Topic 7
 Focus on the section
 Break it into its elements
 Determine the meaning of each of those elements
 Context in Act
 Judicial interpretation
 The elements of a section form a checklist – not a
shopping list.
 Unless it is drafted in the alternative, each element
must be satisfied.
 The sub-sections of each section are to be read
independently – unless the drafting clearly indicates
otherwise
 Start from the relevant section and work out – never
start from the Act as a whole and work in.
 Not an academic exercise – but a practical exercise.
How does the statute apply in a particular set of
circumstances?
 Cases – which interpret statutes – are examples of
where the court has performed the statutory
interpretation for us.
 Rules of statutory interpretation:
 Used by the courts
 Used by practitioners where courts have not yet
interpreted a section
 Legislation and case law.
 Relevant legislation
 Acts Interpretation Act 1901 (Cth)
 Interpretation Act 1987 (NSW)
 As interpreted by courts (common law)
 In the context of common law principles which survive
interpretation statute.


Which Parliament passed it? What jurisdiction are
we dealing with – the answer to this question will
determine what interpretation legislation should be
used.
When did the Act commence – this will tell us if the
Act was in force at the relevant time
 Determine which Parliament passed the Act to be
interpreted
 That is the Interpretation legislation you will use
AIR PASSENGER TICKET LEVY (COLLECTION)
ACT 2001 (Cth)
s 2 Commencement
This Act commences, or is taken to have commenced,
on 1 October 2001.
ACTS INTERPRETATION ACT 1901(Cth)
s 5 Commencement of Acts
(1A) Every Act (other than an Act to alter the
Constitution) to which the Royal Assent is given by the
Governor-General for and on behalf of the King on or
after 1 January 1938, shall come into operation on the
twenty-eighth day after the day on which that Act
receives the Royal Assent, unless the contrary
intention appears in the Act.
Parts of speech and grammatical forms
In any Act, unless the contrary intention appears,
where a word or phrase is given a particular meaning,
other parts of speech and grammatical forms of that
word or phrase have corresponding meanings.
(1) In any Act, unless the contrary intention appears:
(a) expressions used to denote persons generally (such as
“person”, “party”, “someone”, “anyone”, “no-one”, “one”, “another” and
“whoever”), include a body politic or corporate as well as an individual;
(aa) individual means a natural person;
(b) Month shall mean calendar month;
(c) Land shall include messuages tenements and
hereditaments, corporeal and incorporeal, of any tenure or description,
and whatever may be the estate or interest therein;
(d) Estate shall include any estate or interest charge right title
claim demand lien or incumbrance at law or in equity;
(e) Financial year means a period of 12 months commencing
on 1 July;
(f) Foreign country means any country (whether or not an
independent sovereign state) outside Australia and the external
Territories;
Rules as to gender and number
In any Act, unless the contrary intention appears:
(a) words importing a gender include every other
gender; and
(b) words in the singular number include the plural
and words in the plural number include the singular.
Attainment of particular age
For the purposes of any Act, unless the contrary
intention appears, the time at which a person attains a
particular age expressed in years is the commencement
of the relevant anniversary of the date of the birth of
that person.
Measurement of distance
In the measurement of any distance for the purposes of
any Act, that distance shall, unless the contrary
intention appears, be measured in a straight line on a
horizontal plane.
Reckoning of time
(1) Where in an Act any period of time, dating from a
given day, act, or event, is prescribed or allowed for any
purpose, the time shall, unless the contrary intention
appears, be reckoned exclusive of such day or of the day of
such act or event.
(2) Where the last day of any period prescribed or allowed
by an Act for the doing of anything falls on a Saturday, on a
Sunday or on a day which is a public holiday or a bank
holiday in the place in which the thing is to be or may be
done, the thing may be done on the first day following
which is not a Saturday, a Sunday or a public holiday or
bank holiday in that place.
Expressions of time
Where in an Act any reference to time
occurs, such time shall, unless it is
otherwise specifically stated, be
deemed in each State or part of the
Commonwealth to mean the standard
or legal time in that State or part of the
Commonwealth.
“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.”
 Interpretation
 Construction promoting purpose
 Whether purpose express or not
 Preferred
 To construction which does not promote purpose
 The Literal Approach
 Modified by The
Golden Rule, and
 The Purposive Approach
“The 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. [The s15AA
equivalent]* 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 ambiguity or
inconsistency before a court could have regard to purpose…The approach
required by [s15AA equivalent] 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 15AA] requires a court to construe an Act, not
to rewrite it, in the light of its purposes.”
“the requirement of s15AA(1) that
one construction be preferred to
another can have meaning only
where two constructions are
otherwise open, and s15AA(1) is not
a warrant for redrafting legislation
nearer to an assumed desire of the
legislature”
Engineers case (Amalgamated Society of Engineers v
Adelaide Steamship (1920) 28 CLR 129 at 161-2 Higgins J:
“The fundamental rule of interpretation, to which
all others are subordinate, is that a statute is to be
expounded according to the intent of the
Parliament that made it; and that intention has to
be found by an examination of the language used in
the statute as a whole. The question is, what does
the language mean; and when we find what the
language means, in its ordinary and natural sense,
it is our duty to obey that meaning, even if we
consider the result to be inconvenient or impolitic
or improbable.”
 Definitions sections
 Other sections around the one in question to get a feel
for the way in which words are used in the contentious
section
 Indices, headings to parts BUT NOT headings to
sections or marginal notes. (What is intrinsic to the
act and what is extrinsic is governed by the relevant
interpretation legislation.)
 Long title of the Act
 Preamble (if present)
 Dictionary
 Weitman v Katies Ltd (1977) ATPR 40-041
 Oxford Dictionary – meaning of ‘misleading’ and ‘deceptive’
in s52 TPA
 ACCC v Lux. [2004] FCA 926
 Dictionary – meaning of ‘unconscionable conduct in s51AB
TPA
 State Chamber of Commerce and Industry v
Commonwealth (1987) 163 CLR 329
 Macquarie Dictionary – meaning of “fringe benefits” within
ITAA
“…the duty of the 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.”
Lord Wensleydale in Grey v Pearson (1857) 6HL Cas 61 at 106:
“I have been long and deeply impressed with
the wisdom of the rule, now I believe
universally adopted, at least in the Courts of
Law in Westminster Hall, that in construing
wills and indeed statutes, and all written
instruments, the grammatical and ordinary
sense of the words is to be adhered to, unless
that would lead to some absurdity, or some
repugnance or inconsistency with the rest of
the instrument, in which case the
grammatical and ordinary sense of the words
may be modified, so as to avoid that absurdity
and inconsistency, but no farther.”
 A modification of the literal rule
 To fix drafting errors
 Adler v George [1964] 2 QB 7
 “in the vicinity of any prohibited place”
 to mean “in or in the vicinity of any
prohibited place.”
 ‘mischief rule’
 Rule in Heydon’s case
 Purpose of parliament?
 Refer to intrinsic and extrinsic
materials
Use extrinsic materials to answer:

What was the state of the law before the
enactment; and

What was the mischief the legislation was trying to
cure?



Second Reading Speech (Not the rest of the debate,
or any other material in Hansard, just the Second
Reading Speech – all the views of every member of
Parliament are not relevant to what Parliament
eventually decides to enact.)
Law Reform Commission reports
Reports by Royal Commissions
“The legislation relevant to the present
appeal…does nothing to add to the coherency
of this body of law. It is a jumble of illmatched and poorly integrated enactments. If
there is now to be found a common thread
through it all, it would seem to be nothing
more than revenue raising.
The conclusion suggests that the only safe
approach to the construction of the web of
applicable legislation is an attention to the
literal words of the legislation. A ‘purposive’
approach founders in the shallows of a
multitude of obscure, uncertain and even
apparently conflicting purposes.”
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187
CLR 384 at408 per Brennan CJ, Dawson, Toohey and
Gummow JJ:
“It is well settled that at common law, apart from
any reliance on s15AB 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.”
(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 the Act; 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.
(2) Without limiting the generality of subsection (1), the material that may be
considered in accordance with that subsection in the interpretation of a
provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the
document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform
Commission, committee of inquiry or other similar body that was laid before
either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either
House of the Parliament that was made to the Parliament or that House of the
Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in
the Act;
(e) any explanatory memorandum relating to the Bill containing the
provision, or any other relevant document, that was laid before, or furnished to
the members of, either House of the Parliament by a Minister before the time
when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on
the occasion of the moving by that Minister of a motion that the Bill containing
the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding
paragraph applies) that is declared by the Act to be a relevant document for the
purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes
and Proceedings of the House of Representatives or in any official record of
debates in the Parliament or either House of the Parliament.
 Relationship with s15AA
 Sets threshold tests which must be satisfied before
extrinsic material can be used
 Either common law or statutory tests must be satisfied
 Expands the categories of extrinsic material which may
be referred to
 Indicative not exhaustive list
 “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.”
“Reliance is also placed on a sentence in the second
reading speech of the Minister when introducing the
Consequential Provisions Act, but that reliance is
misplaced. Section 15AB of the Acts Interpretation
Act 1901 (Cth), as amended, does not permit
recourse to that speech for the purpose of departing
from the ordinary meaning of the text unless either
the meaning of the provision to be construed is
ambiguous or obscure or in its ordinary meaning
leads to a result that is manifestly absurd or is
unreasonable. In our view neither of those
conditions is satisfied in the present case.”
“The words of a Minister must not be substituted
for the text of the law. Particularly is this so when
the intention stated by the Minister but
unexpressed in the law is restrictive of the liberty
of the individual. It is always possible that
through oversight or inadvertence the clear
intention of the Parliament fails to be translated
into the law. However unfortunate it may be
when that happens the task of the court remains
clear. The function of the court is to give effect to
the will of Parliament as expressed in the law.”
 How does s15AA relate to the common law?
 How does s15AB relate to the common law?
Bermingham v Corrective Services Commission of New
South Wales (1988) 15NSWLR 292 McHugh JA at 302:
“To give effect to the purpose of the legislation, a
court may read words into a legislative provision
if by inadvertence Parliament has failed to deal
with an eventuality required to be dealt with if the
purpose of the Act is to be achieved.”
“[1]First, the court must know the mischief
with which the Act was dealing.[2]Secondly,
the court must be satisfied that by
inadvertence Parliament has overlooked an
eventuality which must be dealt with if the
purpose of the Act is to be achieved.[3]Thirdly,
the court must be able to state with certainty
what words Parliament would have used to
overcome the omission if its attention had
been drawn to the defect.”
*numbers added
“Construction must be text
based.”
 Latin Maxims
 Noscitur a sociis
 R v Ann Harris (1836) 7C&P 446
 Ejusdem generis
 Quazi v Quazi [1980] AC 744
“If any person unlawfully and maliciously shall
shoot at any person, or shall, by drawing a trigger,
or in any other manner, attempt to discharge any
kind of loaded arms at any person, or shall
unlawfully and maliciously stab, cut, or wound
any person with intent in any of the cases
aforesaid to maim, disfigure or disable such
person or to do some other grievous bodily harm
to such person, …such offender shall be guilty of a
felony.”
 “as a useful servant but a bad master.”
 “[Ejusdem generis] is, at best, a very secondary
guide to the meaning of a statute. The all
important matter is to consider the purpose of the
statute.”
 Scarman LJ
Statutes do not operate retrospectively
Maxwell v Murphy (1957) 96 CLR 261 at 267:
“The general rule of the common law is that a statute
changing the law ought not, unless the intention
appears with reasonable certainty, to be understood as
applying to facts or events that have already occurred in
such a way as to confer or impose or otherwise affect
rights or liabilities which the law had defined by
reference to the past events.”
Al-Kateb v Godwin (2004) 208 ALR 124 Gleeson
CJ at 130
“Courts do not impute to the legislature an
intention to abrogate or curtail certain
human rights or freedoms (of which personal
liberty is the most basic) unless such an
intention is clearly manifested by
unambiguous language, which indicates that
the legislature has directed its attention to the
rights or freedoms in question, and has
consciously decided upon abrogation or
curtailment.”
 Legislation does not deprive people of access to
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the courts
Re-enactment of a provision or word constitutes
approval of a previous judicial interpretation of
that provision or word
Penal provisions are strictly construed
Property rights are not taken away without
compensation
Parliament intends to legislate in conformity with
international law