Interpretation legislation
 Acts Interpretation Act 1901 (Cth)
 Interpretation Act 1987 (NSW)
 ‘Contrary interpretation’ principle
Acts Interpretation Act:
 is a measure providing for the simplification of the
language of Acts of Parliament and the shortening of
their terminology. It constitutes in a sense a legal
dictionary, particular meanings being assigned by it to
particular phrases, which must be used over and over
again in almost every Act of Parliament.
 Alfred Deakin, Australia’s first Attorney-General, on
the second reading of the Acts Interpretation Bill on 6
June 1901.
Acts Interpretation Act
Part 1—Preliminary
Part 2—Definitions
Part 3—Commencement of Acts
Part 4—Amendment, repeal and expiry of Acts
Part 5—General interpretation rules
Part 6—Service of documents
Part 7—Powers, functions and duties
Part 8—Distance, time and age
Part 9—Citation of Acts
Part 10—Non-legislative instruments and
resolutions
Part 11—Regulations
Commencement
 Commencement: s3A
 28 day rule
 Calculation of time of day of commencement: s3
 Calculation of period of 28 days – clear on face of
section, but if required – s36
 http://www.comlaw.gov.au/Details/C2012C00001/Htm
l/Text#_Toc311805118
ACTS INTERPRETATION ACT 1901 - SECT 3
Meaning of commencement
(1) In every Act, commencement , in relation to an
Act or a provision of an Act, means the time at which the
Act or provision comes into operation.
(2) Where an Act, or any instrument (including any
rules regulations or by-laws) made granted or issued under
a power conferred by an Act, is expressed to come into
operation on a particular day (whether the expression
"come into operation" or "commence" is used), it shall
come into operation immediately on the expiration of the
last preceding day.
3A Commencement of Acts
(1) This section does not apply to an Act so far as it
provides for its commencement.
(2) An Act (other than an Act to alter the Constitution)
commences on the 28th day after the day on which that
Act receives the Royal Assent.
(3) An Act to alter the Constitution commences on the
day on which that Act receives the Royal Assent.
 Re Flavel [1916] SALR 47
Gap between old and new?
 If the new Act is replacing an older Act when does it
commence?
 The exact moment at which a repealed Act ceases to
apply and a new Act commences is said to be seamless
– no gap.
 No “hiatus nor any overlapping”:
Lipshut v MacKay [1950] VLR 57 per Deane J.
Prior to commencement?
 Delegated legislation, appointments etc
 S4 AIA
 S26 IA
4 Exercise of powers between enactment and commencement
of Act
Application of section
(1) This section applies if an Act is enacted and at a time (the start
time) after its enactment the Act will confer power to make an
appointment, or to make an instrument of a legislative or
administrative character (including rules, regulations or
by-laws), because:
(a) the Act will commence at the start time; or
(b) the Act will be amended at the start time by an Act that has
been enacted and that commences at that time.
Exercise of power before start time
(2) The power may be exercised before the start time as if the
relevant commencement had occurred.
(3) Anything may be done before the start time for the purpose of
enabling the exercise of the power, or of bringing the
appointment or instrument into effect, as if the relevant
commencement had occurred.
Repeal provisions
 Repeal of an Act will not mean repeal
of any rights or liabilities which have
accrued under that Act unless clear
words have been used.
 Part 4—Amendment, repeal and
expiry of Acts
e.g.s7 Effect of repeal or amendment of Act
No revival of other Act or part
(1) The repeal of an Act, or of a part of an Act, that
repealed an Act (the old Act) or part (the old
part) of an Act does not revive the old Act or
old part, unless express provision is made for
the revival.
No effect on previous operation of Act or part
(2) If an Act, or an instrument under an Act, repeals or amends an Act (the
affected Act) or a part of an Act, then the repeal or amendment does not:
(a) revive anything not in force or existing at the time at which the repeal or
amendment takes effect; or
(b) affect the previous operation of the affected Act or part (including any
amendment made by the affected Act or part), or anything duly done or
suffered under the affected Act or part; or
(c) affect any right, privilege, obligation or liability acquired, accrued or
incurred under the affected Act or part; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any
offence committed against the affected Act or part; or
(e) affect any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture or punishment
may be imposed, as if the affected Act or part had not been repealed or
amended.
Note: The Act that makes the repeal or amendment, or provides for the
instrument to make the repeal or amendment, may be different from, or
the same as, the affected Act or the Act containing the part repealed or
amended.
Interpretation
(3) A reference in subsection (1) or (2) to the repeal or
amendment of an Act or of a part of an Act includes a
reference to:
(a) a repeal or amendment effected by implication; and
(b) the expiry, lapsing or cessation of effect of the Act or part;
and
(c) the abrogation or limitation of the effect of the Act or
part; and
(d) the exclusion of the application of the Act or part to any
person, subject-matter or circumstance.
(4) A reference in this section to a part of an Act includes a
reference to any provision of, or words, figures, drawings or
symbols in, an Act.
References to other Acts
10 References to amended or re-enacted Acts
Where an Act contains a reference to a short title that is or was
provided by law for the citation of another Act as originally
enacted, or of another Act as amended, then:
(a) the reference shall be construed as a reference to that other Act
as originally enacted and as amended from time to time; and
(b) where that other Act has been repealed and re-enacted, with or
without modifications, the reference shall be construed as
including a reference to the re-enacted Act as originally enacted
and as amended from time to time; and
(c) if a provision of the other Act is repealed and re-enacted
(including where the other Act is repealed and re-enacted), with
or without modifications, a reference to the repealed provision
extends to any corresponding re-enacted provision.
Geographical connection
21 Office etc. means office etc. of the Commonwealth
(1) In any Act:
(a) references to any officer or office shall be construed as
references to such officer or office in and for the
Commonwealth; and
(b) references to localities jurisdictions and other matters
and things shall be construed as references to such
localities jurisdictions and other matters and things in and
of the Commonwealth.
(2) In this section:
office includes a position occupied by an APS employee.
officer includes an APS employee.
Gender/number
23 Rules as to gender and number
In any Act:
(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
18B Titles of Chairs and Deputy Chairs
Chair titles
(1) For the purposes of this section, each of the following
is a chair title:
(a) Chair;
(b) Chairperson;
(c) Chairman;
(d) Chairwoman.
Parts of speech
 18A Parts of speech and grammatical forms
In any Act 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.
ACTS INTERPRETATION ACT 1901 - s 35
Measurement of distance
In the measurement of any distance for the purposes of
any Act, that distance shall be measured in a straight
line on a horizontal plane.
Time and Age
 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 legal time in that State or part of the
Commonwealth.
 37A Attainment of particular age
For the purposes of any Act, 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.
s15AA
Original -s15AA
(1) 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
 Interpretation
 Construction promoting purpose
 Whether purpose express or not
 Preferred
 To construction which does not promote
purpose
Bryson J:
 These have not signalled any large new
turn in the construction of statutes.
The approach to these provisions thus
far appears to be appropriate to
treating them as declaratory, and in my
suggestion that is what they are.
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”
New s15AA
 27th December 2011
 15AA Interpretation best achieving Act’s purpose
or object
 In interpreting a provision of an Act, the
interpretation that would best achieve the purpose or
object of the Act (whether or not that purpose or
object is expressly stated in the Act) is to be preferred
to each other interpretation.
Why?
 99. Section 15AA, which deals with interpretation of Acts,
is currently expressed in absolute terms, ie. a construction
that will promote the purpose of an Act is to be preferred to
one that will not. Section 15AA does not address the
situation where there is a choice between two or more
constructions that will promote Parliament's purpose.
 100. The limited nature of section 15AA was confirmed by
three High Court judges in a case on the equivalent
Victorian provision (see Chugg v Pacific Dunlop Pty Ltd
(1990) 95 ALR 481 at 489, Dawson, Toohey and Gaudron
JJ). 101. Therefore section 15AA is being amended to provide
that a court is to prefer the construction of an Act that will
`best achieve' the purpose or object of the Act.
Construction of purpose clauses
 IW v City of Perth (1997) 191 CLR 1
 Victims Compensation Fund v Brown (2002) 54
NSWLR 668
 NSWCA
 High Court
Spigelman CJ quoting US Supreme
Court
 …No legislation pursues its purpose at all
costs. Deciding what competing values will
or will not be sacrifice to the achievement of
a particular objective is the very essence of
legislative choice – and it frustrates rather
than effectuated legislative intent
simplistically to assume that whatever
furthers the state’s primary objective must be
law
No purpose clause?
 Recall purposive approach at common law
 Intrinsic materials
 Extrinsic materials
Common Law
 Statute

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.”
Purpose?
 Structuring Purposive Statutory Interpretation – An
American Perspective (2006) 80 Australian Law Journal
849
 US approach
 Plain meaning
 Intentionalism
 Purposivism
 "That the intention
of the Holy Spirit is
to teach us how one
goes to heaven, not
how the heavens go.“
 Letter to the Grand
Duchess Christina
of Tuscany 1615