ROLE OF STATUTORY INTERPRETATION LEGISLATION

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 t#_Toc t#_Toc

ACTS INTERPRETATION ACT SECT 3 When Acts come into operation If an Act or a provision of 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. 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 The exact moment at which a repealed Act ceases to apply and a new Act commences is said to be seamless – no gap.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 30/s4.html 30/s4.html S26 IA

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

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of repeal or amendment of Act No revival of other Act or part (1) The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act) or part (the old part) of an Act does not revive the old Act or old part, unless express provision is made for the revival. 0/s7.html

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. And – s15A – Constitutional power

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 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. e.g. 0/s125.html 0/s125.html

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. And see s36: 36.html 36.html

GENERAL APPROACH 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.”

R v L (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 27 th December AA 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 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) 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.

Identification of purpose Purpose/Objects clause e.g. COMPETITION AND CONSUMER ACT SECT 2 Object of this Act The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. 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 “First, the court must know the mischief with which the Act was dealing.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.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.”

Issues with purpose Purpose/policy Whose purpose? Purpose/intention Purpose/context Text/context/purpose R v Young (1999) 46 NSWLR 681at 687 per Spigelman CJ : “Construction must be text based.”

Purpose a ‘new’/’modern’ approach? Heydon’s case (1584) 76 ER 637 Lord Coke: and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico ‘Equity of the Statute’

Nelson v Nelson [1995] HCA In earlier times, effect was given to what the courts perceived to be "the equity of the statute" (26). This doctrine had the support of the common law judges led by Sir Edward Coke, who looked back to a time before the rise of the doctrine of parliamentary sovereignty and the subjection to it of the common law (27). The notion of the equity of the statute operated in two ways. First, the policy of the statute, as so perceived, might operate upon additional facts, matters and circumstances beyond the apparent reach of the terms of the statute. In addition, cases within the terms of the statute but not within its mischief might be placed outside its operation. Bentham gave the following, ironical description of this development (28): "The best-imagined provision might perhaps have done more mischief than good unless moulded into form by the prudence of the judge. On the one hand, the obligative part was not wide enough to embrace the mischief: on the other hand, the qualificative parts were not wide enough to yield shelter to innocence or to afford the necessary range to power.“

"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

Further reading speeches/justice-barker/barker-j #_ftnref30 speeches/justice-barker/barker-j #_ftnref30