Statutory Interpretation

Question 1

The Modern Approach to Statutory Interpretation

Answer 1

The Purposive Approach

Question 2

The golden rule

Answer 2

Allows Courts to modify the ordinary meaning of words if following the literal approach would lead to an absurd result

Question 3

Mischief Rule

Answer 3

Courts look to the mischief that the legislation sought to address - examining what the law was prior and identifying the what defect in the law Parliament wished to change. Courts would then read the statute in a way that addressed the mischief or defect rather than applying the literal rule.

Question 4

Literal Rule

Answer 4

Applies Parliamentary words literally, regardless of the results.

Question 5

Mills v Meeking

Answer 5

Purposive approach (modern approach) not the same as common law ‘mischief’ rule.
‘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.
‘Mills v Meeking (1990) 169 CLR 214 at 235

Question 6

Acts Interpretation Act 1901 (Cth)

Answer 6

s 15AA

Question 7

Interpretation Act 1987 (NSW)

Answer 7

s 33

Question 8

Coco v R (1994) 179 CLR 427

Answer 8

Authority that the common law presumptions can be rebutted by the statute itself.

Question 9

Grey v Pearson

Answer 9

The Golden Rule: Use ordinary meaning of the words unless it is absurd or inconsistent within the context.

Question 10

Herbert Adams Ltd v FCT (1932)

Answer 10

Authority for the application of the ‘technical’ meaning of a word or phrase. Considered the word ‘pastry’ under the Sales Tax Assessment Act (1930), under which manufacturers did not have to pay tax on pastry.

Question 11

Uber BV v FCT (2017)

Answer 11

Authority for the application of the dynamic straining technique/always speaking approach. Words to be considered in the current context.

Question 12

Deputy Commissioner of Taxation v Shi

Answer 12

Presumption that Parliament does not interfere with fundamental human rights.

Question 13

s 39 Interpretation Act 1987 (NSW)

Answer 13

Presumption that statutes do not operate retrospectively - must specify if it begins on a different day.

Question 14

Bropho v Western Australia
HCA

Answer 14

Presumption legislation does not bind the Crown (executive) (weak)

Question 15

R v A2 [2019] 373 ALR 214
Grajewski v DPP

Answer 15

Presumption that penal provisions are strictly construed in favour of the accused against the Crown.

Question 16

Presumption that statutes do not operate retrospectively

Answer 16

Statutes apply prospectively, that is from the time the statute is enacted. Statutes do not apply to matters in the past.

Question 17

Presumption that Parliament does not interfere with fundamental rights

Answer 17

This is that statutes do not interfere with, or affect, fundamental rights. These include; the right to not incriminate yourself, the right for clients to have what they tell their lawyer kept confidential.

Question 18

Common law presumption: Courts will presume their previous interpretation of a word or phrase applies if parliament use the word or phrase in a statute

Answer 18

If a court has already interpreted a word, phrase or provision, which is then used in legislation, the courts will presume that parliament intends the word/phrase to have the same meaning or effect

Question 19

Presumption that legislation does not bind the Crown

Answer 19

The Crown (The King) is above the law, and not subject to statutory provisions

Question 20

Presumption that penal provisions are strictly interpreted in favour of the accused

Answer 20

Statutory ambiguities are resolved in favour of the person who stands to benefit (I.E, the accused)
*has less weight under modern statutory approach (looks at purpose)

Question 21

Presumption that legislation does not take jurisdiction away from the courts

Answer 21

The courts have power to hear cases and interpret legislation

Question 22

Presumption that property rights are not taken away without compensation

Answer 22

The Crown has the right to compulsorily take your land, though only with adequate compensation or it

Question 23

Presumption that legislation does not have extra-territorial effect

Answer 23

Legislation only applies to its territory or jurisdiction
Green v Burgess (1960)

Question 24

Presumption that parliament intends to legislate in conformity with international law

Answer 24

It is assumed that Parliament intends to create legislation in conformity with international laws

Question 25

Presumption that words are used consistently in statutes

Answer 25

If one word or phrase is used in different parts of the same statute, the courts will presume that parliament intended the word phrase to have the same meaning throughout, unless specified

Question 26

Noscitur a sociis

Answer 26

‘It is known by its associates’.
Latin Maxim that a word or phrase can be worked out by its context, namely the words used around it.

Question 27

Ejusdem generis

Answer 27

‘of the same kind’.
Latin Maxim that, if you have a specific word followed by a general word, the interpretation of the general word is limited by the specific thing before it.

Question 28

Expressio unius est exclusio alterius

Answer 28

‘the express mention of one thing is the exclusion of another’.
Latin Maxim.
Example - if statute said adults could drive cars, this would exclude children

Question 29

Generalia specialibus non derogant

Answer 29

‘general things do not derogate from special things’.
Latin Maxim that, if there is a specific provision and a general provision, the general one does not override the specific one.

Question 30

Statutory Interpretation Steps

Answer 30

1. Jurisdiction
2. Operation (retrospective)
3. Relevant principle of interpretation
4. Relevant operative provision
5. Relevant words/phrase
6. Purpose
7. Straining techniques (if necessary)
8. Repeat 5, 6, 7 for each word/phrase
9. Relevance of common law presumptions
10. Relevance of Latin Maxims

Question 31

Australian Education Union v General Manager of Fair Work Australia (2012)

Answer 31

Authority that legislation presumed not to be retrospective

Question 32

Purposive approach applies to legislation AND Delegated legislation

Answer 32

Legislation Act 2003 (Cth) s 13
Interpretation Act 1987 (NSW) ss 5(1) & 3

Question 33

Commonwealth purposive approach

Answer 33

The relevant provisions should be interpreted in a way that best achieves purposes of the Act

Question 34

NSW Purposive approach

Answer 34

The relevant provisions should be interpreted in a way that promotes the purpose of the Act over one that does not