Statutory Interpretation Notes

The Modern Approach to Statutory Interpretation

• Relies on:

  • Text in context: Examining the words within the statute itself and considering how they interact with surrounding provisions and the overall structure of the legislation.

  • Modern Purpose Approach: Ascertaining the objective the statute seeks to achieve, using both internal and (cautiously) external sources to understand legislative intent.

  • Use of extrinsic materials: Employing resources outside the statute (e.g., parliamentary debates, law reform commission reports) to aid interpretation, especially when the text is ambiguous or unclear. These materials are considered secondary to the text itself.

  • Presumptions: Applying established legal assumptions (e.g., presumption against retrospectivity, presumption in favor of fundamental rights) to resolve ambiguities or uncertainties in the statute.

Modern Purpose Approach

• Legal Issue: Isolating the word or words causing problems for interpretation.

  • Example: Interpreting the word \"vehicle\" in the context of a sign that reads \"NO VEHICLES IN THE PARK\".

  • The legal issue is: What is the meaning of “vehicle” for the purposes of the Act?

• Importance of Context and Purpose: Adding a statute title or an express statement of purpose can significantly influence interpretation.

  • Example: \"Control of Noise in Parks Act 1976\"

  • Object: to ensure peace and serenity in all Commonwealth parks.

• Section 15AA AIA (Cth):

  • Focuses on the text of the Act.

  • Purpose should be derived from within the Act itself before considering external materials.

• Textbook References:

  • Chapter 10, paras 10.18 - 10.21, 10.24 - 10.27.

  • Mills v Meeking (1990) 169 CLR 214 (paras 10.20 and 10.21)

  • Carr v Western Australia (2007) 232 CLR 138

  • Birmingham v Corrective Services Commission of New South Wales (1988)15 NSWLR 292.

  • R v Young (1999) 46 NSWLR 275.

  • Taylor v Owners - Strata Plan 11564 (2013) 83 NSWLR 1.

Common Law (Mischief) Approach

• MSB v Posiden 1982: Addresses the 'mischief and defect' that the common law didn't remedy.

  • Access to the common law mischief approach required ‘ambiguity’ in the statutory language.

Transition from Common Law to Statutory Approaches

• Acts Interpretation Act 1901 (Cth) amended in 1981 (first version of section 15AA) and further in 2011 (current wording).

• Common law approaches (literal and mischief) technically co-exist with the statutory provisions.

Statutory Approach to Purpose - Dominant

• Section 15AA:

  • The interpretation that would best achieve the purpose or object of the Act is preferred, whether expressly stated or not.

  • Quote from the AIA in exam: \"Section 15AA states that ‘the interpretation that would best achieve the purpose or object of the Act … is to be preferred’.\"

Express vs. Deduced Purpose

• Purpose can be expressly stated in:

  • 'Objects of this Act' section.

  • Preamble or long title (in older statutes).

• Purpose can be deduced through:

  • Analysis of specific parts of the text, such as titles or section headings.

  • Examination of the scope, content, and language of the provisions.

'Best Achieve(s)'

• 2011 amendment clarified that if multiple interpretations promote the object of the Act, the one that best achieves it should be selected.

Purpose Approach as Continuation of Working with Text

• No ambiguity requirement to access section 15AA.

• The purpose approach is a continuation of the modern approach of working with ‘text in context’.

• Analyze text in context first, then align the derived meaning with the purpose found in the Act.

Limitations on the Purpose Approach

• The purpose approach is for understanding the meaning of the text as the parliament enacted (not some independent purpose).

Policy Ideal Underlying Restrictions

• Courts interpret, not make, the law, deferring to Parliament.

• Excessive interpretation based on a non-text-based idea of purpose strays into law-making.

• Ideally, grammatical/literal meaning gives effect to statutory purpose, aligning express/deduced purpose with ordinary meaning.

General and Specific Limitations

• General limitation:

  • Cannot stray too far from the express statutory language.

  • Mills v Meeking: Courts construe, not rewrite, Acts in light of their purposes; interpretations must be consistent with the Act's wording.

• Specific limitations:

  • When correcting errors in the text of the Act apparent.

Quotes on Caution and Limits

• The meaning of a provision, when modified by the Act's purposes, must be precisely identifiable and consistent with the draftsman's wording.

• Section 15AA(1) is not a warrant for redrafting legislation to align with an assumed legislative desire.

• Courts should not impose their own desirable policy on the legislature as a statutory purpose.

• Courts should not speculate about the legislature’s intention.

• Often, the grammatical/literal meaning gives effect to the legislation's purpose.

Examples and Hypothetical Scenarios

• Reconsideration of 'Vehicle':

  • Cars, bikes, electric cars, and cars with modified exhausts are considered under the \"Control of Noise in Parks Act 1976\".

• Arguments for Interpretation:

  • If the object is to ensure peace and serenity, 'noisy' might be read into section 3: \"No [noisy] vehicles are permitted in the park.\"

    • A quiet bike or electric car could be permitted.

    • Limitation: Courts should construe, not rewrite, the Act.

Correcting Errors in Text

• The 'Golden Rule' allowed minor corrections.

• Modern equivalent: the purpose approach reveals errors or oversights in the final text.

• Courts can 'read in' or substitute words where there is an error based on the purpose approach.

Bermingham v Corrective Services Commission (NSW CA 1988)

• Three conditions for reading words into a legislative provision:

  • Know the mischief the Act was dealing with.

  • Be satisfied Parliament inadvertently overlooked an eventuality.

  • Be able to state with certainty what words Parliament would have used.

R v Young (NSW CA Spigelman 1999)

• Cautionary words about Bermingham.

  • Construction must remain \"text-based\".

  • Words in the statute must be reasonably open to the construction.

  • Confine to the range of possible meanings of the text.

  • Does not permit \"supplying omitted\" words, only using extra words to express the court’s conclusion with clarity.

Taylor v Owners – Strata Plan HCA 2013

• Resolved the controversy.

  • Reading a provision with added or omitted words involves a judgment of degree.

  • Addition or omission is favored for simple grammatical errors defeating the provision's object.

  • It is not favored for filling gaps or making insertions too at variance with the language used.

Lowe v The Queen VSC CA 2015 (‘Lowe’)

• Victoria's Court of Appeal adopted a multi-faceted approach.

  • Inserting \"explicitly\" did not depart too far from the language.

  • Was 'easy to identify'.

  • Modified reading accorded with the statutory scheme.

• Multiple cases with different tests demonstrate instability, opening possibilities for different arguments.

Using the Modern Purpose Approach in Argument

• Analyze the text; search for express or deduced purpose.

• Consider whether the construction unreasonably \"strains\" the language, rewriting the provision or supplying omitted words.

• Apply tests of 'degree' established by the HCA in Taylor.

Remaining Role for Common Law (Mischief) Approach

• Section 15AA generally used because no need to show ambiguity.

• Provides alternative argument based on purpose.

• Common law approach useful with extrinsic materials under section 15AB.

Summing Up on Section 15AA Purpose Approach

• What indicates purpose from the text?

• What omissions may be 'read in' or corrected?

• Nuance and analysis are needed, including considering what the text reveals about the legislation's purpose.

Process

• Text-based analysis has two stages:

  • Text in Context

  • Purpose as found in the text of the Act.

• Assess whether the meaning is clear before going to extrinsic materials.

• If the meaning is clear after these phases, there's no need to analyze extrinsic materials.

• Extrinsic Materials (parliamentary materials are part of the broader context).

• Arguments based on extrinsic materials are generally weaker than those based on the text of the Act.