TOPIC 7: Statutory Interpretation Flashcards
What does statutory representation refer to?
📕The overall goal is to discover the “INTENT OF PARLIAMENT” as expressed in the statute
📕Intent is determined by the COURT
What is the literal approach to statutory interpretation?
The intent of Parliament is found WITHIN THE CONTEXT OF THE LANGUAGE USED in the statute, according to their PLAIN and ORDINARY meaning, without relying on EXTRINSIC materials.
What are the disadvantages of the literal approach?
📕Assumes that words and phrases have ONE MEANING
📕May give rise to ABSURD results which must be ADHERED to regardless
📕May include ERRORS which lead to absurd interpretations
What is an example of the literal approach in application?
📕HIGGON v O’DEA📕
- > Literally read would criminalise every shop-keeper, hotel-keeper, etc. who permitted a person under 16 to enter their premises.
- > ABSURD result but still MUST FOLLOW
What is the golden rule to interpretation?
(A limit on the literal approach)
Requires literal interpretation be adhered to UNLESS it would lead to some ABSURDITY or INCONSISTENCY with the INTENTION of legislation…
…BUT NO FURTHER.
What is the mischief rule to interpretation?
A statute may be interpreted with REFERENCE TO THE MISCHIEF they were enacted to address, so that the mischief is SUPPRESSED
(Led to the development of the purposive approach)
What is an example of the golden rule in application?
📙ADLER v GEORGE 📙
Decision made to DEPART from TRADITIONAL interpretation due to language ambiguity, so as to AVOID an ABSURD result.
What is an example of the mischief rule in application?
📗HEYDON’S CASE📗
(The first case to use of what would come to be called ‘mischief rule’ for statutory interpretation)
Found four things to be ‘discerned and considered’:
- What was the COMMON LAW before making the Act?
- What was the MISCHIEF FOR WHICH the common law did NOT PROVIDE?
- What REMEDY had Parliament appointed ‘to CURE the DISEASE’?
- What was the TRUE REASON of the remedy?
What is the purposive approach to statutory interpretation?
Interpretation of statutes occur in accordance with the PURPOSE it was enacted to ADDRESS.
(Purpose deduced by looking at the statute as a whole)
What are the disadvantages of the purposive approach?
📘Risk of identifying the INCORRECT PURPOSE
📘Risk of identifying an intention that is SELF-SEARCHING
📘Subject to INDIVIDUAL BIAS
What is an example of the purposive approach in application?
📘PROJECT BLUE SKY v AUSTRALIAN BROADCASTING AUTHORITY 📘
Stated judges at times have a DUTY to deter from literal meaning and look at the CONTEXT and PURPOSE when enacted.
Which approach is mandated in legislation
The PURPOSIVE APPROACH is mandated in legislation through the enactment of
📘s 51AA of the Acts Interpretation Act 1901 📘
What is the modern approach to statutory interpretation?
CIC Insurance Ltd v Bankstown Football Club Ltd referred to the modern approach by insisting that the CONTEXT and PURPOSE be considered FIRST, not only when ambiguity arises in the ordinary meaning.
The modern approach is ‘contextualism’.
What are extrinsic materials?
Material that does NOT form part of an Act but which may ASSIST in its interpretation.
It serves as BACKGROUND or CONTEXT for the statute.
What are three examples of extrinsic materials?
Outlined in s 15AB
📘 Parliament debates (Primary source)
📘INTERNATIONAL AGREEMENTS referred to in the Act considered
📘Any relevant report of a Royal Commission, Law Reform Commission or similar body
