Example of statutory interpretation
 K-Generation Pty Limited v Liquor Licensing
Court [2009] HCA 4
 French CJ
 http://www.austlii.edu.au/au/cases/cth/HCA/2009/4.
html
s28A Liquor Licensing Act
LIQUOR LICENSING ACT 1997 - SECT 28A
28A—Criminal intelligence
(1)
Information that is classified by the Commissioner of Police as
criminal intelligence for the purposes of this Act may not be disclosed to any
person other than the Commissioner, the Minister, a court or a person to
whom the Commissioner of Police authorises its disclosure.
(2)
If a licensing authority—
(a)
refuses an application for a licence, the transfer of a licence or an
approval, or takes disciplinary action against a person, or revokes or proposes
to revoke an approval under Part 4 Division 10A; and
(b)
the decision to do so is made because of information that is
classified by the Commissioner of Police as criminal intelligence,
the licensing authority is not required to provide any grounds or reasons for
the decision other than that to grant the application would be contrary to the
public interest, or that it would be contrary to the public interest if the
person were to be or continue to be licensed or approved, or that it would be
contrary to the public interest if the approval were to continue in force.
(3)
If the Commissioner of Police lodges an objection to an
application under Part 4 because of information that is
classified by the Commissioner of Police as criminal
intelligence—
(a)
the Commissioner of Police is not required to serve
a copy of the notice of objection on the applicant; and
(b)
the licensing authority must, at least 7 days before
the day appointed for the hearing of the application, advise the
applicant in writing that the Commissioner of Police has
objected to the application on the ground that to grant the
application would be contrary to the public interest.
(4)
If the Commissioner or the Commissioner of Police
lodges a complaint under Part 8 in respect of a person because
of information that is classified by the Commissioner of Police
as criminal intelligence, the complaint need only state that it
would be contrary to the public interest if the person were to be
or continue to be licensed or approved.
(5)
If the Commissioner of Police bars a person from entering or remaining on
licensed premises by order under Part 9 Division 3 because of information that is
classified by the Commissioner of Police as criminal intelligence, the order need
only state that it would be contrary to the public interest if the person were not so
barred.
(5a)
In any proceedings under this Act to be determined by the
Commissioner, the Commissioner must maintain the confidentiality of
information classified by the Commissioner of Police as criminal intelligence.
(5b)
In any proceedings under this Act to be determined by the Court or the
Supreme Court, the Commissioner or the Commissioner of Police may apply to the
court for a determination that information classified by the Commissioner of Police
as criminal intelligence is criminal intelligence.
(5c)
The court must maintain the confidentiality of information that is the
subject of an application under subsection (5b).
(5d)
If, on an application under subsection (5b), the court proposes to
determine that the information is not criminal intelligence, the applicant must be
informed of the proposed determination and given the opportunity to withdraw
the information from the proceedings.
(5e)
If the court determines that the information is criminal intelligence or
the information is withdrawn, the court must continue to maintain the
confidentiality of the information.
(5f)
The confidentiality of information is maintained only if—
(a)
the information is not used except for the purposes of the proceedings; and
(b)
the information is not disclosed to any parties to the proceedings (other than
the Commissioner or the Commissioner of Police), the representatives of such parties or
any member of the public; and
(c)
evidence and submissions about the information are received and heard in
private in the absence of any parties to the proceedings (other than the Commissioner or
the Commissioner of Police) and the representatives of such parties and are not disclosed
to any member of the public; and
(d)
the information is not disclosed in any reasons for decision.
(5g)
The Commissioner or the court may take any steps it considers appropriate to
maintain the confidentiality of the information.
(5h)
The duties imposed by this section on the Court and the Supreme Court apply
to any court dealing (on appeal or otherwise) with information that has been determined
to be criminal intelligence or with the question of whether information classified by the
Commissioner of Police as criminal intelligence is criminal intelligence.
(6)
The Commissioner of Police may not delegate the function of classifying
information as criminal intelligence for the purposes of this Act except to a Deputy
Commissioner or Assistant Commissioner of Police.
(7)
A delegation by the Commissioner of Police under subsection (6)—
(a)
must be by instrument in writing; and
(b)
may be absolute or conditional; and
(c)
does not derogate from the power of the Commissioner of Police to act in any
matter; and
(d)
is revocable at will by the Commissioner of Police.
Common law approaches
The Literal Approach
Modified by The Golden Rule,
and
The Purposive Approach
Literal approach
 French CJ in K-Generation case at [46]:
The point of departure in that exercise
is the ordinary and grammatical sense
of the words having regard to their
context and legislative purpose.
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 -context
 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’
 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
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
 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.”
And/or
 R v Oakes [1959] 2QB 350
 ‘Any person who aids or abets and does
any act preparatory to the commission
of an offence’ was a mistake for ‘or’
Purposive approach
 ‘mischief rule’
 Rule in Heydon’s case
 Ambiguity or inconsistency
 Purpose of parliament?
 Refer to intrinsic and extrinsic
materials
Ambiguity
Semantic
Syntactical
Contextual
Semantic ambiguity
 Use of general words
 ‘significant’?
 Fallas v Mourlas Ipp JA at [14]: But what does “significant”
mean in s 5K? I think it is plain that it means more than
trivial and does not import an “undemanding” test of
foreseeability as laid down in Wyong Shire Council v Shirt
[1980] HCA 12;
 Words with more than one meaning
 ‘light’
 ‘lab tested’
Syntactical ambiguity
 Hendiadys?
 Misleading or deceptive?
Gibbs CJ in Parkdale v Puxu:
 8. The words of s. 52 require the Court to consider the nature
of the conduct of the corporation against which proceedings
are brought and to decide whether that conduct was, within
the meaning of that section, misleading or deceptive or likely
to mislead or deceive. Those words are on any view
tautologous. One meaning which the words "mislead" and
"deceive" share in common is "to lead into error". If the word
"deceptive" in s. 52 stood alone, it would be a question whether
it was used in a bad sense, with a connotation of craft or
overreaching, but "misleading" carries no such flavour, and the
use of that word appears to render "deceptive" redundant. The
words "likely to mislead or deceive", which were inserted by
amendment in 1977, add little to the section; at most they
make it clear that it is unnecessary to prove that the conduct in
question actually deceived or misled anyone.
Ambiguity
 Fallas v Mourlas [2006] NSWCA 32
 http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/32.
html
 As Ipp JA tells us at [44]
 The matter is essentially one of statutory construction. In a
case of clear ambiguity (as is the case with s 5K and s 5L), a
construction that might result in potential unfairness and
injustice should be avoided and a fair and just construction
is to be preferred. There are no other policy factors
involved. Deciding issues under s 5L by reference to all the
circumstances that actually occurred may benefit a plaintiff
in one case and a defendant in another.
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



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 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.”
Other common law approaches
 Legislation adopts international convention or treaty?
 Interpret consistently with international principles
for reading treaties: Shipping Corp of India Ltd v
Gamlen Chemical Co (A’asia) Pty Ltd (1980) 147 CLR
142 at 159
 Legislation incorporates provisions of treaty?
 Determine meaning in accordance with the treaty
provisions, eg Vienna Convention on Interpretation
of Treaties: Applicant A v Minister for Immigration
and Ethnic Affairs (1997) 190 CLR 225
Vienna Convention on
Interpretation of Treaties
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in
their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its preamble
and annexes:
(a) any agreement relating to the treaty which was made between
all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by
the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the
context:
(a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties
regarding its interpretation;
(c) any relevant rules of international law applicable in
the relations between the parties.
4. A special meaning shall be given to a term if it is
established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of
interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order
to confirm the meaning resulting from the application
of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or
unreasonable.
Brennan CJ:
 If a statute transposes the text of a treaty into the
statute so as to enact it as part of domestic law, the
prima facie legislative intention is that the transposed
text should bear the same meaning in the domestic
statute as it bears in the treaty. To give it that meaning,
the rules applicable to the interpretation of treaties
must be applied to the transposed text and the rules
generally applicable to the interpretation of domestic
statutes give way.
Common law principles
 General words to be given their primary and
natural significance
 General words to be given their legal meaning
 All words have meaning and effect
 Words of limitation to be given effect
Grammatical principles
 Act to be read as a whole
 Mason J in K & S Lake City Freighters Pty Ltd v Gordon
& Gotch Ltd (1985) 60 ALR 509 at 514:
 ...to read the section in isolation from the
enactment of which it forms a part is to
offend against the cardinal rule of statutory
interpretation that requires the words of a
statute to be read in their context
Words are assumed to be used consistently
 Re Castioni [1891] 1 QB 149 at 167-168:
 It is not enough to attain a degree of
precision which a person reading in good
faith can understand; but it is necessary
to attain if possible to a degree of
precision which a person reading in bad
faith cannot misunderstand.
Hodges J in Craig Williamson Pty Ltd v
Barrowcliff
[1915] VLR 450 at 452:
 I think it is a fundamental rule of construction that any
document should be construed as far as possible so as
to give the same meaning to the same words wherever
those words occur in that document, and that that
applies especially to an Act of Parliament, and with
especial force to words contained in the same section of
an Act. There ought to be very strong reasons present
before the Court holds that words in one part of a
section have a different meaning from the same words
appearing in another part of the same section.
Intention paramount
 Higgins J in Commissioner of Taxes (Vic) V Lennon (1921)
29 CLR 579 at 590:
 There is sound sense in the statements contained in
Maxwell’s Interpretation of Statutes, 6th ed. Pp 557,564,
to the effect that although it is always well to use the
same word for the same thing and not to change the
language unless a change in meaning is intended, the
presumption that arises from variations in language is
of very slight force if the words in themselves are
sufficiently clear.
 Words to be interpreted in accordance with their
ordinary and current meaning
 Legislation deemed to be always speaking/
contemporanea exposition est optima et
fortissimo in lege
 De minimis non curat lex
Syntactical
Presumptions
 Contextual reading
 Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696:
 Sentences are not mere collections of words to be
taken out of the sentence, defined separately by
reference to the dictionary or decided cases, and then
put back again into the sentence with the meaning
which one has assigned to them as separate words, so
as to give the sentence or phrase a meaning which as a
sentence or phrase it cannot bear without distortion of
the English language
Noscitur a sociis
R
v Ann Harris (1836)
7C&P 446
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.”
 Ejusdem generis

Attorney-General v Brown [1920] 1 KB
773 - the importation of arms,
ammunition, gunpowder, or any other
goods...
Quazi v Quazi
 “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
Mahoney JA in Mattison v Multiplo Incubators Pty Ltd
[1977] 1 NSWLR 368 at 373:
 The ejusdem generis approach of reasoning
has had a long but varied history; is based
upon a doubtful premise; operates by a
mechanism which is uncertain; and to the
extent that it presently operates, in my
opinion, has real effect to determine the
construction of a statute only in a limited
area
 Expressio unius est exclusio alterius
 Expressum facit cessare tacitum
 Generalia specialibus non derogant
 Reddendo singular singulis