Statutory Interpretation - Week 9 - Extrinsic Materials and Presumptions

Statutory Interpretation - Week 9

Overview

• This is the third lecture in a series (weeks 7-10) on statutory interpretation, including problem-solving and exam preparation in week 10.
• Week 11: Non-examinable lecture on finding parliamentary materials and using databases for court-interpreted words/phrases.
• Week 12: Q&A/final review.

Today's Focus: Extrinsic Materials

• The primary focus is on extrinsic materials.
• If time permits, a move to presumptions of interpretation will be made (otherwise, next week).

Review of Previous Concepts

• Previously, the focus was on the text of the Act itself.
  • Text in context: Finding ordinary and natural meaning.
  • Purposive approach: Deriving purpose from the text.
• Analysis should consider if these steps provide a clear and consistent meaning, and if so, questioning the necessity of using materials outside the Act.
• Today: Working with materials outside the Act (extrinsic materials).
• Followed by presumptions of interpretation (if time allows).

Overall Process

• Text-based analysis has two stages:
  1. Text in Context
  2. Purpose as found in the text of the Act
• If these stages provide a clear and consistent understanding, consider whether analyzing extrinsic materials is necessary.
• Extrinsic materials (parliamentary materials) are part of the broader context.
• Arguments based on extrinsic materials are generally weaker than text-based arguments.

When to Use Extrinsic Materials

• 15AA analysis should be done first, but remain open-minded.
• The question of when to use extrinsic materials will be revisited.
• Working with extrinsic materials illustrates the non-formulaic nature of statutory interpretation.
• Extrinsic materials are more complex and may require time to understand.

Text in 'Context'

• Context includes:
  • Words that surround the text.
  • Words of the statute as a whole.
  • Parliamentary law-making (extrinsic materials).
• 'Widest sense' of context refers to extrinsic materials.

Using Extrinsic Materials: The Modern Approach

• The modern common law approach allows consideration of 'context, in its widest sense' at any time (CIC Insurance (1997)).
• Theoretically, there's a choice of when to consider extrinsic materials.
• However, consider how much weight to give text in context vs. wider context (extrinsic materials).
• Kiefel CJ in Certain Lloyd’s Underwriters v Cross (2012):
  • Resorting to outside materials is legitimate for understanding legislative policy.
  • But, this understanding should not warrant departing from statutory construction or attributing a wider operation than the language permits.

Purpose: s 15AA vs. s 15AB

• Do not conflate purpose under s 15AA and s 15AB.
  • s 15AA: Statutory purpose stated or suggested by the text.
  • s 15AB: Extrinsic materials addressing purpose outside the Act.
• These are distinct sources of arguments based on ‘purpose.’
• Text-based purpose (s 15AA) is crucial and should not be overshadowed by extrinsic materials.

Historical Attitude to Extrinsic Materials

• Historically, extrinsic materials did not align well with the literal rule.
• Common law: Reference was very restricted.
• Since the 1970s, reference to law reform commission reports, parliamentary committees, etc., has been increasingly allowed.
• Extrinsic materials were used to discover the ‘mischief’ Parliament intended to address.
• The CIC Insurance case confirmed the ongoing co-existence of accessing extrinsic materials via the common law.

Modern Statutory Approach: s 15AB

• Amendments to AIA in 1984.
• How do extrinsic materials fit with the modern ‘text in context’ approach (Project Blue Sky, CIC Insurance)?
• Consider extrinsic materials after analyzing the text (text in context and purpose).
• If there is a lack of clarity, uncertainty, or ambiguity, extrinsic materials can aid interpretation.
• The text of the Act cannot be ignored.
• Parliament enacted the text: It is ‘law,’ whereas extrinsic material is not ‘law.’

Meaning of 'Extrinsic' Materials

• Ordinary definition: 'Being outside a thing; outward or external; operating or coming from without.'
• Material external to the Act is used to aid interpretation.
• Caution: Avoid excessive reliance.

Limits on Extrinsic Materials

• Not everything said or done by politicians/parliament/policy makers qualifies.
• Examples of what doesn't qualify:
  • Ministerial tweets.
  • Parliamentary doorstop interviews.
  • Newspaper articles.
  • Random ministerial thoughts at political events.
• Courts are reluctant to rely on such materials.
• Before relying on Ministerial statements, check the list in s 15AB(2).

s 15AB(2): Types of Extrinsic Materials

• Listed types:
  • All matters not forming part of the text of the Act.
  • Reports of Commissions of Inquiry.
  • Reports of parliamentary committees.
  • Treaties or international documents referred to in the Act.
  • Explanatory memorandum.
  • Second Reading Speech.
  • Documents declared relevant by the Act.
  • Materials in the Journals, Votes, and Proceedings of the Parliament.
• '

s 13 AIA: Matters Not Part of Text

• s 13 AIA allows declaring parts of the text as extrinsic for interpretation (more relevant in non-Commonwealth jurisdictions now).
• Previously, the Commonwealth declared section headings extrinsic.
• Currently, all parts of Commonwealth Acts from the beginning of section 1 are part of the text.
• Be aware of this quirk, though it likely won't impact analysis of Commonwealth statutes.

Dictionaries and Extrinsic Material

• Dictionaries are another exception to extrinsic materials.
• Using a dictionary enables finding the ordinary and natural meaning of words.
• Recourse to a dictionary is not treated as accessing extrinsic material under s 15AB or common law.

High-Value Extrinsic Material

• The most important extrinsic material include:
  • Second reading speech (s 15AB(2)(f)).
  • Explanatory memorandum (s 15AB(2)(e)).
• At common law, there was no list, but courts would broadly recognize the same materials as in s 15AB AIA.

s 15AB(1): Use of Extrinsic Material

• s 15AB(1) states:
  • If material not forming part of the Act can assist in ascertaining meaning, consideration may be given:
    • To confirm the ordinary meaning of the provision, considering context and purpose (s 15AB(1)(a)).
    • To determine the meaning when the provision is ambiguous or obscure, or leads to a manifestly absurd or unreasonable result (s 15AB(1)(b)).

s 15AB: What Did It Add?

• s 15AB sets out what can be done with relevant materials.
• Note: 'ascertainment of meaning' in the leading words of s 15AB(1).
• Note: 15AB says 'may,' so courts are not compelled to use extrinsic materials.
• Compared to common law:
  • Common law only allows determination of mischief.
• s 15AB is more useful and provides a stronger argument.

s 15AB(1): Three Specific Situations

• Three situations for arguing the use of extrinsic materials:
  • 15AB(1)(a): Confirming the ordinary meaning.
  • 15AB(1)(b)(i): Determining meaning when 'ambiguous or obscure.'
  • 15AB(1)(b)(ii): Determining meaning when the ordinary meaning leads to a 'manifestly absurd or unreasonable' result.

First Situation: s 15AB(1)(a)

• Applies when confirming the meaning is the ordinary meaning conveyed by the text, considering context and purpose/object.

When to Use 15AB(1)(a)?

• Distinct use of extrinsic materials.
• Used when:
  • An ordinary meaning is derived from textual (in context) and purpose (s 15AA) analysis.
  • Extrinsic materials are used to confirm that meaning.
• This is a good reason to perform the s 15AA analysis before going to extrinsic materials.

Second Situation: s 15AB(1)(b)(i)

• Used to determine the meaning when the provision is 'ambiguous or obscure.'
• The question is, what constitutes ambiguity and obscurity for this provision?

'Ambiguous' Word or Phrase

• Looking for words or phrases with two possible meanings.

'Obscurity' within s 15AB(1)(b)(i)

• Text can be obscure in many ways:
  • Older statutes with convoluted or outdated terms.
  • Errors and omissions.
  • Poor drafting.

Third Situation: s 15AB(1)(b)(ii)

• Used to determine the meaning when the ordinary meaning leads to a result that is 'manifestly absurd or unreasonable.'

s 15AB(1)(b)(ii): Re Shingles

• Illustrated by Re Shingles (AAT: low precedential value).
• Case about government support payments for a child with a disability.
• The statute required 'constant care and attention' for payment eligibility.
• The question was whether ending the allowance because the child attended school was manifestly absurd or unreasonable.
• The court found it absurd if parents supporting their disabled children to attend school would lose their allowance.
• The second reading speech expressly stated there would be no loss of allowance if a child with a disability attended school.

Analyze the Text of s 15AB Closely

• What is the difference between 'confirming' a meaning under s 15AB(1)(a) and 'determining' a meaning under s 15AB(1)(b)?
  • Confirming: You already have a meaning from text and purpose analysis.
  • Determining: Arguably wider; provides the meaning where one might not exist.
• Which provisions require text and purpose analysis before accessing extrinsic materials?
  • 15AB(1)(a) and 15AB(1)(b)(ii) (due to references to ‘text and purpose’ in statutory language).
• Which provisions allow access to extrinsic materials without text and purpose analysis?
  • 15AB(1)(b)(i), needing only to satisfy ambiguity or obscurity.

15AB(1) - Requirements to Analyze Text

• 15AB(1)(a) requires confirming ordinary meaning conveyed by the text taking into account context and purpose.
• 15AB(1)(b)(ii) requires determining the meaning when the same consideration leads to absurd or unreasonable results.
• 15AB(1)(b)(i) is met if there is ambiguity or it's obscure.

What If Threshold Tests Are Not Met?

• Can extrinsic materials still be used at common law?
  • Yes, but with limits.
• Common law co-exists with s 15AB.
• If the provisions of s 15AB cannot be satisfied, extrinsic materials may still be used via common law, without needing to demonstrate ambiguity.
• However, at common law, extrinsic materials can only be used to discover the 'mischief,' not to ascertain the meaning under s 15AB(1).
• Common law can be argued 'in the alternative'. If unsure about satisfying s 15AB, use common law to access extrinsic materials for interpretation.

15AA and 15AB - Differences

• 15AA:
  • Courts must look at the text of the Act for purpose.
  • No threshold test to satisfy.
• 15AB:
  • Empowers a court to look at extrinsic materials as the widest context.
  • Prescribes a series of tests that must be satisfied.

Limitations on Extrinsic Materials

• The High Court of Australia (HCA) has emphasized that a Minister's words must not be substituted for the text of the law.
• The court’s function is to give effect to Parliament's will as expressed in the law (Re Bolton).
• How much relative weight is 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.
• Arguments based on the text of the Act are likely to be stronger.

Overview of Statutory interpretation process

1. Text in Context
2. Purposive Approach – From Text
3. Extrinsic Materials
4. Presumptions of Interpretation

Presumptions of Interpretation

• These are assumptions that can be 'rebutted' by a contrary intention, either through explicit language or by implication.
• Presumptions can be strong or weak.

Strong Presumptions

• Parliament does not interfere with common law rights (fundamental rights).
  • Example: Coco v The Queen (1994) – 'Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed.'
• Property rights are not taken away without compensation.

Fundamental Common Law Rights

• There is no comprehensive list, but examples relate to common law protections in general criminal law, as noted by McHugh in Malika Holdings.
• 'What is fundamental in one age of place may not be fundamental in another age or place'.
• 'Clear and unambiguous language is needed before a court will find [that the legislature intended to interfere with] fundamental principles.'

Strong Presumption: No Retrospective Operation

• Statutes generally do not apply to events before enactment.
• Statutes typically commence 28 days after Royal Assent (AIA, s 3A).
• Rodway v The Queen: A statute must use language that 'expressly or by necessary implication' requires retrospective construction to affect existing rights.
• Statutes dealing with procedure are an exception.

Penal Provisions are Strictly Construed

• This is a weakening presumption readily overcome by contrary statutory language.
• Beckwith v The Queen.
• If imprisonment is a possible penalty and interpretation is difficult, this presumption can be argued to 'read-down' the interpretation of the provision.

Re-enactment Constitutes Legislative Approval

• Flaherty v Girgis: presumption in decline.
• Applies only where courts previously considered legislative terminology in a similar statute, which is then repealed and re-enacted.
• Parliament, in re-enacting the legislation with terminology subject to judicial interpretation, is considered aware of that prior interpretation.
• Re-using the terminology constitutes legislative approval of the prior judicial interpretation.

Common Mistake

• Note: This presumption is distinct from words and phrases judicially considered more generally.
• Courts frequently interpret statutory language, which is reported and becomes part of the law about that statute.
• These court decisions are binding in that jurisdiction until parliament changes the law or the courts reinterpret it.
• In legal practice, it's frequently necessary to look up whether words and phrases have already been judicially interpreted.
• The use of words and phrases, judicially considered, is not-examinable in this course but is a vital concept in many other law courses.