assignment

Interpretation
Common law rules of interpretation
The common law rules of interpretation are as follows:
Literal rule - interpret the statute according to the literal meaning of the words.
Higgins J in The Engineers Case: "The fundamental rule of interpretation... 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...what does the language mean... in its ordinary and natural sense, it is our duty to obey that meaning."
Golden rule - the court would modify the meaning under the literal rule if the result would be absurd, repugnant or inconsistent with the rest of the legislation.
Mischief rule (purposive approach) - interpret according to the intended purpose of the act, ie examine what ‘mischief’ Parliament was attempting to prevent by passing the statute. This would clarify their intent.
There are also other, more specific rules which help analsing the grammatical structure of sentences: noscitur a sociis – words take the meaning of the context in which they appear. ejusdem generis- ‘of the same kind’, where there is a general phrase and specific words of the same kind, we read the general phrase in the light of the specific list. expressio unius est exclusion alterius – if something is expressly referred to, that will exclude other matters.
Special and general provisions – if an Act provides for something in general terms, and a later Act makes special provision for the same thing, the later Act will prevail.
A case which deals with statutory interpretation is In Re Edith Haynes:
Court used literal approach to determine whether the act permits women to be legal practitioners:
"If the Legislature desired that a woman should be capable of being admitted as a practitioner of this Court…they should have said so in express language".
Dangers of literal approach
A very literal approach can be very dangerous, as illustrated in the fictional case, Regina v Ojibway:
In this fictional case, a man kills his pony to relieve it of its pain.
He is prosecuted under the (fictional) Small Birds Act, which prohibits injuring or killing small birds.
The Act defines a 'small bird' as 'a two legged animal covered with feathers'.
The court, interpreting literally, decided that:
Since the Act doesn't say the animal needs to have only two legs, the two leg requirement just means a minimum of two legs.
The horse in this instance had feathery pillow on his back, and therefore had feathers.
According to the literal interpretation of the act, the horse is a small bird.
Presumptions
When interpreting, the court assumes a number of presumptions:
Parliament does not interfere with fundamental rights.
No retrospective operation of the statute.
Legislation does not bind the crown.
Parliament does not legislate extra-territorially.
Later laws impliedly repeal earlier laws.
However, these are mere presumptions and not strict principles. Ultimately, the intention of the parliament is what matters and if there is proof that the parliament intended some of the presumptions not to apply, they will not.
Presumptions and statutory interpretation were considered in Potter v Minhan:
Facts: the respondent entered Australia from China, and was asked to take a dictation test as was required of immigrants. He contended that he is not an immigrant - he was born in Victoria, but moved to China in his fancy 26 years ago.
The question was whether he is an immigrant, and the judge decided (on the facts) that he wasn't. He was therefore allowed to enter without the dictation test.
With regards to interpretation, the court observed that:
There are certain objects which the legislature is presumed not to intend; and a construction which would lead to any of them would therefore to be avoided.
For example, it should be presumed that the legislature does not seek to overthrow fundamental principles, infringe rights, or depart from the general system of the law, without expressing its intention with irresistible clearness.
Therefore, it should be assumed that the legislation does not intend to deprive Australian-born or members of the Australian community from the right of freely re-entering Australia.
A definition of a common word like 'immigrant' should not be expanded beyond its ordinary meaning (ie, literal approach). According to a normal definition of an immigrant, the respondent is not an immigrant.
While a literal approach should always be used, you can use a purposive approach to consider the scope of the act; would the facts at hand be considered within the overall intention of the act?
The issue of presumptions in statutory interpretation also arose in Royal College of Nursing of the UK v Department of Health and Social Services.
Both Royal and Potter deal with “controversial subjects” and in both cases the judges assert that the court’s extension of meaning in the golden approach should be minimal – “anything beyond the legislature’s fairly expressed authority should be left for Parliament’s fresh consideration.”
Modern approach to statutory interpretation
The the Acts Interpretation Act 1901 (Cth) now governs statutory interpretations, overruling the traditional approaches. The Act requires that: s15AA: the purposive approach should be used where there is an ambiguity. s15AB: extrinsic material can be used in interpretation for the purpose of confirming an interpretation or resolving an ambiguity/absurdity. Extrinsic materials include:
Royal commission or inquiry reports
Parliamentary committee reports
Treaties or intentional agreements referred to in the act
Second reading speech of the minister or person presenting the bill to the house
Note also that for a NSW jurisdiction, there is also the Interpretation Act 1987 (NSW), in particular sections 33 and 34 which have a similar function to the above sections 15AA and 15AB. s33: This says that a purposive approach and extrinsic materials should be used to confirm the ordinary meaning of the text conveyed by the statute. s34: This says extrinsic material can be used to determine the meaning of the provision when:
1. The provision is ambiguous or obscure; or
2. The ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable
This means that the court interprets statutes as follows:
1. Literal approach. If there is an ambiguity or an absurdity then:
2. Golden approach. If there is an ambiguity or an absurdity then:
3. Purposive approach. If there is an ambiguity or an absurdity then:
4. Explore extrinsic materials.
The modern approach to statutory interpretation is discussed in Kingston v Keprose.
Summary of the method of interpreting statute
1. On first interpreting the act, one must take, as stated by McHugh JA in Keprose, “the grammatical interpretation” since the court is, as stated by O’Connor J in Potter, “bound by the literal interpretation”.
2. Where the meaning or extent/scope is ambiguous, as per Royal College, one must consider the context surrounding the enactment and the purpose of the act. When determining this, one must look to s15AA of the Acts Interpretation Act 1901 (Cth), which allows the use of a purposive approach in cases of ambiguity. Furthermore, s15AB allows for the use of extrinsic material in confirming an interpretation or resolving such ambiguities (if NSW case you may use the equivalent s33 and s34 of the Interpretation Act 1987 (NSW)).
3. Use extrinsic materials as noted above to help determine the meaning of the term in context and apply that meaning
4. DO NOT FORGET TO QUOTE THE INTERPRETATION ACTS SECTIONS AND THE THREE CASES MENTIONED ABOVE!

And use definition section of you act for the meaning of the words that are related to you issue.