Statutory Interpretation

Clth
Acts Intepretation Act
1901
Interpretati S33
on Rules
Acts should be
intepreteated to best
achieve the Acts purpose
of object

When to
use
extrinsic
materials

Types of
Extrinsic
Materials

When to
use the
extrinsic
materials
or when to
give it
weight:

NSW
Interpretation Act
1987 No 15
S15AA
Interpretation which
PROMOTES the purpose
of the object underlying
the Act> interpretation
that DOESNT promote
the object underlying the
Act
S15AB(1)
S34(1)
Use extrinsic materials to ASSIST in determining the
meaning of the provision of the act:
- to confirm the ordinary meaning conveyed by
the act
- to determine the meaning of the provision if it
is ambiguous
- to determine the meaning of the provision if it
leads to a result that manifests absurdly or
unreasonably
S 15AB (2)
S 34(2)
- reports of Royal Commission, Law Reform
COmission
- report of the committee of Parliament
- treaty or other internaltional agreemen referred
to in the provision
- explanatory note or memorandum relating to
the Bill
- First Speech, Second Speeches
S15AB(3)
S 34(3)
- the need to prolong legal or other proceedings
without compensating advantage
- the desirability of persons being able to rely on
the ordinary meaning conveyed by the text

THe intolerable wrestle: Developments in Statutory

Interpretation - Hon JJ Spigelman
-

looks at whether or not here has been a shift in the approach to

statutory interpretation
o Kirby J says there is:
Spectral of judicial interpretation ranging from strict literalism
to purposive interpretation
o Wide spectrum reflects the number of well established
principles literal rule, golden rule, mischief rule
o Which rule should be given more salience is dependent on
the case and discretion of the judge
Speiglman identifies that there has been a change in emphasis
and nuance over time i.e. movement from text to
context
o New approach to statutory interpretation: involves a
purposive and contextual approach - brought about by
Mason J and Brennan J
Three important cases:
o Bronpho v Western Australia (1990) context
approach

Affirmed the purposive approach of statutory

interpretation as the correct common law approach,
even without intervention from the Statutory Act
Believes that the idea of interpreting according to
the legislative purpose and examining extrinsic
materials makes the law anarchronic
o CIC Insurance Ltd v Bankstown Football Club Ltd
context approach
Modern approach to statutory interpretation relies
on looking at the:
Context BE CONSIDERED IN THE FIRST
INSTANCE to avoid ambiguity later on
Use context in the widest sense e.g. the
existing state of the law and the mischief
which the law intended to remedy
o Project Blue Sky Inc v Australian Broadcasting
Authority (1998)
the primary object of statutory interpretation is to
construe the relevant provision so that it is
consistent with the language and the purpose of all
the provisions of the statute emphasising
PURPOSE and looking the at the words in the
CONTEXT of the whole legislation (i.e. not in
isolation)
thus the process of construction must always begin
by examining the context of the provision that is
being construed.

SPeiglman concludes that the approach in Bronco, CIC Insurance, and

Project Blue have not been superseded in more recent HCA cases. the
Australian courts should continue to use them until these approaches
are overruled by the HCA.

statutory interpretation places emphasis on the CONTEXT (i.e.

words should be read in the context of the whole act) and the
PURPOSE of the act (i.e. the parliamentary intent of enacting
this legislation)
- Kirby J emphasises the importance of a CONSISTENT method
of statutory interpretation
o E.g. in the interpretation of Pawnbrokers and
Secondhand Dealers Act 1996 (NSW), the interpretation
of pawned goods was in contention
Majority choose the use of the technical, literal
meaning of pawned goods Literal approach
Disssenting Kirby J emphasised the principles of
purposive and contextual approach with reference
to extrinsic materials
o due to the inconsistency in interpetations, Kirby J
emphasises that the contextual and purposive approach
should be used consistently, not intermittently,
selectively or idiosyncratically
- n/b. Speilgman says that Kirby J used the purposive approach
in a way NOT ENVISAGED by the famous judgment cases
(above) he cites
- When look at context and purpose, Speilgman asks us to
consider the following:
o What is encompassed in the concept of context?
o How far does context extend beyond the text of the
instrument as a whole?
o What weight is to be given to aspects of context so
identified?
o How is one to determine the purpose of the
Parliament?
o At what level of generality should any such purpose be
expressed?
- Courts search for the Objective intention of the Parliament,
not the subjective intention of parliamentarians and
minsteirs.
o the task of the court is to interpret the words used by
the Parliament. It is not to divine the intent of the
Parliament. The Courts must determine what Parliament
meant by the words it used. The courts do not
determine what the Parliament intended to say.
o Subjective intention is often held as irrelevant, even
that expressed in Second Reading Speeches
extrinsic material cannot be used to displace the clear
meaning of the text
Speiglman suggests that the recent approach in HCA cases is to first
look at the text of the Act:
- Process of Statutory interpretation:

o Kirby J looks literal approach (i.e. look at text in

isolation first), purposive approach and contextual
approach simulataneously
o Speiglman says that you:
must begin with the text itself used frequently
by the HCA to emphasises the process of
interpretation said to affirm what HCA calls the
primacy of the statutory text
affirmed in Alcan (NT) Alumina Pty Ltd v
Commissioner of Territory Revenue
(2009)
the language employed in the text of the
legislation is the surest guide to legislative
intention
context and purpose may then be considered to
infer the meaning of the text

Saeed v Minister for Immigration and Citizenship (2010)

o Had the effect of excluding the natural justice hearing
rule
o said it was erroneous to look at extrinsic material
BEFORE exhausting the application of the ordinary rules
of interpretation
o objective of a provision can not be equated with the
statutory intention revealed by the terms of the
provision

MURRAY GLEESON - THE MEANING OF LEGISLATION:

CONTEXT, PURPOSE AND RESPECT FOR FUNDAMENTAL
RIGHTS (2009)

Surge in legislative activity over the past 30 years, reaching into areas that
once were occupied exclusively by lawyers' law (common law)
o Increased need for judges to apply Acts of Parliament rather than
judge-made principles of common law
Historically, parliament was not a law reform agency which constantly
changed the rules affecting the rights and obligations of citizens.
o It was not concerned with constantly changing the common law
due to the belief that law was declared and not freshly made
o Alteration of laws, customs, rights & privileges of people was
regarded as subversive of good order
o After WWII, popularity of socialism and collective ideals led to an
increase in legislation & regulation of personal and economic
activities
Making new law in all areas (civil & criminal) is a central part of the work of
modern parliamentarians. Consequently, applying legislation is now the
largest part of the work of modern judges
o Only very small part of Australian law is codified so therefore
application of legislation also involves consideration of how it draws
upon and interacts with the common law e.g. precedent, doctrines
o Statute may also require judges to make policy choices on a wide
range of matters
Acts of parliament also require interpretation
o Meaning not always self-evident
o Volume and complexity of legislation produces inconsistency and
uncertainty
o Therefore, statutory interpretation is of central important to the daily
work of all judges
o Discovering, expounding and applying the intention & meaning of
legislation is controlled by legal principles.
About statutory interpretation:
o Starting point must be the test itself. The primacy of the test is the
first principle of interpretation (Lord Steyn)
o Language used by Parliament is the medium through which it
expresses its authority, meaning and directs the exercise of judicial
power
o Must not give literal meaning to each word but rather consider all
relevant contextual material in order to decide what meanings the
statute might hold and what is the best interpretation of it
o Judges must discover the will of Parliament - it is illegitimate to
impose the will of the judge (Judicial Activism)
o Controlled by general interpretation acts or specific interpretation
provisions in a particular statute
Outlines meaning/effect of certain common words
General rules to be applied in finding meaning of statutes

Gleeson then suggests three of the principles that guide judges in

interpreting legislative texts (context, purpose & respecting fundamental
rights) This extract discusses the first two principles
o Context
Context of statutory provision includes:
o Surrounding provisions
o The entire Act
o Historical circumstances at the time of its enactment
o Background of other legislation or judge-made law
o The constitution
Meaning of a text is always influences, and sometimes controlled, by
context
Sometimes, words and concepts have no meaning without their context
but usually the question for judges is whether context can rationally assist
understanding, not whether without regard to context, understanding is
impossible.
o Purpose
Extrinsic materials should be checked to see whether they contain
anything of relevance that can aid interpretation
Purposive approach should always be taken (as per both Commonwealth
and NSW interpretation acts)
In considering the purpose or objective of a provision, it is important to
remember that much legislation is the result of compromise & that few
acts of parliament pursue only a single purpose
Acts of parliament sometimes also have mixed and even inconsistent
purposes. Even where they have a single or dominant purpose, there may
be uncertainty about the extent to which it has been pursued
Another source of difficulty is that in some matters, parliament has
deliberately or unintentionally refrained from forming or expressing a
purpose
Where courts have mistaken the legislative purpose or given a
construction that defeats the purpose, it is within the power of the
parliament to amend the legislation - reinforces the legitimacy of the
judicial process
o

o
o
o

RUSSELL SMYTH - EXTRINSIC MATERIALS (2001)

Introduction
Courts may draw on a range of sources when deciding questions of
common law, statutory interpretation and constitutional interpretation
o Primary sources: statutes, constitutional texts, earlier cases
o Secondary sources and materials can give meaning to those texts
and provide context on policy considerations and values

Question of which materials are authoritative legal materials is

controversial
Recently, has become accepted that a range of extrinsic materials is
relevant and helpful in coming to conclusions about intended meanings
o This stems from the shift towards a purposive approach to meaning
& statutory interpretation
o Increased use of materials over time may reflect increase in
number of associates and the degree of research assistance,
enhancement of court's library etc.
o Constitutional Interpretation
HCA legitimised greater use of the Convention Debates as an aid to
interpretation
o Debates act as an indication of the nature of the problem the
framers sought to address and of the solutions they had in mind
Line between permissible and impermissible use is not easy to draw
o Authority for use of Extrinsic Materials
S 15AB: where the statute is 'ambiguous or obscure' or the ordinary
meaning conveyed by the text is 'manifestly absurd or is unreasonable'
Court has tended to adopt a restrictive view of s 15AB, allowing only
limited recourse to extrinsic materials under this provision
o Words of a minister must not the substituted for the text of the law Re Bolton; Ex Parte Beane (1987)
o Apart from materials under s 15AB, the court may have regard to
reports of law reform bodies to ascertain the mischief which a
statute is intended to cure - CIC Insurance v Bankstown Football
Club (1997)
o Using extrinsic materials e.g. Hansard, committee reports and the
like
Advantages:
o When the text is ambiguous, such materials can produce
interpretations that are closer to the true intention of the legislature
Criticisms:
o Can prolong a hearing = inefficiency. Although this argument is
exaggerated because courts can place limitations on the use of
these materials
o Extrinsic materials are not as readily available as the statutes
themselves
o Speeches in parliament merely express personal views of the MP
and do not necessarily reflect the collective view or
meaning/purpose of the statute
o Conclusion
The views on the use of extrinsic materials have been mixed from judicial
officers as well as academics
Generally, materials are drawn directly from a context in legislative
processes or legal discourse although wider literature may be used for a
broader contextual understanding
o
o

o
o
o

A Bank Robbery and Carr's Case

The Facts
Carr was interviewed in the interview room.
o He declined to answer anymore questions without a lawyer
present
Taken into the "lock up room" to be processed
o Was recorded (without Carr's knowledge) whereby Carr
boasted about committing the crime in conversation
Arrested and charged
o The Decisions of the Courts
"to prohibit, subject to the exceptions"
The Court of appeal held that the word interview was to be
construed broadly
o Was not confined to a formal interrogation
The High Court helf that any conversation between a member of
the police force and a suspect,
o Including an informal conversation such as had occurred
between Mr Carr and the police in the lockup room
o Lack of consent by Mr Carr to the videotaping of his
admissions was no bar to their admissibility
o The Applicable Statutory Provisions
o The Criminal Code 570D(2)
On the trial of an accused person for a serious offences, evidence
of any admission by the accused person shall not be admissible
unless (a) the evidence is a video take on which is a recording of
the admission
o Admission - an admission made by a suspect to a member
of the Police Force
o Serious Offence - indictable offence
o Videotape - any videotape on which is recorded an
interview
o Interview - not defined
The conversation with the police was not in the form of an
interview
o His objection to admissibility of the incriminating evidence
of his admission, secretly recorded, had to be upheld and
the evidence excluded
o Text, Context and Purpose in Carr
o The Text
The meaning of the word interview
o Dictionary definitions - a requirement of an element of
formality
o Textual analysis is in favour of Carr
o The Context
1. The meaning of the requirement that the videotape should be in
the form of an interview
1. Statutes of other jurisdictions
1. Tasmania - official questioning

2. South Australia - a special definition of interview was

provided by the parliament
1. A conversation or
2. Part of a conversation or
3. A series of conversations
ii.
Videotaped interviews
1. Videotape itself not sufficient, but must be in an
interview form
ii.
Other Australian legislation
1. Used to mandate the formal character of the
interchange that was to take place
b. The dual problem
i.
The integrity of the record and the acceptability or the way
in which the admissions to persons in authority were
procured for record
1. Recognised the psychological disadvantages that
accused persons suffer when undergoing an
interrogation
o The Purpose or Policy
Ensuring the integrity of the record by
o the objective of controlling the interchange of questions
and answers in such a way to neutralise or at least reduce
the psychological disadvantages for the interviewee
Judicial discretion existed to exclude an admission that was
secured involuntarily, unfairly or in a manner otherwise contrary
to public policy
Must address not only the integrity of the record but also the
acceptability of the interview
Provision for Interview format was thus a reinforcement for the
discretionary exclusion of unfairly obtained admissions
An accused person's right to decline to answer official
questioning or seeking a lawyer before continuing
o Mr Carr's entitlement to such advice had been recognised
and accepted by the police in a the way they terminated
the formal interview
o But they then effectively tricked him into continuing a
conversation although they knew (as he did not) that his
answers were being recorded
Contrary to the accused asserted right to silence
Would encourage officers to engage in banter, informal
conversation apparently innocent questioning
o Psychological dynamic of the interview where by the
structures of law, the power relationship between
interviewer and interviewee is to some degree equalised,
would be completely changed
o