Chapter 7
7.17 The law needs to be interpreted so that it can be applied correctly. The
language used in legal writing is sometimes quite formal and difficult to understand.
Language, by its very nature, is imprecise. And sometimes the legal meaning of a
word will be different from the every day meaning. p.228
7.18 Statutory Rules and Presumptions are not always consistent. They are best
understood as a set of tools to be used as required by judges when applying
legislation to particular facts or by lawyers when advocating and arguing on behalf
of a client. p.238
7.19 The literal rule of statutory interpretation is that a court should interpret the
statute literally, giving the words and phrases in the statute their ordinary and
natural meanings. Sometimes, by reading a statute literally, a court ends up with
an interpretation which is clearly not what the legislature intended. p.239
7.20 The golden rule in statutory interpretation is that if reading a statute literally
leads to an absurd result, the court should modify the literal meaning as to avoid
the absurdity. p.240
7.21 The contextual approach is not always effective because COME BACK
7.22 The five contexts that should be considered when interpreting the words in a
statute:
◦ The immediate context (the words and phrases used in the same section or
surrounding sections of the Act)
◦ The Act as a whole (looking at the whole Act to interpret words)
◦ Other legislation (looking at the meaning of words in other related legislation)
◦ The prior law (looking at the law that existed prior to the Act in order to interpret a
particular statutory provision)
◦ The “mischief” being remedied (the problem(s) that the Act was intended to
address) p.242
7.23 The purposive approach in statutory interpretation is when a court refers to the
apparent purpose of the parliament when passing the statute. p.244
7.24 The court determines the 'purpose or object underlying the Act' by looking at
object or purposes clauses, or looking at a 'preamble'. If these do not exist, the court
can look at extrinsic materials, such as a second reading speech. p. 245 7.25 The
rule regarding the use of extrinsic materials in s 15AB of the Acts Interpretation
Act 1901 (Cth) is that extrinsic materials may be considered in accordance with the
Act. p.249
7.26 A court need not consider extrinsic materials in accordance with s 15AB but
may consider them.
7.27 A court may use s 15AB to use extrinsic materials to determine a statutory
meaning. p.248
7.28 Victorian courts can refer to extrinsic materials in the absence of ambiguity or
doubt on the fact of the statute. p.248
7.29 The 15 common law presumptions in statutory interpretation:
1. Words have their current meaning.
2. Words have their technical meaning.
3. Words have consistent meanings.
4. There is no surplusage.
5. The provision is constitutional.
6. The provision is consistent with international law.
7. The provision is not extra-territorial.
8. The provision is not retrospective.
9. The provision does not contradict established rights.
10. The provision does not bind the Crown.
11. Penalties have limited application.
12. Offences and penalties correspond.
13. Things not included are excluded.
14. Specific provisions override general provisions.
15. Later provisions override earlier provisions. p.250
7.30 The 15 common law presumptions – explained:
1.
Where the meaning of a particular word or phrase has changed over
time, the court presumes that the meaning intended by the legislature is
the contemporary meaning rather than the meaning applicable at the time
the statutory provision was drafted.
2.
Where appropriate, words and phrases in statutory provisions are
presumed to carry their technical meaning rather than their ordinary
meaning.
3.
Where a statute uses the same word or phrase more than once, the
courts presume that the legislature intended that the word or phrase have
the same meaning each time.
4.
The court presumes that every word in a statutory provision was intended
by the Parliament to have some meaning.
5.
Where two interpretations of a provision in a statute are possible, one
which is in accordance with the Constitution and the other which would
make the provision unconstitutional, the court presumes that the
interpretation that would make the provision constitutional to be the one
intended by parliament.
6.
If Australia is a signatory to an international agreement, such as a treaty
or convention to give effect to that international agreement, and if
ambiguity exists, the court can resolve that ambiguity by referring to the
international agreement and assume that the domestic legislation was
intended to be consistent with the international agreement.
7.
The court presumes that the statutory provision was not intended to apply
outside the limits of the relevant jurisdiction.
8.
It must be stated specifically in legislature that it is retrospective.
9.
In the absence of a clear legislative intention to the contrary, the court
presumes that the statutory provision was not intended to infringe
established common law rights.
10.
A court presumes that, in the absence of a clear intent to the contrary, a
statute is not intended to bind the Crown.
11.
Penal liability is not inferred by the courts in the absence of clear and
unambiguous words.
12.
Where two offences are followed by two penalties, the first penalty is
presumed to apply to the first offence and the second penalty is
presumed to apply to the second offence.
13.
If a statutory provision expressly states that it is to apply to certain
specific things, then things that are not expressly included are presumed to be
included.
14.
If there are two inconsistent statutory provisions, and one is general and
the other specific, the specific provision is presumed to override the
general provision.
15.
A later law is presumed to override and automatically repeal to the extent
of any inconsistency in an earlier law on the same topic. pp. 251-255
7.31
According to statutory rules, 'may' is discretionary. 'Shall' is mandatory. p.255
7.32
According to statutory rules, gender is interpreted to include the other gender,
and number includes the plural and vice versa. p.255
7.33
According to statutory rules, headings can be referred to when interpreting a
statute. p.256
7.34
According to statutory rules, marginal notes are not part of a statute. p.256
7.35
According to statutory rules, footnotes and endnotes are not part of a statute.
p.256
7.36
According to statutory rules, schedules are part of a statute. p.256
7.37
According to statutory rules, punctuation is part of a statute and can be taken
into account when interpreting it. p.256