Modern Statutory Interpretation: An Overview

Modern Statutory Interpretation: An Overview

Throughout Australian jurisprudence, there have been a variety of approaches to the interpretation of legislation at different times. Presently, we have two dominant approaches: one under statute; and another at common law. Both are similar yet also different, and the courts are not often clear which they are employing, if any. The following broadly outlines these two approaches and how they have been employed by modern Australian courts.

Under Statute – Acts Interpretation Act 1901 (Cth) s 15AA
Under the Acts Interpretation Act 1901 (Cth), s 15AA, courts are required, “In interpreting a provision of an Act, [to adopt] 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)”. This construction is to be preferred to any other interpretation.[1] Section 15AA was considered by Dawson J in Mills v Meeking (1990) 69 CLR 214 at 235, where his Honour stated that the purposes of an Act “are to be taken into account in construing the provisions… not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open.” This means the court must look to the purposes of a statute at first instance, not simply where the text is ambiguous. However, such can not simply override the wording of the text otherwise adopted by the draftsman; it must be consistent with it.[2]

Extrinsic Materials – Acts Interpretation Act 1901 (Cth) s 15AB
An issue with the purposive approach arises though, where the text is not only ambiguous, but admits of different purposes when read in the context of the legislation as a whole. In this situation, s 15AB allows a court to refer to extrinsic materials: (a) to confirm the meaning of a provision is its ordinary meaning, taking into account the Act as a whole and its purpose; or, (b) to determine the meaning of the provision where its text is (i) “ambiguous or obscure” or (ii) its ordinary meaning in light of the purpose and context of the Act would lead “to a result that is manifestly absurd or is unreasonable.” [3] The question though, is when at what stage of the interpretive process may extrinsic materials be considered. Pearce and Geddes in Statutory Interpretation in Australia write that s 15AB contains “an inference that the underlying purpose or object of a provision will have already been established when the possible application of those provisions is considered.”[4] An exception is possibly s 15AB(1)(b)(i) that states an ambiguity in the text may be resolved by reference to the purpose or policy disclosed in the extrinsic materials.[5] This is not, however, the approach courts have taken. For example in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at 471-2, Lindgren J held, “Section 15AB(1)(a) and (b)(ii) and subs (3) assume that the ordinary meaning of a provision “taking into account its context in the Act and the purpose or object underlying the Act” has been identified before any occasion arises for the consideration of extrinsic materials in accordance with those provisions.” Despite the wording of s 15AB then, the courts have construed the section as not allowing purpose to be established by reference to extrinsic materials.[6] The text is paramount and only where the words are unclear may extrinsic materials be considered. Yet where a provision is textual ambiguous and admits of more than one purpose, how does one establish its operation without considering extrinsic materials? The answer is in the practical approach adopted by the courts in applying ss 15AA and 15AB, and the approach of the common law.

At Common Law – The Modern Approach
The High Court (Brennan CJ, Dawson, Toohey and Gummow JJ) in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 stated that,

… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

These two principles are frequently invoked together with references to ss 15AA and 15AB yet, being derived from the common law, are qualitatively different from the position under the Acts Interpretation Act 1901 (Cth), insofar as the statutory context as disclosed by extrinsic materials is considered at the outset, not after such is ascertained solely by reference to the text. That being said, the consideration of extrinsic materials at first instance does not deny the primacy of the text; the language of the legislation “is [still] the surest guide of legislative intention”.[7] Nonetheless, the judgment cited above in CIC Insurance Ltd and Alcan (NT) Alumina Pty Ltd invoked the statutory “context”, itself a much wider term than “purpose”. While courts have held that such items as ministerial speeches and statements of public servants are “seldom”[8] or “unlikely”[9] to be helpful, such has not been prohibited from being proffered, or dismissed as never being of assistance in ascertaining legislative purpose. Therefore, while the context in which a statute came into existence may, in effect, be reduced in utility to considerations of mischief and purpose, it nonetheless admits of a wide variety of material and, in the common law modern approach, can be invoked in ascertaining purpose at the first link in the interpretive chain, not later as under the Acts Interpretation Act 1901 (Cth).

How the approaches are applied
As alluded to above, the courts have adopted a practical approach in applying the Acts Interpretation Act 1901 (Cth); one that is often employed using the common law principles discussed above. An example is the High Court decision in Minister for Immigration & Citizenship v SZJGV (2009) 238 CLR 642 cited by former Chief Justice Spigelman of the Supreme Court of New South Wales in The intolerable Wrestle: Developments in Statutory Interpretation (2010) ALJ 822 where he examined a number of recent cases on statutory interpretation. From that case, he considers two joint judgments that approached the task in differing ways. The first (French CJ and Bell J) stated the task of interpretation begins with “the ordinary meaning of the words “having regard to their context and legislative purpose” (at [5])”, while the other (Crennan and Keifel JJ) “referred to “the context, general purpose and policy” of the statutory provision being “the surest guide to construction” (at [47]).” In turn, one cited CIC Insurance as authority for the position that a court may only depart from a term’s natural and ordinary meaning if the result would otherwise be irrational by one (at [9]), while the other joint judgment cited case as authority “for the proposition that “the modern approach to statutory construction uses context” in its widest sense (at [47])”.[10] That being said, both joint judgments had recourse to extrinsic materials in ascertaining the legislative purpose.[11] The former chief justice ultimately concluded that while “the basic principles do not appear to be in dispute. It is the application of these principles that differences emerge.”[12] This demonstrates a flexible approach taken by the courts, but also one liable towards admitting of differing and somewhat unpredictable results. Therefore several factors must be kept in mind. Firstly, the courts will consider the text at first instance, and will have recourse to purpose (if stated) and context of the legislation in either upholding or overturning a preliminary view of the text. Secondly, if the text is unclear, either on its face or with reference to its purpose and context, the courts will consider extrinsic materials, often being explanatory memorandum, second reading speeches and law reform commission reports. This approach is in accordance with both that mandated under the Acts Interpretation Act 1901 (Cth) and by the common law modern approach. Finally, the approach adopted by the courts is not often well articulated. I have read many decisions that are clearly statutory interpretation decisions, which make no reference to any of the statutory provisions and cases discussed above, but whose rationales and principles are clearly present therein. This is why practitioners should be mindful of the approaches to statutory interpretation as a tool of basic legal reasoning that permeates so much of modern day legal practice.

[1] The state and territorial equivalents to s 15AA are: Legislation Act 2001 (ACT), s 139; Interpretation Act 1987 (NSW), s 33; Interpretation Act 1987 (NT), s 62A; Acts Interpretation Act 1954 (Qld), s 14A; Acts Interpretation Act 1915 (SA), s 22; Acts Interpretation Act 1931 (Tas), s 8A; Interpretation of Legislation Act 1984 (Vic), s 35(a); Interpretation Act 1984 (WA), s 18.
[2] Mills v Meeking (1990) 69 CLR 214 at 235.
[3] The state and territorial equivalents to s 15AB are: Legislation Act 2001 (ACT), ss 141-143; Interpretation Act 1987 (NSW), s 34; Interpretation Act 1987 (NT), s 62B; Interpretation Act 1954 (Qld), s 14B; Acts Interpretation Act 1931 (Tas), s 8B; Interpretation of Legislation Act 1984 (Vic), s 35(b); Interpretation Act 1984 (WA), s 19.
[4] Pearce DC and Geddes RS, Statutory Interpretation in Australia (7th ed, LexisNexis Butterworths, Chatswood, 2011) at [3.18].
[5] Pearce and Geddes, n 4.
[6] Pearce and Geddes, n 4 at [3.18].
[7] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 (Hayne, Heydon, Crennan and Kiefel JJ).
[8] Harrison v Melham (2008) 72 NSWLR 380 at 399.
[9] Collector of Customs v Savage River Mines (1988) 79 ALR 258 at 263.
[10] Spigelman JJ, ‘The intolerable wrestle: Developments in statutory interpretation’ (2010) ALJ 822 at 831.
[11] (2009) 238 CLR 642 at [9], [44]-[45], cited at 831.
[12] Spigelman JJ, Ibid.