Statutory Interpretation - Week 9 Notes

Statutory Interpretation - Week 9

Overview

• This is the third lecture in a series on statutory interpretation. Weeks 7, 8, 9, and 10 cover the rules, problem-solving, and exam preparation. Week 11 is a non-examinable class on finding parliamentary materials and using databases for finding interpreted words and phrases. Week 12 will be a Q&A or final review session.
• Today's focus is on Extrinsic Materials. We may also move on to presumptions if time permits; otherwise, presumptions will be covered next week.

Working with Materials Outside the Act

• Up until now, we have been working with the text of the Act itself:
  • Text in Context: Finding the ordinary and natural meaning of the text.
  • Purposive Approach: Deriving purpose from the text of the Act.
• Before using materials outside the Act, consider if the initial text-based analysis (steps 1 & 2) provides a clear and consistent meaning. If so, going further may not be necessary.
• This lecture transitions to using materials outside of the Act:
  • Extrinsic Materials
  • Presumptions of Interpretation (if time this week)

Overall Process of Statutory Interpretation

• Text-based analysis involves two stages:
  • Text in Context
  • Purpose as found in the text of the Act
• If these phases provide a clear and consistent understanding of the Act's meaning, consider whether further analysis of extrinsic materials is needed.
• Extrinsic Materials: Parliamentary materials are part of the broader context. The High Court of Australia (HCA) allows considering these materials early in the interpretation process.
• Arguments based on the text of the Act are generally stronger than arguments based on extrinsic materials.

Use of Extrinsic Materials

• It's suggested to perform a s15AA analysis first but remain open to deviating if necessary.
• The timing of when to use extrinsic materials will be revisited throughout this lecture and during problem-solving exercises.
• Working with extrinsic materials illustrates that statutory interpretation is not a formulaic process.
• Extrinsic materials can be complex and may require time to fully understand.

Text in Context

• Context refers to:
  • The words surrounding the text in question.
  • The words of the statute as a whole.
  • Parliamentary law-making (extrinsic materials).
• Context in the 'widest sense' refers to extrinsic materials.

When and How to Use Extrinsic Materials

• Extrinsic parliamentary materials provide the widest context to law-making.
• The modern common law approach allows considering 'context in its widest sense' at any time (CIC Insurance (1997)).
• While theoretically, you can choose when to consider extrinsic materials, the weight given to text read in context versus the wider context using extrinsic materials is important.
• As Kiefel CJ stated in Certain Lloyd’s Underwriters v Cross (2012), resorting to extrinsic materials should aim to identify the policy of the statute to better understand its language and intended operation. This understanding should not warrant a wider operation than the statute's language permits.

Purpose Under Sections 15AA and 15AB

• Do not conflate 'purpose' under sections 15AA and 15AB, as this is a significant error.
  • s15AA AIA: Statutory purpose stated/suggested by the text of the Act
  • s15AB AIA: Extrinsic materials (context in the widest sense) are likely to address purpose too but using materials are outside the Act..
• These are two very different sources of arguments based on 'purpose'. Text-based arguments (s15AA) are important and should not be overlooked in favor of extrinsic materials.

Historical Attitude to Extrinsic Materials

• Extrinsic materials did not align well with the literal rule.
  • Historically, common law was very restrictive.
  • Since the 1970s, reference to law reform commission reports, parliamentary committees, and interdepartmental committee reports has been increasingly allowed.
• Extrinsic materials were used to discover the 'mischief' that parliament intended to address.
• The CIC Insurance case confirmed the co-existence of accessing extrinsic materials via common law.

Modern Statutory Approach Under s 15AB

• Amendments to the AIA in 1984.
• Extrinsic materials fit with the modern 'text in context' approach.
• Consider extrinsic materials after analyzing the text (text in context and purpose). They can be useful to aid further interpretation if there is a lack of clarity, uncertainty, or ambiguity.
• The text of the Act cannot be ignored in favor of extrinsic materials because Parliament enacted the text, making it 'law', whereas extrinsic materials are not 'law'.

Meaning of 'Extrinsic' Materials

• 'Extrinsic' means "being outside a thing; outward or external; operating or coming from without" (antonym of 'intrinsic').
• It refers to material that is outside or external to the text of the Act used to aid in interpretation.
• Limits: Don't get carried away!

Limits of Extrinsic Materials

• Not everything said or done by politicians/parliament/policy makers counts as extrinsic material.
• A tweet from the relevant Minister, a parliamentary doorstop interview, or a newspaper article with a member of the House wouldn't necessarily be relied upon by a court.
• Ministerial thoughts said at political events are generally not reliable.
• Before relying on Ministerial statements, check the list in s 15AB(2).

Section 15AB(2) Extrinsic Materials

• Types of extrinsic materials listed in 15AB(2) include:
  • All matters not forming part of the text of the Act (cross-reference to s 13 AIA).
  • Reports of various types of Commissions of Inquiry
  • Reports of parliamentary committees
  • Any treaty or international document referred to in the Act
  • Explanatory memorandum
  • Second Reading Speech
  • Documents declared by the Act to be relevant
  • Materials in the Journals, Votes and Proceedings of the Parliament.

Section 13 AIA

• s13 AIA: All matters not forming part of the text of the Act
• s 13 of the AIA can declare parts of the text of the Act to be extrinsic materials for interpretation purposes, in which case s 15AB will apply.
• In the past, the Commonwealth declared section headings to be extrinsic materials.
• Now, all parts of Commonwealth Acts, from the beginning of section 1 to the end of any attached Schedule, are part of the text of the Act.
• While generally not impacting analysis of a Commonwealth statute, it’s important to be aware of this quirk.

Dictionaries and Extrinsic Materials

• Dictionaries are another confusing exception.
• Dictionaries are permitted via State Chamber of Commerce to aid in finding the ordinary and natural meaning of words in the text (when not defined by the statute or the AIA).
• Dictionaries are external to or outside the Act, but recourse to a dictionary is not treated as accessing extrinsic material under s 15AB or common law.

Highest Value Extrinsic Material

• Most important extrinsic material:
  • Second reading speech (s 15AB(2)(f))
  • Explanatory memorandum (s 15AB(2)(e))
• At common law, similar materials are recognized as in s 15AB AIA.

Section 15AB(1)

• Section 15AB (1) states: 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.

Section 15AB of the AIA

• Section 15AB of the AIA enables the ascertainment of meaning if there is relevant material available.
• Note that section 15AB says 'may' so courts are not compelled to use extrinsic materials.
• s15AB allows the determination of meaning. This is more useful and a stronger argument than the common law approach which only allows determination of mischief.

Specific Situations to Argue for Extrinsic Materials

• 15AB(1)(a): to confirm the meaning … [is the] ordinary meaning conveyed by the text … taking into account its context in the Act and the purpose or underlying object of the Act”
• 15AB(1)(b)(i): to determine the meaning” when the provision is “ambiguous or obscure”
• 15AB(1)(b)(ii): to determine the meaning” when the ordinary meaning conveyed by the text of the provision taking into account [context and purpose/object] “leads to a result that is manifestly absurd or unreasonable”.

Section 15AB(1)(a) of AIA

• 15AB(1)(a): Used to confirm the meaning … [is the] ordinary meaning conveyed by the text … taking into account its context in the Act and the purpose or underlying object of the Act”

When to Use 15AB(1)(a)

• A quite distinct use of extrinsic materials.
• There is an ordinary meaning following textual in context and purpose (s 15AA) analysis; and
• Extrinsic materials are to be used to confirm that meaning. That's why it's good to do your s 15AA analysis before going to extrinsic materials.

When to Use 15AB(1)(b)(i) of AIA

• 15AB(1)(b): to determine the meaning” when (i) the provision is “ambiguous or obscure”.
• Need to detemrine what is ambiguity or obscurity for the purpose of this provision.

What is an ‘Ambiguous’ Word or Phrase?

• Ambiguity = words (or phrases) with two possible meanings … especially when spelt the same.
• Example: matches can refer to a sporting event or short pieces of wood or cardboard tipped with a flammable substance that produce fire when struck.

What is ‘Obscurity’ within s 15AB(1)(b)(i)?

• Obscurity: Any number of ways for the text of legislation to be obscure!
  • Older statutes that are convoluted or use outdated terms.
  • Errors and omissions in legislation may make a provision obscure.
  • Poor drafting.

Section 15AB(1)(b)(ii) of AIA

• 15AB(1)(b): “to determine the meaning” when (ii) the ordinary meaning conveyed by the text of the provision taking into account [context and purpose/object] “leads to a result that is manifestly absurd or unreasonable”.
• Question: When is the result of your analysis manifestly absurd or unreasonable? (See Shingles case)

Operation of s 15AB(1)(b)(ii) illustrated by Re Shingles

• Re Shingles case is about government support payments for a child with a disability.
• The statute said: payment was available to a parent where there was constant care and attention in respect of that child.
• Issue: Was there manifest absurdity and unreasonableness in the decision to end the child’s allowance because he was attending school (and thus not in the constant care and attention of the parents)?
• Held: “It is indeed absurd if those parents who succeed in supporting their … children [with a disability] so that they can attend schools and benefit from normalisation in education should thereby lose any entitlement to …child [with a disability] allowance.”
• The court relied on the second reading speech, which expressly addressed the point, saying that if a child with a disability attended school, there would be no loss of allowance.

s 15AB Text Analysis

• Analyse closely the text of s 15AB … when and how to use.
• Q: What is the difference between “confirming” a meaning under s 15AB(1)(a) AND “determining” a meaning under s 15AB(1)(b)?
  • A: Confirming – you already have a meaning from your text and purpose analysis.
  • Determining – arguably wider, and provides the meaning where you might not have one.
• Q: Which provisions of 15AB require that you have gone through the text and purpose (s 15AA) analysis before accessing extrinsic materials?
  • A: 15AB(1)(a) and 15AB(1)(b)(ii). Why? Look at the statutory language for these provisions and the references to ‘text and purpose’
• Q: Which provisions of 15AB allow you to access extrinsic materials without going through the text and purpose analysis?
  • A: 15AB(1)(b)(i) …. But first need to satisfy ambiguity or obscurity.

15AB(1) – Requirements to Analyse Text Prior to Using Extrinsic Materials

• Important Points:
  • Section 15AB(1)(a) allows for the use of extrinsic material to confirm the ordinary meaning of a provision, considering its context and purpose.
  • Section 15AB(1)(b) allows for the use of extrinsic materials to determine the meaning of a provision when it is ambiguous, obscure, or leads to a manifestly absurd or unreasonable result, after considering context and purpose.

What if you cannot satisfy any of the threshold tests of 15AB?

• Q: Can you still use extrinsic materials at common law?
  • A: Yes, but there are limits as to how you can use them.
• The common law about recourse to extrinsic materials co-exists with s 15AB. [Similar to s 15AA]
• This means, if you cannot satisfy the provisions of s 15AB you may still be able to use extrinsic materials via the common law.
• And, if you access the common law – you no longer need to satisfy any threshold such as having to demonstrate ambiguity as was required when the literal rule reigned
• However, if you rely on the common law to use extrinsic materials in your interpretation, all that you can use extrinsic materials for, is to discover the ‘mischief’ rather than the ascertainment of the meaning under s 15AB(1) by confirming (s 15AB(1)(a)) or determining the meaning (s 15AB(1)(b)(i) & (ii))
• So, the common law can be argued ‘in the alternative’ (Use this common law argument to gain access to extrinsic materials to aid your interpretation if you are not sure you can satisfy the tests in s 15AB or as an alternative (weaker) argument.

s 15AA and s 15AB Comparisons

• s 15AA and s 15AB some big differences:
  • 15AA
    • Courts are compelled to look at the text of the Act for purpose AND
    • There is no threshold test to satisfy.
  • 15AB
    • Empowers a court to look at extrinsic materials as part of widest context BUT
    • Prescribes a series of tests as to what needs to be satisfied.

Limitations on Extrinsic Materials and HCA ‘Reversion to Text’

• Limitations on extrinsic materials and HCA Reversion to text:
• The HCA has emphasized that the words of a Minister must not be substituted for the text of the law. The function of the court is to give effect to the will of Parliament as expressed in the law
• How much relative weight is to be placed on text vs extrinsic materials?
• The HCA is keen to prevent displacement of the text of the Act with the text of extrinsic materials.
• HCA – changes and evolution in its approach. Expect it to change again …. but for reasons of separation of powers, it is unlikely that the HCA will ever simply abandon the text of the Act!
• Arguments based on the text of the Act will always likely be stronger.

Presumptions of Interpretation

• Presumptions are assumptions that can be said to be ‘rebutted’ by a contrary intention which will either be by:
  • explicit language in the statute, OR
  • by implication (implied because the subject matter or language in the statute is incompatible with the presumption).
• Presumptions can be said to be strong or weak (and their strength can change over time).

Strong Presumptions

• Presumption that Parliament does not interfere with common law rights (fundamental rights) – see LDL 445 para 13.10. Example: Coco v The Queen (1994) – police installing listening devices in a manner that would otherwise be trespass. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language – see LDL pp 447 in para 13.11.
• What is a fundamental right?
• Related presumption that property rights are not taken away without compensation – see LDL p 456

Fundamental Common Law Rights

• No comprehensive list exists but gives some examples relating to common law protections in general criminal law are given
• “What is fundamental in one age of place may not be fundamental in another age or place” and “Care needs to be taken in declaring a principle to be fundamental”.
• “Clear and unambiguous language is needed before a court will find [that the legislature intended to interfere with] fundamental principles.”

Strong Presumption Continued

• Presumption that statutes do not operate retrospectively.
• Generally, statues do not apply to events that occur prior to the statute being enacted.
• Recall the default rules that statutes commence on the 28th day after Royal Assent – see AIA, s 3A.
• Rodway v The Queen states that for a statute to operate retrospectively to effect an existing right or obligation, the statute must contain language that expressly or by necessary implication requires a retrospective construction.
• For example: “Any person who did …. at any time prior to this enactment is guilty of an offence.”
• Less Clear Case – eg “ Any person who was found to be …. “ [simply past tense language]
• Statutes dealing with procedure are an exception and there is no presumption against these operating retrospectively.

Presumption of Penal Provisions

• Presumption that penal provisions are strictly construed (in favour of the accused).
• A weakening presumption (which means it is readily overcome by statutory language to the contrary).
• See Beckwith v The Queen
• When to use this: Is imprisonment a possible penalty?
• If yes, and there is difficulty interpreting the width of the provision, this presumption can be argued to read-down (narrow) the interpretation of the provision.

Re-enactment Constitutes Legislative Approval

• Presumption that re-enactment constitutes legislative approval of any prior judicial interpretation
• Flaherty v Girgis A presumption that is also in decline
• Presumption that operates ONLY where courts have previously had the opportunity to consider legislative terminology or concepts in a similar statute (and then repeal that statute and re-enact a statute on similar subject matter).
• The parliament in re-enacting the legislation, including terminology that was subject to judicial interpretation, is considered aware of that prior interpretation.
• So, any choice to re-use the terminology, in a re-enacted statute, constitutes legislative approval of that prior judicial interpretation.

Common Mistake

• The last presumption is distinct from words and phrases that have been judicially considered more generally.
• In general, courts are frequently called upon to interpret statutory language in the years following the enactment of a statute. Many (perhaps most) modern legal/courtroom disputes are about this.
• Courts/judges will follow the process of interpretation outlined in this course to interpret these statutes and to decide the meaning of words and phrases and then these are reported in the law reports and form part of the law about that statute. These court decisions are thereafter binding (in that jurisdiction and for that statute – and possibly any related legislation from that jurisdiction) until parliament changes the law, or the courts reinterpret it.
• In legal practice you frequently need to look up whether the words and phrases you are working with/applying have already been judicially interpreted. You will use the legal databases to search for these cases (as will be demonstrated by the law librarians in week 11).