In this public law in brief, Will Sharpe and Katherine Cooke look at key aspects of the modern approach to statutory interpretation.

Five key principles:

1. The modern approach to statutory interpretation requires consideration of context and purpose, rather than a literal approach to the interpretation of the words of a statute;
2. Context and purpose may be considered at the first instance, and does not require that the meaning of the words of a statute is uncertain or ambiguous. Consideration of context and purpose may sometimes require that the words of a statute are interpreted differently to their literal or grammatical meaning;
3. Context and purpose includes consideration of legislative history and extrinsic material, as well as the ‘mischief’ the legislation was intended to remedy. However, the purpose of legislation is not the subjective intention of those who ‘promoted or passed’ the legislation;
4. Legislation should be construed on the basis that it is intended to give effect to harmonious goals, and to operate coherently; and
5. Legislative provisions should not be read to exclude fundamental rights, or to depart from the ‘general system of law’, without clear language showing an intention to do so.

The modern approach to statutory interpretation

In contrast to the ‘literal approach’ to statutory interpretation, which emphasised adherence to the plain meaning of the words of the statute, the ‘modern approach’ places greater importance on the context of the text.¹ This means that context is considered in the first instance (not only where there is ambiguity in the meaning of the words used), and consideration is given to the statute as a whole, the existing state of the law, and the purpose of the statute.² This approach may favour an interpretation different to the plain meaning of the words.³

The task, however, of statutory interpretation is still to find the meaning of the words actually used: consideration of context and purpose does not allow adoption of an interpretation that pays no regard to those words, or expands its scope ‘beyond its textual limits’.⁴ Therefore, the courts have repeatedly stated that, even though it does not end there, ascertaining the proper interpretation of a statute commences with a consideration of the words of the provision itself.⁵

What about legislative intention?

Finding the meaning of the text is sometimes described in terms of seeking the intention of the legislation, or the intention of Parliament. However, again, the focus must be on the words actually used. The courts have often said that the language used in the legislation is the surest guide to legislative intention.⁶ A perceived intention cannot on its own determine how a provision should operate. Nor should legislation be approached with an eye to reading it to conform with a desirable policy.⁷

Further, the relevant ‘intention’ is not the subjective intention of a particular person, the Parliament collectively⁸, or, importantly, the intention of the executive government. It does not involve a search for what was in the mind of those who promoted or passed the legislation.⁹ Instead, ‘legislative intention’ has been described as a fiction, and as ‘a conclusion reached about the proper construction of the law in question and nothing more’.¹⁰ Seen in this way, intention is the outcome of the interpretation process, rather than a separate factor to be applied in that process.

Harmonious goals and coherent purpose

Consistent with the requirement to have regard to the whole of the statute, and to read a provision in context, the text of a provision should be approached with the understanding that a legislature intends to pursue its purposes by coherent means.¹¹ Or, in other words, legislative provisions are intended to give effect to ‘harmonious goals’.¹² Therefore, if there is ‘conflict’ between the wording of provisions, it is necessary to resolve that conflict to allow them to operate coherently: this may require ‘adjustment’ in the meaning of the competing provisions.¹³

Where can context and purpose be found?

A common source used to identify the meaning of a statute is the explanatory memorandum, and, in the case of regulations and other subordinate legislation, the explanatory statement. The use of the explanatory memorandum – and other extrinsic material – is supported by s.15AB(1) of the Acts Interpretation Act 1901 (Cth). However, given that the task of statutory interpretation is not about finding the intention of the executive government to the exclusion of other possible meanings, the explanatory memorandum should be weighed together with other sources that may reveal the purpose of the statute.

Where there is doubt about the interpretation of a provision, the courts are increasingly turning to detailed considerations of the history of the legislation to seek to understand the purpose of the provision.¹⁴

Other sources include:

• The statute as a whole, including any objects clauses;
• Relevant reports of Royal Commissions, the Law Reform Commission, committees of inquiry, and committees of Parliament;¹⁵
• Parliamentary materials (including second reading speeches);¹⁶ and
• Treaties and international agreements referred to in the statute.¹⁷

Be aware of whether an interpretation will affect a fundamental right or principle of the law

It is now a prominent rule of statutory interpretation that there is an assumption that an interpretation that abrogates or curtails fundamental rights or freedoms will not have been intended unless the intention is expressed in unmistakable and unambiguous language. The rule – known as the ‘principle of legality’ – has been described as requiring, where ‘constructional choices are open’, that statutes be construed ‘to avoid or minimise their encroachment upon rights and freedoms at common law’.¹⁸

Fundamental rights and principles that have recently been recognised as relevant to the interpretation of statutes include:

• The right to silence, and the privilege against self-incrimination;¹⁹
• The common law presumption of innocence in criminal proceedings;²⁰
• The natural justice hearing rule;²¹
• Legal professional privilege;²²
• Freedom of expression, and freedom of speech;²³
• The open-court principle;²⁴ and
• Liberty of the person.²⁵

What if there is an error in the drafting of a statute?

In some limited circumstances a proper interpretation of a provision may justify the addition of words to those actually used, or the omission of some words used in the text. These cases are the exception to the requirement to focus on finding the meaning of the words actually used. Caution should be taken in adding or omitting words. To do so, it is necessary to identify the precise purpose of the provision and determine that the drafters ‘inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose’.²⁶ Reading in, or omitting, words may be more readily justified in the case of simple, grammatical, drafting errors. It should not be done to fill gaps in legislation or make an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.²⁷

Interpretation of regulations

The rules of statutory interpretation at common law also apply to the interpretation of subordinate legislation.²⁸ Furthermore, s.13 of the Legislation Act 2003 (Cth) has the effect that the rules of interpretation set out in the Acts Interpretation Act 1901 (Cth) apply to a legislative instrument as if it were an Act.

Find out more

For the full range of the rules of statutory interpretation, see D C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019).

For an observation on the common sense nature of the rules of interpretation, see John Middleton, ‘Statutory Interpretation: Mostly Common Sense?’ (2016) Melbourne University Law Review 626.

For a detailed discussion of the principle of legality, see: Dan Meagher and Matthew Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017); Dan Meagher, ‘The Common Law Principle of Legality in the Age of Rights‘ (2011) 35 Melbourne University Law Review 449; and, Bruce Chen, ‘The Principle of Legality: Protecting Statutory Rights from Statutory Infringement?’ (2019) 41(1) Sydney Law Review 73.

This article was written by Will Sharpe, Partner and Katherine Cooke, Special Counsel.

^1. This approach is reflected in both the common law of statutory interpretation and in s.15AA of the Acts Interpretation Act 1901 (Cth).
^2. See, for instance, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 384.
^3. SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, at 368.
^4. R v A2 [2019] HCA 35, at [124].
^5. See, for instance, R v A2 [2019] HCA 35, at [32], [124], [163].
^6. See, for example, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, at 46-47.
^7. Deal v Father Pius Kodakkathanath (2016) 258 CLR 281, at 295.
^8. “[W]hat is involved here is not the attribution of a collective mental state to legislators. That would be a misleading use of metaphor.” (Zheng v Cai (2009) 239 CLR 446, at 455).
^9. Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, at 389.
^10. Zheng v Cai (2009) 239 CLR 446, at 455.
^11. SAS Trustee Corporation v Miles (2018) 265 CLR 137, at 157.
^12. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 381-382.
^13. Ibid.
^14. See, for example, Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1.
^15. Paragraphs 15AB(2)(b) and (c) of the Acts Interpretation Act 1901 (Cth).
^16. Paragraph 15AB(f) and (h) of the Acts Interpretation Act 1901 (Cth).
^17. Paragraph 1AB(d) of the Acts Interpretation Act 1901 (Cth).
^18. Momcilovic v The Queen [2011] HCA 34, at [44].
^19. Strickland v Commonwealth Director of Public Prosecutions [2018] HCA 53.
^20. Momcilovic v The Queen [2011] HCA 34.
^21. Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.
^22. Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, at 553.
^23. Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1; Hogan v Hinch (2011) 243 CLR 506.
^24. Hogan v Hinch (2011) 243 CLR 50625.
^25. North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569.
^26. Taylor v The Owners – Strata Plan No 11564 253 CLR 531, at 544. (French CJ, Crennan and Bell JJ added the conditions that a court must ‘identify the words that the legislature would have included in the provision had the deficiency been detected before its enactment’, and that the modification ‘must be consistent with the wording otherwise adopted by the draftsman’.
^27. Taylor v The Owners – Strata Plan No 11564 253 CLR 531, at 548.
^28. For a recent example, see Graspas v Minister for Infrastructure and Regional Development [2020] FCA 525.