TOPIC 7
STATUTORY INTERPRETATION
Legislation forms an increasingly important source of our law. The rules of statutory
interpretation govern how to read and interpret legislation. As Gifford & Gifford have
noted, legislation is not something that can be read like a book:
“[This] is because over the years the law has developed special rules that
govern the reading of the Act of Parliament. Every Act of Parliament must be
read in the light of those rules, and the person who attempts to read an Act of
Parliament without a working knowledge of the more important rules of
interpretation may fall into error” (Preface pp v-vi)
The courts play an important role in statutory interpretation, and so it is important to
understand the doctrine of precedent, which has been described as the accepted
intellectual framework within which judges are expected to reason. In its simplest
form it means that a question should be decided in a certain way today because a
similar question was so decided yesterday. However, there are a number of rules
which make up the doctrine of precedent and you need to know these to fully
understand how the doctrine is applied.
Materials
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Cook, Creyke et al, Part 3
Legislation
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Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB
Interpretation Act 1987 (NSW) ss 33, 34
Further Reading (case extracts)
These cases are provided as references for the cases to be discussed in lectures – it
does not constitute a mandatory reading list.
Telstra Corporation v Treloar (2000) 102 FCR 595
Lipohar v R (1999) 200 CLR 485
Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship (1920)
28 CLR 129)
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Grey v Pearson (1857) 6HL Cas 61
Adler v George [1964] 2 QB 7
Heydon’s case (1584) 3 Co Rep 7a at 7b
Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126
Mills v Meeking (1990) 169 CLR 214
R v L (1994) 49FCR 543
Bermingham v Corrective Services Commission of New South Wales (1988)
15NSWLR 292
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR
416
Re Bolton; Ex parte Beane (1987) 162 CLR 514
R v Ann Harris (1836) 7C&P 446
Quazi v Quazi [1980] AC 744
State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329
Al-Kateb v Godwin (2004) 208 ALR 124
Further reading
Vines
Parkinson
7.1
Interpretation of legislation
7.1.1
Importance of interpretation of legislation
7.1.2
Approaches to interpretation of legislation
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7.1.3
Statutory approach
o s15AA Acts Interpretation Act 1901 (Cth)
o s33 Interpretation Act 1987 (NSW)
o Mills v Meeking (1990) 169 CLR 214
Common law approaches:
o Literal
o Golden
o Purposive
Use of extrinsic materials
Common law
Statute
o s15AB Acts Interpretation Act 1901 (Cth)
o s34 Interpretation Act 1987 (NSW)
Specific rules/canons of construction


Maxims of interpretation:
o Noscitur a sociis – the meaning of a word or phrase is derived from its
context
o Ejusdem generis – where words of a particular meaning are followed
by words of a general meaning, the general words are limited to the
same kind as the particular words
Presumptions of interpretation
7.1.4
Judicial interpretation of statutes
7.2
Doctrine of precedent
7.2.1
Development and purpose of doctrine


7.2.2
Stare decisis
Hierarchical structure of courts
Rules of precedent
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
Each court is bound by the decisions of higher courts in the same judicial
hierarchy
The highest court in a judicial hierarchy can overrule its previous
decisions
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7.3
A judge does not have to follow the decisions of other judges at the same
level in the same judicial hierarchy
A decision of a court in a different hierarchy may be of considerable
weight but will not be binding
Only the ratio decidendi (the judge’s decision on the material facts) of a
case is considered binding
Obiter dicta, although not binding, may be very persuasive
Precedents are not necessarily abrogated by lapse of time – e.g. Pinnel’s
case(1602) 5 Co Rep 117
Statutory interpretation problems
Problems in text
7.3.1
Long problem question
Early in 1995, Australia participated in an international conference which drew up the
Convention on Piracy. The Convention created offences relating to the robbery of
ships and boats in national and international waters.
A Prevention of Piracy Bill is introduced into the House of Representatives and, in the
course of the second reading speech to the Bill, the Minister states as follows:
“The Prevention of Piracy Bill will apply to pirates who cannot at present be
reached by existing law."
The Commonwealth Parliament subsequently enacts the Prevention of Piracy Act
1996 ("Act"), the long title of which is "An Act to deal with robbery of ships and boats
in national and international waters." The Act receives the Royal Assent on 1 July
1996.
The Act includes the following provisions:
Possession of weapons on ships
4. Any person (other than an officer or crew member or a ship protection
officer) who possesses on board any ship, boat, ferry or any other transport
whatsoever, any firearm, ammunition, weapon or explosive substance, shall
be guilty of an offence punishable by 7 years' imprisonment.
Diversion of Ship
5. Any person who causes to be diverted or attempts to cause to be diverted
a ship from its scheduled course shall be guilty of an offence punishable by
life imprisonment.
Obligation to issue licences
6. If any person applies to become a ship protection officer, the Registrar of
Ship Protection Officers, if satisfied that the applicant is a fit and proper
person to be a ship protection officer, may issue the applicant with a ship
protection officer's licence.
Appointment of Registrar of Ship Protection Officers
7. (1) A Registrar of Ship Protection Officers shall be appointed by the
Governor- General.
(2) A person appointed under sub-section (1) shall hold office for such
period as is specified in the instrument of appointment.
On 30 July 1996, Howard, who is an amateur spearfisherman, is a passenger on a
train which is stopped by Federal Police at Bowral, New South Wales. He is found to
have a spear gun in his possession.
On 5 August 1996, a container ship is diverted from its scheduled course between
Melbourne and Brisbane by a storm and radio contact with the land is lost. Before the
captain can resume radio contact, Patricia, a cabin girl, unsuccessfully attempts to
force the captain to steer the ship into Sydney Harbour.
Howard is charged with an offence under s 4 of the Act and Patricia with an offence
under s 5.
Assuming the Act is within the constitutional power of the Commonwealth,
using the relevant rules of statutory interpretation, advise Howard and Patricia
on all the legal issues involved.
Acts Interpretation Act 1901 (Cth)
15AA Regard to be had to purpose or object of Act
(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.
15AB Use of extrinsic material in the interpretation of an Act
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any
material not forming part of the Act is capable of assisting in the ascertainment
of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning
conveyed by the text of the provision taking into account its context in the
Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking
into account its context in the Act and the purpose or object
underlying the Act leads to a result that is manifestly absurd or is
unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be
considered in accordance with that subsection in the interpretation of a provision
of an Act includes:
(a) all matters not forming part of the Act that are set out in the document
containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission,
committee of inquiry or other similar body that was laid before either
House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of
the Parliament that was made to the Parliament or that House of the
Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision,
or any other relevant document, that was laid before, or furnished to the
members of, either House of the Parliament by a Minister before the time
when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the
occasion of the moving by that Minister of a motion that the Bill
containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph
applies) that is declared by the Act to be a relevant document for the
purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and
Proceedings of the House of Representatives or in any official record of
debates in the Parliament or either House of the Parliament.
(3) In determining whether consideration should be given to any material in
accordance with subsection (1), or in considering the weight to be given to any
such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text of the provision taking into account its context in the
Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without
compensating advantage.
Interpretation Act 1987 (NSW)
33
Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a
construction that would promote the purpose or object underlying the
Act or statutory rule (whether or not that purpose or object is expressly
stated in the Act or statutory rule or, in the case of a statutory rule, in
the Act under which the rule was made) shall be preferred to a
construction that would not promote that purpose or object.
34
Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material
not forming part of the Act or statutory rule is capable of assisting in the
ascertainment of the meaning of the provision, consideration may be given to
that material:
(a)
to confirm that the meaning of the provision is the ordinary
meaning conveyed by the text of the provision (taking into
account its context in the Act or statutory rule and the
purpose or object underlying the Act or statutory rule and, in
the case of a statutory rule, the purpose or object underlying
the Act under which the rule was made), or
(b)
to determine the meaning of the provision:
(i)
if the provision is ambiguous or obscure, or
(ii)
if the ordinary meaning conveyed by the text of
the provision (taking into account its context in
the Act or statutory rule and the purpose or
object underlying the Act or statutory rule and,
in the case of a statutory rule, the purpose or
object underlying the Act under which the rule
was made) leads to a result that is manifestly
absurd or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be
considered in the interpretation of a provision of an Act, or a statutory rule
made under the Act, includes:
(a)
all matters not forming part of the Act that are set out in the
document containing the text of the Act as printed by the
Government Printer,
(b)
any relevant report of a Royal Commission, Law Reform
Commission, committee of inquiry or other similar body that
was laid before either House of Parliament before the
provision was enacted or made,
(c)
any relevant report of a committee of Parliament or of either
House of Parliament before the provision was enacted or
made,
(d)
any treaty or other international agreement that is referred to
in the Act,
(e)
any explanatory note or memorandum relating to the Bill for
the Act, or any other relevant document, that was laid before,
or furnished to the members of, either House of Parliament
by a Minister or other member of Parliament introducing the
Bill before the provision was enacted or made,
(f)
the speech made to a House of Parliament by a Minister or
other member of Parliament on the occasion of the moving
by that Minister or member of a motion that the Bill for the
Act be read a second time in that House,
(g)
any document (whether or not a document to which a
preceding paragraph applies) that is declared by the Act to be
a relevant document for the purposes of this section, and
(h)
any relevant material in the Minutes of Proceedings or the
Votes and Proceedings of either House of Parliament or in
any official record of debates in Parliament or either House of
Parliament.
(3) In determining whether consideration should be given to any material, or in
considering the weight to be given to any material, regard shall be had, in
addition to any other relevant matters, to:
(a)
the desirability of persons being able to rely on the ordinary
meaning conveyed by the text of the provision (taking into
account its context in the Act or statutory rule and the
purpose or object underlying the Act or statutory rule and, in
the case of a statutory rule, the purpose or object underlying
the Act under which the rule was made), and
(b)
the need to avoid prolonging legal or other proceedings
without compensating advantage.