Statutory Interpretation Flashcards
Applied Statutory Interpretation Structure
- Commencement
- Jurisdiction
- Issue
- Text
- Context
- Purpose
- Extrinsic Materials
- Conclusion
- Commencement
- Are there any commencement issues?
If not, say so.
Example: There is nothing on the facts to suggest the relevant provisions provided have not commenced.
- Jurisdiction
- What is the jurisdiction? Cth or Qld?
Example: The Road Transport Act (Qld) is an Act that has been passed by the Qld parliament and therefore, the Acts Interpretation Act (Qld) should be applied to interpreting the relevant sections of the Act.
- Issue
- What is the legal issue/s?
- These can be stated in dot points.
- Text
At this stage we are only considering the plain ordinary meaning of the words in the section that is relevant for our consideration to answer the legal issue.
Are there any issues with semantic ambiguity?
This is referring to vagueness or uncertainty associated with the meaning of particular words, and general words might be used within a statute that are quite general in nature.
You could in the text stage of ASI identify that there is semantic ambiguity with the words of the section of the Act.
You might then say, a definition section (if there’s one present) will help you interpret the meaning of various words used in the statute.
Ordinary dictionaries are also used at times.
Again, at this point, you’re looking to the plain ordinary meaning of the words as this slide suggests.
You don’t just read the words of the section and the statute in a vacuum.
Should you apply Noscitur a sociis?
A way in which we deal with issues of semantic ambiguity is with, for Cth ASI only, apply the canons of construction rule Noscitur a sociis.
For this rule, you are interpreting words in context.
Words should be interpreted within the context of other words.
Should you apply Ejusdem generis?
Another way to deal with issues in the text stage of ASI of semantic ambiguity, is to apply the canon of construction – Ejusdem generis.
This is sometimes referred to as the class rule.
The class rule operates where in a section of a statute, you have two or more specific words followed by a general word or general words, and the idea is that your circumstances fall within potentially the general words.
Then you’d have to work out whether the section does apply.
So, with the class rule, ejusdem generis, if you have two or more specific words, you have to form a class out of those specific words.
If you can form a class out of those specific words, then those general words must be interpreted in view of that class.
If your circumstances fall within that, then it would apply.
Are there any theoretical approaches to consider?
Textualist theories are relevant here where again, there is an emphasis on the actual meaning of the words when ascertaining the plain ordinary meaning of the words of the statute.
Soft plain meaning
- Considers the plain meaning or plain ordinary meaning within its historical context of the statute.
- Some statutes different versions of the statute over time.
- Where there are significant changes to statutes, and there might be different versions over time.
Hard plain meaning theory
- Emphasises the actual text of the statute.
- Very strict interpretation of the meaning of a text and not the approach taken in courts in Australia today.
Intentionist theories
This is different to purpose at stage 3 of applied statutory interpretation.
The emphasis for these theories is on the intention of Parliament so you need to work out whether a particular part of the statute applies to a particular legal issue.
It’s an objective approach so this means - look at the bills object and the meaning of the words which Parliament used.
Specific intent theory
Read the statute as a whole to ascertain the plain ordinary meaning of words in the statute and the objective intention of parliament.
This overlaps with the context stage.
Imaginative reconstruction theory/mischief approach
When there is ambiguity or inconsistency, consider the CL position and the problem prior to the enactment of the statute.
This also overlaps with the context stage.
- Context
The approach from the HCA on this issue is to consider:
1. the immediate context of the provision itself,
2. then the wider context of the statute as a whole then
3. the even wide context of other relevant statutes and the CL.
Are there any issues with syntactic ambiguity?
This is where we have ambiguity in the structure of the statute itself between different sections of the statute, different parts of the statute, etc.
You’d refer to issues of syntactic ambiguity in the context stage of ASI.
- Purpose
Look to the object or purpose of the statute in section 2 or 3 of the Act which are generally very broad and not in relation to a specific legal issue.
What does the AIA say?
S15 AA Cth or s14A Qld
- Extrinsic materials
Examples of extrinsic materials?
Explanatory notes/second reading speech.
What does the AIA say?
S15AB Cth or s14B Qld
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;
(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;
(d) any treaty or other international agreement that is referred to in the Act;
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.
- Conclusion
State your conclusion.
Weigh up which argument is stronger and weaker (so consider all possible arguments).
