Statutory
Interpretation
Topic 7
Reading statutes:
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Focus on the section
Break it into its elements
Determine the meaning of each of those
elements
Context in Act
 Judicial interpretation
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Elements of a section
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The elements of a section form a checklist –
not a shopping list.
Unless it is drafted in the alternative, each
element must be satisfied.
Statutory interpretation
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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?
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Statutory Interpretation:
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Relevant legislation
Acts Interpretation Act 1901 (Cth)
 Interpretation Act 1987 (NSW)
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As interpreted by courts (common law)
 In the context of common law principles which
survive interpretation statute.
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Preliminaries:
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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
Which legislation?
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Determine which Parliament passed the Act to
be interpreted
That is the Interpretation legislation you will use
Commencement
AIR PASSENGER TICKET LEVY
(COLLECTION) ACT 2001 (Cth)
s 2 Commencement
This Act commences, or is taken to have
commenced, on 1 October 2001.
Commencement
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.
ACTS INTERPRETATION ACT 1901
- s 18A
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.
s 22 Meaning of certain words
(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;
(g) Calendar month means a period commencing at the beginning of a day of
one of the 12 months of the year and ending immediately before the beginning of the
corresponding day of the next month or, if there is no such corresponding day, ending at
the expiration of the next month;
(h) Calendar year means a period of 12 months commencing on 1 January;
and
(j) Contravene includes fail to comply with.
ACTS INTERPRETATION ACT 1901
- s 23
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.
ACTS INTERPRETATION ACT 1901
- s 25E
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.
ACTS INTERPRETATION ACT 1901
- s 35
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.
ACTS INTERPRETATION ACT 1901
- s 36
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.
ACTS INTERPRETATION ACT 1901
- s 37
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.
s15AA
“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.”
Elements
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Interpretation
Construction promoting purpose
Whether purpose express or not
Preferred
To construction which does not promote
purpose
Common law approaches
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The Literal Approach
The Golden Rule, and
The Purposive Approach
Mills v Meeking
(1990) 169 CLR 214, Dawson J at 235:
“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.”
RvL
(1994) 49FCR 543, Burchett, Miles and Ryan JJ at 548
“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”
Literal approach
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.”
Intrinsic materials
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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)
‘Natural and ordinary meaning’
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Dictionary
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Weitman v Katies Ltd (1977) ATPR 40-041
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ACCC v Lux. [2004] FCA 926
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Oxford Dictionary – meaning of ‘misleading’ and
‘deceptive’ in s52 TPA
Dictionary – meaning of ‘unconscionable conduct in
s51AB TPA
State Chamber of Commerce and Industry v
Commonwealth (1987) 163 CLR 329
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Macquarie Dictionary – meaning of “fringe benefits”
within ITAA
Project Blue Sky Inc v Australian
Broadcasting Authority
(1998) 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ at 384
“…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.”
Golden rule
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.”
Golden 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.”
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Purposive approach
‘mischief rule’
 Rule in Heydon’s case
 Purpose of parliament?
 Refer to intrinsic and extrinsic materials
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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?
Extrinsic materials
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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
Avel Pty Ltd v Attorney-General for
NSW (1987) 11 NSWLR 126 Kirby P at 127
“The legislation relevant to the present
appeal…does nothing to add to the coherency of
this body of law. It is a jumble of ill-matched 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.”
Extrinsic materials under statute
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.”
s15AB – extrinsic materials
(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.
s15AB/s34
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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
Re Australian Federation of
Construction Contractors; Ex parte
Billing (1986) 68 ALR 416 at 420
“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.”
Re Bolton; Ex parte Beane
(1987) 162 CLR 514 Mason CJ, Wilson and Deane JJ at 517-18:
“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.”
s15AA and the golden rule
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.”
Bermingham’s case
“[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
R v Young
(1999) 46 NSWLR 681at 687 per Spigelman CJ:
“Construction must be text
based.”
General Principles of
Interpretation
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Latin Maxims
 Noscitur a sociis
 R v Ann Harris (1836) 7C&P 446
 Ejusdem generis
 Quazi v Quazi [1980] AC 744
Ann Harris case
“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.”
Quazi v Quazi
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“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
Presumptions
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.”
Parliament does not interfere with
fundamental rights.
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.”
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Legislation does not deprive people of
access to 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