Topic 7

Focus on the sectionBreak it into its elementsDetermine the meaning of each of those

elementsContext in ActJudicial interpretation

The elements of a section form a checklist – not a shopping list.

Unless it is drafted in the alternative, each element must be satisfied.

The sub-sections of each section are to be read independently – unless the drafting clearly indicates otherwise

Start from the relevant section and work out – never start from the Act as a whole and work in.

Not an academic exercise – but a practical exercise. How does the statute apply in a particular set of circumstances?

Cases – which interpret statutes – are examples of where the court has performed the statutory interpretation for us.

Rules of statutory interpretation:Used by the courtsUsed by practitioners where courts have not

yet interpreted a section

Legislation and case law.Relevant legislation

Acts Interpretation Act 1901 (Cth)Interpretation Act 1987 (NSW)

As interpreted by courts (common law)In the context of common law principles which

survive interpretation statute.

Which Parliament passed it? What jurisdiction are we dealing with – the answer to this question will determine what interpretation legislation should be used.

When did the Act commence – this will tell us if the Act was in force at the relevant time

Determine which Parliament passed the Act to be interpreted

That is the Interpretation legislation you will use

AIR PASSENGER TICKET LEVY (COLLECTION) ACT 2001 (Cth) s 2 Commencement This Act commences, or is taken to have commenced, on 1 October 2001.

ACTS INTERPRETATION ACT 1901(Cth)3A Commencement of Acts(1) This section does not apply to an Act so far

as it provides for its commencement.(2) An Act (other than an Act to alter the

Constitution) commences on the 28th day after the day on which that Act receives the Royal Assent.

(3) An Act to alter the Constitution commences on the day on which that Act receives the Royal Assent.

Parts of speech and grammatical forms                   In any Act where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

2B DefinitionsIn any Act:acting SES employee has the same meaning as in the Public

Service Act 1999.affidavit includes affirmation, declaration and promise.appoint: see section 33AA.APS employee has the same meaning as in the Public Service

Act 1999.Australia means the Commonwealth of Australia and, when

used in a geographical sense, includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

Australian citizen has the same meaning as in the Australian Citizenship Act 2007.

Australian Standard: see section 2L.business day means a day that is not a Saturday, a Sunday or a

public holiday in the place concerned.calendar month means one of the 12 months of the year.calendar year means a period of 12 months starting on 1

January

Rules as to gender and numberIn any Act:

  (a)  words importing a gender include every other gender; and

  (b)  words in the singular number include the plural and words in the plural number include the singular.

Attainment of particular age                    For the purposes of any Act, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of the birth of that person.

Measurement of distance       In the measurement of any distance for the

purposes of any Act, that distance shall be measured in a straight line on a horizontal plane.

Expressions of time        Where in an Act any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the standard or legal time in that State or part of the Commonwealth.

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation

Interpretation best achieve Act’s purposewhether express or not preferred to each other interpretation

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

InterpretationConstruction promoting purposeWhether purpose express or notPreferred To construction which does not promote

purpose

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

The Literal ApproachModified by The Golden Rule, and

The Purposive Approach

“The literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. [The s15AA equivalent]* must I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose…The approach required by [s15AA equivalent] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. [Section 15AA] requires a court to construe an Act, not to rewrite it, in the light of its purposes.”

“the requirement of s15AA(1) 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”

Engineers case (Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 at 161-2 Higgins J:“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”

Definitions sectionsOther sections around the one in question to

get a feel for the way in which words are used in the contentious section

Indices, headings to parts BUT NOT headings to sections or marginal notes. (What is intrinsic to the act and what is extrinsic is governed by the relevant interpretation legislation – S13 Commonwealth; s35 State)

Long title of the ActPreamble (if present)

DictionaryWeitman v Katies Ltd (1977) ATPR 40-041

Oxford Dictionary – meaning of ‘misleading’ and ‘deceptive’ in s52 TPA

ACCC v Lux. [2004] FCA 926 Dictionary – meaning of ‘unconscionable conduct in

s51AB TPAState Chamber of Commerce and Industry v

Commonwealth (1987) 163 CLR 329 Macquarie Dictionary – meaning of “fringe

benefits” within ITAA

“…the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Lord Wensleydale in Grey v Pearson (1857) 6HL Cas 61 at 106:“I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

A modification of the literal ruleTo fix drafting errorsAdler v George [1964] 2 QB 7 “in the vicinity of any prohibited place”

to mean “in or in the vicinity of any prohibited place.”

‘mischief rule’Rule in Heydon’s casePurpose of parliament?

Refer to intrinsic and extrinsic materials

Use extrinsic materials to answer: What was the state of the law before the

enactment; and What was the mischief the legislation was

trying to cure?

Second Reading Speech (Not the rest of the debate, or any other material in Hansard, just the Second Reading Speech – all the views of every member of Parliament are not relevant to what Parliament eventually decides to enact.)

Law Reform Commission reports Reports by Royal Commissions

“The legislation relevant to the present appeal…does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising.The conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.”

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at408 per Brennan CJ, Dawson, Toohey and Gummow JJ:

“It is well settled that at common law, apart from any reliance on s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.”

             (1)  Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act 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 and the purpose or object underlying the Act; or

                     (b)  to determine the meaning of the provision when:

                              (i)  the provision is ambiguous or obscure; or

                             (ii)  the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

            

(2)  Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an 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 the Parliament before the time when the provision was enacted;

                     (c)  any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;

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

                     (e)  any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

                      (f)  the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision 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 Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

            

(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such 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 and the purpose or object underlying the Act; and

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

Relationship with s15AASets threshold tests which must be satisfied

before extrinsic material can be usedEither common law or statutory tests must be

satisfiedExpands the categories of extrinsic material

which may be referred toIndicative not exhaustive list

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

“Reliance is also placed on a sentence in the second reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case.”

“The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the law. However unfortunate it may be when that happens the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.”

How does s15AA relate to the common law?

How does s15AB relate to the common law?

Bermingham v Corrective Services Commission of New South Wales (1988) 15NSWLR 292 McHugh JA at 302:

“To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”

“[1]First, the court must know the mischief with which the Act was dealing.[2]Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.[3]Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

*numbers added

“Construction must be text based.”

Latin MaximsNoscitur a sociis

R v Ann Harris (1836) 7C&P 446 Ejusdem generis

Quazi v Quazi [1980] AC 744

“If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure or disable such person or to do some other grievous bodily harm to such person, …such offender shall be guilty of a felony.”

“as a useful servant but a bad master.” “[Ejusdem generis] is, at best, a very

secondary guide to the meaning of a statute. The all important matter is to consider the purpose of the statute.”

Scarman LJ

Statutes do not operate retrospectivelyMaxwell v Murphy (1957) 96 CLR 261 at 267:“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

Al-Kateb v Godwin (2004) 208 ALR 124 Gleeson CJ at 130 “Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.”

Legislation does not deprive people of access to the courts

Re-enactment of a provision or word constitutes approval of a previous judicial interpretation of that provision or word

Penal provisions are strictly construedProperty rights are not taken away

without compensationParliament intends to legislate in

conformity with international law