Statutory Interpretation (LAWS1160)

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [8.3.1]–[8.3.26]; [12.5.1]-[12.5.16], [12.5.18C], [12.5.20C]-[12.5.29] [7.2.18]-[7.2.30], [7.2.35C]-[7.2.37].

H&M pp 82-112.

Statutory interpretation recap

[1] “The cardinal rule of statutory interpretation...requires the words of a statute to be read in their context”: K &S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd[2]. The legislative history can also be relevant: Newcastle City Council & GIO General Ltd[3].

Bennion: “What the court does (or should do) is take an overall view, weigh all the relevant interpretative factors, and then arrive at a balanced conclusion.” He also sets out 4 distinct interpretative criteria

  1. Common law and statutory rules
  2. Principles derived from legal policy
  3. Presumptions based on the nature of legislation
  4. General linguistic canons applicable to any piece of prose.

Language of the statute

The words in the statute are the starting point in the interpretative process. The guiding principle is the ' literal/plain meaning ' approach to interpretation - the words are given their ordinary and natural meaning.

  • This was confirmed by Gibbs CJ in Cooper Brookes (Wollongong v Federal Commissioner of Taxation:[4] “If the lang…clear & unambiguous…it must be given its ordinary & grammatical meaning, even if it leads to a result that may seem inconvenient or unjust”.

The rationale/advantage of this approach is that judicial activism is commonly identified as a danger of moving away from the words of the statute. The associated disadvantages include that it may be impossible in certain cases of ambiguity and that the intention of Parliament should be the focus, as justice in a representative democracy would not be achieved where the purpose of Parliament was obstructed.

The second approach is the ' purposive ' approach, which is aptly captured in s 15AA of the Acts interpretation Act 1901 (Cth): “15AA(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 nt promote that purpose or object”


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Introduction

[5] Statutory interpretation is the method used by courts to determine the meaning to be given to words contained in legislation. The primary focus is upon the actual words and the purpose underlying the legislation. Common law and the Acts Interpretation Act s 2 provide that the same process of statutory interpretation applies to both statutes and delegated legislation.

  • Courts originally preferred a strict or literal approach to statutory interpretation.
  • Over time, the golden rule was developed to modify the literal rule by allowing the literal meaning to be overlooked in favour of upholding the purpose of legislation, where the literal meaning produced an absurd or inconsistent result.
  • The purposive approach allowed courts to give primary importance to the purpose or object underlying the legislation.
    • It was enshrined in s 15AA of the Acts Interpretation Act.
    • The purposive approach requires an Act to be “read as a whole” and in the context of other laws in Australia.

The two basic steps in statutory interpretation are:

  1. Identifying ambiguity
  2. Resolving ambiguity

Identifying ambiguity

[6] The meaning of words will generally not be clear if:

- The words are capable of more than one meaning
- The words are located next to other words or in a context that makes there meaning unclear (Murphy v Farmer)
- The literal meaning of the words produces an unreasonable or unjust result
- Consideration of the purpose behind the legislation throws doubt upon the intended meaning of the words

Resolving ambiguity

[7]The court will resolve ambiguity by considering the words in the context of the legislation as a whole and its light of the purpose. Indications of the legislative purpose will be sought in the terms of the legislation and, where appropriate, in other relevant documents such as:

- Dictionaries and interpretations of similar words in related legislation
- The Interpretation Acts

Legislative purpose & Secondary guides to interpretation

[8]The legislative purpose is the objective purpose of parliament, not the policy behind it. This means that the terms of the legislation itself will always be the starting point, only if this is inadequate can secondary sources be considered, such as:

- Headings to sections and margin notes
- Reports of royal commissions, law reform commissions and parliamentary committees
- Treaties or other international agreements referred to in the legislation
- Any explanatory memorandum
- The second reading speech
- Other documents declared by the legislation to be relevant for the purpose of s 15AB
- Official records of parliament

Extrinsic evidence can only be used to confirm the ordinary meaning of words or to determine the meaning of words where a provision is ambiguous. A court is not compelled to consider extrinsic evidences.

Secondary guidelines to interpretation

[9]Common law presumptions do not override the purposive approach, they include:

  • Noscitur a sociis – the meaning of a word is derived from its context.
  • Ejusdem generis – where legislation uses general words and specific words together, the general words will be limited in meaning to things of the same kind as the specific words.
  • Expressio unius est exclusio alterius – the express mention of one thing is to the exclusion of others.
  • Consistent use of words is presumed
  • All words should have a meaning (courts are however willing to omit words that have inadvertently been included or add nothing to the meaning)
  • Parliament does not intend to interfere with fundamental rights
  • Parliament does not intend legislation to violate rules of international law
  • Parliament does not intend legislation to be retrospective
  • There is an implied power that agencies can undertake activities that are incidental or consequential upon the functions or powers conferred upon them by statute

Herscu v The Queen[10]

Facts: The appellant was convicted for bribing the Minister for Local Government and argued on appeal that the activity for which the payment had been made to the minister was not an explicit duty of office.
Issue: Implied power to undertake activities that are incidental or consequential upon the functions or powers conferred upon by statute.
Held: An officer responsible for administration of a statute is clothed with a general authority and capacity to administer the statute.

Kent v Johnson[11]

Facts: A group of Canberra residents challenged the construction of a Telcom tower on the summit of Black Mountain. The construction relied on statutes to provide facilities for ‘postal, telegraphic, telephonic and other like services.’ The court held that those statutes would not authorise the erection of a tower that contained a restaurant and tourist facilities.
Issue: Limitations on incidental powers.
Held: Incidental power was limited because:
  • Statutory power may not be used for an unauthorised purpose.
  • Clear language is required to authorise activity by a public official that interferes with a fundamental right or freedom or is otherwise tortious.

Coco v The Queen[12]

Facts: Mr Coco was convicted of offering to bribe a Commonwealth officer. The conviction hinged on evidence gleaned from telephone conversations that were tape recorded via a listening device which was installed by police officers posing as Telcom employees. The police were purportedly acting in pursuance of an approval granted by a judge under a stature which provided that a judge could grant approval to ‘use a listening device.’
Issue: Parliament does not intend to interfere with fundamental rights and freedoms unless expressly stated. Limitations on incidental powers.
Held: The High Court held that the power to approve the use of a listening device did not extend to approving the installation of a device by unauthorised entry onto private premises.

Evans v State of NSW[13]

Facts: Regulation 7 of the World Youth Day Regulation which provided that an authorised officer could direct a member of the public to cease conduct which “causes annoyance or inconvenience to participants in a World Youth Day event”. The applicants commenced proceedings for a declaration that regulation 7 was invalid. They claimed it would inhibit their freedom to protest.
Issue: Parliament does not intend to interfere with fundamental rights and freedoms unless expressly stated.
Held: The High Court granted a declaration that regulation 7 was invalid and held that parliament is presumed not to intend to alter common law or interfere with fundamental rights and freedoms unless clearly stated to the contrary.

(See textbook, pp 424-5 for further examples.)

Consequences of applying the process of statutory interpretation

[14]Courts may extend or read down the meaning of words, read words into a section or omit words in order to active the desired interpretation.

The Law/Fact distinction

[15] The law/fact distinction is relevant to the right of a court to review a decision (of a lower court or, more commonly in this course, an administrative tribunal or agency of some sort). Usually, a court only has the right to review an error of law (as opposed to an error of fact). 

There are two main area which this distinction applies to in administrative law:

  1. Statutory appeals: legislation often provides that there is a right to appeal from a tribunal to a court 'on a question of law'.
  2. Judicial Review: also known as a 'writ of certiorari', judicial review can quash a decision for error of law on the face of the record.
    • The Administrative Decisions (Judicial Review) Act s 5 (1) (f) similarly provides that an order of review can be sought on the ground that a decision involved an error of law, although the error need not be on the record.

The distinction arises in many other areas of law, eg, the criminal law, where judges determine questions of law and the jury determines questions of fact. Often, the lines are blurred and thus context is very relevant.

Is the distinction narrow or broad?

The Federal Court has noted that the right to appeal “on a question of law” under s 44 of the AAT Act is narrower than if the right to appeal “involved a question of law”.[16] The court takes a strict approach to accepting that an appeal involves a question of law.

In Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010)[17], the court indicated that a question of law in the AAT Act s 44 includes:

  • Whether the tribunal identified the relevant legal test,
  • Applied the correct test,
  • Identified any evidence to support a finding of a particular fact,
  • And found whether facts fall within a properly construed statute.

Courts undertaking judicial review have been increasingly prepared to extend the grounds of judicial review to cover errors of fact and perverse or illogical reasoning. However, in the context of statutory appeals there has been a more restrained approach following the comment by Fisher J in Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW)[18]:

  • “Parliament contemplated that only in exceptional circumstances should the decision of the Tribunal not be the final decision.”
  • Fisher J warned against “magnifying or inflating” question of fact into questions of law in order to enable judicial intervention.

Applying Legislation to the facts

[19] An area where the law/fact distinction is usually relevant in is where courts must apply a legislative standard to the facts in order to make a decision (because the determination of questions of fact are so hinged upon questions of law).

There are three stages involved in the application of legislative standards to facts, each of which may involve questions of facts and law:

  1. Finding the facts
  2. Construing the legislation
  3. Applying the legislation to the facts

Fact-Finding

This is where the court ascertains the facts of the case. This may involve establishing primary facts by evidence or observation (factum probantia) and/or using those facts to prove other facts, usually by a process of inference (factum probandum).

  • This simple characterisation may be complicated by the types of fact finding in which administrators engage, for example, Craig identifies six categories of mistake of fact.[20]
  • The guiding principle is that an error made at the fact-finding stage will be an error of fact unless there is no evidence to support the finding or inference of fact: Melbourne Stevedoring.

Rule-Stating

This is where the court ascertains the meaning of the legislation. When interpreting words and phrases, Courts make a distinction between words that bear their ordinary English meaning and words that bear a technical or specialist meaning.

  • Deciding the meaning of ordinary English words is a question of fact (which is not reviewable). Even in cases where the meaning of a word is clear but it is inherently capable of more than one interpretation, this will usually be considered a question of fact.

Processes of law, therefore open to a court to review, include:

  • Deciding the meaning of a technical legal term.
  • The question of whether a word bears its ordinary meaning or a technical one.
  • Where there is uncertainty as to the meaning of a word or expression which requires construing the word in its context.

In Collector of Customs v Agfa-Gevaert,[21] the court rejected the distinction between interpreting single words (question of fact) and joining words to other words in statutory construction (question of law). Instead, it advocated a more traditional distinction between ordinary and technical meaning, taking special note of whether the word in question is part of a composite phrase.

Rule application

This is where the court applies the legislation to the facts and arrives at a conclusion. The preferred view is that this process follows the same patterns above: the application of a word used in its ordinary sense is a process of fact, and the application of a technical legal word or phrase is a process of law.

  • However, there is a qualification in this case: where the court has to determine whether something is either within or without the scope of a statutory phrase (ie, a binary choice), it is an issue of law.
    • This is because if an error was made, it could only have been made based on a misunderstanding of the statutory standard (which is an error of law).
  • Note: the right to appeal only arises if the error of law was relevant to the decision - "An immaterial error will not vitiate the decision of the tribunal".[22]

The law/fact distinction in the application of legislative standards was discussed in Collector of Customs v Agfa-Gevaert:[23]

  • Facts: An order made under the Customs Act had the effect that imported paper would be exempt from duty if it came within the phrase “silver dye bleach reversal process”. AAT treated the phrase as a composite one, by giving the words “silver dye bleach” their technical meaning, and the word “reversal” its ordinary meaning. The AAT held that the paper imported by Agfa-Gevaert did not come under the phrase. That was set aside by the Full Court, which held that it is an error of law to construe a phrase by giving a trade meaning to some words, and ordinary meaning to the rest of the words.
  • Held: The meaning attributed to individual words in a phrase ultimately dictates the effect or construction given to the phrase as a whole. For the phrase in question, it was necessary to look at the trade meaning of the phrase “silver dye bleach”, in order to construe the composite phrase. Without this technological assistance, the phrase would be meaningless in its ordinary sense. Although the phrase as a whole does not have a special trade meaning, trade usage has a role in determining the meaning of distinct elements of the phrase.
    • AAT’s finding was permissible as a matter of law, as there appears to be little reason for a rigid rule that disallows recourse to the trade meaning of a word that forms part of a composite phrase, and ordinary meaning of another word in the phrase.
    • To deny the use of trade meanings of individual words in composite phrases having no special trade meaning as a whole “would be to deny the import of logic & common-sense in matter of statutory construction”.

And also in Azzopardi v Tasman UEB Industries Ltd:[24]

  • Facts: The Workers Compensation Commission rejected Mr Azzopardi’s claim for workers’ compensation on the basis that he had failed to establish that he had injured his knee on the way to work. He appealed on a point of law (admission or rejection of evidence) and the Supreme Court held that the commission’s decision was not vitiated by an error of law (ie, the error of law was not relevant to the actual decision).
  • Held: The court would not overturn a finding of the facts (even it was surprising or possibly illogical) unless it involved an unreasonable application of the law to the facts found. Illogicality or perversity in fact finding is not an error of law unless it amounts to a jurisdictional error.

Law/fact – a false dichotomy?

[25] One difficulty with the fact/law distinction is that it is premised on the idea that the judicial branch resolves questions of law and the executive resolves questions of fact. In reality, both deal with questions of law and fact.

  • The distinction is often described as elusive or malleable, because every issue of fact can be conflated into an issue of law.
  • The complexity of modern legislation adds to the difficulty of treating any statutory term as giving rise only to questions of fact.
  • There is tension between judicial review and error of law cases as to when perversity and illogicality in fact-finding will be a reviewable or appealable error (see, for example, Azzopardi).[26]
    • Similarly to the practice of “reading down”, the judiciary could be accused of stretching classifications in order to enable intervention.

As an alternative to using the fact/law distinction, Endicott has suggested a pragmatic approach to error of law (which suggests the courts already use), where judicial intervention occurs on the basis of functional considerations such as the relative expertise or legitimacy of the courts and administrators in a particular legislative context, whether judicial substitution of judgement of appropriate.

  • Does the aspect of the administrative decision fall beyond the province of judicial supervision?
  • Another approach would be to treat the shortcoming in the decision as either one which should be addressed by judicial review or by other means such as internal review, an administrative tribunal, an Ombudsman or some other complaint mechanism.

‘Subjective’ Terms

[27] Legislation commonly employs ‘state of mind’ or ‘subjective’ language. Examples include “if the Minister is satisfied”, “if the secretary has reasonable cause to believe” and “if in the opinion of the officer”.

  • These phrases are ordinarily used in legislation where the issue to be determined is discretionary, often policy driven or where the decision-maker must reach a state of satisfaction taking into account of a range of statutory criteria which require the exercise of judgement in order to reach a decision.
  • They raise a question as to the role of a court undertaking judicial review.

This was discussed in Liversidge v Anderson:[28]

  • Facts: During the WWII, a defence regulation provided that a minister could order that a person be detained if the minister “has reasonable cause to believe any person to be hostile of origin or association... and that by reason thereof it is necessary to exercise control over him.” Mr Liversidge was one of 1400 people detained, on grounds which were later shown to have been inadequate, as known by the authorities.
  • Held: the decision was not open to judicial review. The power to detain was an exceptional war measure and ut was conferred on a minister who is answerable to the parliament and that the issue to be decided was a matter of opinion and policy.
    • Dissent (Lord Atkin) (resoundingly endorsed by subsequent cases): “’Reasonable cause’ for an action or a belief is... a positive fact capable of determination by a third party". “Judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”

It was also discussed in R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd:[29]

  • Subjective terms in legislation refer to “an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts.”
  • They also mean “... an opinion which is neither arbitrary or extravagant, and which does not take into account considerations which, upon the true construction of the statute, are irrelevant.”
  • The executive official must act “according to the rules of reason and justice, not according to private opinion... according to law and not humour...”
  • “...if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied, legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to matters with which he was authorised to deal.”
    • There are limitations on these clauses because if there weren’t, an executive official would have unlimited power.

Courts frequently state that the state of mind formula amplifies the scope of a decision maker’s authority, correspondingly impacting on the role of court intervention.

  • In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[30] it was noted that “while the subjective nature of [a] decision no longer can be said to immunise the decision form review, it is necessarily of relevance to the issue of whether there has been an error of law.”
    • Gibbs CJ: “... the courts will interfere if the decision reached appears so unreasonable that no reasonable authority could properly have arrived at it.” (In Buck v Bavone[31])
      • Or if the complainant can prove that the authority has misdirected itself in law, failed to consider matters it was required to consider or has taken irrelevant matters into account.

Gummow J added to these statements in Minster for Immigration v Eshetu[32], review should be permitted in “cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.”


  • It was noted that the fact that a decision-maker has not made known the reason why they were not satisfied, will not prevent review of their decision in Avon Downs Pty Ltd v Federal Commissioner of Taxation.[33]
    • “It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.”

The jurisdictional (or objective) fact concept

[34] Parliament may stipulate that the power to make a decision is conditional upon the existence of an event, eg, applications filed by a specified date. These preconditions are usually referred to as “jurisdictional facts.”

The issue arises regarding who decides whether the jurisdictional fact occurred and whether this decision is review-able.

  • The decision-maker makes the initial assessment and a court may then undertake judicial review.
  • The court is not restricted to the evidence that was before the decision-maker and can substitute a new decision.

When should a statutory requirement be classified as a jurisdictional fact?

  • On one view, every statutory limitation can fulfil this description.
  • On another, every such matter is consigned to the decision-maker and a court undertaking judicial review should only examine whether the decision-maker breached a ground of review but not substitute a new decision.

This was discussed in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship:[35]

  • Facts: Plaintiff M70 (an adult) and M106 (a minor) were detainees on Christmas Island. They claimed a well-founded fear of persecution in Afghanistan and sought asylum in Australia. The Minister determined that they should be transferred to Malaysia pursuant to s 198 of the Migration Act. Section 198A provided the Minister may declare in writing that a specified country:
    1. Provides access, for persons seeking asylum, to effective procedures of assessing their need for protection; and
    2. Provides protection for persons seeking asylum, pending determination of their refugee status; and
    3. Provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
    4. Meets relevant human rights standards in providing that protection...\
  • The plaintiffs sought an injunction and an order in the nature of prohibition to restrain the minister from transferring them to Malaysia. They contended that the criteria in s 198 were jurisdictional facts which must be established before the minister’s power to make a decision could arise.
  • Held: The majority found that the criteria in s 198A were jurisdictional facts that on the objective evidence could not be met by Malaysia.
    • French CJ disagreed with the classification of the criteria as jurisdictional facts but said that the “existence of the state of mind itself will constitute a jurisdictional fact.” “When a criterion conditioning the exercise of statutory power involves assessment and value judgements on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact...”
    • The majority rejected the minister’s submission that “it is the existence of the Minister’s declaration itself, not the truth of the content of that declaration, that engages the operation of s 198A.”
    • The court held that the access and protection referred to by the criteria had to be legally assured as they clearly referred to “provision of protections of all the kinds which parties to the Refugees Convention and the Refugees Protocol are bound to provide to such persons.”

Criticism of the jurisdictional fact approach

In ‘The Resurgence of Jurisdictional Facts’,[36] Professor Aronson argues:

  • Jurisdictional fact review blurs the legality/merit distinction by allowing a court to undertake de novo redetermination of relevant facts and to review simply for factual error.
  • There is a distinct risk of divergent outcomes because the review court may apply different rules of evidence and lack bureaucratic experience and insight of the primary decision maker.
  • It may cause lack of respect for the decision-maker and the consequences are inconvenient and couter-productive.

Chief Justice Keane wrote that the approach:

  • “seems likely to produce results apt to frustrate the intent of parliament for reasons beyond the legitimate province of judicial function. An unconstrained zeal in the characterisation of issues for decision as jurisdictional may mean that all decisions of an administrative agency are provisional only...”

Conclusions

A constitutional limitation embedded in executive power will always be a jurisdictional fact to be determined by a court on the evidence before it.

  • There is a presumption against a court’s jurisdiction being dependent on a jurisdictional fact – or, put conversely, there is a presumption that a court’s jurisdiction extends to determining conclusively whether the jurisdictional facts are established.

End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp. 408-14.
  2. (1985) 157 CLR 309 at 315.
  3. (1997) 191 CLR 85 at 112-13.
  4. (1981) 147 CLR 297.
  5. H&M pp 82-5.
  6. H&M pp 85-99.
  7. H&M pp 85-99.
  8. H&M pp 85-99.
  9. H&M pp 93-109 and textbook, pp 408-25.
  10. (1991) 173 CLR 276.
  11. (1972) 21 FLR 177.
  12. (1994) 179 CLR 415.
  13. (2008) 168 FCR 576.
  14. H&M pp 109-16.
  15. Textbook, p. 768-70.
  16. Hussain v Minister for Foreign Affairs (2008) 248 ALR 456 at 466.
  17. 186 FCR 410.
  18. (1980) 3 ALD 38.
  19. Textbook, p. 768-70.
  20. P Craig, ‘Judicial Review, Appeal and Factual Error’ [2004] Public Law 788.
  21. (1996) 186 CLR 389.
  22. BTR PLC v Westinghouse Brake & Signal Co (Aust) Ltd (1992) 34 FCR 246 at 253-54.
  23. (1996) 186 CLR 389.
  24. (1985) 4 NSWLR 139.
  25. Textbook, p. 780-1.
  26. Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
  27. Textbook, p. 343.
  28. [1942] AC 206.
  29. (1944) 69 CLR 407.
  30. (1996) 185 CLR 259 at 276.
  31. (1976) 135 CLR 110.
  32. (1999) 197 CLR 611.
  33. (1949) 78 CLR 353.
  34. Textbook, pp. 347-8; 353-8.
  35. (2011) 280 ALR 18.
  36. (2001) 12 Public Law Review 17
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