Statutory interpretation and the role of the courts (worksheet 1.1.6) 1

Statutory interpretation and the role of the

courts—TEACHER NOTES

Level year: Year 11 Worksheet number: 2.2.2

Curriculum context Related worksheets

Legal Studies 2019 (General Senior Syllabus):

Unit 1, Topic 1: Legal foundations

Worksheet 1.1.5

Worksheet 1.1.3

Worksheet 3.1.3

Worksheet 3.1.5

Australian courts interpret and apply legislation. This process is called statutory

interpretation. It is one of the ways judges make law.

Learning objective

Learners will:

explain the role of the courts in interpreting legislation to make law.

Focus question

How do the courts interpret and apply legislation to make law?

Key concepts

Australian Constitution

Common law

Judicial power

Legislation

Parliament

Precedent

Separation of powers

Statute law

Statutory interpretation

Further information

VCE Legal Studies, The ability of judges and courts to make law,

(vce12legalstudies.weebly.com/o2---kk-1-2-3-4-5-6.html)

Caxton Legal Centre Inc., Common law versus legislation

(queenslandlawhandbook.org.au/the-queensland-law-handbook/the-australian-

legal-system/where-law-comes-from/common-law-versus-legislation/)

Anh Nguyen, Statutory interpretation,

(tallangattalegalstudies.weebly.com/statutory-intepretation.html)

sclqld.org.au/education

The Law Society of Western Australia, Statutory interpretation,

(lawsocietywa.asn.au/wp-content/uploads/2015/10/2016APR-Statutory-

Interpretation-Student-Resource.pdf)

Parliamentary Education Office, What is the role of the High Court in interpreting

the Constitution? (questions.peo.gov.au/questions/what-is-the-role-of-the-high-

court-in-interpreting-the-constitution/22)

Constitutional Education Fund, The role of the High Court in Australian

democracy, (cefa.org.au/ccf/role-high-court-australian-democracy)

Additional resource

You may like to us our PowerPoint Statutory interpreation and making law to help you

teach this subject matter.

Statutory interpretation and the role of the courts (worksheet 1.1.6) 3

Statutory interpretation and the role of the

courts—STUDENT TEXT

A key role of our courts is to interpret and apply legislation made by parliament:

Court Source of legislation

State and Territory courts Their State or Territory parliament

Federal courts Commonwealth parliament

High Court of Australia Australian Constitution

Commonwealth parliament

Table 1: The boundries of judical power in Australia. Federal, State and Territory courts do have the authority

to interpret and apply legislation made outside their jurisdiction if given by law.

Judges may need to decide the meaning of a section of legislation if:

it is unclear

has never been applied in a particular context before.

For example, in Brett Cattle Company Pty Ltd v Minister of Agriculture [2020] FCA 732

the Federal Court of Australia found that a control order issued by the government was

invalid under the Export Control Act 1982 (Cth).

Figure 1. Inforgraphic of Brett Cattle Company Pty Ltd v Minister of Agriculture [2020] FCA 732.

sclqld.org.au/education

But what does statutory interpretation involve?

Judges interpret legislation through a process called statutory interpretation. Judges

only interpret parts of the law that are relevant to the case they are hearing.

To interpret a statute, judges can consider the:

rules for interpreting legislation set out in Acts Interpretation Act 1901 (Cth) or

Acts Interpretation Act 1954 (Qld)

plain meaning of the words used

purpose of the statute

goals or objectives set by parliament when the statute was made.

To help them, judges can refer to a number of resources including:

dictionaries

legal texts

explanatory notes

speeches given by members of parliament during the reading stages of bill

other similar Acts or Subordinate legislation

precedents from other courts or jurisdictions that interpreted the same or a

similar section.

For example, to come to his decision in Brett Cattle Company Justice Rares drew on:

decisions of previous courts

explanatory statements

similar Acts

relevant subordinate legislation.

How does this become law?

When applying or interpreting legislation a judge’s written decision may provide new

insight, explain or clarify the meaning of a section. This written decision then becomes a

precedent for other judges and is a source of law called common law.

‘The long title of the Export Control Act was “an Act to provide for the control of the export

of certain goods and for related purposes”… The Export Control Regulations vested in the

Minister the power to make orders, not inconsistent with any regulations made under the

Act, with respect to any matter for or in relation to which a regulation could be made under

the Act (reg 3)… The Explanatory Statement for the Second Control Order stated that its

purpose was to suspend the exports of livestock to Indonesia for six months.’ (paragraph

[327])

Statutory interpretation and the role of the courts (worksheet 1.1.6) 5

Some different approaches to statutory interpretation

There are many different approaches to statutory interpretation1, two being:

Literal Purposive

Interprets the words in a section according to

their usual meaning.

Interprets the words in a section so it is

consistent with the purpose of the section or

Act.

In Brett Cattle Company Justice Rares used a purposive approach. He assessed whether

the order met the aims of the relevant legislation and stated:

1 Statutory interpretation in Australia, 9th ed (2019). Lexis Advance.

‘If the Second Control Order had contained a power to make an exception (as the

First Control Order had), allowing the grant of an export permit if the Minister was

satisfied that the exporter met his requirements, it would have achieved the animal

welfare and regulatory ends…’ (paragraph [348])

sclqld.org.au/education

Learning activity

1. Provide two reasons why a judge may be asked to interpret legislation.

2. Explain the process of statutory interpretation.

3. Compare and contrast the literal and purposive appoaches to statutory

interpretation.

4. Describe how a judge’s interpretation of a section contained in legislation

becomes law? (You might like to use an example.)

Statutory interpretation and the role of the courts (worksheet 1.1.6) 7

5. Read the following selection of paragraphs from Meridien AB Pty Ltd v Jackson

[2013] QCA 121.

[42] … I am not confident, however, that the Explanatory Notes support the

conclusion that it may be inferred from the amending legislation that the

parliament indicated a view of the construction of s 27 consistent with that of

the primary judge‘s.

[43] In his Second Reading Speech on the Sustainable Planning and Other

Legislation Amendment Bill 2011, the Minister observed: “I am also moving an

amendment to the bill to clarify the meaning of section 27 of the Land Sales

Act.”

a. Identify and list the additional material the Honourable Justice Muir used to

assist his interpretation of Land Sales Act 1984 (Qld) s27.

6. Read the following paragraphs from the same decision and answer the

questions below:

[33] Section 14A of the Acts Interpretation Act 1954 (Qld) requires that, in

interpreting a provision, the interpretation that will best achieve the purpose of

the Act is to be preferred to any other interpretation.

[34] The court’s role is one of construction not legislation. Here, the construction

urged by the respondents is arguably consistent with the consumer protection

aims of the legislation. However, it is inconsistent with the object of the

legislation “to facilitate property development in Queensland”.

[40-41] The construction is not the literal one but, as was explained earlier, a

literal construction fails to have regard to the conveyancing context of s 27 and

is plainly not in accordance with the legislative intent.

a. Summerise what the Honourable Justice Muir states about the role of the

court in interpreting legislation.

sclqld.org.au/education

b. Identify what approach to statutory interpretation the Honourable Justice

Muir states is best in this situation. Why was the other approach not used?

7. Locate Meridien AP Pty Ltd v Jackson [2013] QCA 121 in our CaseLaw database

(sclqld.org.au/caselaw/).

a. Locate the list of decisions that have cited Meridien (Hint: you will find these

under the heading ‘Cited by’).

b. Select one of the decisions on the list.

c. Locate the paragraph where Meridien is cited.

d. Does the judge in your decision follow the Honourable Justice Muir’s

decision? Why or why not?