted or are trialing the MPD. The MPD gives an exact minimum distance that must be given when passing a bicycle. Giving an exact figure gives drivers more specific guidance than the vague “safe overtaking distance”.

Some jurisdictions have adopted the following MPD laws:

1.       Where the speed limit is 60km/h or less, vehicles must provide at least 1m of space when passing a bicycle.

2.       Where the speed limit is more than 60km/h, vehicles must provide at least 1.5m of space when passing a bicycle.

3.       The distance is measured from the rightmost part of the bicycle/rider (which could be a panier, arm or bicycle trailer) and the leftmost part of the car passing (which could be a rear vision mirror or trailer).

4.       Where two bicycle riders are riding two abreast (which they are legally able to do as long as they are riding in one lane within 1.5m of each other – see r.151 of the Australian Road Rules), the safe passing distance is measured from the right most part of the rider on the right.

5.       Cars/vehicles are exempt from certain other road rules to ensure they comply with the MPD when passing a bicycle. For example, in South Australia, cars can drive over center lines including center double lines, straddle or cross a lane line, or drive on a painted island to safely overtake a bicycle using the MPD. However drivers should remember they can only overtake or pass a bicycle if the MPD can be given and if it is otherwise safe to do so.

The MPD across Australia

Jurisdiction	MPD?	Source of law	Section	Maximum Penalty
South Australia	Yes, permanent MPD since October 2015	Road Traffic (Road Rules--Ancillary and Miscellaneous Provisions) Regulations 2014	11A and 11B	$2,500
Queensland	Yes, permanent MPD since April 2016 following 12 month trial	Transport Operations (Road Use Management—Road Rules) Regulation 2009	144A and 139A	40 penalty units ($4,876 as 1 penalty unit is currently $121.90)
New South Wales	Trial of MPD 03/2016 – 03/2018	Road Rules 2014	144-1 and 144-2	20 penalty units (1 penalty unit is $110)
Victoria	No, though attempts have been made in 2016 to introduce legislation into the upper house	-	-	-
Australian Capital territory	Trial of MPD 11/2015 – 11/2017	Road Transport (Safety and Traffic Management) Regulation 2000	38A, 38B	20 penalty units (1 penalty unit is $150)
Tasmania	No. But 1m is recommended and laws allowing exceptions to road laws when overtaking have been enacted.	Road Rules 2009	139A	-
Northern Territory	No	-	-	-

While the maximum penalties appear relatively small, it should be kept in mind that this is only for the offence of failing to keep the minimum safe distance. There are other road traffic offences that have much larger penalties in the case of reckless driving, or causing harm or death to a person.

Passing versus overtaking

In the South Australian regulations, the MPD must be given when “passing” a bicycle. “Passing” is a different and broader concept than overtaking. “Passing” is not defined in the regulations, but the meaning can be discerned from the wording of reg 11A that a driver will “pass” a bicycle when passing to the right of the rider travelling in the same direction as the driver. This covers a broad range of situations including overtaking a bicycle, passing a bicycle riding in a bike lane, and passing a bicycle travelling in the same direction in an adjacent lane. Essentially, any time a vehicle travelling in the same direction goes past a bicycle, the MPD must be applied.

Although the concept of “passing” is preferable to “overtaking” there are still some issues with the definition in the South Australian laws and in other jurisdictions. Passing does not include situations where a vehicle is travelling in the opposite direction to the bicycle. This is a significant weakness in the legislation as head on collisions are possible where appropriate distance is not maintained, especially on narrow roads and unmarked roads. Other jurisdictions such as Queensland have also chosen to use the concept of “passing” in the MPD regulations.

Summary

Some jurisdictions have recently taken positive steps to increase the safety of bicycle riders by introducing MPD laws or trials of MPD laws. This is a great first step and other jurisdictions will hopefully follow. The use of the concept “passing” instead of “overtaking” in regulations is also a positive step but arguably does not go far enough, as the concept does not include passing in opposite directions. It is also positive that the MPD increases to 1.5m when speed of the overtaking vehicle increases, however there appears to be minimal knowledge of this law among the general public. 

R v IBAC [2016] HCA 8 –High Court considers the companion rule, the privilege against self-incrimination and whether an anti-corruption agency examine persons who may be charged with a criminal offence

In the case of ICAC v Cuneen [2014] HCA 14 the High Court examined the powers of the Independent Commission Against Corruption (ICAC), causing intense media and legal scrutiny of the powers of ICAC and other anti-corruption agencies. In 2016 the High Court has turned its focus to ICAC’s Victorian equivalent, the Independent Broad-based Anti-corruption Commission (IBAC). In R v IBAC [2016] HCA 8 (R v IBAC), the High Court examined the question of whether IBAC could summon two police officers who had allegedly committed assault and who may be charged with the offence to give evidence before IBAC about the same matters. The decision is important in that it reaffirms the principles of the privilege against self-incrimination, is an example of how statute can abrogate common law rights, and indicates how other anti-corruption agencies with similar statutory regimes (such as ICAC) should approach such situations.

Before reading this blog post I recommend you read my blog post detailing the main differences between ICAC and IBAC.

Facts

Victoria Police commenced “Operations Ross” on 20 March 2015 to investigate alleged incidents at Ballarat police station which may have involved human rights violations in respect of women. One particular incident to be investigated was whether police officers assaulted a woman in a cell on 15 January 2015. IBAC decided to investigate the matter using its powers to investigate serious police personnel misconduct and issued summons to the police officers on 1 April 2015 to give evidence in public examination of their knowledge of matters in Operations Ross. The police officers were suspended from duty on 2 April 2015 on the basis they were reasonably believed to have committed the offence, but were not charged at that point in time. The police sought to challenge the power of IBAC to publicly examine persons on the same matter for which they are likely to be charged with an offence.

Two legal questions before the High Court

1.       Does the “Companion Rule” extend to situations where a person has not yet been charged with an offence?

2.       Does s.144 of the IBAC Act apply to persons not yet charged with an offence?

Road to the High Court

On 10 April 2015 the police wrote to the IBAC Commissioner and submitted that they could not be compelled to give evidence. The IBAC Commissioner rejected the submissions on 15 April 2015. On 16 April the police commenced judicial review proceedings in the Supreme Court of Victoria seeking orders preventing IBAC from examining the police officers. Justice Riordan rejected the argument holding that as the appellants had not yet been charged with an offence the process of criminal justice had not commenced and the entitlement to protection from self-incrimination was not yet operative. The police were also unsuccessful before the Court of Appeal, where their Honours held the IBAC Act “intended that the persons, who might be examined, include persons who might have been implicated in that conduct”. 

High Court decision

The High Court unanimously dismissed the appeal and held:

1.       The “Companion Rule” does not extend to situations where a person has not yet been charge with an offence; and

2.       Section 144 of the IBAC Act applies to all persons issued with a witness summons, including persons not yet charged with a criminal offence.

French CJ, Kiefel J, Bell J, Keane J, Nettle J, and Gaudron J gave reasons in a joint judgment and Gageler J wrote separate reasons.

High Court’s legal analysis

1.       The “companion rule”

The fundamental principle of the common law in criminal proceedings is that the prosecution must prove the guilt of the accused person. The companion rule is derived from this fundamental principle and was enunciated by the High Court in Lee v The Queen (2014) 253 CLR 455:

“The companion rule to the fundamental principle is that an accused cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof.”

The authorities make it clear that the operation of the companion rule is dependent on the judicial process having been engaged by a person being charged with but not yet tried for a criminal offence. In R v IBAC, the appellants asserted as one of their submissions that the police under investigation could not be summoned to give evidence before IBAC as it would breach the companion rule. The High Court held in the present case the companion rule is not engaged as the appellants have not been charged and no prosecution is pending ([48]). The High Court refused to extend the operation of the companion rule to situations where a person had not yet been charged for the following reasons:

1.       The rationale behind the authorities for the companion rule is to protect the forensic balance between prosecution and accused in the judicial process as it has evolved at common law – this rationale does not extend to persons who have not yet been charged ([48]).

2.       Extending the companion rule in this instance would be contrary to the objects of the IBAC Act which include identifying, investigating and exposing police personnel misconduct (s.8 IBAC Act), and applying the companion rule in anticipation of commencement of criminal proceedings would frustrate the ability of IBAC to carry out this object ([51]).

3.       The appellants failed to clearly enunciate the extent to which the companion rule should be extended, varying their submissions from “persons reasonably believed to have committed a criminal offence” to “a person the specific subject of an investigation” to “a person reasonably suspected of having committed a criminal offence” ([49]).

4.       If the companion rule was extended to protect persons reasonably suspected of having committed a criminal offence, there is uncertainty as to who is to hold the suspicion, especially where different persons having access to different bodies of information may have different views on the issue ([50]).

Gageler J gave similar reasons to the joint judgment, concluding that the extension of the companion rule in this situation frustrates a clear object of the legislation which is “the identification, investigation and exposure of serious corrupt conduct and police personnel misconduct” ([74]) and ([77]).

His Honour also noted a number of issues not considered in the joint judgment did not consider. First Gageler J noted the importance of considering Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Victoria’s Charter), and in particular how the companion rule interacts with s.25(2)(k) which contains the right of a person charged with a criminal offence “not to be compelled to testify against himself or herself to confess guilt”. His Honour did not answer the question as it had not been explored in argument. Second, Gageler J noted that no attention had been given to the detailed statement of compatibility provided to Victorian Parliament when the IBAC Bill was debated. The statement of compatibility usefully explained that the abrogation of an individual’s right against self-incrimination was justified in this instance “to assist the IBAC in its functions as a truth-seeking body that is able to undertake full and proper investigations”. Neither the appellants nor respondents considered the statement of compatibility in argument.

2.       Self-incrimination and section 144 of the IBAC Act

Ordinarily a person is entitled to claim the privilege against self-incrimination where a person’s answer is likely to incriminate them. This privilege is based on the fundamental principle that the prosecution must prove the guilt of the accused and that an accused has the right to remain silent. The High Court referred to Sorby v The Commonwealth (1983) 152 CLR 281 where Gibbs CJ referred to R v Boyles (1861) 1 B&S 311 in enunciating when the privilege against self-incrimination is enlivened:

“to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstances of the case and the nature of the evidence which the person is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer”.

The common law privilege can be curtailed by statute. In R v IBAC, the High Court held that the IBAC Act clearly intended to abrogate the common law privilege against self-incrimination, as the broad purpose of Pt 6 of the IBAC Act is to obtain material not presently available to advance the objective of maintaining public confidence in the police force ([55]), and such information would likely include information that may be self-incriminating. Further, s.144 clearly abrogates the privilege.

Section 144 provides that a witness is not excused from answering a question, giving information or producing a document when summoned on the ground the answer, information or document might tend to incriminate the person (s.144(1)). However, while this information must be given by a witness summoned by IBAC, the self-incriminating information cannot be used against the witness in judicial proceedings (subject to a few limitations) (s.144(2)).

The appellants argued that s.144 does not apply to persons yet to be charged with a criminal offence. The High Court rejected this argument, as the section read with the evident purpose of the IBAC Act points to an intention that s.144 applied to all witnesses summoned including witnesses who have not yet been charged with an offence, as objective of maintaining public confidence in the police force may include obtaining information that is self-incriminating. 

Gageler J gave similar reasons to the joint judgment noting:

·         The IBAC Act clearly manifests the intention that a person summoned and examined might be a person whose criminal police personnel misconduct is the subject matter of the investigation; and

·         The use of the word “a person” in s.144 clearly contemplates any witness summoned cannot be excused from providing information on the grounds of self-incrimination.

Implications and lessons to learn

The case reaffirmed that the companion principle only applies to persons charged with a criminal offence. It is also a useful example of how the common law privilege against self-incrimination can be abrogated by statute. ICAC’s statute contains a similar provision to s.144 of the IBAC Act which abrogates the common law privilege against self-incrimination but provides this information can only be used for the purposes of the investigation concerned (s.26 ICAC Act), so R v IBAC indicates how the High Court would decide a similar case in the NSW jurisdiction.

In R v IBAC the High Court also reaffirmed IBAC’s clear powers to summon any person for examination. ICAC’s statute contains similar provisions, so the decision may have some value in reaffirming ICAC’s powers to summon any person for examination.  

Importantly for those practising working with Victorian statute, Gageler J’s reasons provide useful reminders to ensure you consider Victoria’s Charter and statement of compatability in your submissions and argument, as it may be helpful for interpretation purposes, and some judges find these arguments particularly persuasive.

33 YEARS ON: CODELFA CONSTRUCTION PTY LTD V STATE RAIL AUTHORITY OF NSW [1982] HCA 24 – Does the Codelfa Principle still apply to using extrinsic material in interpretation?

Introduction

All law students who passed the subject Contracts will have grappled with the case Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24 (“Codelfa”) when learning the principles of frustration. Lawyers who have practiced will know that Codelfa continues to haunt you in the area of interpretation of contracts. Constructing a contract can involve examining extrinsic material to assist with finding the legal meaning of the words. Codelfa provided a test for when it is appropriate to use extrinsic material as an aide. Two competing interpretations of the test in Codelfa emerged and were adopted in different High Court cases, culminating in 2014 with the case of Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd [2014] HCA 7.  In this article I attempt to summarise where the law is today. Note that this article focuses on when extrinsic material can be used. It does not cover what type of extrinsic material can be used. However, I may cover this in a future blog post.

Short answer:

Yes, the Codelfa Principle still applies, but has been reinterpreted over time, culminating in the 2014 High Court case of Woodside. Codelfa is now interpreted as supporting the contextual approach to use of extrinsic material in constructing contracts.

Key case: Codelfa Constructions Pty Ltd v State Rail Authority of NSW [1982] HCA 24

The NSW government contracted with Codelfa Constructions to excavate tunnels for the new Eastern Suburbs train line. When the contract was signed, Codelfa Constructions intended to work 24/7 to achieve timeline targets and receive bonus payments. Both parties assumed that the work would not be subject to injunctions. However, the work created noise and vibrations and local residents successfully obtaining injunctions. Codelfa could only work six days a week and for only two shifts a day.

Codelfa tried to claim compensation from the government for lost profits associated with not being able to work 24/7 and meet time targets in the contract. There was no explicit term in the contract, so Codelfa argued either that there was an implied term or in the alternative that the contract was frustrated. The interpretation put forward by Codelfa hinged on whether or not certain extrinsic material could be used in constructing the contract.

The Codelfa Principle:

The traditional reading of the Codelfa Principle is that extrinsic material evidencing surrounding circumstances can only be used in interpreting a contract where the contract is ambiguous on its face. Where the contract is not ambiguous, the investigation ends with the text of the contract. This is known as the literal approach.

The Codelfa Principle is taken from Mason J’s judgment ((1982) 149 CLR 337 at 352):

 “The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.”

So where is the controversy?

Two possible readings of the Codelfa Principle have been put forward. They differ as to the point in time in the contract interpretation process that extrinsic material can be considered. In Ray Brooks Pty Ltd v NSW Grains Board [2002] NSWSC 1049 Palmer J distinguished the two approaches with the terms “literal approach” and “contextual approach”:

1.      Literal approach: Ambiguity must be identified before extrinsic material can even be looked at. If there is no ambiguity in the clause in question, extrinsic material must not be examined. To me this seems the obvious intention of Mason J in the above extract and was favoured in the years immediately after Codelfa.

2.      Contextual approach: Extrinsic material can be used at any point in the interpretation process including to determine if ambiguity exists.

The interpretation outcome for a contract between the literal and contextual approaches can be huge.

Cases supporting the “contextual approach”

1.      Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152 (“Maggbury”)

In this High Court case, Gleeson CJ, Gummow and Hayne in their joint judgment adopted the contextual approach that the meaning of the words would be that as understood by a reasonable person with all the background knowledge (at 155). This is not the traditional approach of first looking at the text alone. The joint judgment relies on the UK case of Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 (“West Bromwich”) in which the contextual approach was favoured. Lord Hoffman stated that `the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’. It was also suggested by Lord Herschell that contractual language must be “interpreted in the way in which business men would interpret them”. This approach is also known as the “business efficacy” approach. However, as already mentioned, the UK had made a clear departure from requiring ambiguity to examine extrinsic evidence.

2.      Ray Brooks Pty Ltd v NSW Grains Board [2002] NSWSC 1049

Palmer J analysed Mason J’s approach in Codelfa and concluded Mason J was sympathetic to the “contextual approach”. At [59]:

`His Honour is not saying: evidence of surrounding circumstances is admissible only if it first appears that the language of the contract is ambiguous. His Honour is saying: evidence of surrounding circumstances is admissible only for the purpose of explaining ambiguous language in the contract and not for the purpose of changing the meaning of clear words.’

Palmer J believed Mason J in Codelfa was sympathetic to the view that the contracts cannot be isolated from the matrix of facts in which they were set.

3.      Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 (“Franklins”)

Allsop P states at [18]:

“The construction and interpretation of written contracts is to be undertaken by an examination of the text of the document in the context of the surrounding circumstances known to the parties, including the purpose and object of the transaction and by assessing how a reasonable person would have understood the language in that context. There is no place in that structure, so expressed, for a requirement to discern textual, or any other, ambiguity in the words of the document before any resort can be made to such evidence of surrounding circumstances”.

Franklins clearly states there is no need for ambiguity and that the High Court cases are clear on this. Allsop P relies on Maggbury and the following High Court cases in making this statement:

Pacific Carriers v BNP Paribas (2005) 222 CLR 241 at 461-462 [22];

 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at 559[82]; 

International Air Transport Association v Ansett Australia Holdings Limited (2008) 234 CLR 151 at 160 and 174.

4.      Electricity Generation Corporation (trading as Verve Energy) v Woodside Energy Ltd [2014] HCA 7 (“Woodside”)

Prior to this case, there was serious doubt as to whether to apply the contextual or literal approach to contract construction. In 2011, in Jireh, the High Court had indicated ambiguity needed to be identified before extrinsic evidence was examined. In 2014, in Woodside, the High Court found the opposite. In Woodside, the High Court clearly favoured the contextual approach (at [35]):

“The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract”.

There is no mention at all of first requiring ambiguity. Instead the focus is on construing the contract so as to avoid it ‘making commercial nonsense or working commercial inconvenience’ (at [35]).

Cases supporting the “literal approach”

1.      LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74

Young CJ, Meagher JA and Hodgson JA in the New South Wales Court of Appeal stated that it was necessary for ambiguity to be shown before the surrounding circumstances are examined. They compared the Australia path with the English path where the prerequisite of ambiguity had been clearly discarded. As an aside, the Court of Appeal did consider the use surrounding circumstances could be put to and suggested the Codelfa doctrine is not only that a court uses the surrounding circumstances to aid its interpretation and to put itself in the armchair of the parties to look to see what each knew when it was making the contract, but also that inferences can be drawn from the surrounding circumstances virtually to add terms’. While this looks to be a broad approach to the use of surrounding circumstances, this step can only be taken if ambiguity has been identified.

2.      Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45 (“Jireh”)

The High Court case of Jireh is very important, as it cast away doubt that had built up surrounding Codelfa and reaffirmed that ambiguity is needed before surrounding circumstances can be examined. The High Court refused special leave to appeal, and in providing its reasons stated that the “true rule” as stated by Mason J with the concurrence of Stephen J and Wilson J in Codelfa remained the law in Australia. The High Court then gave a mini-lecture to the lower courts:

“Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts. The position of Codelfa, as a binding authority, was made clear in the joint reasons of five Justices in Royal Botanic Gardens and Domain Trust v South Sydney City Council and it should not have been necessary to reiterate the point here.”

It is important to note that Jireh was decided in 2011. The High Court case of Woodside is more recent.

3.      See also: Royal Botanic Gardens and Domain Trust v South Sydney City Council  (2002) 240 CLR 45. This case is particularly important for the breadth of extrinsic material and surrounding circumstances that can be used.

Can Jireh and Woodside be reconciled?

Jireh and Woodside take the opposite approaches to the interpretation problem. To me there seems to be irreconcilable inconsistency between the two cases. Jireh requires ambiguity before extrinsic evidence can be looked at. Woodside requires extrinsic evidence and surrounding circumstances to be taken into account at first instance to reach a commercially workable interpretation. Woodside was decided in 2014, so has the upper hand in terms of recent High Court precedents. Some lower courts have tried to reconcile the two judgments:

1.      Stratton Finance Pty Limited v Webb [2014] FCAFC 110

The Federal Court acknowledged there had been uncertainty since Jireh, but that this was resolved by Woodside:

“As the reasons in Franklins stated, the conclusion that ambiguity need not be discovered before any resort to legitimate surrounding circumstances in the relevant task was drawn only from existing High Court authority.” (See Franklins above for list of High Court cases relied on).

2.      Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184

The NSW Court of Appeal has also expressed the view that Jireh and Woodside are inconsistent. In their reasons, the Court of Appeal stated how the contextual approach in Woodside is not inconsistent with Codelfa (at [79]):

“There is no inconsistency [between Codelfa and Woodside] because whether contractual language has a "plain meaning" is (a) a conclusion and (b) a conclusion which cannot be reached until one has had regard to the context. That accords with what was said by Allsop P in Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [17]:

"the phrase used by Mason J in Codelfa Construction (at 352) 'if the language is ambiguous or susceptible of more than one meaning' does not mean that the susceptibility of the language to more than one meaning must be assessed without reference to the surrounding circumstances ... "

Mason J was indicating that there are very real limits to the extent to which grammatical meaning can be displaced by contextual considerations. However, in order to determine whether more than one meaning is available, it may be necessary first to turn to the context”.

Conclusion

Thirty three years on, Codelfa still stands as authority on the use of extrinsic material in interpretation. However, it has been “reinterpreted” over time to the point that the contextual approach in the 2014 High Court case of Woodside now applies. This requires extrinsic material and the surrounding circumstances to be examined at the outset in constructing a contract. Ambiguity is still required to be identified, but the extrinsic material and surrounding circumstances must be examined to see if this ambiguity exists..

Note: In this article I use the words “interpretation” and “construction” interchangeably. Some authors like to maintain a strict separation and “interpret legislation” and “construct a contract”. I don’t believe this strict distinction is necessary.

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.