Statutory Interpretation

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Focus on the section

Break it into its elements
Determine the meaning of each of those elements
Context in Act
Judicial interpretation
Checklist every single elements have to be satisfy.
Focus on subsection of each section independently, unless the drafting
clearly indicates otherwise
Start from the relevant section and work out never start from the
Act as a whole and work in.
How does the statute apply in a particular set of circumstances?
Role of Cases
Cases which interpret statutes are examples of where the court has
performed the statutory interpretation for us.
Rules of statutory interpretation:
Used by the courts
Used by practitioners where courts have not yet interpreted a section
2 type of cases:
Fruits of statutory piggeries
Give the rule of statutory interpretation
Rules of statutory interpretation
Legislation and case law.
Relevant legislation
Acts Interpretation Act 1901 (Cth)
Interpretation Act 1987 (NSW)
As interpreted by courts (common law)
In the context of common law principles which survive interpretation
statute.
Where do we get the rule from?
Think of toolkit or task.
Tool use all the time: legislation

Important to get the RIGHT legislation

Every jurisdiction given a set of rule on how to interpret the legislation.
Make sure that you use the correct interpretation for correct jurisdiction,
i.e. AIA for Cth and IA for NSW
Look at: Interpretation by courts and existing common law principles.
Where do we start:
Which Parliament pass law?
o What jurisdiction are we dealing with the answer to this
question will determine what interpretation legislation

should be used.
Which interpretation legislation to use?
When did the Act commence?
o this will tell us if the Act was in force at the relevant time
Which legislation?
o Determine which Parliament passed the Act to be
interpreted
o That is the Interpretation legislation you will use

Practical Method to Statutory Interpretation

1) Identification phase:
Identify the Act that is relevant
Check to ensure the Act is in force at the relevant time and in
the relevant jurisdiction
Have an understanding of the relevant provision
2) Exploration phase:

Take into account the context and purpose

Context
o Immediate context the Act as a whole
o Broader context historical, legislative, political and
international
Purpose
o Intrinsic materials i.e. Long Title and Objects clause
(statement of intention)
o Extrinsic materials i.e. second reading speeches and
Explanatory Memoranda.

3) Application phase:

Look at the provision again and consider:

o The context and purpose of the Act and apply
The ordinary meaning OR
Some other meaning
o Take into account challenges posed by:
Multiple and conflicting purposes to reach overall
conclusion

The General Approach to interpreting legislation:

s15AA Interpretation best achieving Acts purpose or object - AA
meant that the section has been amended.
In interpreting a provision of an Act, the interpretation that would best
achieve the purpose or object of the Act (whether or not that purpose or
object is expressly stated in the Act) is to be preferred to each other
interpretation
The following are elements of s15AA:
Interpretation best achieve Acts purpose

whether express or not

preferred
to each other interpretation

If there is only 1 meaning clearly then 15AA is not use

S15AA replaced the existing section:
In the interpretation of a provision of an Act, a construction that
would promote the purpose or object underlying the Act (whether that
purpose or object is expressly stated in the Act or not) shall be preferred
to a construction that would not promote that purpose or object.
This interpretation only for 1 or 2 purpose unlike current s15AA which
could mean more than 2.
The following are elements of the old provision:
Interpretation
Construction promoting purpose

Whether purpose express or not

Preferred
To construction which does not promote purpose

Interpretation Act 1987 (NSW)

s33 is similar to the old s15AA of the AIA (Cth) 1901
s33 Regard to be had to purposes or objects of Acts and
statutory rules
In the interpretation of a provision of an Act or statutory rule, a
construction that would promote the purpose or object underlying the Act
or statutory rule (whether or not that purpose or object is expressly
stated in the Act or statutory rule or, in the case of a statutory rule, in the
Act under which the rule was made) shall be preferred to a construction
that would not promote that purpose or object.
Common law approach to statutory interpretation
The Literal Approach
Modified by The Golden Rule, and
The Purposive Approach
Start with Literal approach but go to: 15AA for purposive

approach.
Read the Golden Rule and then FORGET about it.

Mills v Meeking (1990) 169 CLR 214, Dawson J at 235:

The literal rule of construction, whatever the qualifications
with which it is expressed, must give way to a statutory injunction
to prefer a construction which would promote the purpose of an
Act to one which would not, especially where that purpose is set
out in the Act. [The s15AA equivalent]* must I think, mean that
the purposes stated in Pt 5 of the Road Safety Act are to be taken
into account in construing the provisions of that Part, not only
where those provisions on their face offer more than one
construction, but also in determining whether more than one
construction is open. 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. The mischief or purpose rule required
an ambiguity or inconsistency before a court could have regard to

purposeThe approach required by [s15AA equivalent] needs no

ambiguity or inconsistency; it allows a court to consider the
purposes of an Act in determining whether there is more than one
possible construction. Reference to the purposes may reveal that
the draftsman has inadvertently overlooked something which he
would have dealt with had his attention been drawn to it and if it
is possible as a matter of construction to repair the defect, then
this must be done. However, if the literal meaning of a provision
is to be modified by reference to the purposes of the Act, the
modification must be precisely identifiable as that which is
necessary to effectuate those purposes and it must be consistent
with the wording otherwise adopted by the draftsman. [Section
15AA] requires a court to construe an Act, not to rewrite it, in the
light of its purposes.
S15AA must be use to interpret but must consider its purpose
Purpose is guide
Allow to go to purpose first.
RvL
(1994) 49FCR 543, Burchett, Miles and Ryan JJ at 548
the requirement of s15AA(1) that one construction be
preferred to another can have meaning only where two
constructions are otherwise open, and s15AA(1) is not a warrant
for redrafting legislation nearer to an assumed desire of the
legislature
Literal approach
Use intrinsic material as a guide to Parliament purpose
Engineers case (Amalgamated Society of Engineers v Adelaide
Steamship (1920) 28 CLR 129 at 161-2 Higgins J:
The fundamental rule of interpretation, to which all
others are subordinate, is that a statute is to be expounded
according to the intent of the Parliament that made it; and that
intention has to be found by an examination of the language used
in the statute as a whole. The question is, what does the
language mean; and when we find what the language means, in

its ordinary and natural sense, it is our duty to obey that meaning,
even if we consider the result to be inconvenient or impolitic or
improbable.
Intrinsic Materials
Definitions sections
Other sections around the one in question to get a feel for the
way in which words are used in the contentious section
Indices, headings to parts BUT NOT headings to sections or
marginal notes. (What is intrinsic to the act and what is extrinsic

is governed by the relevant interpretation legislation S13

Commonwealth; s35 State)
Long title of the Act
Preamble (if present)

Cth can use section heading

NSW can not use section heading, can use them as extrinsic material
Natural and ordinary meaning

Acts Interpretation Act 1901 (Cth)

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s2B contains all the definitions applies to all Act

2B Definitions
s3A applies:
(1) there are no commencement date in the Act, then:
(2) Act commences 28 day after the Act receives the Royal Assent
(3) Act that changes the Constitution come in affect on the day receiving
the Royal Assent
s3A Commencement of Acts
(1) This section does not apply to an Act so far as it provides for its
commencement.
(2) An Act (other than an Act to alter the Constitution) commences on the
28th day after the day on which that Act receives the Royal Assent.
(3) An Act to alter the Constitution commences on the day on which that
Act receives the Royal Assent.
S18A For example, definition of the word use can apply to using or
the word apply when interpreting application
s18A Parts of speech and grammatical forms
In any Act where a word or phrase is given a particular meaning,
other parts of speech and grammatical forms of that word or phrase have
corresponding meanings.
s23(a) to avoid uncertainty, he also mean she and vice versa.
s23(b) any person is the same as any persons and vice versa.
s23 Rules as to gender and number
In any Act:
(a) words importing a gender include every other gender; and
(b) words in the singular number include the plural and words in the
plural number include the singular.
s37 is the same as the old s25E. For example, the person turn 18 is said
to turn 18 at 12:00:01am of the 18th year of their birth.
s37 Attainment of particular age
For the purposes of any Act, the time at which a person attains a
particular age expressed in years is the commencement of the relevant
anniversary of the date of the birth of that person.

s35 define that distance are measure in straight line (bird fly) not by
driving.
s35 Measurement of distance
In the measurement of any distance for the purposes of any Act, that
distance shall be measured in a straight line on a horizontal plane.

s37 Expressions of time

Where in an Act any reference to time occurs, such time shall, unless it
is otherwise specifically stated, be deemed in each State or part of the
Commonwealth to mean the standard or legal time in that State or part of
the Commonwealth.

NSW Act Interpretation Act

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s23(1) ~ s3A
s23(6)(7) an Act will take effect even if it has not commenced.
s7 ~ s18
s8(a) ~ s23(a)
s8(a)(b) ~ s23(b)
s37 ~ s37A