Lecture 8: Introduction to Statutes and Statutory Interpretation I
Dr FadyAoun With a nod of thanks to Professor Millar Foundations of Law – JD 2022
SYDNEY LAW SCHOOL
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Statutory Interpretation
›Statute of limitations or statue of limitations?
›See Limitations Act 1969 (NSW) ›See eg Corporations Act 2001 (Cth)
Reasons for Increase in Legislation
1. The need for speedier amendment of the law,
2. Need for the comprehensive treatment of a subject, and
3. Need for radical change.
4. WWII and the welfare state
Terminology: There are two forms of legislation:
1. Statutes or Acts (made by parliament), and
2. Delegated or subordinate legislation (made by office-holders or bodies to whom parliament has delegated law-making power).
Delegated legislation includes rules, regulations, ordinances, by-laws and legislative instruments.
See generally, LDL, Chapter 9
“No vehicles allowed in the Quadrangle*”
* See generally HLA Hart, Positivism and the Separation of Law and Morals (1958) 71 HARV. L. REV. 593 (but therein ‘public park’ is used).
The Importance of Statutory Interpretation
›‘In my observation, students do not bring from their studies and into the practice of law, any deep appreciation of the techniques of statutory analysis and construction.’
– WMC Gummow, ‘Comment: Legal Education’ (1988) 11(3) Review 439, 440.
MAKING LAWS
The legislative process (overview)
Legislation is drafted in form of a bill & read/debated in parliament
Explanatory memorandum drafted to assist meaning of Bill
Second reading speech read to explain rationale of bill
Further amendment/debate over terms of Bill
Once Bill passes both houses of parliament, notice of approval of Bill takes place in Gazette
Bill given royal assent and becomes law when date for commencement begins.
Legislation in context
Political Agitation before the Passage of Laws
Consider the Political Process:
› Typically, a need/desire to make/change the law arises via:
– demand (public demand &/or particular interest group(s)) – party policy / treaty obligations / …
– run the machinery of the modern world
– regulate, permit, forbid, punish, control…
› Consensus building by stakeholders
Making a statute
Steps in Parliamentary Law-Making
Executive-controlled steps (usually):
› Policy formation, including public consultation, discussion papers, law reform commissions etc
› Drafting instructions
› Exposure Draft Bill and Explanatory Memorandum
› Further public consultation
› Amended Bill and Explanatory Memorandum drafted › Bill introduced to Parliament – 1st Reading
› 2nd Reading (Minister’s Speech)
Making astatute
Steps in Cth Parliamentary Law-Making
Parliament-controlled steps:
› Committees, amendments, debates
› 3rd Reading
› Bill goes to the other House
(more readings, committees, amendments, debates)
› Once passed, Bill goes to the Governor-General
› Governor-General signs the bill & it becomes an Act of
Parliament
› The Act comes into force (as per its own terms or the terms of the relevant jurisdiction)
Making a Statute
Parliamentary Processes in more detail… ›OntheCthParliamentary ›OntheParliamentary
– See eg Parliament of Australia, InfoSheet7 Making Laws here
Process in NSW:
– See eg Parliament of NSW, Legislative Process Explained, available here and if you find this fascinating, it is explained in some more detail here
The Importance of Statutory Interpretation
› [‘T]he construction of statutes is now, probably, the single most important aspect of legal and judicial work. In Australia, courts have discovered that many lawyers intensely dislike this feature of their lives. They find the obligation to read Acts of Parliament, from beginning to end, so distasteful that they will do almost anything to postpone the labour. The High Court of Australia has been moved to protest at this unwillingness to grapple with the words of the statutory text, instead of returning to the much loved words of judges, written long ago and far away, who uttered them before the legislature’s text became the law. Whilst this tribute to the judiciary is touching, it does not represent the law. The world of common law principle is in retreat. It now circles in the orbit of statute. Where statute speaks … there is no escaping the duty to give meaning to its words. That is what I, and every other judge in the countries of the world that observe the rule of law, spend most of our time doing.’
› The Hon Justice Michael C CMG, Towards a Grand Theory of Interpretation: The Case of Statutes and Contracts, (2003) 24(2) Statute Law Review, 96–7
The Importance of Statutory Interpretation
‘The law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of the law are determined entirely by statute. No area of the law has escaped modification. Statutory interpretation is not merely a collection of maxims. It is a distinct body of law.’
Spigelman, ‘The Poet’s Rich Resource: Issues in Statutory Interpretation’ (2001) 21 Australian Bar Review 224, 224.
Anyway, what’s it all about?
›‘Interpretation is not a science, It is an art. It is an exercise involving the making of choices between feasible interpretations’.
– , ‘The Intractable Problem of the Interpretation of Legal Texts’ (2003) 25 Review 5, 8.
Indeterminacy of Language
› “A word is its own little solar system of meaning.” – Ted Hughes
› Ambiguity sometimes unavoidable – Lexical
– Syntactical
– Contextual
› Generalisations are also valuable
› The aim of the draftsperson – Parliament’s
‘intention’:- – Fiction?
The chicken is ready to eat
The chicken is ready to eat
Approaches to Statutory Interpretation
› ‘Over the last two or three decades the fashion in interpretation has changed from textualism to contextualism. Literal interpretation — a focus on the ordinary meaning of particular words — is no longer in vogue. Purposive interpretation is what we do now… In constitutional, statutory and contractual interpretation there does appear to have been a shift from text to context’.
– Spigelman CJ, ‘From Text to Context: Contemporary Contractual Interpretation’ (Address delivered at Risky Business Conference, Sydney, 21 March 2007) 1.
Modern [Statutory] Approach: Text, Context & Purpose
› Interpretation legislation: Parliament directs courts on how to interpret legislation
– Interpretation Act 1987 (NSW)
– Acts Interpretation Act 1901 (Cth) (ss 15AA and 15AB)
› The main ‘rule’ is to interpret legislation so as to give effect to its purpose, in so doing, one must first have regard to text and context.
› Intrinsic materials – using the legislation to work out the purpose, eg long title, objects clause, section headings etc
› Extrinsic materials – using other documents to work out the purpose, eg second reading speech, law reform commission report, explanatory memoranda
But note Barker’s note
› ‘Section 15AA, s 15AB and provisions like it, are not, however, to be understood as mandating the purposive approach and require their own interpretation by courts! The language of s 15AA is that such an interpretation ― “is to be preferred” where other interpretations may be open. But such an interpretation is not required. Indeed s 2 of the Acts Interpretation Act expressly provides that, while the Act applies to all Acts (including the Act itself), the application of the Act or a provision of the Act to an Act or a provision of an Act is ― “subject to the contrary intention”.
– The Hon Justice Michael Barker, Federal Court of Australia, ‘First you see it, then you don’t – and the art of interpreting statutes’, a paper given at the Judicial College of Australia Colloquium, on 5 October 2012 at Fremantle, Western Australia, [16]
Interactive Exercises: Review
Intrinsic & Extrinsic Materials
https://www.menti.com/pkzqkfkrt8
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Some Useful Aids re ‘Context’
› Titles or names
› Preambles
› Interpretation provisions
› Headings to parts and divisions
› Headings to sections
› Schedules
› Punctuation: Lionel Hutz on the importance of punctuation.
› Interpretation legislation and case law (ie Acts as interpreted by courts) › Dictionaries may be consulted
› Consistent use of words is assumed – See generally, LDL (TEXT), Chapter 12.
› Various Latin maxims (discussed later) and common law principles (where relevant)
Punctuation: The need for an Oxford Comma
O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017)
› Exemption F states that
… the protection of the overtime law does not apply to:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and (3) Perishable foods.
Oxford comma
26 M.R.S.A. § 664(3)(F). The parties’ dispute concerns the meaning of the words “packing for shipment or distribution.”
O’Connor v. Oakhurst Dairy, No. 16-1901 (1st Cir. 2017
Interactive Exercises: Review
Acts Interpretation Act 1901 (Cth)
https://www.menti.com/97rcwh62b7
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Further detail in subsequent slides
Modern Approach: Text, Context & Purpose
›‘The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose.’
– Australian Education Union v Department of Education and Children’s Services [2012] HCA 3, FRENCH CJ, HAYNE, KIEFEL AND BELL JJ, at [26].
Modern Approach: Text, Context & Purpose
›In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose’.
– Australian Education Union v Department of Education and Children’s Services [2012] HCA 3, FRENCH CJ, HAYNE, KIEFEL AND BELL JJ at [28] (footnotes omitted).
Project Blue Sky (1998) 194 CLR 355
› ‘[T]he duty of a 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’.
– McHUGH, GUMMOW, KIRBY AND HAYNE JJ at [78] (citations omitted, emphasis added)
Modern Approach to Statutory Interpretation
CANONS OF CONSTRUCTION, INTEREPRETATION LEGISLATION ETC
Source: driverlayer.com
Modern Approach to Statutory Interpretation
› ‘The modern common law approach to interpretation is often said to be a “purposive approach”. But that should not distract from the centrality of the legislative text: … Nor that an interpretation which gives effect to an identified purpose may only be adopted if it is one which is reasonably open on the text… Nor that, as emphasised in Project Blue Sky Inc v Australian Broadcasting Authority, apart from the text, it is not only purpose which is relevant: both the consequences of a particular construction as well as “canons of construction” may lead the court to depart from the literal interpretation. They too form part of the context in which the statute must be construed. The modern common law approach might be better described as “literal in total context”.
– and , Statutory Interpretation Principles, LawBook Co, 2014, 21 [1.75] (emphasis added, citations omitted)
Mills v Meeking
[1990] HCA 6; (1990) 169 CLR 214 (quote continued overleaf)
[T]he 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. Section 35 of the Interpretation of Legislation Act 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 ambiguityor inconsistency before a court could have regard to purpose: Miller v. The Commonwealth [1904] HCA 34; (1904) 1 CLR 668 at p 674; Wacal Developments Pty. Ltd. v. Realty Developments Pty. Ltd. [1978] HCA 30; (1978) 140 CLR 503 at p 513
[1990] HCA 6; (1990) 169 CLR 214
Mills v Meeking
‘The approach required by s.35 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 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes’.
– Per Dawson J at [19] regarding the Victorian equivalent (s 35) of s 15AA of the Acts Interpretation Act 1901 (Cth) (emphasis added)
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2; (1997) 187 CLR 384 (quote continued overleaf)
‘It is well settled that at common law, apart from any reliance upon s 15AB 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. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2; (1997) 187 CLR 384
Instances of general words in a statute being so constrained by their context are numerous. In particular, as Mc A pointed out in Isherwood v Butler Pollnow Pty Ltd if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent’.
– BRENNAN CJ, DAWSON, TOOHEY AND GUMMOW JJ at 408 (emphasis added, citations omitted)
Cf Saeed v Minister for Immigration and Citizenship
[2010] HCA 23
‘As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction’.
– FRENCH CJ, GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ at [33] (emphasis added) (citation omitted)
Catlow v Accident Compensation Commission
[1989] HCA 43
› ‘Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s.15AB(1) of the Acts Interpretation Act), that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material.’
– Brennan and Gaudron JJ at [6]
Modern Approach: Limitations
› ‘To adopt a meaning which is not reasonably open is not interpretation, which is a judicial function, but amendment, which is a legislative function. This is subject to limited exceptions where courts are willing to make alterations to the statutory text to fill gaps and correct errors…Under the modern approach, purpose (among other things) must be considered regardless of whether ambiguity is identifiable on the face of the provisions, and in this sense purpose must be considered even when only one construction appears to be open. But neither the modern approach to interpretation, nor the statutory provisions mandating a “purposive” construction, countenance application of an interpretation which is not in fact reasonably open’.
– and , Statutory Interpretation Principles, LawBook Co, 2014, 30 [1.115] (emphasis altered, citations omitted)
s 15AA Acts Interpretations Act 1901 (Cth
[‘Old’ s 15AA] ‘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’.
Shortcomings?
› Current 15AA Interpretation best achieving Act’s purpose or
› ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’
– Shortcomings?
s 15AB Acts Interpretations Act 1901 (Cth)
› 15AB Use of extrinsic material in the interpretation of an Act
› (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 theAct; 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.
s 15AB Acts Interpretations Act 1901 (Cth)
› (2) Without limiting the generality of subsection (1), t
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