Statutory interpretation (LAWS1052)

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Statutory interpretation is the process of determining whether a statute applies to a particular circumstances and if yes, what are the consequences. The court interprets statutes using the following approaches:

  1. The literal approach - interpret according to plain, literal meaning of the words. If there is an ambiguity or an absurdity with this approach, use:
  2. The golden rule approach - still according to the plain meaning, but with a slight modification to avoid the absurdity. If a sensible result is still not reached, use:
  3. The purposive approach - interpret according to what interpretation would best achieve the purpose of the act. If there are still ambiguities/absurdities then:
  4. Explore extrinsic materials.

This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 387-422 (Chapter 15).

Introduction

[1] In the legal system, some 50% of cases require judges to interpret a statute (legislation), and in another 25% of cases the courts simply apply a statute, without having to determine its meaning. The ability to read and interpret statutes is therefore more and more important for lawyers and the community:

Any statute which is passed must be within the power of the parliament (as in, the parliament has the power to make it). Whether it is beyond the power of the parliament (Ultra Vires) is determined with reference to the Constitution.

  • The High Court reviews the statute and determines whether the parliament is entitled to make it (has the power to make it) according to the Constitution.

However, judicial review only happens when a statute is in dispute. The majority of statutory interpretation is simply checking whether the statute applies in this case, and what are the consequences.

Parliamentary sovereignty

Parliamentary sovereignty is a concept which developed in England, which places Parliament as the ultimate legal authority. The principle of parliamentary sovereignty means that parliament has the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law as having a right override or set aside the legislation of Parliament.

In Australia, there is no complete parliamentary sovereignty because there is judicial review and thus the High Court can strike down legislation under certain circumstances. Also, the unlimited ability of parliament to make laws is divided between the federal parliament and the state parliaments (state parliaments can make certain laws, commonwealth parliament can make other laws).

Read more about parliamentary sovereignty here (part of LAWS1150 - Principles of Public Law).

Statute law

Statute law is made by parliament and any subordinate bodies to which parliament has delegated legislative power.

  • When statute law and common law conflict, statute law prevails to the extent of the conflict.
  • Statute law is in force until it is changed.
  • Statute law can be made retrospective.

Statute law now constitutes that part of the law which most dominates our social and commercial lives. The process of creating statute law is very clear, but the process of applying it to certain scenarios (statutory interpretation) can be very difficult.

How statutes are made

[2] A statute starts out as a bill. The procedure is as follows:

  • Bill must be developed, whether form a government department or law reform commission or a private member (Private member’s bill).
  • Bill must be drafted, performed by specialist lawyers in the Parliamentary counsel’s office.
  • Houses of parliament (If two exist).
    • House of Origin:
      • Notice of motion > First Reading > Second reading > Debate > Committee stage > Third reading.
      • If the bill passes, it moves on to the second house.
    • Second House:
      • First reading > Second Reading > Committee of the whole > Third reading.
      • If the bill is passed it is returned to the house of origin, the clerk certifies the bill and gives it to the governor for Royal assent. If amendments are made in the second house, the houses must try to reach agreement on the amendments, else it is set aside or put to referendum or may become a 'double dissolution trigger'.
  • Royal assent: Governor General gives royal assent unless the Queen is in the jurisdiction. It then becomes an Act.
  • Commencement - the act comes into force according to the rules of the particular jurisdiction. Usually 28 days are receiving royal assent, unless some other provision has been made.

Classifications of statutes

[3] There are a number of classifications, or 'types' of acts:

  • Private - whilst acts are usually public (ie operating on the public at large), there are some private acts.
  • Subordinate or delegated legislation - acts can contain authority for the governor or some other body to make a delegated legislation. Types of such legislation include:
    • Ordinance: laws made for the territories
    • By laws: made by municipal councils
    • Rules: Dealing with administration of government departments
    • Regulation: general laws made through the governor-General-in-Council, (the Cabinet).
  • Consolidated statute - a consolidation statute brings together a number of statutes that cover the same subject. A consolidation repeals the existing legislation and replaces it with law which represents the law as it has been amended.
  • Code - incorporates not only the legislation as it has been changed, but also the common law. The effect is that the code is exhaustive - ie, it states all of the law for that subject area.
    • Codes are fairly uncommon in common law systems, they are the hallmarks of the civil law system.

Structure of an act

[4] Acts all structured similarly (examples are given from the National Handgun Buyback Act 2003):

  • Long title - states the purpose of the act (An Act to provide for financial assistance for qualifying payment ...)
  • Short title - the title by which the act is cited (ie National Handgun Buyback Act 2003).
  • Sections (may be divided into parts and divisions) - the body of the act which specifies the law (s 6: Payments to a state under this Act are by way of financial assistance to the State).

Acts frequently contain headings, but those have are not operative (cannot be used for interpretation). Acts used to include a preamble or words of enactment, but this is not so common today.

Relationship between common law and statute law

[5] In accordance with the principle of parliamentary sovereignty, common law gives way to statute when there is conflict. However, common law judges are the ones which interpret statutes, and decide how they apply or what they truly mean. It is unlikely that legislation can ever be drafted with such precision and clarity that interpretation is not required.

Interpretation

Common law rules of interpretation

[6] The common law rules of interpretation are as follows:

  • Literal rule - interpret the statute according to the literal meaning of the words.
    • Higgins J in The Engineers Case: "The fundamental rule of interpretation... 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...what does the language mean... in its ordinary and natural sense, it is our duty to obey that meaning."[7]
  • Golden rule - the court would modify the meaning under the literal rule if the result would be absurd, repugnant or inconsistent with the rest of the legislation.[8]
  • Mischief rule (purposive approach) - interpret according to the intended purpose of the act, ie examine what ‘mischief’ Parliament was attempting to prevent by passing the statute. This would clarify their intent.[9]

There are also other, more specific rules which help analsing the grammatical structure of sentences:

  • noscitur a sociis – words take the meaning of the context in which they appear.
  • ejusdem generis - ‘of the same kind’, where there is a general phrase and specific words of the same kind, we read the general phrase in the light of the specific list.
  • expressio unius est exclusion alterius – if something is expressly referred to, that will exclude other matters.
  • Special and general provisions – if an Act provides for something in general terms, and a later Act makes special provision for the same thing, the later Act will prevail.

A case which deals with statutory interpretation is In Re Edith Haynes:

  • Court used literal approach to determine whether the act permits women to be legal practitioners:
  • "If the Legislature desired that a woman should be capable of being admitted as a practitioner of this Court…they should have said so in express language".

Dangers of literal approach

[10] A very literal approach can be very dangerous, as illustrated in the fictional case, Regina v Ojibway:[11]

  • In this fictional case, a man kills his pony to relieve it of its pain.
  • He is prosecuted under the (fictional) Small Birds Act, which prohibits injuring or killing small birds.
  • The Act defines a 'small bird' as 'a two legged animal covered with feathers'.
  • The court, interpreting literally, decided that:
    • Since the Act doesn't say the animal needs to have only two legs, the two leg requirement just means a minimum of two legs.
    • The horse in this instance had feathery pillow on his back, and therefore had feathers.
    • According to the literal interpretation of the act, the horse is a small bird.

Presumptions

[12] When interpreting, the court assumes a number of presumptions:

  • Parliament does not interfere with fundamental rights.
  • No retrospective operation of the statute.
  • Legislation does not bind the crown.
  • Parliament does not legislate extra-territorially.
  • Later laws impliedly repeal earlier laws.

However, these are mere presumptions and not strict principles. Ultimately, the intention of the parliament is what matters and if there is proof that the parliament intended some of the presumptions not to apply, they will not.

Presumptions and statutory interpretation were considered in Potter v Minhan:[13]

  • Facts: the respondent entered Australia from China, and was asked to take a dictation test as was required of immigrants. He contended that he is not an immigrant - he was born in Victoria, but moved to China in his fancy 26 years ago.
  • The question was whether he is an immigrant, and the judge decided (on the facts) that he wasn't. He was therefore allowed to enter without the dictation test.
  • With regards to interpretation, the court observed that:
    • There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them would therefore to be avoided.
    • For example, it should be presumed that the legislature does not seek to overthrow fundamental principles, infringe rights, or depart from the general system of the law, without expressing its intention with irresistible clearness.
    • Therefore, it should be assumed that the legislation does not intend to deprive Australian-born or members of the Australian community from the right of freely re-entering Australia.
    • A definition of a common word like 'immigrant' should not be expanded beyond its ordinary meaning (ie, literal approach). According to a normal definition of an immigrant, the respondent is not an immigrant.
    • While a literal approach should always be used, you can use a purposive approach to consider the scope of the act; would the facts at hand be considered within the overall intention of the act?

The issue of presumptions in statutory interpretation also arose in Royal College of Nursing of the UK v Department of Health and Social Services.

Both Royal and Potter deal with “controversial subjects” and in both cases the judges assert that the court’s extension of meaning in the golden approach should be minimal – “anything beyond the legislature’s fairly expressed authority should be left for Parliament’s fresh consideration.”

Modern approach to statutory interpretation

[14] The the Acts Interpretation Act 1901 (Cth) now governs statutory interpretations, overruling the traditional approaches. The Act requires that:

  • s15AA: the purposive approach should be used where there is an ambiguity.
  • s15AB: extrinsic material can be used in interpretation for the purpose of confirming an interpretation or resolving an ambiguity/absurdity. Extrinsic materials include:
    • Royal commission or inquiry reports
    • Parliamentary committee reports
    • Treaties or intentional agreements referred to in the act
    • Second reading speech of the minister or person presenting the bill to the house

Note also that for a NSW jurisdiction, there is also the Interpretation Act 1987 (NSW), in particular sections 33 and 34 which have a similar function to the above sections 15AA and 15AB.

  • s33: This says that a purposive approach and extrinsic materials should be used to confirm the ordinary meaning of the text conveyed by the statute.
  • s34: This says extrinsic material can be used to determine the meaning of the provision when:
    1. The provision is ambiguous or obscure; or
    2. 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

This means that the court interprets statutes as follows:

  1. Literal approach. If there is an ambiguity or an absurdity then:
  2. Golden approach. If there is an ambiguity or an absurdity then:
  3. Purposive approach. If there is an ambiguity or an absurdity then:
  4. Explore extrinsic materials.

The modern approach to statutory interpretation is discussed in Kingston v Keprose.

Summary of the method of interpreting statute

  1. On first interpreting the act, one must take, as stated by McHugh JA in Keprose, “the grammatical interpretation” since the court is, as stated by O’Connor J in Potter, “bound by the literal interpretation”.
  2. Where the meaning or extent/scope is ambiguous, as per Royal College, one must consider the context surrounding the enactment and the purpose of the act. When determining this, one must look to s15AA of the Acts Interpretation Act 1901 (Cth), which allows the use of a purposive approach in cases of ambiguity. Furthermore, s15AB allows for the use of extrinsic material in confirming an interpretation or resolving such ambiguities (if NSW case you may use the equivalent s33 and s34 of the Interpretation Act 1987 (NSW)).
  3. Use extrinsic materials as noted above to help determine the meaning of the term in context and apply that meaning
  4. DO NOT FORGET TO QUOTE THE INTERPRETATION ACTS SECTIONS AND THE THREE CASES MENTIONED ABOVE!

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, pp. 387-8
  2. Textbook, pp. 388-389
  3. Textbook, pp. 390-2
  4. Textbook, p. 392
  5. Textbook, p. 396
  6. Textbook, p. 397
  7. Amalgamted Soceity of Engineers v Adelaide Steamship Co Ltd (The Engineers case) (1920 29 CLR 129
  8. Grey v Pearson (1857) 6 HL Cas 61, 106
  9. Heydon's Case (1584) 3 Co Rep 7a
  10. Textbook, pp.397-9
  11. (1965) 8 Criminal Law Quarterly 137
  12. Textbook, pp. 400-1
  13. (1908) 7 CLR 277
  14. Textbook, pp. 414-5
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