Learning Objectives

By the end of this module, you will be able to:

• explain the traditional rules of statutory interpretation
• distinguish literal and purposive approaches to statutory interpretation
• explain the role of precedent in statutory interpretation

Importance of statutory interpretation

Statutory interpretation is an important aspect of the common law. In about half of all reported cases in Australia, the courts are required to rule on the meaning of legislation.

Interpretation Acts

The meaning of Commonwealth, State and Territory legislation is governed by the provisions in the Interpretation Act (or equivalent) for that jurisdiction. The usual rules set out in these statutes are well known. The prescribe the meanings of common terms and provide courts with clear directions to resolve a range of potential inconsistencies.

When reading a statute, make certain you understand the contents of the relevant Interpretation Act. The terms of the Interpretation Acts are not identical. Provisions with identical wordings are read differently by the courts depending on the jurisdiction.

Take the simple question: are section headings part of the Act? In the ACT, Queensland and Victoria, the answer is yes, but only in an Acts proclaimed after a certain date (which varies from state to state). In the Commonwealth, the Northern Territory, South Australia, Tasmania and Western Australia, the answer is always no. In NSW, the answer is no most of the time.

The Interpretation Acts for the different Australian jurisdictions are found online at:

• Acts Interpretation Act 1901 (Cth)
• Acts Interpretation Act 1915 (SA)
• Acts Interpretation Act 1931 (Tas)
• Acts Interpretation Act 1954 (Qld)
• Interpretation Act 1978 (NT)
• Interpretation Act 1984 (WA)
• Interpretation Act 1987 (NSW)
• Legislation Act 2001 (ACT)

The Traditional Rules

The traditional common-law approach to statutory interpretation was to "look at the words of the Act". This approach was founded on the assumption that the statute alone was a reliable guide to the intent of the Parliament. To assist the courts in interpreting legislation, judges relied upon three general rules. These were the:

• literal rule. The literal rule dictated that the courts gave effect to the "ordinary and natural meaning" of legislation.
• mischief rule. This rule required the courts to interpret legislation in a manner consistent with its purpose: the "mischief" it was intended to remedy.
• golden rule. According to the golden rule, the courts were to interpret legislation in a manner which avoided obvious absurdities or inconsistencies. Obvious printing mistakes or simple slips were set aside and the courts read legislation as if these errors were not there.

The traditional common law assumption was that the mischief and golden rules were subordinate to the literal rule. For this reason, the traditional rules of statutory interpretation are sometimes termed "literalism". In the United States the literal approach is often termed the "textualist" or "plain meaning" principle.

Rules of Language

The traditional approach also relied heavily on a number of rules of language. Many of these are expressed in the form of a short Latin phrase. Three important rules of language were:

• ejusdem generis: where a list of words are followed by more general words, the meaning of the general words is restricted to the same class as the words in the list.
• noscitur a sociis: the words of an Act take their meaning from the other words in the same section or sub-section.
• expressio unius est exclusio alterious: mention of one or more things of a particular class excludes all other members of the same class.

Presumptions

Another aspect of the traditional approach was the use of presumptions. The main presumptions include:

• a presumption against the extra-territorial effect of legislation
• a presumption that, where necessary, an Act should be "read down" so as to be within the constitutional power of the relevant legislature
• legislation was presumed not to interfere with the proprietary interests of individuals
• a presumption that penal or fiscal laws were be interpreted in favour of the individual if there were two or more reasonable interpretations
• a presumption against the retrospective application of legislation.

Presumptions In 1999, Chief Justice Spigelman choose statutory interpretation as his topic for the Sir Ninian Stephen Lecture. In his lecture, Spigelman discussed the protections which common law principles of statutory interpretation accorded "fundamental rights and liberties". Among these, he listed the rebuttable presumptions that Parliament did not intend to: invade common law rights; restrict access to the courts; abrogate the protection of legal professional privilege; exclude the privilege against self incrimination; interfere with vested property rights; alienate property without compensation; interfere with equality of religion; deny procedural fairness to persons affected by the exercise of public power. Does the existence of these presumptions remove (at least reduce) the need for a written Bill of Rights in Australia?

Aids to Statutory Interpretation

These are divided into two types: intrinsic materials and extrinsic materials.

Intrinsic Materials

These include, in addition to the authorised text of a statute, those parts of a piece of legislation that do not form part of the text, including the long title, short title, preamble (only in older acts), notes, section headings and schedules.

Extrinsic Materials

Extrinsic materials are anything outside the body of the legislation. They include:

• any additional material included in the authorised text of an Act.
• reports of Royal Commissions, Law Reform Commissions, Committees of Inquiry or similar bodies placed before Parliament during consideration of the legislation.
• reports of Joint or Select Committees made during the passage of the legislation.
• treaties or other international agreements mentioned in the Act.
• Explanatory Memoranda (or the equivalent) relating to the legislation.
• the text of Parliamentary debates.

In the past, the interpretation of extrinsic and intrinsic materials was subject to a number of complicated rules, the details of which were often in dispute. In determining the ordinary sense of words, the courts were generally free to consult any dictionary they wished, even when the court's choice might appear strained or illogical. Only parts of a printed Act were regarded as the actual text. The rules for reading Acts assigned limits to the use of different parts of the Act depending on whether the purpose of the court was constructive or contextual. In general, the courts were not allowed to use parliamentary materials, such as Second Reading Speeches, as aids to constructive interpretation of statutes.

Judge-made Law and Statutory Interpretation As an illustration of the complexity of the traditional rules regarding the interpretation of intrinsic materials, read the article below: Anne Winckel, ‘The Contextual Role of a Preamble in Statutory Interpretation’ (1999) 23 Melbourne University Law Review 184. Do such complex rules advance the goals of the common law?

Limits of Literalism

The main argument in favour of literalism was that any other approach would represent a usurpation by non-elected judged of the legislative function of Parliament. Another argument was that certainty in the application of statute law would be diminished if judges were able, in effect, to rewrite the legislation. The problem with common-law literalism is that it depends on a series of apparently arbitrary, judge-made rules. These threaten the legislative function of Parliament at least as much as any departure from strict literalism.

Another problem was more abstract. In practice, the meaning of an Act was generally not discoverable from its wording alone. Meaning derives from context, and the knowledge and assumptions which the courts bring to the task of interpretation. In these terms, it was absurd that courts were unable to make full use of documents (such as Second Reading Speeches or Parliamentary debates) which most clearly expressed Parliamentary intentions. Not surprisingly, Kirby J has frequently referred to the "dark days of literalism" in his judgments.

The third problem with literalism was that it was often an obstacle to revenue raising. The traditional presumption that tax laws should be interpreted in the favour of taxpayers was a particular problem for legislators, as it provided opportunities for creative forms of tax avoidance.

The Purposive Approach

Section 15AA

In other common law jurisdictions the move away from literalism began as early as the 1960s. However, literalism prevailed in Australian courts until the late 1970s. The turning point was the introduction of section 15AA of the Acts Interpretation Act (Cth). The section provides that:

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

Over the next decades, similar amendments were made to the State and Territory statutes which outlined the rules for the interpretation of Acts.

The judicial response to Section 15AA has been mixed. At one extreme has been a "business as usual" attitude among more conservative judges and academics. This is the view that section 15AA (and its State and Territory counterparts are nothing new. According to this interpretation, Section 15AA requires recourse to a purposive approach only if there is an abiguity or doubt as to the meaning of a Act. In the absence of any uncertainty, the literal meaning should prevail. At other end of the spectrum is the view that Section 15AA requires the courts to interpret the text of an Act in purposive terms, even if the "plain meaning" of the words in their context would otherwise seem clear.

Section 15AB

In 1984, the Commonwealth Parliament inserted a new section into the Acts Interpretation Act 1901. This was Section 15AB. Whatever the arguments about the impact of Section 15AA, 15AB seemed more revolutionary. It provides

"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 provisions, consideration may be given to that material ..."

The Section went into great detail in listing the sources which could be employed in statutory interpretation:

1. documents attached to the Act itself;
2. relevant reports by Royal Commissions, parliamentary committees etc made to parliament before the Act was enacted;
3. any treaties or other international agreements referred to in the Act;
4. explanatory memorandum relating to the Bill;
5. second reading speeches;
6. any documents declared to be relevant by the Act;
7. relevant material in the Journals of the Senate, Votes and Proceedings or other offical records of Parliament.

Devil in the details In theory, Section 15AB (and its counterparts in other Australian jurisdictions) swept away the old, complicated rules regarding the use of extrinsic and intrinsic materials in statutory interpretation. This did not happen in practice. One of the reasons was the construction of Section 15AB. Read Section 15AB of the Acts Interpretation Act 1901 (Commonwealth) for yourself. What part of 15AB in particular undercut attempts to read the Act in purely purposive terms?

Between literalism and the purposive approach

Although the extreme forms of literalism has been largely abandoned in Australia, many judges are still not comfortable with a purely purposive approach. For different reasons, the courts have placed many limitations on the application of section 15AB in practice. These include the

• the requirement that the court must discover ambiguity, absurdity or unreasonableness in the ordinary meaning of a statute before section 15 AB can be applied
• the principle that extrinsic materials cannot be used to overturn the ordinary meaning of an Act
• the discretion on the part of the court to refuse to take into account extrinsic material which amount to no more than a statement of opinion regarding what the statute means or even to disregard extrinsic material which the court regards as misleading ro incorrect.

Judge-made Law and Statutory Interpretation Read this speech by Chief Justice Spigelman, who discusses the Egon Kisch case in the 1930s: J J Spigelman, AC, The Poets Rich Resource: Issues in Statutory Interpretation (2001), Parliament House, Sydney, 7 August, 2001. Where do you think Chief Justice Spigelman stands in relation to the purpositive approach? You might also like to read the following: J Steyn, The Intractable Problem of the Interpretation of Legal Texts (2003) Sydney Law Review, 1. K Tokeley, Trends in Statutory Interpretation and the Judicial Process (2002) Victoria UWLRev 41.

Precedent

Although precedent was fundamental to the common law, it does not apply in quite the same way to statutory interpretation as it does in other areas. Courts are not bound to interpret legislation in accordance with the interpretations placed on similar provisions by other courts. Each court has an obligation to seek the meaning of a particular piece of legislation for itself.

Although the common law permitted the courts to make law through the use of precedent, this practice was not permissable in the field of statutory interpretation. The courts were forbidden to treat legislation as representing a "stab at formulating a concept". Their task was to interpret the statute, not to extract from it general concepts which could be extended to guide the courts in a wider range of circumstances.

These distinctions did not mean that precedent was unimportant. Courts were usually expected to adhere to prvious rulings on the same statute. This was based on the assumption that, if Parliament had not changed the wording of legislation following a court ruling, this was good reason to believe that the Parliament was satisfied with the court's interpretation.

Summary

This module dealt with:

• the traditional rules of statutory interpretation
• the distinction between literal and purposive approaches to statutory interpretation
• the role of precedent in statutory interpretation.