SHORT GUIDE TO STATUTORY INTERPRETATION
1.
Fundamental Rules
1.1
Regardless of the wording of an Act, the court is bound to give it some
meaning. The court cannot hold an Act void for uncertainty. Scott v
Moses (1958) 75 WN (NSW) 101.
1.2
The rules of interpretation are flexible and may apply differently in different
situation. Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424.
Interpretation using materials in the act
2.
Intrinsic Materials
2.1
The Crest, Regional Year, Number of the Act, enacting Words and table of
contents of the Act have no legal effect.
2.2
The long title and preamble to an act may be used to resolve ambiguities
but not to restrict or extend the otherwise plain meaning of the act.
2.3
The short title, according to English authority, may be used to resolve
ambiguities but not to restrict or extend the otherwise plain meaning of the
Act. Re Boaler [1915] KB 21 at 40-41.
2.4
The heading of an act made aid interpretation subject to the following:
2.4.1 Where the language of a section is clear the meaning of the heading
will give way to the clear meaning of the section.
2.4.2 Where the language of a section is more general, but not inconsistent
with the heading, then the section is read subject to the heading.
2.4.3 Where the language of a section is doubtful or ambiguous the meaning
of the section which would be consistent with the heading is adopted.
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR
309 (1985 157 CLR 309.
2.4.4
Heading to parts, divisions and subdivisions are considered part of an
act under Act Interpretation Act provisions. Qld 3.14(1), Cth s.13(1).
2.5
As to marginal notes (Bold type at the beginning of a section in
modern legislation) within an Act the effect of interpretation depends
on whether the marginal notes form part of the Act or not.
2.5.1 Where the marginal notes do not form part of the Act the Acts
Interpretation Acts. Qld s.14b and Cth s.15AB apply.
2.5.2 Where the marginal notes form part of an Act then the Acts
Interpretation Act Qld s.14(1) and Cth s.13(1) apply so that marginal
notes can be used similarly to headings.
2.6
Where a schedule appears in an act it forms part of the act and is to
be interpreted according to the plain words of the schedule.
2.7
Punctuation does not control the meaning of an act but it is not to be
wholly disregarded.
2.8
Where an act is divided into sections it is for convenience and does
not control the meaning of the act, but is not to be wholly disregarded,
similarly to punctuation.
2.9
Compliance with forms. Substantial compliance with forms as
specified by an act, is sufficient. AIA Qld s.49, AIA Cth S.25C.
3.
Syntactical Presumptions
3.1
Ejusdem Generis: Where a list of specific words is followed by more general
words, the meaning of the general words is restricted to the same class the
preceding specific words. e.g. horse, cow, pig, goat, sheep and other animals
would in isolation imply other four legged stock animals as coming within the
section but not domestic animals, birds or fish.
3.1.1 The Ejusdem Generis rule can be rebutted in the following circumstances:
(a)
(b)
(c)
where the specific words are so wide that a class cannot be
defined.
where applying the Ejusdem Generis rule would defeat the
general
purpose on object of the act
where the context in which the words appear suggests a wider
meaning.
3.1.2 The Acts Interpretation Act Qld s.14D and Cth S.15AD apply in
interpreting the use of examples in acts.
3.2
Noscitur A Sociis
3.3
Words of a feather, flock together. That is that the words of an act take their
meaning from the words that they are associated with.
Expressio Unius Est Exclusio Alterious
Where there is an express reference to one matter it indicates that other
matters are excluded. This will should be used cautiously.
3.4
Leges Posteriores priores Contrarias Abrogant
Later acts or provisions impliedly amend or repeal earlier inconsistent acts or
provisions to the extent of the inconsistency.
3.5
Generalia Specialibus Non Derogant
Later general provisions do not derogate from earlier specific provisions, but
are read subject to them.
3.5.1 For a comparison of Leges Posterior Es and Generalia Specialibus
see Hoger v Gibson, Exparte Noger [1987] 1 QdR 419 at 420-2.
3.6
There is a rebuttable presumption of Reddendo Singula Singulis which
would in effect put the word respectively at the end of a provision,
giving each to each.
3.7
Hendiadys can be used to aid interpretation where two words joined by
the word and present the one concept, e.g. rock and roll.
4.
Meaning of Words
4.1
The general rule is that an act is to be read as a whole. Words are to
be read in their context within the act as a whole.
4.2
The courts are prepared to use dictionaries to aid in the interpretation
of the ordinary meaning of a word, with the following qualifications:
4.2.1. Care must be taken when compounding words e.g. unfair
competition Lee v The Showmens Guild of Great Britain [1952] 2 QB
329 at 337-8.
4.2.2 The meaning of the word must be obtained from a dictionary of the
relevant jurisdiction.
4.2.3 The actual words in the act, and not synonyms of the words in the act,
are to be interpreted.
4.2.4 Dictionaries only provide opinions as the meaning of a word
4.3
As a general rule definition sections within acts and interpretation Act
provisions apply to the interpretation of an act, unless the contrary
intention appears. AIA (Qld) s.32A.
4.4
Where a word is defined in an act and a derivative of that word appears
in the act, the derivative will have a corresponding meaning to that of
the word defined. e.g. occupy, occupier, occupation.
4.4.1 See also AIA Qld s.32 and Cth s.18A
4.5
There is a rebuttable presumption that means is exclusive when used
in an act.
4.6
There is a rebuttable presumption the includes is inclusive when used
in an act.
4.7
Deemed is used to ascribe a meaning to a word or phrase
(a)
(b)
(c)
4.8
which is artificial; or
in order to put beyond doubt a particular constructive; or
in order to give a comprehensive meaning to the word which includes
the obvious the uncertain and the impossible.
Words are assumed to be used consistently throughout an act.
4.9
Where the same word could be used again in an act and a different
word is used, it is presumed that a different meaning was intended.
4.10
Words are to be given their current meaning such the act is always
speaking. The Council of the Shire of Lake Macquarie v Aberdare
County Council (1969) 123 CLR 327 at 330-1.
4.11
Where a word has acquired an establishment legal meaning e.g.
mortgagee, it will be interpreted in accordance with that meaning
unless the contrary intention clearly appears from the context of the
provision.
4.12
Where non-legal words have acquired a technical meaning the court
will determine if it has that technical meaning within the act.
4.12.1 The court will determine what is the technical meaning by
reference to evidence.
4.12.2 Expert evidence is not conclusive, the discretion rests with the
court.
4.13 Where a gender is referred to in an act it refers to all other genders
AIA Qld s.32B, AIA Cth s.23(a).
4.13.1 Tasmania, Victoria, South Australia, Western Australia and the
Northern Territory refer to male imputing female and vice versa.
4.14
Where the plural is referred to it implies the singular and vice versa.
AIA Qld s.32c and Cth s.23(b).
4.15
Where a person or party is referred to in an act it includes a
corporation. AIA Qld s.35 and Cth s.22(1).
4.16
Where a group of words or paragraphs as connected by or or and
between the second last and last words/paragraphs, then prima facie
the word or or and to be regarded as appearing between each
word/paragraph.
4.16.1 Prima facie and is used conjunctively, which means that all
words/paragraphs must be satisfied.
4.16.2 Prima facie or is used disjunctively so that only one word/paragraph
needs to be satisfied under the provision.
read as or or vice versa having regard to:
(a)
the context of the provision; or
(b)
where it is established that a mistake has been made in the draft
legislation.
4.17
Ut Res Magis Valeat Quam Pereat (it is better for a thing to have
effect than to be made void). Where two possible interpretations can
be made of a provision which are consistent with the wording, then the
interpretation which would make the provision valid and workable is to
be used.
4.18
Shall and may. There is no general rule for the determination of the
meaning of shall and may in a provision. The court will determine
whether the meaning of the word is mandatory or directory by
examination of each provision in the context in which it appears.
4.18.1 Shall is usually mandatory. May is usually directory.
4.18.2 The court will readily find that a contrary intention appears and that the
AIA does not apply notwithstanding AIA (Qld) s.32CA.
4.18.3 Shall as directory Hatton v Beaumont (1978) 20 ALR 314 at 315-319.
4.18.4 May as mandatory Re Fettel (1952) 528R (NSW) 221 at 22308.
5.
Jurisdictional Presumptions
5.1
Rebuttable presumption that parliament does not legislate beyond its
territorial jurisdiction.
5.2
Rebuttable presumption that parliament does not intend to legislate
contrary to the rules of international law.
5.3
Rebuttable presumption that parliament does not legislate to alter
common law doctrines nor invade common law rights.
5.4
Rebuttable presumption that parliament does not legislate to bind the
crown. Bropho v State of WA (1980-90) ;171 CLR 1.
5.5
Rebuttable presumption that parliament does not legislate to create
offences of strict liability.
5.6
An act is to be read down so as to be with in the constitutional power of
the relevant legislative. AIA Qld s.9 AIA Cth s.15A.
5.7
Delegated legislation is read down so as not to be beyond the power of the
enabling act. AIA Qld s.21, AIA Cth s.46(16).
5.8
6.
AIA Cth s.15AA cant be used to interpret the Cth constitution.
General Rules
6.1
Literal Rules - that the language of a statute be read in its ordinary and
natural sense.
6.1.2 Interpretation with regard to the intention of parliament is fond in the
words of the act when read as a whole. Amalgamated Society of
Engineers v Adelaide Steamship Co. Ltd (1920) 28 CLR 129 at 161-2.
6.2
Golden Rule - where the use of a word in its ordinary sense would lead
to an absurdity, repugnance or inconsistency with the rest of the
instrument then the meaning should be modified to avoid that result,
but not modified any more than necessary.
6.2.1 To use the golden rule there must be more than a mere irregularity.
6.2.2 The courts are prepared to correct a mistake which is the result of
a drafting or printing error.
6.2.3 The courts are not prepared to fill gaps in legislation which have
not been foreseen by the legislative.
6.2.4 The courts are prepared to treat words in a provision as emplasage
where those words are included as a result of incompetent
draftsmanship.
6.3
Mischief Rules (Heydons case (1584) 76 ER 637) Where there is
ambiguity or inconsistency in the legislation the court will look at the
remedy that Parliament intended to use the mischief and defect for which
the common law did not provide.
6.3.1 Modern approach. Cooper Brookes (Wollongong Pty Ltd v Federal
Commissioner for Taxation (1981) 147 CLR 297 at 319-323.
6.3.2 AIA Qld s.14A looks at the interpretation that would best achieve the
purpose of the act. AIA Cth s.15AA looks at the interpretation that
will
promote the purpose of the act. These provisions have a broader
application than the Mischief Rule because there are no preconditions
of ambiguity or inconsistency to use. NB S.15AA cant be used to
interpret the Cth constitution.
6.3.3 AIA acts apply to the interpretation of delegated legislation. AIA Cth
s.46(a). Statutory Instruments Act 1992 (Qld).
7.
Time
7.1
There is a general rule that an Act comes into effect on the date
specified or determined by the relevant Act.
7.1.1 Where the act is silent as to the date the AIA Qld s.15A and Cth
s.5 apply.
7.1.2 The time of the day at which the act commences is at the
beginning of the day is 12:00 am according to the common law
and see AIA Qld s.15B and Cth s.3(2).
7.2
There is a general rule that parliaments are presumed to legislate
prospectively and to only have limited power to legislate
retrospectively.
Polyukhorich v Cth of Australia (1990-1) 172
CLR 500.
7.2.1 This presumption is rebutted by
(d)
7.3
(a)
express provision
(b)
necessary implication or intention
(c)
if the Act or provision is declaratory in nature
if the Act or provision affects procedural process only
Rodway v R (1990) 169 CLR 515 at 518-24.
When measuring a length of time
(a)
(b)
(c)
where time runs from a particular day, act or event then that day is
excluded, and
where a provision expresseo time in clear days, the day for fulfilment
is also excluded
any other case includes the day for fulfilment. AIA Qld s.38(1) and
Cth s.36(1)
7.3.1 Beaumont of in Darwin Broadcasters Pty Ltd v Aust Broadcasting
Tribunal (1990) 95 ALR 138 held that the AIA Cth did not apply
where
the provision being interpreted said on a given day and the AIA said
from a given day.
7.3.2 Where the last day of the compliance period is not a business day the
next business day applies. AIA Qld s.38(2) and Cth s.36(2). NB S.36
defines business day as being a day which is not a Saturday, Sunday
or public holiday in the place where the act is to be done.
7.3.3 Where a document is to be filed on a day on which an office is closed
then the filing must be done on the next day that the office is open.
AIA Qld s.38(?).
7.3.4 Where there is no time specified then the act is to be done as
soon as possible. AIA Qld s.38(4).
8.
8.1
Preparatory Extrinsic Material
As a general rule parliamentary debates (Hansards) cannot be used to
directly interpret legislation. (Sillery v R (1981) 35 ALR 227 Murphy
J).
8.1.1 Parliamentary debates may be used to discover the object or
purpose of an Act. (Wacando The Commonwealth (1981) 148 CLR
1 Mason J).
8.1.2. Parliamentary debates may be used to examine the historical
background of an Act (Dugan v Mirror Newspapers Ltd (1978) 142
CLR 583 Stephen J).
8.2
General rule that the court cannot resort to drafts of bills to aid
interpretation whether introduced into parliament or not. (Compare SA
Commissioner for Prices and Consumer Affairs v Charles Moore
(Aust)
Ltd
(1977) 139 CLR 449 and Dugan v Mirror Newspapers Ltd (1978) 142
CLR 583).
8.2.1 Exception - the court have looked at drafts to the Cth Constitution
(The Seamens Union of Australia v Utah Development Co. (1978)
144 CLR 120).
8.3
It is the duty of the court to define the meaning of an act, not the
executive. Explanations and pamphlets produced by government
departments are not a guide for the courts. (Re Jauncey [1980] QdR
335).
8.4
There is a general rule that reports of committees of inquiry, Royal
commissions, law reform commissions and the like
8.5
(a) cannot be used to interpret legislation directly; but
(b) can be used to ascertain
(I) the object or purpose of an act; and
(ii) historical background.
(Wacol Development Pty Ltd v Realty Development Pty Ltd (1978) 140
CLR 503).
There is a general rule that international conventions and the like can
be resorted to resolve ambiguities in an Act.
8.5.1 Where a convention has been translated into English and there is a
conflict with the meaning in the original language, the latter prevails.
8.6
AIA Cth s.15AB Qld s.14B allows reference to extrinsic material to an
Act in certain circumstances.
8.6.1 The use of Cth s.15AB or Qld s.14B are not mandatory or conclusive.
8.6.2 The AIA can be used for three purposes only:
(1)
to confirm the meaning as the ordinary meaning conveyed by
the
text
(2)
to determine the meaning where ambiguous
(3)
to determine the meaning where the ordinary meaning in
context
of the act would be absurd or unreasonable.
9.
Additional Extrinsic material
9.1
As a general rule, where a provision in a current act is to be
interpreted
and a similar provisions appears in now repealed
legislation, the earlier previous provision can be resorted to aid
interpretation.
9.2
An act paria materia (an act dealing with the same subject matter of
the
same or another jurisdiction) can be consulted to interpret the
in question. (Danziger v The Hydro Electric Commission [1961] TAS
SR 20).
act
9.3
It is permissible to refer to other acts within a legislative scheme to
interpret the act in question.
9.4
There is a general rule that amending legislation which has gap filling
provisions may be referred to clear up ambiguities or doubts arising in
the interpretation of the earlier act. (Thompson v JT Fossey Pty Ltd
(No 1) (1978) 20 ALR 496).
9.5
There is a general rule that delegated legislation (eg regulations to be
made by the governor general) cannot be used to interpret the
provisions of an act.
9.5.1 Where the regulations are deemed to be part of an act once made
they can be used to aid interpretation. In the event of inconsistency
with the act the regulations must give way.
9.5.2 Where there is a provision in an act giving the power to amend an act
by regulation, the regulation has the same effect as an amending Act.
9.5.3 Where the act and regulations form part of a legislative scheme then
the regulations can be used to aid construction. (but in the opinion of
MacAdam and Smith at page 286 this is a departure from the
sovereignty of parliament and is questionable. See also Thorn EMI
Pty Ltd v FCT (1987) 71 ALR 728).
9.6
Consolidating Acts are presumed not to change the law except by
clear intention to do so.
9.7
Reprinted acts are for administrative ease and do not alter the law.
The court will remedy any defect in a reprint, the amendments to the
principal act prevail.
9.8
Where there is a codifying enactment to replace statutory and/or
common law material (eg Australian Corporations legislation) the
courts will examine the language of the act to determine its natural
meaning without looking at the previous law.
9.8.1 An appeal to previous decisions can only be made on special grounds9.9.
Where there are beneficial (conferring entitlement eg social security
legislation), penal (impose criminal liability) and taxing provisions the
ordinary rules of interpretation apply.
9.9.1 Exception - where there is an ambiguity in the provision it may be
resolved in favour of the citizen as a rule of last resort. (Beckwith v
R (1976) 135 CLR 569 at 576).
9.10
Where different words are used in the re-enactment of an earlier
provision, there is a rebuttable presumption that a change in meaning
was intended. See AIA Qld S.14C and Cth s.15AC.
10.
Judicial Decisions
10.1
There is a general rule that a decision by a court which is
subsequently re-enacted is identical terms by parliament, it is
presumed to have the meaning ascribed by the court.
10.1.1 As an exception to the rule where the subject of the judicial decision
is re-enacted in a consolidating act, the rules with regard to
consolidating Acts apply.
10.1.2 Where the decision is one of a junior court then the general rule is not
necessarily applicable.
10.2
There is a general rule that a decision by a court on an act paria
materia (an act with the same subject matter of the same or another
jurisdiction) is subsequently re-enacted in identical terms by
parliament, then it is presumed the act in question has the same
meaning ascribed by the court.
10.3
The doctrine of precedent governs judicial decisions made after the
enactment of a provision under review, where those judicial decisions
are made on that provision on a provision paria materia.