Statutory Interpretation - Judicial Commission of New South Wales

Statutory Interpretation
Principles and pragmatism for a new age
Education Monograph 4

Published in Sydney by the:
Judicial Commission of New South Wales
Level 5, 301 George Street
Sydney NSW 2000
DX 886 Sydney
GPO Box 3634
Sydney NSW 2001
www.judcom.nsw.gov.au
National Library of Australia
Cataloguing-in-publication entry
Statutory interpretation : principles and pragmatism for a new age.
Includes index.
ISBN 9780731356195
1. Judicial process — New South Wales. 2. Law — New South
Wales — Interpretation and construction. 3. Judicial
discretion — New South Wales. I. Gotsis, Tom. II. Title.
(Series : Educational monograph (Judicial Commission of New South Wales)).
347.94405
© Judicial Commission of New South Wales 2007
This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under the
Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying,
photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior
permission. Enquiries should be addressed to the publisher.
The views expressed in this monograph are the views of the individual authors and do not represent any
official views of the Judicial Commission of New South Wales, nor are they necessarily shared by all members
of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication,
no liability is assumed for any errors or omissions.
Editor: Tom Gotsis
Graphic design and typesetting: Lorraine Beal
Printed by: Emerald Press

Table of contents
Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Editor’s Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Honourable WMC Gummow AC
Justice of the High Court of Australia
The Principles of Legality and Clear Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
The Honourable JJ Spigelman AC
Chief Justice of New South Wales
The Intent of Legislators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
The Honourable Justice Keith Mason AC
President, New South Wales Court of Appeal
The High Court of Australia and Modes of Constitutional Interpretation . . . . . . . . . . . . . 45
The Honourable Justice Susan Kenny
Judge of the Federal Court of Australia
Legislative Drafting and Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Ms Hilary Penfold QC
First Parliamentary Counsel
Commonwealth Office of Parliamentary Counsel, 1993–2004
Statutory Interpretation in Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Professor Ruth Sullivan
Faculty of Law, University of Ottawa
Purpose and Context in Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
Associate Professor RS Geddes
School of Law, University of New England
Structuring Purposive Statutory Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
Professor Philip P Frickey
School of Law, University of California at Berkeley
Saving the Literal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Professor James C Raymond
Consultant in Legal Writing and Reasoning
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
Table of Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
iii

Foreword
Lawyers are traffickers in words. Words are the vehicle by which the law and legal
relationships must be conveyed. Words are our basic tools of trade. Interpreting words
is a large part of what we do.
Lawyers, including parliamentary draftsmen, attempt to be as precise and clear as
possible and to anticipate the kinds of issues that may arise in the course of application
of legislation. However, clarity and precision can never be capable of complete
achievement, not least because the verbal formulae devised in legislative form often
have to be stretched to factual situations that no-one could have or did anticipate.
Hence litigation about what words mean. As Lord McMillan once put it:
“One of the chief functions of our courts is to act as an animated and authoritative dictionary.” 1
One of the difficulties is, of course, the richness of our language which gives rise to
ambiguity, indeterminacy or inexplicitness. In English, as in French, in the words of
Joseph Joubert:
“Words are like eyeglasses, they blur everything which they do not make more clear.” 2
Over the last two or three decades there appears to have been a paradigm shift in all
forms of interpretation of legal texts, including constitutional, statutory and contractual
interpretation. The shift is from text to context. Literal interpretation — a focus on
the plain or ordinary meaning of particular words — is no longer in vogue. Purposive
interpretation is what we do now!
Of course context was always accepted as significant. Sir Owen Dixon, who many
would place at the literalist end of the spectrum of judicial approaches to interpretation,
said in 1934:
“The rules of interpretation require us to take expressions in their context, and to construe them
with proper regard to the subject matter with which the instrument deals and the object it seeks
to achieve, so as to arrive at the meaning attached to them by those who must use them.” 3
Nevertheless, there does appear to have been a change in the emphasis given to context,
by referring to it in the first instance and not simply after some verbal or grammatical
ambiguity has been identified.
Justice Learned Hand explained the approach now generally applied:
“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily
the most reliable, sources of interpreting the meaning of any writing: be it a statute, a contract, or
1 Lord McMillan, Law and Other Things, 1937, Cambridge University Press, Cambridge, p 163.
2 J Joubert, Pensées, 1842, Section 21, Part 15.
3 See R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244.

Statutory Interpretation
anything else. But it is one of the surest indices of a mature and developed jurisprudence not to
make a fortress out of the dictionary; but to remember that statutes always have some purpose
or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their
meaning.” 4
However, as Felix Frankfurter once put it:
“While courts are no longer confined to the language, they are still confined by it. Violence must
not be done to the words chosen by the legislature.” 5
The collection of essays in this monograph is a testament to the recognition by judges
and legal scholars of the central significance of statutory interpretation to contemporary
legal practice, including litigation. There is now a widespread acceptance that statutory
interpretation constitutes a distinct body of law. As I have said in the paper that is
reprinted herein, many areas of law are entirely the creation of statute and no area of the
law has escaped modification by statute, often substantial modification. It is perhaps
somewhat ironic that one of the areas of the law that has been least modified by statute
is the law of statutory interpretation. Not least for that reason, the principles of statutory
interpretation require the kind of detailed attention that appears in this monograph.
The Honourable JJ Spigelman AC
Chief Justice of New South Wales
4 Cabell v Markham 148 F 2d 737 at 739 (1945).
5 F Frankfurter, “Some Reflections on the Reading of Statutes” (1947) 47 Columbia Law Review 527 at 543.
vi

Editor’s Note
Comparing different societies, past and present, it readily becomes apparent that law is
not static but adapts its form to reflect the social, economic and political characteristics
of the particular society in which it operates. 1 In Australia today there are over 1000 Acts
in force in New South Wales alone. 2 Our specialised, information-age society requires
an A–Z set of specialised, information-age laws — and statute law is the form of law that
has evolved to meet this need. 3
Whether on paper or computer screen, statutes make the will of those who govern
indelible. Indelible but inert, like all words, until enlivened when read. Statutory
interpretation — as opposed to statutory declaration, discovery or divination — is a
term that explicitly alludes to the low-fidelity nature of reading and writing. 4 A reader
cannot recreate a writer’s intent with the precision of copying a digital computer file; nor
can a writer ensure that any particular form of words will perfectly transmit their ideas to
all readers. Reading is an analogue process because words are ambiguous, irreducible
to fixed units of meaning. As Justice Mason and Professor Raymond explain in their
respective articles, this is why dictionaries can do no more than list the various alternative
meanings of a particular word and leave it up to the reader to choose which meaning
is appropriate in any given context. It is the judiciary’s ongoing effort to grapple with
the inherent linguistic ambiguity of statutes — a specialised exercise in hermeneutics
— that gives rise to the principles and practice of statutory interpretation.
It follows that statutory interpretation ultimately endeavours to reduce ambiguity to
background noise, so that meaning becomes discernable. Precisely how this occurs is
examined by the authors of the following selected articles. Collecting and juxtaposing
the different perspectives offered by the individual authors — judicial, legislative drafter,
academic, Australian, American, Canadian — adds richness to the insights offered and
provided the rationale for the form of this publication.
Justice Gummow draws attention to how, despite much being said in judgments about
purposive interpretation, legislative drafters cannot be released from the requirements of
precision of thought and expression. Purposivism cannot provide determinative answers
1 P Goodrich, Reading the Law, 1986, Basil Blackwell, Oxford, Ch 1 “Ideational and Institutional Sources
of Law”.
2 Chief Justice Gleeson has explained that “[i]f you compare the amount of legislative output of a modern
parliament with the legislative output of 100 or 50 years ago, the change is extraordinary.”: “Law is now
too complex for juries to understand”, The Sydney Morning Herald, 26 March 2007.
3 Chief Justice Spigelman has described our time as the “age of statutes”, where “no area of the law has
escaped statutory modification”: JJ Spigelman, “The Poet’s Rich Resource: Issues in Statutory Interpretation”
(2001) 21 Australian Bar Review 224 at 224. Justice Kirby has recently highlighted the importance
of statute law by describing the common law as “orbiting around” statute law: MD Kirby, “Precedent Law,
Practice and Trends in Australia” (2007) 28 Australian Bar Review 243 at 251. Kirby J has also recently
said that “we have well and truly entered the age of statutes [but] … we still need to wean lawyers from
their love affair with the common law”: “Too Rigid, No Bill of Rights: Kirby’s Constitution Verdict”, The
Sydney Morning Herald, 19 March 2007.
4 On the nature of language and reading, see S Pinker, The Language Instinct, 1994, Harper Collins, New York.
vii

Statutory Interpretation
where different purposes, and perhaps cross-purposes, are apparent. His Honour then
refers to a persisting attitude that statute law is less interesting and less important than
“purely judge-made law”. This attitude, of English pedigree, begins in law schools, where
students are plied with cases but graduate with few skills in doing what practitioners
do on a daily basis — reading statutes. But the common law contained both “gross
imperfection” and “grand principles”; and, in the newly federated nations of Australia
and the United States, legislation enabled the gross imperfections to be eradicated and
the Parliaments to adapt to ever-changing circumstances, including their citizens’ own
evolving values. Justice Gummow then considers the many ways in which the presence
of a written federal constitution influences the form and interpretation of statute law.
Chief Justice Spigelman explains that statutory interpretation is not merely a collection
of maxims, but properly forms a distinct body of law. To a substantial degree, common
law protection of fundamental rights and liberties now resides within the law of statutory
interpretation. His Honour, after discussing parliamentary intent, context and ambiguity,
focuses on one of the most fundamental assumptions of statutory interpretation — the
principle of legality. His Honour quotes Lord Hoffman, who explained:
“The principle of legality means that the Parliament must squarely confront what it is doing and
accept the political costs. Fundamental rights cannot be overridden by general or ambiguous
words”.
Chief Justice Spigelman suggests that the test applied by a court to determine whether
a particular statute has subordinated the principle of legality should be known as the
clear statement principle. Nevertheless, “[t]he core difficulty remains. Clarity, like beauty,
always involves questions of degree and is affected by the eye of the beholder.”
His Honour then demonstrates the potential for friction between the principle of legality
and the clear statement principle by examining how courts interpret statutes in cases
where what is at stake is the presumption that Parliament does not intend to interfere
with fundamental rights and freedoms.
Justice Mason points out that the judicial experience of legislation is bound to be
jaundiced — the easy issues of statutory interpretation are all resolved before they
proceed to court. Judges may also find legislation challenging because, apart from any
real defects contained in an Act, which often reflect the realities of legislative drafting,
legislation challenges ideas and attitudes that have taken over half a lifetime to learn.
His Honour then describes the distinguishing feature of modern Australian drafting as
“fussy”, as opposed to the “fuzzy” style of the law of the past or the European civil
system. Fussy law concentrates on detailed distinctions and specific circumstances,
while fuzzy law is expressed in terms of general principles and broad legislative
purposes. Judges need to be able to recognise the different styles of law and “change
gear” to interpret provisions accordingly. Justice Mason then discusses developments
in specific interpretive techniques, including the use of legislative context and purposive
construction, before suggesting that courts can do more to develop the common law
for the age of statutes.
viii

Editor’s Note
Justice Kenny discusses statutory interpretation in the context a singularly unique
legislative creation — the Constitution of the Commonwealth of Australia. Grand
theories of constitutional interpretation are eschewed in favour of interpretive practices.
Her Honour outlines five interpretive modes — textual, structural, historical, doctrinal
and prudential–ethical — and presents a detailed examination of how these modes
determined the High Court’s reasoning in the controversial Work Choices Case.
Understanding the choices each judge had when selecting a particular interpretive
mode is essential to evaluating the High Court’s decision. Indeed, it is in the act of
choosing between competing interpretive modes that the High Court’s ongoing attempt
to discharge its constitutional mandate is played out.
From her vantage point as Parliamentary Counsel, Hilary Penfold QC provides an
insider’s account of the processes involved in drafting legislation, including the sources
of legislative change and the preparation of explanatory memoranda and second reading
speeches. Ms Penfold then considers the relationship between legislative drafting
and statutory interpretation. In particular, she examines whIch principles of statutory
interpretation legislative drafters take seriously and which approaches to statutory
interpretation are irrelevant or unhelpful to the work of the legislative drafter. She
concludes by suggesting that Australian legislative drafting processes, although far from
ideal, and despite the inherent ambiguity of language, produce legislation good enough
for the interpretive process to start with the premise that “the words mean what they
say.” At least, as she points out, there is only one text to interpret; unlike the decisions
of appellate courts, where two, three or even seven independently drafted texts, taken
together, form the law on a particular issue. It is an interesting counterpoint.
Professor Geddes details how, since 1980, Parliaments have made a significant contribution
to statutory interpretation and how courts have become increasingly willing to articulate
the general interpretive principles on which their reasoning is based. After examining
recent legislative and common law developments, Professor Geddes proposes that:
• legislation is to be interpreted with reference to its underlying purpose and context
(which includes extrinsic material);
• underlying purpose and context are to be considered initially, rather than after it
has been determined that ambiguity exists;
• the task is informed by ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth),
and equivalent State provisions, and CIC Insurance Ltd v Bankstown Football Club
Ltd 5 ; and
• presumptions of interpretation are to be used but are necessarily overriden by an
interpretation properly informed by purpose and context.
Professor Frickey analyses American purposivism and suggests how it might be relevant to
statutory interpretation under ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth)
and State equivalents. He describes the model of purposivism set out by Hart and Sacks,
which is based on their assumption that all law — case law and statutes alike — involves
5 (1997) 187 CLR 384 at 408.
ix

Statutory Interpretation
a purposive endeavour designed to promote social utility. He also points out that if the
phrase “shall be preferred” in s 15AA is read as “shall be adopted”, then s 15AA appears
to encourage purposivism above all else. However, when s 15AA is read together with
s 15AB, statutory interpretation may appear to accommodate an eclectic weighing of
interpretive sources — text, purpose, context, canons, intent — rather than being solely
grounded in purposivism. This avoids the various limitations that any interpretive theory,
including purposivism, faces. Professor Frickey then suggests that — irrespective of the
extent to which eclecticism may be accommodated — the purposivism of ss 15AA and
15AB should be interpreted as a “legislative invitation to the judiciary to become more of
a partner in the ongoing elaboration, not just of common law, but of statutes as well”.
Professor Sullivan provides an overview of statutory interpretation in Canada, in light
of the long-standing legacy of Elmer Driedger, former Deputy Minister of Justice and
Professor of Law. Among his many initiatives — which include numerous publications
and establishing a graduate program in legislative drafting — Driedger integrated the
mischief rule, literal rule and golden rule into the “modern principle”. After acknowledging
some of its positive effects, Professor Sullivan critiques the modern principle and its
application by the courts. In particular, she emphasises its own inherent ambiguity.
Canadian courts have used the modern principle to justify every possible approach to
interpretation and even “as a substitute for real justification”. In practice, despite the
rhetoric of the modern principle, the Canadian judiciary — even its most doctrinaire
members — adopt a pragmatic approach to interpretation. Professor Sullivan urges
Australian judges to align rhetoric with reality by rejecting formulaic expressions such
as Driedger’s modern principle and stating plainly the considerations that have led them
to their preferred interpretation.
Professor Raymond analyses decisions of the top-tier courts of Australia, Canada, South
Africa and the United States to identify and compare their respective approaches to
statutory interpretation. Like Professor Sullivan, Professor Raymond explores statutory
interpretation in terms of rhetoric and reality, and emphasises pragmatism over principle.
Indeed, after meticulously dissecting the diverse interpretive techniques displayed in
the selected cases, he discusses the “soft logic” of law in light of Aristotle’s Rhetoric
and AJ Ayer’s Language, Truth and Logic. He introduces the Aristotelian idea of topes
— patterns of soft logic — and suggests that, when reading law, where absolute truth
is unattainable, a choice must be made as to which interpretive technique (tope) to
select. And in cases where alternative interpretive modes are equally available, it is their
respective consequences which distinguish between the merits of each mode. Both
statutory interpretation and justice itself are relative exercises.
By analysing the topic from these different perspectives, this monograph offers a detailed
exploration of how courts presently engage in statutory interpretation and encourages
ongoing development of relevant principles and practice.
Tom Gotsis
Editor