APPROACHES TO STATUTORY INTERPRETATION:COMMON LAW

Section 14 of the Motor Traffic Act 1955 provides: 14. Cancellation of licence Any court before which a person is convicted for any offence in connection with the driving of a motor car may, if the person convicted of the offence holds any licence to drive a motor car under this Act, cancel or suspend the licence. Zachary was the holder of a driver’s licence under the Motor Traffic Act. When he was driving his car down the street he became annoyed at the way another motorist, Tina, was driving. Zachary followed Tina to a shopping centre where Tina parked her car. Zachary stopped his car and went over to Tina who was still sitting at the wheel of her parked car. Zachary said to Tina, “You’re a fool, an imbecile and an idiot. You’re not fit to drive a golf ball, let alone a motor car”. Zachary then punched Tina on the nose. Further violence was prevented by passers by. Zachary was later convicted of assault in the Local Court, fined $3000, and his licence was suspended for 12 months under s 14. Advise Zachary as to whether he has grounds for appeal.

Example of statutory interpretation• K-Generation Pty Limited v Liquor Licensing Court

[2009] HCA 4 • French CJ• http://www.austlii.edu.au/au/cases/cth/HCA/2009/4.html

s28A Liquor Licensing ActLIQUOR LICENSING ACT 1997 - SECT 28A 28A—Criminal intelligence         (1)         Information that is classified by the Commissioner of Police as criminal

intelligence for the purposes of this Act may not be disclosed to any person other than the Commissioner, the Minister, a court or a person to whom the Commissioner of Police authorises its disclosure.

        (2)         If a licensing authority—             (a)         refuses an application for a licence, the transfer of a licence or an approval,

or takes disciplinary action against a person, or revokes or proposes to revoke an approval under Part 4 Division 10A; and

            (b)         the decision to do so is made because of information that is classified by the Commissioner of Police as criminal intelligence, the licensing authority is not required to provide any grounds or reasons for the decision other than that to grant the application would be contrary to the public interest, or that it would be contrary to the public interest if the person were to be or continue to be licensed or approved, or that it would be contrary to the public interest if the approval were to continue in force.

 

(3)         If the Commissioner of Police lodges an objection to an application under Part 4 because of information that is classified by the Commissioner of Police as criminal intelligence—

            (a)         the Commissioner of Police is not required to serve a copy of the notice of objection on the applicant; and

            (b)         the licensing authority must, at least 7 days before the day appointed for the hearing of the application, advise the applicant in writing that the Commissioner of Police has objected to the application on the ground that to grant the application would be contrary to the public interest.

        (4)         If the Commissioner or the Commissioner of Police lodges a complaint under Part 8 in respect of a person because of information that is classified by the Commissioner of Police as criminal intelligence, the complaint need only state that it would be contrary to the public interest if the person were to be or continue to be licensed or approved.

       

  (5)         If the Commissioner of Police bars a person from entering or remaining on licensed premises by order under Part 9 Division 3 because of information that is classified by the Commissioner of Police as criminal intelligence, the order need only state that it would be contrary to the public interest if the person were not so barred.

        (5a)         In any proceedings under this Act to be determined by the Commissioner, the Commissioner must maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence.

        (5b)         In any proceedings under this Act to be determined by the Court or the Supreme Court, the Commissioner or the Commissioner of Police may apply to the court for a determination that information classified by the Commissioner of Police as criminal intelligence is criminal intelligence.

        (5c)         The court must maintain the confidentiality of information that is the subject of an application under subsection (5b).

        (5d)         If, on an application under subsection (5b), the court proposes to determine that the information is not criminal intelligence, the applicant must be informed of the proposed determination and given the opportunity to withdraw the information from the proceedings.

        (5e)         If the court determines that the information is criminal intelligence or the information is withdrawn, the court must continue to maintain the confidentiality of the information.

       

        (5f)         The confidentiality of information is maintained only if—             (a)         the information is not used except for the purposes of the proceedings; and             (b)         the information is not disclosed to any parties to the proceedings (other than the

Commissioner or the Commissioner of Police), the representatives of such parties or any member of the public; and

            (c)         evidence and submissions about the information are received and heard in private in the absence of any parties to the proceedings (other than the Commissioner or the Commissioner of Police) and the representatives of such parties and are not disclosed to any member of the public; and

            (d)         the information is not disclosed in any reasons for decision.         (5g)         The Commissioner or the court may take any steps it considers appropriate to maintain

the confidentiality of the information.         (5h)         The duties imposed by this section on the Court and the Supreme Court apply to any

court dealing (on appeal or otherwise) with information that has been determined to be criminal intelligence or with the question of whether information classified by the Commissioner of Police as criminal intelligence is criminal intelligence.

        (6)         The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police.

        (7)         A delegation by the Commissioner of Police under subsection (6)—             (a)         must be by instrument in writing; and             (b)         may be absolute or conditional; and             (c)         does not derogate from the power of the Commissioner of Police to act in any matter;

and             (d)         is revocable at will by the Commissioner of Police.

Common law approaches

•The Literal Approach•Modified by The Golden Rule, and

•The Purposive Approach

Literal approach• French CJ in K-Generation case at [46]:

The point of departure in that exercise is the ordinary and grammatical sense of the words having regard to their context and legislative purpose.

TEXT, CONTEXT, PURPOSE

Literal approachEngineers 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 -context

• 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. (Note differences in Commonwealth interpretation legislation.)

• Long title of the Act• Preamble (if present)

‘Natural and ordinary meaning’• Dictionary

• Weitman v Katies Ltd (1977) ATPR 40-041• Oxford Dictionary – meaning of ‘misleading’ and ‘deceptive’ in s52 TPA

• ACCC v Lux [2004] FCA 926 • Dictionary – meaning of ‘unconscionable conduct’ in s51AB TPA

• State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 • Macquarie Dictionary – meaning of “fringe benefits” within ITAA

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ at 384

“…the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Golden ruleLord Wensleydale in Grey v Pearson (1857) 6HL Cas 61 at

106:“I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

Golden rule

•A modification of the literal rule•To fix drafting errors•Adler v George [1964] 2 QB 7 • “in the vicinity of any prohibited place” • to mean “in or in the vicinity of any prohibited place.”

And/or

•R v Oakes [1959] 2QB 350

• ‘Any person who aids or abets and does any act preparatory to the commission of an offence’ was a mistake for ‘or’

Purposive approach

• ‘mischief rule’•Rule in Heydon’s case•Ambiguity or inconsistency•Purpose of parliament?

•Refer to intrinsic and extrinsic materials

Ambiguity

•Semantic•Syntactical•Contextual

Semantic ambiguity• Use of general words

• ‘significant’?• Fallas v Mourlas Ipp JA at [14]: But what does

“significant” mean in s 5K? I think it is plain that it means more than trivial and does not import an “undemanding” test of foreseeability as laid down in Wyong Shire Council v Shirt [1980] HCA 12;

• Words with more than one meaning• ‘light’• ‘lab tested’• ‘false’

Semantic ambiguity - definitions• Statutory definition prevails• COMPETITION AND CONSUMER ACT 2010 - SECT

51ACA Definitions (1) In this Part: "consumer" , in relation to an industry, means a person to

whom goods or services are or may be supplied by participants in the industry.

ACL (Schedule 2, CCA)3 Meaning of consumer Acquiring goods as a consumer (1) A person is taken to have acquired particular goods as a consumer if, and only if: (a) the amount paid or payable for the goods, as worked out under subsections (4) to (9), did

not exceed: (i) $40,000; or (ii) if a greater amount is prescribed for the purposes of this paragraph--that greater amount;

or (b) the goods were of a kind ordinarily acquired for personal, domestic or household use or

consumption; or (c) the goods consisted of a vehicle or trailer acquired for use principally in the transport of

goods on public roads. (2) However, subsection (1) does not apply if the person acquired the goods, or held himself

or herself out as acquiring the goods: (a) for the purpose of re-supply; or (b) for the purpose of using them up or transforming them, in trade or commerce: (i) in the course of a process of production or manufacture; or (ii) in the course of repairing or treating other goods or fixtures on land.

But...• Kennon v Spry (2008) 83 ALJR 145• ‘property’ in FLA• Despite statutory definition, Gummow and Hayne JJ:

• Attention must still be paid to: “the subject matter, scope and purpose of the relevant statute” to determine its meaning in a way which advances that purpose.

Syntactical ambiguity

•Hendiadys?•Complete and furnish a return•One idea or two•Misleading or deceptive

Gibbs CJ in Parkdale v Puxu:

• 8. The words of s. 52 require the Court to consider the nature of the conduct of the corporation against which proceedings are brought and to decide whether that conduct was, within the meaning of that section, misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words "mislead" and "deceive" share in common is "to lead into error". If the word "deceptive" in s. 52 stood alone, it would be a question whether it was used in a bad sense, with a connotation of craft or overreaching, but "misleading" carries no such flavour, and the use of that word appears to render "deceptive" redundant. The words "likely to mislead or deceive", which were inserted by amendment in 1977, add little to the section; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone.

Contextual Ambiguity• Fallas v Mourlas [2006] NSWCA 32 • http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/32.

html• As Ipp JA tells us at [44]• The matter is essentially one of statutory construction. In

a case of clear ambiguity (as is the case with s 5K and s 5L), a construction that might result in potential unfairness and injustice should be avoided and a fair and just construction is to be preferred. There are no other policy factors involved. Deciding issues under s 5L by reference to all the circumstances that actually occurred may benefit a plaintiff in one case and a defendant in another.

If ambiguity….Extrinsic materialsUse extrinsic materials to answer:• What was the state of the law before the enactment;

and • What was the mischief the legislation was trying to

cure?

Extrinsic materials• Second Reading Speech (Not the rest of the debate,

or any other material in Hansard, just the Second Reading Speech – all the views of every member of Parliament are not relevant to what Parliament eventually decides to enact.)

• But Wacando v Commonwealth of Australia and the State of Queensland (1981) 148 CLR 1

• Law Reform Commission reports• Reports by Royal Commissions

Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126 Kirby P at 127

“The legislation relevant to the present appeal…does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising.The conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.”

Other common law approaches

• Legislation adopts international convention or treaty?• Interpret consistently with international principles for reading treaties: Shipping Corp of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd (1980) 147 CLR 142 at 159

• Legislation incorporates provisions of treaty?• Determine meaning in accordance with the treaty provisions, eg Vienna Convention on Interpretation of Treaties: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Vienna Convention on Interpretation of TreatiesArticle 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with

the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of

interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or

unreasonable.

Brennan CJ at 230:• If a statute transposes the text of a treaty into the statute

so as to enact it as part of domestic law, the prima facie legislative intention is that the transposed text should bear the same meaning in the domestic statute as it bears in the treaty. To give it that meaning, the rules applicable to the interpretation of treaties must be applied to the transposed text and the rules generally applicable to the interpretation of domestic statutes give way.

• E.g Sale of Goods (Vienna Convention) Act 1986 (NSW)• http://www5.austlii.edu.au/au/legis/nsw/consol_act/sogca1

986308/

Common law principles• General words to be given their primary and natural

significance

• General words to be given their legal meaning

• All words have meaning and effect• E.g s13 AIA

• Words of limitation to be given effect

Grammatical principles• Act to be read as a whole• Mason J in K & S Lake City Freighters Pty Ltd v Gordon &

Gotch Ltd (1985) 60 ALR 509 at 514:

• ...to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context

TEXT, CONTEXT, PURPOSE

Context?• CIC Insurance v Bankstown Football Club Ltd (1997) 187

CLR 384• Context operates in its widest sense – to ‘include such

things as the existing state of the law and the mischief which...one may discern the statute was intended to remedy.’

• But... context or purpose?

Words are assumed to be used consistently

• Re Castioni [1891] 1 QB 149 at 167-168:

• It is not enough to attain a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand.

• Where a word is used consistently in legislation it is assumed to have the same meaning

• Where a legislature could have used the same word but chose not to, using a different word instead, it is assumed that the legislature intended a different meaning

Hodges J in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452:

• I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.

Intention paramount• Higgins J in Commissioner of Taxes (Vic) V Lennon (1921) 29

CLR 579 at 590:

• There is sound sense in the statements contained in Maxwell’s Interpretation of Statutes, 6th ed. Pp 557,564, to the effect that although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.

Consistency across legislation• ACL• Consumer guarantees commenced 2011• Eg Fitness for purpose – s55• Interpreted with?• UK Sale of Goods Act• S19(2) Sale of Goods Act 1923 (NSW)• s71(1) Trade Practices Act 1974 (Cth)

• Updating – s15AC AIA• Merchantable/acceptable?

• Words to be interpreted in accordance with their ordinary and current meaning

• Legislation deemed to be always speaking vs contemporanea exposition est optima et fortissimo in lege• Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925]

VLR 350• Re Treneski and Comcare (2004) 80 ALD 760

• BUT...presumption• Barker J – First you see it, then you don’t. Harry Houdini and the

art of interpreting statutes http://www.fedcourt.gov.au/publications/judges-speeches/justice-barker/barker-j-20121005

24  In these regards, the recent decision of the Full Federal Court in National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd[20] is also instructive. The Full Federal Court had to deal with the meaning of the word "make" in the Copyright Act 1968 (Cth) in circumstances where Optus was said to be unlawfully using the intellectual property of the appellants. The Court[21]

 noted that two matters bearing on interpretation had been themes in the case, the first being what was described as a "technologically neutral interpretation", the second being described as "interpretation informed by legislative policy". The Court accepted[22] that the desirability of technological neutrality – of not limiting rights and defences to technologies known at the time when those rights and defences were enacted – had been acknowledged for some time and was one of the declared objectives in the explanatory memorandum to the 1999 Bill amending the Act. However the Court[23] (Finn, Emmett and Bennett JJ) stated:We are conscious that the construction which we are satisfied the language of s 111 requires is one that is capable of excluding, and does in fact in this instance exclude, the later technological development in copying. However, no principle of technological neutrality can overcome what is the clear and limited legislative purpose of s 111. It is not for this Court to re draft this provision to secure an assumed legislative desire for such neutrality: R v L (1994) 49 FCR 434 at 538.

25  This led the Court to address the issue it called "interpretation informed by legislative policy". It observed[24]:In varying guises and to differing extents, this has been a tool of statutory interpretation for many centuries. Its historical exemplar was the doctrine of the 'equity of the statute': see Nelson v Nelson (1995) 184 CLR 538 at 552-554; Comcare v Thompson (2000) 100 FCR 375 at [40]-[43]. Its principal modern manifestation is in that form of purposive construction enjoined by s 15AA of the Acts Interpretation Act 1901 (Cth). However, if the apparently confined words of a statute are to be given a more extended scope, not only must they be capable as a matter of language of sustaining such an extension, there must also be some indication in the legislation, its purpose and context of whether, and if so how, the legislature would wish to extend what, on its face, is the confined scope of the statute or of a section of it: see Woodside Energy Ltd v Federal Commissioner of Taxation (2009) 174 FCR 91 at [51]. (emphasis added)

• De minimis non curat lex

Syntactical Presumptions• Contextual reading• Stamp J in Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 at 696:• Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language

Noscitur a sociis

•R v Ann Harris (1836) 7C&P 446

Ann Harris case

“If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure or disable such person or to do some other grievous bodily harm to such person, …such offender shall be guilty of a felony.”

Ejusdem generis

•Class rule•Attorney-General v Brown [1920] 1 KB 773 - the importation of arms, ammunition, gunpowder, or any other goods...

Quazi v Quazi [1980]AC 744• Scarman LJ at 883H• “as a useful servant but a bad master.” • “[Ejusdem generis] is, at best, a very secondary guide to the meaning of a statute. The all important matter is to consider the purpose of the statute.”

Mahoney JA in Mattison v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 373:

 

• The ejusdem generis approach of reasoning has had a long but varied history; is based upon a doubtful premise; operates by a mechanism which is uncertain; and to the extent that it presently operates, in my opinion, has real effect to determine the construction of a statute only in a limited area

• Expressio unius est exclusio alterius• Salemi v Minister for Immigration and Ethnic Affairs (No 2) (1977) 14 ALR1 BUT

• Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

• Expressum facit cessare tacitum• Generalia specialibus non derogant

• Resolve internal conflicts• Reddendo singular singulis

• Paint or varnish may be dissolved by turpentine or kerosene

The Roads Act 1920 (NSW) contains the following sections:S3: In this Act “traffic sign” shall include all signals, warnings, signposts, direction posts, or devices.S35: Any person who deliberately obscures any traffic sign or any part of a traffic sign shall be guilty of an offence.Harry, as a joke, uses phosphorescent paint to make rude drawings on a number of yellow diamonds which had been painted on the road to warn motorists that they were approaching a pedestrian crossing. He is apprehended by the police and charged under s35 of the Roads Act.Using and stating the relevant rules of statutory interpretation advise Harry.