LETASA

Legal Education Teachers Association of South Australia

Information Paper 36Statutory InterpretationJudicial mode of lawmaking (Geof Bailey)December 2013

Case LawLaw made by judicial officers (primarily justices or judges) in courts to the extent necessary to resolve a matter brought before a court for adjudication. Case law is can be made in two ways:(creation of legal principles (often called legal rules) in the absence of a statutory rule(creation of legal principles that give legal meaning to codified law, commonly called statutory interpretation.This Paper concentrates on the latter method.Statutory interpretationThe judicial process of giving meanings to words and sections of codified law (ie statutes and regulations) in order to resolve a case brought before the courts for adjudication. Often referred to as construction by the legal profession.Why Statutes Need to be Interpreted

Courts must interpret statutes so that the law can be applied justly to bring about a finality to a legal dispute. The specific reasons could include:

(parliament intentionally gives courts discretionary powers to address unique situations.(the intention of parliament may not be clear(words and phrases may have different meanings, in different contexts(conflicts between different Acts(to meet international expectations, such as interpretations being consistent with Australias international obligationsHow Statutes are Interpreted

Judges must interpret statutes to construct their precise meaning so they can be applied consistently and uniformly by courts when resolving legal disputes. To achieve this goal courts are guided in their construction of statutes from two sources, parliament and superior courts.

Judicial guidance

Rules of Statutory Interpretation

Courts have developed three common law rules of statutory interpretation to assist them give meaning to words and phrases in statutes and regulations.Literal rule

The literal (or plain-meaning) rule allows judges to give words their ordinary and natural English meaning.Golden rule

Used to escape any absurdity created by the application of the literal rule.Mischief rule

Statutes are interpreted to give effect to the mischief parliament intended to address in its statute.Canons of Construction

These are rules establishing norms or presumptions that guide judges when no other rules exist. For example, the presumption that statutes do not oust the jurisdiction of a court to interpret a statute to settle a dispute brought before it.

Doctrines of Precedent and Judicial ReviewOnce the meaning of words in a statute have been constructed by a superior court, that interpretation must be applied in all lower courts in the same hierarchy, in accordance with the doctrine of precedent. Any construction of an Act is subject to scrutiny in appellate courts per the doctrine of judicial review. This means the superior courts act as a source of guidance to the lower courts so that the interpretations of statutes are consistently and uniformly applied.

Statutory guidance

Parliaments have devised a number of rules and procedures to guide courts in the interpretation of their legislation. This is achieved in two fundamental ways:

Internal Guidance

This guidance is provided in the principal Act being interpreted. Every statute has a "definition" and/or an "object" section to assist judges to interpret the most important and commonly used words in the Act. For example, the terms "driver" and "vehicle" are defined in the Road Traffic Act 1961 (SA).

External Guidance

This guidance is provided in Acts, other than the principal Act. All Australian parliaments have passed an Acts (or Statutory) Interpretation Act to give general guidance to courts regarding the interpretation of statutes passed within their jurisdiction. The federal and South Australian Acts Interpretation Acts compel courts to apply the purposive rule if the literal rule causes uncertainty. ExampleActs Interpretation Act 1901 (Cth)

Section 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 state in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

Miscellaneous InformationCanon of construction

Ejusdem generis ruleWhere words of particular meaning are followed by words of general meaning, the general words are limited to the same kind of particular words. For example, if a statute said, house, room or other place, a garage could be interpreted as an other place.

Example

R v Brislan; Ex parte Williams (1935)

Brislans CaseMrs Dulcie Williams owned a radio and did not acquire a radio licence as prescribed by Commonwealth law. Section 51(v) of the Australian Constitution gave the Commonwealth power to legislate on "Postal, telegraphic, telephonic, and other like services'.

Pursuant to this power the Commonwealth Parliament passed the Wireless Telegraphy Act 1905 (Cth) which required all radio (called a wireless then) owners to hold a licence. Mrs Williams was prosecuted by Brislan, a wireless inspector, for not holding the relevant licence. She challenged the validity of the legislation claiming that the Commonwealth had no power over radios to impose a licence fee.The High Court held that the Commonwealth acted within its power under s.51(v) to legislate with respect to wireless sets by applying the ejusdem generis rule, because a wireless was within the class of other like services'.

There are also two kinds of definitions in a statute:

Closed definitions

The word means is commonly used in Acts. Courts consider these definitions as being exhaustive.

Open definitions

The word includes is also commonly used. This gives courts greater discretionary power to adopt the purposive approach. Parliament uses includes because it acknowledges that it cannot foresee every possibility that may arise.