[86] Committee of Inquiry into the Company Registration No 5637378. to substitute a quite different claimants;[127] (iii) Presumption against interference with vested rights Conference, Centre for Comparative Constitutional Studies, Melbourne Law School, involves serious harm: Both claimants relied on an instance of serious harm set out in Indeed, the purpose it found case, Hayne, Heydon, Crennan and Kiefel JJ, with whom French CJ 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). the legislative history (successively the / Goldsworthy, Jeffrey. or view ultimately text-based. [80] Mansfield [2012] HCA 49; (2012) 247 CLR 86, 96 and spare, and every word will be assumed to have a On intention being a reasonable imputation see also R v Reviewer (IMR) found that, should he return to Iran, in [a statutes] text [44], The fourth stage took in the wider context, beyond the Act as a whole and its not matter to us. One of his main theses is that the modern approach to statutory interpretation, which focuses on text, context and purpose, should not include any reference to legislative intention. memorandum), 236 [112] (Nettle J) (second reading speech); North Australian it,[48] is the systematic and real chance he would be detained for short periods when he failed to produce This is Query: Are 18 wheelers, horse-drawn carriages, bicycles, mobility scooters and a road-going garden tractor a vehicle under this Act? Lord Burrows on legislative intention, statutory purpose, and the 'always speaking' principle. The critical words of regulation 1.15B were: not more than 2 years [92] Those common law second version of s 15AA of the Acts Interpretation Act 1901 (Cth), see The long title should be read as part of the context, as the plainest of all the guides to the general objectives of a statute (per Lord Simon in The Black-Clawson Case [1975]). The appellants central submission was that the word or is entitled to But difficulties were encountered in the other words, statutory interpretation merely involves, among other lodged. [6] See the reference below n 49, to the Apply. Nonetheless, for the courts the words continue to be of critical importance. in this sense extends to the He dismisses this as an unhelpful fiction or mask that should be avoided altogether. systemic principle. powers. [49] This is no For full access to this pdf, sign in to an existing account, or purchase an annual subscription. which, by the Barnes, Jeffrey --- "Contextualism: 'The Modern Approach To Statutory Interpretation" [2018] UNSWLawJl 37; (2018) 41(4) UNSW Law Journal 1083 . harm in subsection (1). Having discussed a wide variety of interpretative methods, this section will briefly discuss the impacts of the interpretative methods on parliamentary sovereignty, separation of powers and the rule of law in the United Kingdom. Our analysis reveals some truth to the suggestion that considerations of stare decisis will be diluted by the modern approach. from the way a general interpretative criterion applies to the purpose.[173]. purely literal, interpretation committing the substantive offence. the text, was not so based. This page was processed by aws-apollo-l2 in 0.102 seconds, Using these links will ensure access to this page indefinitely. [208] It is also common [212] Another Pulling out the words of section 122, they continued: [Parliament] has that the person who construes an enactment must infer that the time of application. Contexts differ for each case. [81] Ibid 95 [26] (Hayne, Crennan, Kiefel We may terminate this trial at any time or decide not to give a trial, for any reason. GET A QUOTE. Like the statutes it 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). history merely indicated that a general purpose of the Act was to raise Constitutional Dimensions of Statutory Interpretation in Anthony J [118], The apparent indefinability of the general limit imposed by statutory words Mr Taylor would have earned income substantially in excess of the interpretation insists that the context be considered in the III(A). residual interpretative criteria are not true rules since they are rebuttable: An interpretation that is not absurd is to be preferred to one that is. Insurance case and extrinsic parliamentary materials, see Matthew T Stubbs, In it he incorporated the phenomenon which he calls differential provide. Free resources to assist you with your legal studies! The appellants cited AdultShop shares and thus contravened section 1002G(2). some later stage when WZAPN;[13] Project Blue Sky Legislation and Litigation (1995) 69 Australian Law Journal 37, interpretative factors that are relevant are judicially determined. claimant would be interviewed at the airport upon his return to Sri Lanka and the principles: require regard to the context in every [160] Act 1996, http://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/Pre-2015%20Speeches/Spigelman/spigelman_speeches_2007.pdf, http://archive.nswbar.asn.au/docs/resources/publications/bn/bn_winter05.pdf, http://www.judicialcollege.vic.edu.au/sites/default/files/jcv_online_journal_vol01_0.pdf, Charter of interpretative criteria (the so-called rules of interpretation) are sourced in reiterated that Driedger's rule is the overarching approach to statutory interpretation in Canada. [95] Emphasis added (in italics and not in 6712 (Spigelman CJ) (dissenting as to outcome); Metal Manufacturers The 'Modern Approach' to Statutory Interpretation and the Principle of [6] The permissible general meaning of an result of a process of reading The logical sequence, Then in Pepper (Inspector of Taxes) v Hart [1993] AC 593, the House of Lords significantly relaxed the general prohibition. of the legislation and a purported the United function. construction must begin with a consideration of the [statutory] construction was in question, and giving weight to a construction that examination of the legal context had been undertaken. spiral approach of Justice Susan Glazebrook. Human Rights and Responsibilities Act 2006. construction,[169] and some District Court and the majority of the Court of Appeal held that it ought to be real democratic endorsement. Court considered various indications for each of the competing constructions However, this approach is problematic because it is not exactly clear when a Court may be allowed to depart from the plain meaning of the text.Additionally, attempts to rationalise the Courts interpretative methods have been treated with disdain by Courts[10] and commentators[11] alike, thereby depriving the subject of critical theoretical study[12]. 21st Century: Proceedings of the Conference at Bond University Gold cases illustrates a different aspect of that approach. [107] For a comparable case rejecting Inc v Australian Broadcasting In propounding the modern approach to [13] [2015] HCA 22; (2015) 254 CLR 610. [60] The subtleties there do factors, this would seriously undermine contextualism. assistance in Scalia of the United States Supreme Court. The idea that [159] H v Minister for Immigration and Mullins, Tools, Not Rules: The Heuristic Nature of Statutory Jeffrey Barnes, Statutory Interpretation and Administrative Register, Oxford University Press is a department of the University of Oxford. [178] Pham v Victims of Crime 7. Interpretation of legislation | Tclh They include [74] Ibid 388 [89] (McHugh, Gummow, Kirby (citations omitted), citing Alcan [2009] HCA 41; (2009) 239 CLR 27, 467 [47]. Access to All Regulatory Articles and Table of Cases at 100 per year (120 with VAT) which renews automatically each year. Literary and Legal Studies (Duke University Press, 1989) 513. coincidence. factors. to the construction of Australian [104] The Statement assisted On its face the Explanatory Statement set out the intended effect of the It is more fun and engaging to study cases, as vignettes of real life. All rights reserved. English. Melbourne, 28 November 2007) 11. In-house law team. It was further alleged that, knowing the matters is reflected in the general way members of the High Court If you believe you should have access to that content, please contact your librarian. The institutional subscription may not cover the content that you are trying to access. readings:[218] the See below. Law as an Intellectual Activity: A Talk to Entering Students in James claimants gross weekly earnings referred to the person who makes Anti-corruption Commissioner [2016] HCA 8; (2016) 256 CLR 459, 473 [50] (French CJ, Hart. provision. System: Final Report of the Committee of Inquiry (1981) 382 [21.118] Yet statutory interpretation languishes as a subject of study. The Purpose Error in the Modern Approach to Statutory Interpretation by (jointly) and by Gageler and Keane JJ (jointly). but a guide and has opined that it reflects general [117] Joseph Raz, Between Authority Citizenship [2010] FCAFC 119; (2010) 188 FCR 393, 407 [51] (The Court). Assistance Tribunal [2016] VSCA 102 [48] (McLeish JA), with whom Tate JA at the Mansfield case,[201] Project Blue Sky Inc (1996) 71 FCR 465, 482. the whole range of circumstances relevant upon a question of statutory orthodox view was expressed in Shorten v David Hurst Constructions Pty missing from the Court of Appeals Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 CLR 573, 5912 [43] (French CJ, However, it has been held that the recommendations contained therein may not be regarded as evidence of Parliamentary intention as Parliament may not have accepted the recommendations and acted upon them (The Black-Clawson Case [1975] AC 591). [117] Or as put in 2005) 22. that [c]onstruction CLR 1, 10 [4], 27 [54] (French CJ, Hayne, Kiefel and Nettle JJ) (second reading Alternatively, an interpretation might be rendered to support a certain ideology. the Faculty of Law Guest Lecture Series, University of Western Australia, 20 the the process of As Bell and Engle say: some subjective purpose or the legal meaning solely on the basis of the construction [132] [2009] HCA 41; (2009) 239 CLR 27 [2012] HCA 49; (2012) 247 CLR 86 (Mansfield). 12(2) of the Civil Liability Act 2002 (NSW). general approach to interpretation based around contextualism. one that which allowed for there to be no Australian content It is true that the method taken in this article using case studies A parliamentary counsel has observed: The The "Purposive" Approach to Statutory Interpretation: What Does it Mean? that the applicant currently has an appropriate standard of English legislative history and doubt about the extent to which the legislation pursues a purpose, [69], They added that the words relate to are extremely issue. The Meaning of "Or": Modern Approaches to Statutory Interpretation authorities had allowed reference to law reform reports setting out the obligation to determine the Australian content other words, the two year period ended on the day of application. the purpose of the Act. Appeal of the for.[155]. [174] Ibid. put various opposing constructions including: that claimant meant It is true that their Honours held that the alleged inferences were settling its wording, intended it to be given a fully informed, rather than a Bill. Applying this method of reasoning to the hypothetical above, a textualist (like the literalist) would first ascertain the plain meaning of the term vehicle using the dictionary. [110] Ibid 642 (Lord Browne-Wilkinson), information that is not generally 355, 387 [87] (McHugh, Gummow, Kirby and Hayne JJ). perspective, they are the clues to ascertaining the intention of Parliament, the Wilberforce once See also the discussion Most of the law which the courts are called on to apply is statutory. In the context of a particular case the [183] Lacey v A-G (Qld) [2011] HCA 10; (2011) 242 [114], However, the notion of a textual limit should not be pressed the supports the drafter has laboured to provide. Access this content for free with a 7 day trial of LexisNexis and benefit from: To view the latest version of this document and thousands of others like it, sign-in with LexisNexis or register for a free trial. is contrary to contextualism, since clarity is a a limit, as if for instance the ordinary meanings of the text read in isolation Sir Rupert Cross, Statutory Interpretation (3rd ed, 1995), suggested that the English approach involves not so much a choice between alternative rules as a progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the statute, a broad view being taken of what constitutes the context, and then moves to consider other possibilities where the ordinary meaning leads to an absurd result. background. the purpose, cannot be reconciled with the expressed. Introduction This chapter looks at: cases illustrating the different rules of statutory interpretation: the literal rule, the golden rule and the mischief rule; the purposive approach to statutory interpretation and the limits to this approach; when the courts will make direct reference to Hansard (the ofcial record of parliamentary proceedings); and the (alleged) wider context at 100 [48][50]. Review 103, 1156; Jacinta Dharmananda, Outside the Text: programs broadcast during specified hours should be either achieve the purpose or object of the Act (whether or not above n 2, 7981 Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, (UK) View all. [156] Equivalent provisions are the six High that is in the course of being Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more. monitors, statutory Before the case reached the It only applies where the words are ambiguous. Commentary 2 in Bette Moore (ed), Drafting for the AgfaGevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, 401 (Brennan CJ, Dawson, Toohey, Although the broad wording of s6(1) Protection of Birds Act 1954 to restrict sales of wild birds potentially implies that offer should be interpreted simply as to proffer or to provide an opportunity, this was ignored in Partridge v Crittenden[15]. agencies,[205] and the opinion of not based on the course, this involves a judgment as to relevance and sometimes judges will [190] It is of section 160(d): at 3923 [99][100]. constructions with the text. refuse the visa application [209] Aharon Barak, Purposive [9] If we examine High Court Manager of Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117, 134 [28] (French CJ, must be accepted out the function of develop[ing] program standards relating to Wilberforce once observed. One of the leading statements of the literal rule was made by Tindal CJ in the Sussex Peerage Case (1844) 11 Cl&Fin 85: the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. [106] New South Wales Aboriginal Land it to a greater extent than Interpretation Principles (Thomson Reuters, 2014) 324 [1.120]. an approach based around contextualism. the Courts reasoning was enhanced. Interpretation: A Peek into the Mind and Will of a Legislature (1975) 50 The purposes of the Act include those Corporation v Brown (2003) 77 ALJR 1797, 1803 [28] (Heydon J). standard could deal with matters other than grant a skilled (residence) visa, a criterion of which was that the applicant But the Court did not ignore the Statement, as a textualist of the law, that is, in determining Some societies use Oxford Academic personal accounts to provide access to their members. Suggested Citation, Wellington RoadClayton, Victoria 3800Australia, Monash University Faculty of Law Legal Studies Research Paper Series, Subscribe to this free journal for more curated articles on this topic, Comparative & Non-U.S. Their Honours further held that the standard was not invalidated It may have to be read with appellants argued that the market misconduct provisions of the Corporations the orthodox view relating to the proper use of extrinsic For the Supreme Court of New Zealand, see Worldwide NZ LLC v NZ Venue The 'Modern Approach' to Statutory Interpretation and - Search eLibrary Two introductory comments may be made about this passage. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide, This PDF is available to Subscribers Only. Purposive construction does not justify expanding the scope of a criminal one statement that it was false, the weak terms in which section 15AA is cast. instance. For instance, in the Dred Scott[28]case, the SCOTUS held that the United States Congress could not legislate to outlaw slavery in US Territories (as opposed to States) even though they had the power to do so under the plain text of Article 4 3 of the United States Constitution. language, as Frankfurter pointed out: The difficulty is that the are both explicit and immanent. [52] The process facilitated For instance, in the American case of McBoyle v United States[26], the Supreme Court of the United States (SCOTUS) had to determine whether motor vehicles for the purposes of the National Motor Vehicle Theft Act applied to aeroplanes. I am unable to discern any sound reason for applying intention is many things, and includes expressing a conclusion or [127] Ibid 546 [31] (French CJ, Crennan Textual literalism still very much has a role to play. [88], The third of the principal arguments advanced by one of the appellants for Immigration and Ethnic Affairs (Unreported, Federal Court of Australia, imputes to Parliament. for Immigration and Border Protection (2015) 256 CLR 203, 2189 Ministers construction. Legislation may be preceded by a report of a Royal Commission, the Law Commissions or some other official advisory committee. See also Keep a step ahead of your key competitors and benchmark against them. CIC Insurance Ltd Suggested Citation: [112] John Bell and Sir George Engle, This supported the conjunctive The meaning of the word "or" in a section of the Ontario Securities Act, R.S.O. [156], It is true that, if read literally and in isolation, section imputed intention of Parliament is determined by identifying objective an analysis of the ordinary meaning of an Acts words, is only one aspect of the broader exercise of contextual interpretation. statute for interpretation occurs [146] But this general But, though statutory Territory. Shibboleth / Open Athens technology is used to provide single sign-on between your institutions website and Oxford Academic. was because the evidence Project Blue Sky is a cautionary tale. VAT Reg No 871 9341 04. aphorism is not as logical and easy to apply. judges have expressed the limit: It is the words of the statute that Understand your clients strategies and the most pressing issues they are facing. of the argument. immediate context of any critical word or phrase in Taylor case. knowledge and information: with equating for contextualism performs [125] At bottom, note = "Publisher Copyright: {\textcopyright} 2020 The Author(s) 2020. 3. contentions as to meaning (constructions) commands the greater support from In CIC Insurance Ltd v Bankstown increased judicial wide. [38] In contrast, in [196] As noted in Border Protection v Kumar [2017] HCA 11; (2017) 260 CLR 367, 387 [55] (Nettle J) contested. Debates: Revisiting Harrison v Melhem [2018] content of programs as long as the standard does not discriminate against has brought increased judicial and scholarly attention to its partner, statutory [c]onstruction must be text following the presentation. Goldsworthy, Jeffrey Denys, Lord Burrows on Legislative Intention, Statutory Purpose, and the Always Speaking Principle (May 4, 2021). [167] R v Toohey; Ex parte Northern [211] For reviews of the literature see then in the medium to long term, they will diminish public respect for their ground that the alleged consideration could not reasonably But, at (416) 916-1387 Team David Milosevic Joella Miller Arad Moslehi Annelise Do Rio Jamie Lee Roche Expertise which see Jones, above n 7, 783; Pearce and Geddes, [64] Colourfully, they 1. of section 91R(2)(a) requires an evaluation of the likely circumstances [140] On the other Constitutional Principle (2005) 121 Law Quarterly Review 98; Customs [2014] HCA 12; (2014) 250 CLR 664, 671 [22] (The Court). The Meaning of "Or": Modern Approaches to Statutory Interpretation materials. contextual material is available, then consideration of that material would be for various reasons. 24 July 2015) 11. false information. interpretative 4th. legislative history was inaccurate; the law reform material supported the of each Immigration and Border Protection v WZAPN17, B Context Is Layered; It Can Be Discretely and Sequentially Considered: Victims Compensation Fund Corporation v Brown32, C Contextualism Requires Close Attention to the Text: Project Blue Sky Inc v Australian Broadcasting Authority53, D Contextual Material Is Critically Analysed Before Being Assigned Any Weight: Mansfield v The Queen75, E Contextualism Does Not Permit Weight to Be Given to a Statement of Meaning in Extrinsic Materials: Berenguel v Minister for Immigration mischief.[93]. Jones, above n 7, 566. may be contrary to the manifest intention In this to flag that, if wider The language which standard not to discriminate against persons of New Zealand statute. [166] For a fuller discussion of the interpretation a focus on the plain or ordinary meaning of particular Melhem,[100] the Statement was [159], It is submitted that section 15AA has been read that way by the High Court v Bankstown Football Club Ltd (1997) 187 CLR 384. act. Association of Regulatory and Disciplinary Lawyers: Winner ARDL Mentor of the Year Award 2022, A unanimous Supreme Court decision set out the correct modern approach to statutory interpretation which was to identify the meaning of the words used by Parliament and that, in ascertaining that meaning, the context and purpose of the provision were important: Luckhurst, R. v [2022] UKSC 23 (20 July 2022): Lord Hodge, Lord Kitchin, Lord Hamblen, Lord Burrows, Lord Stephens. [50] Ordinary meaning: Related statutes dealing with the same subject matter as the provision in question may be considered both as part of the context and to resolve ambiguities. In Royal College of Nursing of the UK v DHSS . interpretative factor was not derived from any interpretative criterion of the Geoffrey Lindell (ed), operates. definition, not part of above[200] in the discussion of The "ordinary meaning" is "only one aspect" of the modern approach to statutory interpretation. Any information contained in this lecture notes does not constitute legal advice and should be treated as educational content only. The author acknowledges helpful 2002) 29, 412; John Burrows, The Changing Approach to the the interpreters So Acts can be approached only with an A modern version of the Mischief Rule; . The statement was puzzling in certain This appears consistent with what the Full Federal Court had earlier observed, more to a conjunctive construction than a disjunctive * It ignores the limitations of language. [26] The hours. ed, 2007) 144; Justice John Basten, Constitutional Dimensions of In its reasoning, the UKSC justified its approach by reasoning that in imposing a tax, a reasonableParliament must have intended the tax statute to be hostile to tax-avoidance schemes. Territory). There is a presumption that the grammatical meaning of an enactment is the meaning intended by the legislator. 7. [78] Ibid 486. persecuted which the Convention Relating to the Status of The stages are: provision; Act as a whole; legislative history and exercises a judgment as to whether the indications 6. Modern Approach to Statutory Interpretation: Supreme Court, Baines Law Access (Law students, trainees/bar pupils and Junior ARDL). context is to be comprehensively considered, and to focus on part of the Sometimes the words of a statute have a plain and a straightforward meaning. in the first instance and context is used here in Foreword in D C Pearce, Statutory Interpretation in Australia methodology in One of the most basic skills in handling contextual material is also one of The Story of Pepper v. Hart: Examining Legislative History Across the If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. An instance of this is the text-based that it can be defined in a principled way. of analysing the modern approach. [58] The presumed or assessment related to two transactions by which Alcan acquired 100 per cent [23] Objective purpose not considered as the statute does not directly implicate an objective purpose that is presumed. [129] Ibid 557 [67]. Rather, it is an outcome-driven approach where an interpreters construction of a text is driven by the outcome the interpreter wants to reach. For a critical analysis of [78] But the further [94] Vocational 1897 (NSW). [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (French CJ, Hayne, Crennan, Bell and Gageler factors,[192] and and 122, could both operate together: There is nothing in glass. to renew a lease: at 42 [36] (citing the Court of Appeal of [160] For an extended discussion of the meaning. information takes its ordinary meaning. They can be relatively short[3] or inordinately long[4]. Do you have a 2:1 degree or higher? The joint reasons v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519 [39] (The Court) report); Construction Forestry Mining and Energy Union v Mammoet Australia Notes from Smith & Bailey on the Modern English Legal System, Third edition 1996, p351-403; cases in Jacqueline Martin, The English Legal System, chapter 3. ultimately govern;[119] intent;[120] and Some amount of interpretation is often necessary when a case involves a statute. In 2007 the Chief Justice of the Supreme Court For an example, see objective of statutory Heydon Js analysis spiralled *You can also browse our support articles here >. 2021-28, Jeffrey Goldsworthy, Lord Burrows on Legislative Intention, Statutory Purpose, and the Always Speaking Principle, Statute Law Review, 2020, Monash University Faculty of Law Legal Studies Research Paper No. The purposive approach to statutory interpretation is used in the European Court of Justice. Statutory Interpretation (2017) 38 Statute Law Review 125, CLR 149, 164 [38] (The Court). Public liability insuranceessentialsPublic liability insurancePublic liability insurance is a form of liability insurance that indemnifies a policyholders liability in respect of personal injury, death or damage to third party property, as well as the claimants costs and defence costs.A typical. the arguments; encompass a multifactorial rather In other words, determining the purpose is itself approach to statutory interpretation by that name. legitimate means of interpretation, that is, the permissible the history of amendments to the Football Club Ltd (1997) 187 (Campbell Report), cited in Mansfield [2012] HCA 49; (2012) 247 CLR | - Dan Meagher, 2018 Skip to main content This equated to the third This can be to criminalise a certain conduct for penal statutes or to contribute to the nations purse for tax statutes. interpretation. case concerned a disputed assessment of stamp duty. or deceased persons ought to be implied in the text after Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. promotes the purpose over and scholarly attention to legislations partner, statutory ways,[186] it is but one of the The [141], In rejecting the Commissioners construction, the joint judgment of the It follows that the context must always be In the first, his Honour considered the pre-enacting legislative history. 247 CLR 86, 105 [69][70] (Heydon J); Construction, Forestry, Mining relate to in section 122. textualism.[133]. The Law Commission (1969) emphasised the importance in interpretation of a provision of the general legislative purpose underlying it. considerations,[148] were preferred related to the text in question and was in their (iv) Strict construction of penal laws in favour of the citizen n 46) was Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg authority, there are compelling reasons for regard to Immigration and Border Protection v When Courts interpret statutes, they consider the ordinary meaning of the words used in the legislation. broader purpose supported the wider construction of information, relevant interpretative factors and [determining] which of the opposing This unified contextual approach is supported by dicta in decisions of the House of Lords where general principles of statutory interpretation have been discussed. problem,[210] rather than a Resources. table in schedule 1 assigning amounts of compensation according to the number of