Good decision-making for government
Interpreting legislation
The importance of legislation
A major role of government agencies is to administer legislation – a
term that includes Acts of Parliament, and regulations, by-laws and
similar instruments made under those Acts. Legislation is important to
government in many ways: it is used diversely to implement policies,
provide a framework for decision-making, regulate activity in the private
sector, and prohibit conduct. The success and validity of government
programs will often hinge on the correct interpretation of legislation.
Legislation can be difficult to interpret. Partly this arises from the length
and complexity of many Acts. The steady annual increase in the total
volume of legislation adds to the difficulty. Often the general principles
stated in legislation have to be applied in situations that could not be
foreseen at the time the legislation was drafted. In that sense, the
meaning given to legislation is a product not only of its text but also of
the principles of interpretation that are applied to the text.
This pamphlet is a statement of some of the main principles that
are applied by courts, tribunals and other administrative law review
bodies when they are called on to interpret legislation in the context of
evaluating the validity or propriety of government administrative action.
As that point implies, it is important in interpreting legislation to adopt
an objective approach – to bear in mind how a review body may view
the legislation. Ultimately it is the role of courts to decide conclusively
what the legislation means.
Interpreting legislation –
some guidelines
The text of the legislation
The first step in interpreting legislation is to identify
the particular section to be applied, and to establish
the plain and natural meaning of the words in
that section. The normal meaning of words is best
ascertained by using a standard English dictionary.
Sometimes, a special meaning is given to words by
the “definition” section of an Act, or the words will
have acquired a legal or technical meaning.
Commonly, within government, internal manuals are
prepared that interpret and explain the legislation
administered by agencies. Manuals can be very
useful as a distillation of agency experience and as
a paraphrase of the legislation. Caution, however,
is required in using a manual instead of the text of
legislation. Manuals, like the legislation they explain,
are often drafted without foreknowledge of the
infinite variety of situations to which the legislation
may have to be applied. Importantly, too, a court or
tribunal which is called on to interpret the legislation
in the context of resolving a dispute will pay little
regard, if any, to the text of the manual.
Interpretation in context
Many words, phrases and sentences in legislation
will have different shades of meaning. In deciding
which meaning, or range of meanings, to choose,
regard should be had to other features of the
Act – such as the title, headings, structure, and
surrounding sections. These other features of the Act
can be used to clarify, but not distort, the meaning of
particular sections.
Legislative purpose
and objectives
Underlying every Act is a purpose or range of
objectives that the Act is designed to attain.
Sometimes these will be stated expressly, usually
towards the front of the Act. Otherwise, the purpose
or objectives are to be identified by implication from
the topic, structure and provisions of the Act.
The individual parts of the Act should be interpreted
with a view to promoting these broader themes.
The purpose or objectives can, however, be an
indeterminate or elusive feature of an Act, and their
importance should not be overstated. There may
even be conflicting themes or objectives in an Act.
An example is freedom of information legislation,
which is designed both to facilitate openness and
to protect privacy and confidentiality. Ultimately,
therefore, primary emphasis should be given to the
words of the legislation that is being applied.
The human rights dimension
There is a growing emphasis in the Australian legal
system on human rights issues, especially the impact
of government decision-making on individuals.
This trend cannot be ignored when legislation is
being interpreted. It can be relevant in deciding
which shade of meaning should be chosen: ordinarily,
the preferred meaning is that which results in least
detriment to individual liberty, rights or privileges.
Furthermore, when a discretionary power is being
exercised, the decision-maker is required to have
regard before making a decision to the way in which
the decision may impact adversely on any individual.
Presumptions against detrimental action
Legislation frequently authorises action that is
detrimental or adverse to individuals and corporations.
Typical examples are the powers conferred upon
government agencies to revoke benefits and licences,
confiscate or quarantine property, enter private
premises, close down business operations, and put a
stop to harmful activity.
Legislative provisions of that kind are normally
interpreted narrowly or strictly. That is, the narrowest
shade of meaning will be given to the legislation,
unless it is unambiguously clear that detrimental
or adverse action was to be authorised. There are
presumptions of interpretation that augment this
principle, and these will apply to all legislation unless
the presumption is unambiguously overridden or
rebutted by the legislation.
Thus, specific wording is needed in
legislation before it can:
• impose a penalty, such as a fine
• authorise a financial charge or tax
• restrict a person’s freedom of movement or action
• authorise a government official to enter private property, or to confiscate private goods
• require a person to provide information that
is self-incriminating
• dispense with natural justice in making an adverse
or detrimental decision; or
• operate retrospectively, that is, apply to facts or
events that occurred before the legislation (or an
amendment to the legislation) commenced operation.
Subordinate legislation
The interpretation of subordinate legislation (eg. regulations) is governed
by the same principles that apply to other legislation. The main additional
principle is that a subordinate rule must be interpreted consistently with the
Act under which it was made. Words and phrases have the same meaning
in both the Act and the rule, and the subordinate rule cannot extend or alter
the scope or objectives of the Act.
In the absence of any contrary statement in the Act, the subordinate rule
cannot conflict with or override any other Act of Parliament.
Regulation of government
Legislation will usually state whether it “binds the Crown”, that is, whether
government agencies and personnel are themselves required to comply
with the legislation. If there is no statement to that effect, it is presumed
that the legislation does not inhibit activity by a minister, department or
other official, unless the objectives of the legislation would be distorted or
undermined by giving that immunity to them.
This presumption does not normally apply to statutory authorities and
government companies, that is, they are presumed to be bound by all
legislation. Generally, too, it is presumed that government officers are bound
to comply with any provision that has a criminal law penalty attached to it.
Commonwealth legislation can bind a State or Territory government agency
and, if so, will override any inconsistent State or Territory legislation.
State legislation, similarly, can bind a Commonwealth agency, provided
there is no inconsistent Commonwealth legislation, and that the State
legislation regulates but does not prevent the Commonwealth from
discharging its governmental functions.
Interpretation Acts
Some issues of legislative interpretation, because
they arise under more than one Act, are dealt
with generically in an Interpretation Act (or Acts
Interpretation Act). The rules of interpretation stated
in that Act will apply to all other legislation, unless
the contrary intention clearly appears from the other
legislation. Major topics dealt with in the Interpretation
Acts include:
• the commencement of new legislation, and the
effect of repealing or amending existing legislation
• the meaning of common terms, such as “minister”,
“department”, “document” and “prescribed”
• the rules for measuring distance, and calculating time
• the rules for serving, sending and posting documents
• the procedure for delegating functions under legislation
• the use that can be made of other documents
(such as official reports and parliamentary statements)
in interpreting ambiguous provisions in legislation
• the procedure for making subordinate legislation and
statutory instruments.
Clayton Utz acknowledges the contribution of Professor John McMillan
to the Good decision-making series.
Re-stating the legal requirements
Good decision-making for government is a series of eight pamphlets on administrative law,
prepared by the Government Services Group of Clayton Utz.
A legal perspective – ten major legal themes that permeate administrative law
Natural justice – a plain English guide to handling the legal complexities of natural justice
The role of policy – a legal guide to using government policy in administrative decision-making
Authorised decision-making – the legal principles on who can make a decision in an agency
Reasons for decision – a legal guide to preparing a written statement of reasons for a decision
Duty of care – an outline of the duty of government agencies to take reasonable care
Interpreting legislation – legal principles that control the interpretation of legislation
Fact finding – legal and evidentiary principles to guide fact finding on disputed issues
The Government Services Group of Clayton Utz provides administrative law training seminars, in a half-day
or briefer format. Seminars can be tailored to meet the requirements of your agency, and to explain how
administrative law applies to your agency. The legal staff of Clayton Utz are also available to provide
administrative law advice.
Call the Government Services Group of Clayton Utz on 1800 730 069 to obtain free copies of any of the
pamphlets in the series.
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Persons listed may not be
admitted in all states. This guide
is intended to provide general
information. The contents do
not constitute legal advice and
should not be relied upon as
such ©Clayton Utz 2006.