ROLE OF STATUTORY
INTERPRETATION
LEGISLATION
Interpretation legislation
• Acts Interpretation Act 1901 (Cth)
• Interpretation Act 1987 (NSW)
• ‘Contrary interpretation’ principle
Acts Interpretation Act:
• is a measure providing for the simplification of the
language of Acts of Parliament and the shortening of their
terminology. It constitutes in a sense a legal dictionary,
particular meanings being assigned by it to particular
phrases, which must be used over and over again in
almost every Act of Parliament.
• Alfred Deakin, Australia’s first Attorney-General, on the
second reading of the Acts Interpretation Bill on 6 June
1901.
Acts Interpretation Act
Part 1—Preliminary
Part 2—Definitions
Part 3—Commencement of Acts
Part 4—Amendment, repeal and expiry of Acts
Part 5—General interpretation rules
Part 6—Service of documents
Part 7—Powers, functions and duties
Part 8—Distance, time and age
Part 9—Citation of Acts
Part 10—Non-legislative instruments and
resolutions
Part 11—Regulations
Commencement
• Commencement: s3A
• 28 day rule
• Calculation of time of day of commencement: s3
• Calculation of period of 28 days – clear on face of section,
but if required – s36
• https://www.legislation.gov.au/Details/C2016C00531
ACTS INTERPRETATION ACT 1901 - SECT 3
When Acts come into operation
If an Act or a provision of an Act is expressed to come into
operation on a particular day (whether the expression "come into
operation" or "commence" is used), it shall come into operation
immediately on the expiration of the last preceding day.
Re Flavel [1916] SALR 47
Gap between old and new?
• If the new Act is replacing an older Act when does it
commence?
• The exact moment at which a repealed Act ceases to
apply and a new Act commences is said to be seamless –
no gap.
• No “hiatus nor any overlapping”:
Lipshut v MacKay [1950] VLR 57 per Deane J.
Prior to commencement?
• Delegated legislation, appointments etc
• S4 AIA
• http://www.austlii.edu.au/au/legis/cth/consol_act/aia19012
30/s4.html
• S26 IA
Repeal provisions
• Repeal of an Act will not mean repeal
of any rights or liabilities which have
accrued under that Act unless clear
words have been used.
• Part 4—Amendment, repeal and
expiry of Acts
s7 Effect of repeal or amendment of Act
No revival of other Act or part
(1) The repeal of an Act, or of a part of an Act,
that repealed an Act (the old Act) or part (the
old part) of an Act does not revive the old Act
or old part, unless express provision is made
for the revival.
http://www.austlii.edu.au/au/legis/cth/consol_act/aia190123
0/s7.html
References to other Acts
10 References to amended or re-enacted Acts
Where an Act contains a reference to a short title that is or was
provided by law for the citation of another Act as originally
enacted, or of another Act as amended, then:
(a) the reference shall be construed as a reference to that other
Act as originally enacted and as amended from time to time;
and
(b) where that other Act has been repealed and re-enacted, with
or without modifications, the reference shall be construed as
including a reference to the re-enacted Act as originally
enacted and as amended from time to time; and
(c) if a provision of the other Act is repealed and re-enacted
(including where the other Act is repealed and re-enacted),
with or without modifications, a reference to the repealed
provision extends to any corresponding re-enacted provision.
Geographical connection
21 Office etc. means office etc. of the Commonwealth
(1) In any Act:
(a) references to any officer or office shall be construed as
references to such officer or office in and for the
Commonwealth; and
(b) references to localities jurisdictions and other matters and
things shall be construed as references to such localities
jurisdictions and other matters and things in and of the
Commonwealth.
(2) In this section:
office includes a position occupied by an APS employee.
officer includes an APS employee.
And – s15A – Constitutional power
Gender/number
23 Rules as to gender and number
In 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
18B Titles of Chairs and Deputy Chairs
Chair titles
(1) For the purposes of this section, each of the following is
a chair title:
(a) Chair;
(b) Chairperson;
(c) Chairman;
(d) Chairwoman.
Parts of speech
• 18A 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.
ACTS INTERPRETATION ACT 1901 - s
35
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.
e.g.
http://www.austlii.edu.au/au/legis/cth/consol_act/coaca43
0/s125.html
Time and Age
 37 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 legal time in
that State or part of the Commonwealth.
 37A 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.
And see s36:
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s
36.html
GENERAL APPROACH
s15AA
Original -s15AA
(1) 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.
Elements
• Interpretation
• Construction promoting purpose
• Whether purpose express or not
• Preferred
• To construction which does not promote
purpose
Bryson J:
• These have not signalled any large
new turn in the construction of
statutes. The approach to these
provisions thus far appears to be
appropriate to treating them as
declaratory, and in my suggestion that
is what they are.
Mills v Meeking
(1990) 169 CLR 214, Dawson J at 235:
“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.”
RvL
(1994) 49FCR 543, Burchett, Miles and Ryan JJ at 548
“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”
New s15AA
• 27th December 2011
• 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.
Why?
 99. Section 15AA, which deals with interpretation of Acts, is
currently expressed in absolute terms, ie. a construction that
will promote the purpose of an Act is to be preferred to one
that will not. Section 15AA does not address the situation
where there is a choice between two or more constructions
that will promote Parliament's purpose.
 100. The limited nature of section 15AA was confirmed by
three High Court judges in a case on the equivalent Victorian
provision (see Chugg v Pacific Dunlop Pty Ltd (1990) 95 ALR
481 at 489, Dawson, Toohey and Gaudron JJ). 101. Therefore
section 15AA is being amended to provide that a court is to
prefer the construction of an Act that will `best achieve' the
purpose or object of the Act.
Identification of purpose
Purpose/Objects clause
• e.g. COMPETITION AND CONSUMER ACT 2010 - SECT 2
• Object of this Act
The object of this Act is to enhance the welfare of Australians
through the promotion of competition and fair trading and
provision for consumer protection.
Construction of purpose clauses
• IW v City of Perth (1997) 191 CLR 1
• Victims Compensation Fund v Brown (2002) 54 NSWLR 668
• NSWCA
• High Court
Spigelman CJ quoting US Supreme
Court
• …No legislation pursues its purpose at all
costs. Deciding what competing values will or
will not be sacrifice to the achievement of a
particular objective is the very essence of
legislative choice – and it frustrates rather
than effectuated legislative intent simplistically
to assume that whatever furthers the state’s
primary objective must be law
No purpose clause?
• Recall purposive approach at common law
• Intrinsic materials
• Extrinsic materials
• Common Law
• Statute
s15AA and the golden rule
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.”
Bermingham’s case
“First, the court must know the mischief with
which the Act was dealing.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.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.”
Issues with purpose
Purpose/policy
Whose purpose?
Purpose/intention
Purpose/context
Text/context/purpose
R v Young (1999) 46 NSWLR 681at 687 per Spigelman CJ:
“Construction must be text based.”
Purpose a ‘new’/’modern’ approach?
• Heydon’s case (1584) 76 ER 637
Lord Coke:
and then the office of all the judges is always to make
such construction as shall suppress the mischief, and
advance the remedy, and to suppress subtle inventions
and evasions for continuance of the mischief, and pro
privato commodo, and to add force and life to the cure
and remedy, according to the true intent of the makers
of the Act, pro bono publico
• ‘Equity of the Statute’
Nelson v Nelson [1995] HCA 25
48. In earlier times, effect was given to what the courts perceived to
be "the equity of the statute" (26). This doctrine had the support of the
common law judges led by Sir Edward Coke, who looked back to a
time before the rise of the doctrine of parliamentary sovereignty and
the subjection to it of the common law (27). The notion of the equity of
the statute operated in two ways. First, the policy of the statute, as so
perceived, might operate upon additional facts, matters and
circumstances beyond the apparent reach of the terms of the statute.
In addition, cases within the terms of the statute but not within its
mischief might be placed outside its operation. Bentham gave the
following, ironical description of this development (28):
"The best-imagined provision might perhaps have done more
mischief than good unless moulded into form by the prudence
of the judge. On the one hand, the obligative part was not wide
enough to embrace the mischief: on the other hand, the
qualificative parts were not wide enough to yield shelter to
innocence or to afford the necessary range to power.“
Purpose?
• Whose?
• Common law?
• s15AA?
• Mills v Meeking?
• When?
• Campbell reading – contextualism?
• Juliet Lucy – Recent Trends in Statutory Interpretation
http://13stjames.net.au/wpcontent/uploads/2014/05/Recent-Trends-in-StatutoryInterpretation.pdf
Purpose?
• Whose – Parliament’s
• Individual or collective?
• Political process
• Purpose or intention? ‘Will of Parliament’?
• AIA s2(2)
http://www.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s2.ht
ml
• Cf s15AA
• Intention as a metaphor
Lacey v A-G (Qld) (2011) 242 CLR 573 at [43]-[44]
• French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ
• The objective of statutory construction was defined in
Project Blue Sky as giving to the words of a statutory
provision the meaning which the legislature is taken to
have intended them to have...The legislative intention
there referred to is not an objective collective mental
state. Such a state is a fiction which serves no useful
purpose. Ascertainment of legislative intention is asserted
as a statement of compliance with the rules of
construction, common law and statutory, which have been
applied to reach the preferred results and which are
known to parliamentary drafters and the courts. As this
court said recently [in Zheng v Cai (2009) 239 CLR 446]:
• ‘It has been said that to attribute an intention to the
legislature is apply something of a fiction. However, what
is involved here is not the attribution of a collective mental
state to legislators. That would be a misleading use of
metaphor. Rather, judicial findings as to legislative
intention are an expression of a constitutional relationship
between the arms of government with respect to the
making, interpretation and application of laws. As
explained in [NAAV v Minister for Immigration (2002) 123
FCR 298], the preferred construction by the court of the
statute in question is reached by the application of rules of
interpretation accepted by all arms of govenment in the
system of representative democracy’
...
• The application of the rules will properly involve
the identification of a statutory purpose, which
may appear from an express statement in the
relevant statute, by inference from its terms and
by appropriate reference to extrinsic materials.
The purpose of a statute is not something
which exists outside the statute. It resides in
its text and structure, albeit it may be
identified by reference to common law and
statutory rules of construction
Juliet Lucy:
• The High Court has decisively rejected the idea that legislative
intention is a mental state attributable to legislators, and that
legislative purpose is something existing prior to the text. Whilst the
High Court has always acknowledged the impossibility of determining
the subjective intention of legislators, the Court’s disavowal of the
proposition that its task is to ascertain the legislature’s objective
intention, understood to be a construction of the actual policy
informing the legislation, is relatively new. In the last five years, the
Court has asserted that legislative intention is a fiction, and has recast
legislative intention as the result of a process of applying interpretive
rules. As Hayne J succinctly put it, “‘[i]ntention’ is a conclusion
reached about the proper construction of the law in question and
nothing more.”[Momcilovic v The Queen (2011) 245 CLR 1, Hayne J
at 141 [341]. ] This reductive view of legislative intention is
unprecedented. As a result of this prevailing judicial view, the broader
context in which a statute came into being has become far less
important.
High Court in Alcan (Alcan (NT) Alumina Pty Ltd v Commissioner of
Territory Revenue [2009] HCA 41; (2009)
• Hayne, Heydon, Crennan and Kiefel JJ said at [47]:
• This court has stated on many occasions that the task of
statutory construction must begin with a consideration of
the text itself. Historical considerations and extrinsic
materials cannot be relied on to displace the clear
meaning of the text. The language which has actually
been employed in the text of legislation is the surest guide
to legislative intention. The meaning of the text may
require consideration of the context, which includes the
general purpose and policy of a provision, in particular the
mischief it is seeking to remedy.
Lucy’s conclusion [at 36]:
• The High Court’s prevailing approach to statutory interpretation
is textual rather than contextual. The court is not engaged in a
process of seeking to ascertain the legislature’s actual intention
or purpose, and so is less likely to give a meaning to the
legislation which approximates the real legislative purpose or
policy informing the statute in question. The court’s current
approach also raises questions about the legitimacy of the
judiciary’s function; if judges are not trying to ascertain
legislative intention, because this does not exist, then the
theory that judges’ role is to give effect to the will of the
community’s elected representatives is no longer coherent. On
present orthodoxy, judges are doing no more than applying
accepted rules to determine or construct legislative meaning,
so are operating as a wholly autonomous branch of
government when interpreting statutes, rather than effecting
the legislature’s will.
Practicalities?
• Mud-map of interpretation
• "That the intention
of the Holy Spirit is
to teach us how one
goes to heaven, not
how the heavens
go.“
• Letter to the Grand
Duchess Christina
of Tuscany 1615
Further reading
• http://www.fedcourt.gov.au/publications/judges-
speeches/justice-barker/barker-j-20121005#_ftnref30