Statutory Interpretation

ClthActs Intepretation Act 1901

NSWInterpretation Act 1987 No 15

Interpretation Rules

S33Acts should be intepreteated to best achieve the Act’s purpose of object

S15AAInterpretation which PROMOTES the purpose of the object underlying the Act> interpretation that DOESN’T promote the object underlying the Act

When to use extrinsic materials

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 unreasonablyTypes of Extrinsic Materials

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

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

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

interpretationo 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 à 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 interpretationo Meaning not always self-evidento Volume and complexity of legislation produces inconsistency and

uncertaintyo Therefore, statutory interpretation is of central important to the daily

work of all judgeso 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

Context Context of statutory provision includes:

o Surrounding provisionso The entire Acto Historical circumstances at the time of its enactmento Background of other legislation or judge-made lawo 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.

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

RUSSELL SMYTH - EXTRINSIC MATERIALS (2001)

Introduction Courts may draw on a range of sources when deciding questions of

common law, statutory interpretation and constitutional interpretationo Primary sources: statutes, constitutional texts, earlier caseso 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 meaningso This stems from the shift towards a purposive approach to meaning

& statutory interpretationo 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.

Constitutional Interpretation HCA legitimised greater use of the Convention Debates as an aid to

interpretationo 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

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 provisiono 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)

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

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

A Bank Robbery and Carr's CaseThe 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 processedo Was recorded (without Carr's knowledge) whereby Carr boasted

about committing the crime in conversation Arrested and charged

The Decisions of the Courts "to prohibit, subject to the exceptions" The Court of appeal held that the word interview was to be construed

broadlyo 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

The Applicable Statutory ProvisionsThe 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 offenceo Videotape - any videotape on which is recorded an interviewo Interview - not defined

The conversation with the police was not in the form of an interviewo His objection to admissibility of the incriminating evidence of his

admission, secretly recorded, had to be upheld and the evidence excluded

Text, Context and Purpose in CarrThe Text

The meaning of the word interviewo Dictionary definitions - a requirement of an element of formalityo Textual analysis is in favour of Carr

The Context1. The meaning of the requirement that the videotape should be in the form of

an interviewa. Statutes of other jurisdictions

i. Tasmania - official questioningii. South Australia - a special definition of interview was

provided by the parliament1. A conversation or2. Part of a conversation or3. A series of conversations

b. Videotaped interviews

i. Videotape itself not sufficient, but must be in an interview form

c. Other Australian legislationi. Used to mandate the formal character of the interchange that

was to take place2. The dual problem

a. The integrity of the record and the acceptability or the way in which the admissions to persons in authority were procured for record

i. Recognised the psychological disadvantages that accused persons suffer when undergoing an interrogation

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 questioningo 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