the role of statutory interpretation by the courts

What this dot point is asking

VCAA wants you to know how courts give meaning to statutes, the methods they use, and the effect of statutory interpretation on the law. Expect a 5-7 mark medium response, often stimulus-based on a short statutory extract.

The answer

Why statutory interpretation is needed

Parliament drafts statutes in general terms. Specific facts of a case may not be foreseen. Courts must read the statute to apply it to the case before them. The interpretation chosen becomes a precedent.

Reasons interpretation is required include:

• ambiguity in the words;
• general terms that need application to specific facts ("vehicle", "premises");
• changes in technology or society that the legislature did not anticipate;
• inconsistencies between provisions;
• silence on a relevant matter.

The purposive approach

In Victoria, the Interpretation of Legislation Act 1984 (Vic) s 35(a) requires the court to prefer:

a construction that would promote the purpose or object underlying the Act (whether or not that purpose or object is expressly stated in the Act) shall be preferred to a construction that would not promote that purpose or object.

The Commonwealth Acts Interpretation Act 1901 (Cth) s 15AA contains an equivalent provision.

The purposive approach overrides the older "literal rule" wherever there is ambiguity. Where the words are clear and unambiguous, the literal meaning still controls (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).

Intrinsic and extrinsic materials

Intrinsic materials (within the Act itself) that the court may use:

• the long title and headings;
• the definitions section;
• the structure of the Act and its parts and divisions;
• other provisions of the Act.

Extrinsic materials (outside the Act) that the court may use under the Interpretation of Legislation Act 1984 (Vic) s 35(b) and the Acts Interpretation Act 1901 (Cth) s 15AB:

• the explanatory memorandum;
• the second reading speech;
• parliamentary committee reports;
• law reform commission reports;
• the international treaty the Act implements (where applicable);
• the common law context in which the Act was passed.

The Acts Interpretation Act 1901 (Cth) s 15AB permits extrinsic materials where the provision is ambiguous, the literal meaning is absurd, or confirmation of the literal meaning is needed.

Approaches and rules

Purposive approach

The dominant modern approach. Identify the purpose; choose the interpretation that promotes it.

Literal rule

The natural and ordinary meaning of the words is used. Subordinate to purposive interpretation.

Golden rule

Where the literal meaning produces an absurdity, the court may depart slightly to avoid it.

Mischief rule

Identifies the "mischief" the Act was passed to correct (from Heydon's Case (1584) 76 ER 637), now largely subsumed within the purposive approach.

Noscitur a sociis ("a word is known by the company it keeps")

A word is interpreted in the light of accompanying words.

Ejusdem generis ("of the same kind")

Where general words follow specific words, they are interpreted as limited to the same class.

Expressio unius est exclusio alterius

The express mention of one thing implies the exclusion of others.

Examples

The Project Blue Sky case (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). The High Court interpreted the Broadcasting Services Act 1992 (Cth) and reaffirmed that statutory interpretation begins with the text and context, with purpose informing the choice between candidate meanings.

Re Wakim; Ex parte McNally (1999) 198 CLR 511. The High Court held that the Federal Court could not exercise cross-vested state jurisdiction, requiring close attention to the constitutional and statutory text.

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. Approved the purposive approach and confirmed extrinsic materials may be used where the statute is ambiguous.

Effect of statutory interpretation

Once a court interprets a statute, that interpretation becomes a precedent binding on lower courts in the hierarchy. Parliament can then accept the interpretation (do nothing), codify it (insert express words confirming it), or reverse it (amend the statute to displace it).

The dialogue between parliament and the courts is constant. Parliament constantly amends statutes in response to judicial interpretations it considers unsatisfactory.