Statutory Interpretation Flashcards
The Modern Approach to Statutory Interpretation
The Purposive Approach
The golden rule
Allows Courts to modify the ordinary meaning of words if following the literal approach would lead to an absurd result
Mischief Rule
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.
Literal Rule
Applies Parliamentary words literally, regardless of the results.
Mills v Meeking
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
Acts Interpretation Act 1901 (Cth)
s 15AA
Interpretation Act 1987 (NSW)
s 33
Coco v R (1994) 179 CLR 427
Authority that the common law presumptions can be rebutted by the statute itself.
Grey v Pearson
The Golden Rule: Use ordinary meaning of the words unless it is absurd or inconsistent within the context.
Herbert Adams Ltd v FCT (1932)
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.
Uber BV v FCT (2017)
Authority for the application of the dynamic straining technique/always speaking approach. Words to be considered in the current context.
Deputy Commissioner of Taxation v Shi
Presumption that Parliament does not interfere with fundamental human rights.
s 39 Interpretation Act 1987 (NSW)
Presumption that statutes do not operate retrospectively - must specify if it begins on a different day.
Bropho v Western Australia
HCA
Presumption legislation does not bind the Crown (executive) (weak)
R v A2 [2019] 373 ALR 214
Grajewski v DPP
Presumption that penal provisions are strictly construed in favour of the accused against the Crown.
Presumption that statutes do not operate retrospectively
Statutes apply prospectively, that is from the time the statute is enacted. Statutes do not apply to matters in the past.
Presumption that Parliament does not interfere with fundamental rights
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.
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
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
Presumption that legislation does not bind the Crown
The Crown (The King) is above the law, and not subject to statutory provisions
Presumption that penal provisions are strictly interpreted in favour of the accused
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)
Presumption that legislation does not take jurisdiction away from the courts
The courts have power to hear cases and interpret legislation
Presumption that property rights are not taken away without compensation
The Crown has the right to compulsorily take your land, though only with adequate compensation or it
Presumption that legislation does not have extra-territorial effect
Legislation only applies to its territory or jurisdiction
Green v Burgess (1960)
Presumption that parliament intends to legislate in conformity with international law
It is assumed that Parliament intends to create legislation in conformity with international laws
Presumption that words are used consistently in statutes
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
Noscitur a sociis
‘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.
Ejusdem generis
‘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.
Expressio unius est exclusio alterius
‘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
Generalia specialibus non derogant
‘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.
Statutory Interpretation Steps
- Jurisdiction
- Operation (retrospective)
- Relevant principle of interpretation
- Relevant operative provision
- Relevant words/phrase
- Purpose
- Straining techniques (if necessary)
- Repeat 5, 6, 7 for each word/phrase
- Relevance of common law presumptions
- Relevance of Latin Maxims
Australian Education Union v General Manager of Fair Work Australia (2012)
Authority that legislation presumed not to be retrospective
Purposive approach applies to legislation AND Delegated legislation
Legislation Act 2003 (Cth) s 13
Interpretation Act 1987 (NSW) ss 5(1) & 3
Commonwealth purposive approach
The relevant provisions should be interpreted in a way that best achieves purposes of the Act
NSW Purposive approach
The relevant provisions should be interpreted in a way that promotes the purpose of the Act over one that does not
