2.1    Interpretation of the legislation
Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB

2.1.1     Importance of Interpretation of Legislation

Rule in legislation are in fixed verbal form, the interpretation of legislation is less problematic than the interpretation of case law. Legislation is frequently complex and sometimes it is also of doubtful meaning, which is why layers spend most of their time interpreting legislation.    

2.1.2    Approaches to the interpretation of the legislation

Literal approach: is the approach to which parliament intended the literal meaning of the statute. It follows the natural and ordinary meaning of what is actually said.  So this can be used when you use the actual text to interpret the meaning. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161 - 2

Golden approach: This approach can only be used when the literal approach had an error in it. That is when the natural and ordinary meaning can be modified to prevent absurdity or inconsistency. The absurdity and inconsistency is meant to the language of the legislation not the justice produced. Grey v Pearson (1857) 6 HL Cas 61at 106

Purposive approach or mischief rule: This approach was applied by determining the purpose of why parliament passed down the legislation. This is sometimes used even if the meaning of the statute was clear in its face.

 The purposive approach is generally used under ss 15AA Acts Interpretation Act (Cth) and s33 Interpretation Act (NSW). 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.

2.1.2    Specific rules/ canons of construction

Maxims of interpretation:
•    Noscitur a sociis: is the meaning of a word or phrase is derived from its context. This is used when the words are used in a group of other words. This can be applied when you express the meaning of the statute. E.g. if a legislation says one person may not injury or harm a person with an instrument and a person bites another persons nose off, then you can say the legislation only said with an instrument.
•    Ejusdem generis: where words of a particular meaning are followed by word of general meaning, the general words are limited to the same kind as the particular words. This is used when the words are used in a group of other words. Which means all words must have something in common e.g. if in a legislation it said; one must not conceal weapons such as guns, explosives, firearms and one is caught with a spear then you can say that the statute meant weapons in a class of explosives and a spear is not in that class.   

•    Expressio Unius est exclusion alterius: This is an illustration of the principle that a word should be interpreted in the context. This means the express mention of one thing is the exclusion of another.

Presumptions of Interpretation:
When lawyers interpret legislation they do so against a background of a series of longstanding assumptions or presumptions, as they are more commonly described, as to legislative intent.

Important Common Law Presumptions of Interpretation:
•    States do not operate retrospectively – A statue is said to operate retrospectively if its provisions apply to events that occurred or to things that existed before it cane into operation. Some legislation applies
retrospectively because it contains an express provision that it shall so operate.
•    Presumption that parliament does not interfere with fundamental rights – it is accepted as part of the culture in which judges and legislators co-exist.
•    Presumption that legislation does not deprive people of access to the courts – A provision in legislation that purports to deprive access to the courts is commonly called a privative clause. Courts can be relied on to interpret such provisions strictly.
•    Presumption that re-enactment constitutes approval of interpretation – where a provision of legislation has been passed upon by authoritative decisions of the courts and is later re-enacted, Parliament can be taken, in the absence of a clear intention to the contrary, to know and accept the interpretations given to the legislation.
•    Presumption that legislation does not bind the crown – Legislation often contains ‘this Act shall bind the Crown’. This has the affect of rebutting the presumption under consideration. In Australia, this question is complicated by the presence of state and territorial Crowns as well as a Commonwealth Crown.
•    Presumption that penal provisions are strictly construed – Beckwith v R (1976) 135 CLR 569 at 57G Gibbs J stated – In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences…The rule is perhaps one of last resort.
•    Presumption that property rights are not taken away without compensation – e.g. – Clause 22AA(3) of the Arrangements capped the compensation payable to the applicant at a little more than $23 million. Without the capping it would have been entitled to a total of over $93 million. In the circumstances, therefore, the applicant’s claim was not that the legislation deprived the applicant of its property without compensation, but that it had been deprived of the property without just or adequate compensation, contrary to the law.
•    Presumption that legislation does not have extra-territorial effect – The presumption against ET operation is enacted in the interpretation legislation of the Commonwealth, the states, except for SA and WA, and the territories, as well as existing at common law.
•    Presumption that parliament intends to legislate in conformity with international law – Sometimes an expression is defined in domestic legislation as having the meaning attributed to it in an international agreement. In those circumstances the legislation is interpreted by reference to the rules applicable to the interpretation of treaties, the ordinary principles of interpretation giving way to those rules.

2.1.3    Use of extrinsic materials

Use of extrinsic materials at common law: Extrinsic material is material that is outside the legislation and can be used to refer to the legislation e.g. SRS. You may only use extrinsic material if it helps to convey the ordinary meaning of the provision.

In the Commonwealth, in all states except for SA and territories, rules governing the use of extrinsic materials in the interpretation of legislation are laid down in legislation. In SA however it is entirely governed by the common law.

Use of extrinsic materials under statute:
Section 15AB of the Acts Interpretation Act 1901 was inserted into the principal Act by s7 of the Acts Interpretation Amendment Act 1984. In the following years, all the states (except SA) and the territories enacted provisions based on s 15AB.

Under s15AB (1)(a) of the Acts Interpretation Act 1901 (Cth) material outside the Act (including the material listed in s15AB (2))may be used to confirm the ordinary meaning of a provision. In other words, extrinsic materials may be taken into account even where the provision is ‘clear on its face’.

Continued on page 2