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Statutory Interpretation I

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Yishan Lee

on 8 April 2014

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Transcript of Statutory Interpretation I

Statutory Interpretation I
Introduction of statutory interpretation
Approaches to interpretation of Legislation
- Rules to interpretation of legislation
- Extrinsic Aids to interpretation of legislation
- Interpretation of legislation in Context
- Presumptions used in the interpretation of legislation*
Exercise: Summary Offences
Summary Offences Act 1988 - SECT 4A(1)
Introduction
Approaches
Exercise
Case Law
Legislation
Words!
light & match
Regina v Kevin Bassett
[2008] EWCA Crim 1174
Example
Traditional Common Law Approaches
Modern Statutory Approaches
Literal Approach
-words in a statute must be interpreted in the context in which they appear, according to their plain and ordinary meaning
Golden Rule
-it is permissible to depart from the grammatical and ordinary meaning or words to avoid an absurd result.
Mischief Rule
Purposive Approach
-words in a statute may be interpreted so that they promote the purpose they were enacted to address.
Absurdity
Higgon v O’Dea [1962] WAR 140
s 84 of the Police Act 1892:
Every person who shall have or keep any house, shop, or room, or any place of public resort, and who shall wilfully and knowingly permit drunkenness or other disorderly conduct in such house, shop, room, or place, or knowingly suffer any unlawful games or any gaming whatsoever therein, or knowingly permit or suffer persons apparently under the age of sixteen years to enter and remain therein, or knowingly permit or suffer prostitutes or persons of notoriously bad character to meet together and remain therein, shall, on conviction for every such offence, be liable to a penalty of not more than five pounds.
Rules to interpretation of Legislation
Enactment of s 15AA
Operation of s 15AA
Limitations of s 15AA
Purposive Approach and Drafting Errors
Extrinsic Aids to interpretation of legislation
Interpretation of legislation in context
During the 1970s and early 1980s, Australian courts were criticised for taking literal approaches to the interpretation of legislation

As a result, the Commonwealth Parliament in 1981 enacted s 15AA of the Acts Interpretation Act 1901

After amendments made in 2011, the Acts Interpretation Amendment Act 2011 was passed

Equivalent versions of s 15AA has been enacted in states and territories

Enactment of s 15AA
Allows a court to consider the purposes of an Act to determine more than one possible construction
Operation of s 15AA
This enables the literal meaning to be modified by reference to the purposes of the Act
This doesn’t allow a court to rewrite an Act, but construe it in light of its purposes
Through consideration of purposes, possible defects may be revealed in the Act where the drafter may have overlooked something which would have been repaired if brought to his or her attention
Legislation rarely pursues a single purpose at all costs
How far do we go in pursuing the purpose of legislation?

Sometimes, as Kirby P recognised in Avel Pty Ltd v Attorney-General (NSW) (1987) 11 NSWLR 126, interpretation by reference to purpose should not be pursued

Limitations of s 15AA
In Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 McHugh JA commented:




Conditions required (at 302):
Purposive Approach and Drafting Errors
“…A court may read words into a legislative provision if by inadvertence Parliament had failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”
(1) Court must know the mischief with which the Act was dealing
(2) 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) 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
Extrinsic materials may be relevant in providing insights into the purpose or object of an Act
Extrinsic material referring to the legislation may include parliamentary and related materials, and international agreements
Use of Extrinsic Materials

In essence, S 15AB of the Acts Interpretation Act 1901 allowed, but did not compel, the courts to consult the following material in relation to an Act:






The courts are not confined to these materials
States and territories have also enacted similar provisions to s 15AB
Enactment of s 15AB

Headings and marginal notes in the Act which are not technically part of the Act
Various kinds of reports prepared before the provisions were enacted
Treaties and international agreements referred to in the Act
Explanatory memoranda, and
Records of parliamentary process
Operation and Limitation of s 15AB
Reference may be made to reports of parliamentary and related materials both to ascertain the mischief and to discern the purpose of the legislation in question
Likewise, the court is at liberty to refer to an international agreement to resolve any ambiguity in legislation
Extrinsic materials may be used to confirm or determine the meaning of a provision

S 15AA always operates, whereas s 15AB can operate to change an interpretation only if one of the conditions identified in sub-s (1)(b) is met. This is called the “threshold test.”

S 15AB only permits a court to refer to extrinsic materials - it is not a requirement to do so

“Function of the court is to give effect to the will of the Parliament expressed in the law.”
-Noscitur a sociis
-Ejusdem generis
Question
If we are to prefer a construction of a provision that would best achieve the underlying purpose of the Act as intended by the drafter, wouldn’t it be conflictive to interpret the words used in the legislation as we understand them in today’s context (providing the words haven’t been defined in the Act)? As since words may change meaning over time, it may be difficult (if not impossible) ascertaining the true intention of the author using our current definitions.
Summary Offences Act 1988 - SECT 4
Offensive language
4A Offensive language
(1) A person must not use offensive language in or near, or within hearing from, a public place or a school.

Maximum penalty: 6 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

(3) Instead of imposing a fine on a person, the court:

(a) may make an order under section 8 (1) of the Crimes (Sentencing Procedure) Act 1999 directing the person to perform community service work, or

(b) may make an order under section 5 (1) of the Children (Community Service Orders) Act 1987 requiring the person to perform community service work,

as the case requires.

(6) However, the maximum number of hours of community service work that a person may be required to perform under an order in respect of an offence under this section is 100 hours.
Offensive conduct
4 Offensive conduct
(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.

Maximum penalty: 6 penalty units or imprisonment for 3 months.

(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.
On a Friday afternoon, the accused walked down the main street of a major road wearing a T-shirt which read "FUCK'EM - if they can't take a joke."
-In Grey v Pearson (1857) 6 HL Csd 61, 106; 10 ER 1216, 1234, Lord Wensleydale qualified the literal approach in the following way. He said:
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 Westiminster Hall, that in construing wills and indeed statutes, and 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.
Reference list:
Cook, C., Creyke, R.,Geddes, R. and Hamer, D. (2012). Laying Down the Law (8th Ed.), Chapter 8-11.
Gleeson, W. (2009). Statutory Interpretation, speech at the Taxation Institute of Australia's 24th National Convention, Justice Hill Memorial Lecture.
Steyn, J. (2002). The Intractable Problem of the Interpretation of Legal Texts, John Lehane Memorial Lecture.
Summary Offences Act 1988 (NSW) ss 4A-4.
Regina v Kevin Bassett [2008] EWCA Crim 1174
Sexual Offences Act 2003, ss 67,68
The Law Bank. (2013). Statutory Interpretation - Introduction. [Video].
Statutory construction. (2012). [Video].
Presented by Effie LEE & Michael Podbury
What was the common law before the make of the Act
What was the mischief and defect for which the common law did not provide
What remedy the Parliament hath(has) resolved and appointed to cure the disease of the Commonwealth
The true reason of the remedy
-words in a statute may be interpreted with reference to the mischief they were enacted to address, so that the mischief is suppressed.
Thank you for your listening!
Interpretation with reference to accompanying words


Interpretation with reference to other parts of legislation
Interpretation legislation
Dictionaries may be consulted
Consistent use of words is assumed
All words are assumed to carry meaning
Words should be interpreted inaccordance with their current meaning
Express mention of something may draw attention to the absence of something else
Provisions may be interpreted with reference to other legislation
Provisions may be interpreted with reference to the audience
Provisions may be interpreted with reference to prior or existing law
Full transcript