Modern Statutory Interpretation: Legislative Instruments and Extrinsic Materials Explained

Modern Statutory Interpretation: Legislative Instruments and Extrinsic Materials Explained

The intention expressed in legislation is assessed objectively–parliament is imputed to know commonly understood rules of interpretation. This is illustrative of an underlying rationale of statutory construction that informs why some materials are legitimate and others are not. The question arising in considering what matters a court may not legitimately take into account when determining the intention of the parliament in enacting a legislative provision concerns:

• approaches towards ascertaining the intention of the legislature; and,
• the limitations placed on the use of extrinsic materials by the courts at common law and in applying s 15AB of the Acts Interpretation Act 1901 (Cth).

Firstly, the basis on which to legitimately exclude certain matters from consideration depends to a great extent on the court's interpretation of the meaning of a statutory provision. For example, it has been held not to be legitimate to consider a view expressed as to the meaning of a statute by the legislature in a subsequent statute where the earlier statute's meaning does not betray an ambiguity: DFCT (SA) v Elder's Trustee and Executor Co Ltd [1936] HCA 64; 57 CLR 610 at 625-6. As Gummow J expressed in Interlego AG & Anor v Croner Trading P/L [1992] FCA 992 at [113] in reference to subsequent amending Acts being used to interpret earlier ones, “It is, after all, a curious way of revealing parliamentary intention at the time of the earlier provision.” This is demonstrative of the view that the interpretive exercise is one which begins with the statute and its context; a statute enacted subsequently cannot objectively demonstrate the will of parliament where prior that will is clearly expressed.

The force of this argument applies even more strongly when excluding reference to delegated legislation. As Tobias JA stated in Mine Subsidence Board v Wambo Coal Pty Ltd [2007] NSWCA 137; 154 LGERA 60 at 69-70, “it is well established that as a general rule it is impermissible to call in aid in the construction of an Act delegated legislation made under that Act.” The principle was stated in explicit regard to ascertaining legislative intention by Brennan J in Webster v McIntosh (1980) 32 ALR 603 at 606 that “the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised”. There are however, exceptions to this rule. The first, as noted by Pearce and Geddes in Statutory Interpretation in Australia at [3.41] is where the regulations, “together with the principal Act, form part of a legislative scheme.” Mason J observed in Brayson Motors Pty Ltd (in liq) v FCT [1985] HCA 20; 156 CLR 651 at 652, that it is of utility to look to the regulations, not to ascertain the meaning of an ambiguous statutory provision, but to determine what is the scheme. The same holds true where a contemporaneously prepared Act and set of regulations establish an independent regime: Pearce and Geddes at [3.41]. Finally, where a statutory provision permits exceptions to be made by regulations, or is expressed to be subject to regulations, the regulations may be used as an aid to interpretation: Ward v Commissioner of Police (1998) 80 FCR 427 at 437-8; O'Connell v Nixon [2007] 16 VR 440 at 447. Therefore, both the prohibition and its exceptions illustrate the objective criteria already noted above–the text is prime and not to be queried where it is clear–and, as a known rule of statutory interpretation, it is imputed to be known by the legislature in enacting legislation.

As to extrinsic materials raising matters that warrant legitimate exclusions, the first of such materials are the views of parliamentarians, ministers, and public servants as to how a provision should operate, or the meaning of that provision. In Re Bolton; Ex part Beane [1987] HCA 12; 162 CLR 514 at 518, Mason CJ, Wilson and Dawson JJ stated that,

"the words of a Minister must not be substituted for the text of the law … It is always possible through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens … the function of the court is to give effect to the will of Parliament expressed in the law."

As Mason CJ and Gaudron J expressed in Hunter Resources Ltd v Melville [1988] HCA 5; 164 CLR 234 at 241, neither should extrinsic materials be taken into account where they merely express a view as to the meaning of legislation already in existence at the time the view is expressed. While second reading speeches have been permitted in interpreting the purpose of legislation, there is a significant caveat placed upon the matters contained therein that a court can legitimately take into account. Spigelman CJ in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384 commented that, “statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful.” Mason P at 399 elaborated on this point by stating that, while these statements may be useful the “identification of mischief and purpose … statement of meaning is another.” Campbell JA in Amaca Pty Ltd v Novek [2009] NSWCA 50 at [78], drew the distinction ever more sharply between a Minister's understanding as to how a particular statutory provision will operate and the actual meaning of that provision, holding that “all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision.” This is ever more the case where the view is expressed by a public servant, as held in Collector of Customs v Savage River Mines (1988) 79 ALR 258 at 263.

Therefore, the maters that cannot be legitimately taken into account confirm the view that the objective criteria of the text and imputed legal and interpretive assumptions are what the courts look towards. These objective intentions are the best indicators of legislative intent where in reality that intent may be politically fractured and understood in idiosyncratic ways, especially as regards the meaning as apart from the purpose of statutory provisions. Those materials discussed above simply enter where that objective intent is ambiguous and only to assist in ascertaining that legislative intent.