APPROACHES TO
STATUTORY
INTERPRETATION:
COMMON LAW
Section 14 of the Motor Traffic Act 1955 provides:
14. Cancellation of licence
Any court before which a person is convicted for any offence in
connection with the driving of a motor car may, if the person
convicted of the offence holds any licence to drive a motor car
under this Act, cancel or suspend the licence.
Zachary was the holder of a driver’s licence under the Motor Traffic
Act. When he was driving his car down the street he became
annoyed at the way another motorist, Tina, was driving. Zachary
followed Tina to a shopping centre where Tina parked her car.
Zachary stopped his car and went over to Tina who was still sitting
at the wheel of her parked car. Zachary said to Tina, “You’re a fool,
an imbecile and an idiot. You’re not fit to drive a golf ball, let alone
a motor car”. Zachary then punched Tina on the nose. Further
violence was prevented by passers by. Zachary was later convicted
of assault in the Local Court, fined $3000, and his licence was
suspended for 12 months under s 14. Advise Zachary as to
whether he has grounds for appeal.
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.
TEXT, CONTEXT, 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. (Note differences in Commonwealth
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’
• ‘false’
Semantic ambiguity - definitions
• Statutory definition prevails
• COMPETITION AND CONSUMER ACT 2010 - SECT
51ACA
Definitions (1) In this Part:
"consumer" , in relation to an industry, means a person to
whom goods or services are or may be supplied by
participants in the industry.
ACL (Schedule 2, CCA)
3 Meaning of consumer
Acquiring goods as a consumer
(1) A person is taken to have acquired particular goods as a consumer if, and only
if:
(a) the amount paid or payable for the goods, as worked out under subsections (4)
to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of this paragraph--that greater
amount; or
(b) the goods were of a kind ordinarily acquired for personal, domestic or household
use or consumption; or
(c) the goods consisted of a vehicle or trailer acquired for use principally in the
transport of goods on public roads.
(2) However, subsection (1) does not apply if the person acquired the goods, or
held himself or herself out as acquiring the goods:
(a) for the purpose of re-supply; or
(b) for the purpose of using them up or transforming them, in trade or commerce:
(i) in the course of a process of production or manufacture; or
(ii) in the course of repairing or treating other goods or fixtures on land.
But...
• Kennon v Spry (2008) 83 ALJR 145
• ‘property’ in FLA
• Despite statutory definition, Gummow and Hayne JJ:
• Attention must still be paid to: “the subject matter, scope and
purpose of the relevant statute” to determine its meaning in a way
which advances that purpose.
Syntactical ambiguity
• Hendiadys?
• Complete and furnish a return
• One idea or two
• 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.
Contextual 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.
If ambiguity….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.)
•
•
•
But Wacando v Commonwealth of Australia and the State of
Queensland (1981) 148 CLR 1
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.”
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
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 at 230:
• 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.
• E.g Sale of Goods (Vienna Convention) Act 1986 (NSW)
• http://www5.austlii.edu.au/au/legis/nsw/consol_act/sogca1
986308/
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
• E.g s13 AIA
• 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
TEXT, CONTEXT, PURPOSE
Context?
• CIC Insurance v Bankstown Football Club Ltd (1997) 187
CLR 384
• Context operates in its widest sense – to ‘include such
things as the existing state of the law and the mischief
which...one may discern the statute was intended to
remedy.’
• But... context or purpose?
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.
• Where a word is used consistently in legislation it is
assumed to have the same meaning
• Where a legislature could have used the same word
but chose not to, using a different word instead, it is
assumed that the legislature intended a different
meaning
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.
Consistency across legislation
• ACL
• Consumer guarantees commenced 2011
• Eg Fitness for purpose – s55
• Interpreted with?
• UK Sale of Goods Act
• S19(2) Sale of Goods Act 1923 (NSW)
• s71(1) Trade Practices Act 1974 (Cth)
• Updating – s15AC AIA
• Merchantable/acceptable?
• Words to be interpreted in accordance with their ordinary
and current meaning
• Legislation deemed to be always speaking vs
contemporanea exposition est optima et fortissimo in lege
• Chappell and Co Ltd v Assoc Radio Co of Australia Ltd
[1925] VLR 350
• Re Treneski and Comcare (2004) 80 ALD 760
• BUT...presumption
• Barker J – First you see it, then you don’t. Harry Houdini and
the art of interpreting statutes
http://www.fedcourt.gov.au/publications/judges-speeches/justice-barker/barker-j20121005
24 In these regards, the recent decision of the Full Federal Court
in National Rugby League Investments Pty Limited v Singtel Optus Pty
Ltd[20] is also instructive. The Full Federal Court had to deal with the
meaning of the word "make" in the Copyright Act 1968 (Cth) in
circumstances where Optus was said to be unlawfully using the
intellectual property of the appellants. The Court[21] noted that two
matters bearing on interpretation had been themes in the case, the
first being what was described as a "technologically neutral
interpretation", the second being described as "interpretation informed
by legislative policy". The Court accepted[22] that the desirability of
technological neutrality – of not limiting rights and defences to
technologies known at the time when those rights and defences were
enacted – had been acknowledged for some time and was one of the
declared objectives in the explanatory memorandum to the 1999 Bill
amending the Act. However the Court[23] (Finn, Emmett and Bennett
JJ) stated:
We are conscious that the construction which we are satisfied the
language of s 111 requires is one that is capable of excluding, and
does in fact in this instance exclude, the later technological
development in copying. However, no principle of technological
neutrality can overcome what is the clear and limited legislative
purpose of s 111. It is not for this Court to re draft this provision to
secure an assumed legislative desire for such neutrality: R v L (1994)
49 FCR 434 at 538.
25 This led the Court to address the issue it called
"interpretation informed by legislative policy". It observed[24]:
In varying guises and to differing extents, this has been a tool
of statutory interpretation for many centuries. Its historical
exemplar was the doctrine of the 'equity of the statute': see
Nelson v Nelson (1995) 184 CLR 538 at 552-554; Comcare v
Thompson (2000) 100 FCR 375 at [40]-[43]. Its principal
modern manifestation is in that form of purposive construction
enjoined by s 15AA of the Acts Interpretation Act 1901 (Cth).
However, if the apparently confined words of a statute are
to be given a more extended scope, not only must they be
capable as a matter of language of sustaining such an
extension, there must also be some indication in the
legislation, its purpose and context of whether, and if so
how, the legislature would wish to extend what, on its face,
is the confined scope of the statute or of a section of it:
see Woodside Energy Ltd v Federal Commissioner of
Taxation (2009) 174 FCR 91 at [51]. (emphasis added)
• De minimis non curat lex
Syntactical Presumptions
• Contextual reading
:
• 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
• Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696
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
• Class rule
• Attorney-General v Brown [1920] 1 KB
773 - the importation of arms,
ammunition, gunpowder, or any other
goods...
Quazi v Quazi [1980]AC 744
• Scarman LJ at 883H
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.”
• “as
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
• Salemi v Minister for Immigration and Ethnic
Affairs (No 2) (1977) 14 ALR1 BUT
• Bass v Permanent Trustee Co Ltd (1999) 198
CLR 334
• Expressum facit cessare tacitum
• Generalia specialibus non derogant
• Resolve internal conflicts
• Reddendo singular singulis
• Paint or varnish may be dissolved by turpentine
or kerosene
The Roads Act 1920 (NSW) contains the following sections:
S3: In this Act “traffic sign” shall include all signals,
warnings, signposts, direction posts, or devices.
S35: Any person who deliberately obscures any traffic sign
or any part of a traffic sign shall be guilty of an offence.
Harry, as a joke, uses phosphorescent paint to make rude
drawings on a number of yellow diamonds which had been
painted on the road to warn motorists that they were
approaching a pedestrian crossing. He is apprehended by
the police and charged under s35 of the Roads Act.
Using and stating the relevant rules of statutory
interpretation advise Harry.