Statutory Interpretation

Statutory Interpretation Topic 7

Reading statutes: • Focus on the section • Break it into its elements • Determine the meaning of each of those elements • Context in Act • Judicial interpretation

Elements of a section • The elements of a section form a checklist – not a shopping list. • Unless it is drafted in the alternative, eachelement must be satisfied. • The sub-sections of each section are to be read independently – unless the drafting clearly indicates otherwise

Statutory interpretation • Start from the relevant section and work out – never start from the Act as a whole and work in. • Not an academic exercise – but a practical exercise. How does the statute apply in a particular set of circumstances?

Role of cases • Cases – which interpret statutes – are examples of where the court has performed the statutory interpretation for us. • Rules of statutory interpretation: • Used by the courts • Used by practitioners where courts have not yet interpreted a section

Rules of statutory interpretation • Legislation and case law. • Relevant legislation • Acts Interpretation Act 1901 (Cth) • Interpretation Act 1987 (NSW) • As interpreted by courts (common law) • In the context of common law principles which survive interpretation statute.

Preliminaries: • Which Parliament passed it? What jurisdiction are we dealing with – the answer to this question will determine what interpretation legislation should be used. • When did the Act commence – this will tell us if the Act was in force at the relevant time

Which legislation? • Determine which Parliament passed the Act to be interpreted • That is the Interpretation legislation you will use

Commencement AIR PASSENGER TICKET LEVY (COLLECTION) ACT 2001 (Cth) s 2 Commencement This Act commences, or is taken to have commenced, on 1 October 2001.

Commencement ACTS INTERPRETATION ACT1901(Cth) s 5 Commencement of Acts (1A) Every Act (other than an Act to alter the Constitution) to which the Royal Assent is given by the Governor‑General for and on behalf of the King on or after 1 January 1938, shall come into operation on the twenty‑eighth day after the day on which that Act receives the Royal Assent, unless the contrary intention appears in the Act.

ACTS INTERPRETATION ACT 1901 - s 18A Parts of speech and grammatical forms In any Act, unless the contrary intention appears, 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.

s 22 Meaning of certain words (1) In any Act, unless the contrary intention appears: (a) expressions used to denote persons generally (such as “person”, “party”, “someone”, “anyone”, “no‑one”, “one”, “another” and “whoever”), include a body politic or corporate as well as an individual; (aa) individual means a natural person; (b) Month shall mean calendar month; (c) Land shall include messuages tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein; (d) Estate shall include any estate or interest charge right title claim demand lien or incumbrance at law or in equity; (e) Financial year means a period of 12 months commencing on 1 July; (f) Foreign country means any country (whether or not an independent sovereign state) outside Australia and the external Territories; (g) Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month; (h) Calendar year means a period of 12 months commencing on 1 January; and (j) Contravene includes fail to comply with.

ACTS INTERPRETATION ACT 1901 - s 23 Rules as to gender and number In any Act, unless the contrary intention appears: (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.

ACTS INTERPRETATION ACT 1901 - s 25E Attainment of particular age For the purposes of any Act, unless the contrary intention appears, 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.

ACTS INTERPRETATION ACT 1901 - s 35 Measurement of distance In the measurement of any distance for the purposes of any Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane.

ACTS INTERPRETATION ACT 1901 - s 36 Reckoning of time (1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event. (2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.

ACTS INTERPRETATION ACT 1901 - s 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 standard or legal time in that State or part of the Commonwealth.

General approach: s15AA “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

Common law approaches • The Literal Approach • Modified by The Golden Rule, and • The Purposive Approach

Mills v Meeking(1990) 169 CLR214, Dawson Jat 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.”

R v L(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”

Literal approach Engineers case (Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 at 161-2 Higgins J: “The fundamental rule of interpretation, to which all others are subordinate, 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. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”

Intrinsic materials • Definitions sections • Other sections around the one in question to get a feel for the way in which words are used in the contentious section • Indices, headings to parts BUT NOT headings to sections or marginal notes. (What is intrinsic to the act and what is extrinsic is governed by the relevant interpretation legislation.) • Long title of the Act • Preamble (if present)

‘Natural and ordinary meaning’ • Dictionary • Weitman v Katies Ltd (1977) ATPR 40-041 • Oxford Dictionary – meaning of ‘misleading’ and ‘deceptive’ in s52 TPA • ACCC v Lux. [2004] FCA 926 • Dictionary – meaning of ‘unconscionable conduct in s51AB TPA • StateChamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 • Macquarie Dictionary – meaning of “fringe benefits” within ITAA

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ at 384 “…the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Golden rule Lord Wensleydale in Grey v Pearson (1857) 6HL Cas 61 at 106: “I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

Golden rule • A modification of the literal rule • To fix drafting errors • Adler v George [1964] 2 QB 7 • “in the vicinity of any prohibited place” • to mean “in or in the vicinity of any prohibited place.”

Purposive approach • ‘mischief rule’ • Rule in Heydon’s case • Purpose of parliament? • Refer to intrinsic and extrinsic materials

Extrinsic materials Use extrinsic materials to answer: • What was the state of the law before the enactment; and • What was the mischief the legislation was trying to cure?

Extrinsic materials • Second Reading Speech (Not the rest of the debate, or any other material in Hansard, just the Second Reading Speech – all the views of every member of Parliament are not relevant to what Parliament eventually decides to enact.) • Law Reform Commission reports • Reports by Royal Commissions

Avel Pty Ltd v Attorney-General for NSW(1987) 11 NSWLR 126 Kirby P at 127 “The legislation relevant to the present appeal…does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising. The conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.”

Extrinsic materials under statute CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at408 per Brennan CJ, Dawson, Toohey and Gummow JJ: “It is well settled that at common law, apart from any reliance on s15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.”

s15AB – extrinsic materials (1) Subject to subsection (3), 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 provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is 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; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) 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.

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer; (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted; (c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted; (d) any treaty or other international agreement that is referred to in the Act; (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; (f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House; (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

s15AB/s34 • Relationship with s15AA • Sets threshold tests which must be satisfied before extrinsic material can be used • Either common law or statutory tests must be satisfied • Expands the categories of extrinsic material which may be referred to • Indicative not exhaustive list

s15AA “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.”

Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420 “Reliance is also placed on a sentence in the second reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. In our view neither of those conditions is satisfied in the present case.”

Re Bolton; Ex parte Beane (1987) 162 CLR 514 Mason CJ, Wilson and Deane JJ at 517-18: “The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the law. However unfortunate it may be when that happens the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law.”

Issues: How does s15AA relate to the common law? How does s15AB relate to the common law?

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 “[1]First, the court must know the mischief with which the Act was dealing.[2]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.[3]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.” *numbers added

R v Young(1999) 46 NSWLR 681at 687per Spigelman CJ: “Construction must be text based.”

General Common Law Principles of Interpretation • Latin Maxims • Noscitur a sociis • R v Ann Harris (1836) 7C&P 446 • Ejusdem generis • Quazi v Quazi [1980] AC 744

Ann Harris case “If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure or disable such person or to do some other grievous bodily harm to such person, …such offender shall be guilty of a felony.”

Quazi v Quazi • “asa useful servant but a bad master.” • “[Ejusdem generis] is, at best, a very secondary guide to the meaning of a statute. The all important matter is to consider the purpose of the statute.” • Scarman LJ

Presumptions Statutes do not operate retrospectively Maxwell v Murphy (1957) 96 CLR 261 at 267: “The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.”

Parliament does not interfere with fundamental rights. Al-Kateb v Godwin (2004) 208 ALR 124 Gleeson CJ at 130 “Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.”

Legislation does not deprive people of access to the courts • Re-enactment of a provision or word constitutes approval of a previous judicial interpretation of that provision or word • Penal provisions are strictly construed • Property rights are not taken away without compensation • Parliament intends to legislate in conformity with international law

Statutory Interpretation