Topic 7: Statutory Interpretation Part 3

Speaker 1 Welcome back. This podcast is in relation to our third and final topic on statutory interpretation topic 6 statutory, interpretation part 3. So so far we've looked at the Speaker 2 principles used to interpret statutes by looking at the intrinsic criteria within the statute itself. Speaker 1 And in this lecture we're going to consider the extrinsic material and common law, presumptions the courts Speaker 2 bring when interpreting any piece of legislation. Speaker 1 Now, The modern approach to statutory interpretation, which we traced through in our last podcast, which is a Speaker 2 common law approach to interpretation Speaker 1 requires that in gaining the widest possible context for understanding legislation. We Speaker 2 necessarily have to go to extrinsic sources and materials Speaker 1 extrinsic sources, or materials are just simply those materials that we may use to interpret legislation that exists outside of the act Speaker 2 itself. Speaker 1 Now we consult extrinsic. Often at the first stage with the modern approach of considering the construction of a provision. But please note that this is after you've had a careful reading of the provision itself in its context. That's our very first Port of Call but then we start to consider when we're looking at competing constructions Speaker 2 of a clause, the extrinsic material Speaker 1 and this is what we call the cic Speaker 2 principle and Speaker 1 it's derived from the high, Court's famous obiter in the Judgment of Speaker 2 cic insurance and bankstown foot. Ball club. Speaker 1 Now the use of extrinsic material is contemplated and also permitted by legislation and that is section Speaker 2 15 capital, a capital, Speaker 1 B of the Commonwealth acts interpretation act. It's important to understand that the common law modern approach of Speaker 2 interpretation sits Speaker 1 alongside the provisions of the interpretation acts so both legislation and indeed common law work together. When a Speaker 2 court is asked to interpret legislation section. Speaker 1 Tuesday night B of the Speaker 2 Act was inserted into the principal Act of Speaker 1 1901 by section. 7 of the Speaker 2 acts interpretation Amendment act in 1984. This Speaker 1 section provides that a court may have recourse Speaker 2 to extrinsic Speaker 1 materials to firstly, help. Ascertain the meaning of a provision secondly to help understand the purpose. And object of the ACT thirdly to determine the meaning of a provision when it's unclear ambiguous or Or obscure fourthly when the ordinary meaning is absurd. Or unreasonable note how these terms things like absurd, and unreasonable Speaker 2 obscure, Etc and purpose, Speaker 1 refer back to various Speaker 2 theories and approaches of statutory interpretation that we've talked about in tracing these such as the Golden Rule. And for example, the purpose of rule Speaker 1 section 15, a b gives us a list of the types Speaker 2 of extrinsic materials courts, may use to interpret provisions. And these include I'm going to number them for you. Speaker 1 Number one, that those parts that are not part of the ACT, but are included by government Speaker 2 printers, there for things, like notes and margin notes are extrinsic materials, things like chloroform reports Royal commission reports, Committee of Speaker 1 inquiry reports. Remember, we talked about Committees of inquiry, when we talked about the passage of legislation, through Parliament, Speaker 2 International treaties, Speaker 1 explanatory memorandum, relating to the bill. Now, remember we talked about About explanatory memorandum as part of the enactment Speaker 2 process as well. So if you can't remember what they Speaker 1 are, it could be good to look that up or go back to the previous podcast Speaker 2 on the process of enacting law Speaker 1 extrusive. Materials also include hand side. Now, hand side is simply the record formal record of Speaker 2 the speeches that are made by members in Speaker 1 Parliament. So Speaker 2 when a member is introducing, a bill in Parliament, then hand side more record Speaker 1 that journals of the Senate and any official record. Fortify the house of parliament are also Speaker 2 extrinsic, materials, importantly, section 15. A b does not limit a court to using. Only these extrinsic materials that are listed in the section. Speaker 1 Now before section 15, a b applies, there has to be a threshold Speaker 2 test before. The ax interpretation act will invoke these Provisions section 15 capital a capital, A always applies and always operates Speaker 1 whereas section, Dean a be can operate only if one of the three Speaker 2 preconditions identified in sections, one subsection a and one subsection B have occurred. Speaker 1 So what I mean by that is that for Speaker 2 the extrinsic materials provision in 15a, be to apply for a court to use those things. Something must have occurred and that's one of three things. Firstly, you need to use extrinsic material to confirm, the ordinary meaning of the words, secondly, you need to use extrinsic material because the provisions. Speaker 1 Ambiguous or obscure or thirdly, you need to Speaker 2 use extrinsic material to confirm the meaning because the ordinary meaning of the words leads to a Speaker 1 result that's manifestly absurd or unreasonable. So that's the basis on which you will then go to Speaker 2 extrinsic material under the act. So it does Speaker 1 in effect, actually Place some Speaker 2 limitation on the instances in when section 15 capital a capital, A apply a further limitation that is applied in relation to the Legislation is that courts can only consider the extrinsic material that is placed before them. Speaker 1 This was confirmed by Justice Gummer in Brennan and Speaker 2 comcare 1994 judgment. Speaker 1 This makes sense because courts Speaker 2 only can consider evidence that is placed before them or present tended to the court by counsel. They can't simply go on a fact-finding inquiry. If their own and it should be noted that even if the threshold test is met under section 15, a be, the courts are not required to Extrinsic materials. So it's not mandatory all states and territories. With the Speaker 1 exception of South Australia, have enacted their own Provisions, that are based on section 15, a b. So that's important to note and be important to look up the Speaker 2 relevant, acts interpretation act in the jurisdiction that you are living in. Speaker 1 However, the common law, a modern approach, does not have threshold Speaker 2 tests of ambiguity, like the legislation does. And the modern approach encourages the use of extrinsic materials, At first instance, in the cic Speaker 1 principle to understand the Mischief that Parliament was trying to Speaker 2 address. Now as we've noted, Commonwealth sits alongside the legislation in this regard and the common law does not require the ambiguity to exist before resorting to extrinsic material. So in actual practice use of extrinsic material is often common and is permitted Speaker 1 now, it's helpful. I think Speaker 2 to work through and understand the various types of extrinsic material courts may use when trying to Create a statutory provision. Please note in Speaker 1 this podcast, I'm not going to go into case law on eat where examples are of each type Speaker 2 of extrinsic material being used to help interpret something, Speaker 1 but it would be really good Speaker 2 for you to go back to Mac and, and haul your text. And have a look at the cases that they have explained in that text, because it's a very neat and nice summary in the text. And I think it would be worth your while to have a read through those to make sure you've understood the principle as I previously mentioned. Section 15, a be subsection, 2 provides a list of those extrinsic materials. The court may form itself with and that list is not. Exhaustive and doesn't limit the court only to that list. There's Speaker 1 several types of material, but all of them are aimed at ascertaining. What parliament's Speaker 2 intention was at the time, they enacted the legislation, Speaker 1 the first is explanatory memorandum. Explanatory memorandum is not considered to be part of an act, but Speaker 2 actually extrinsic material, but nonetheless, it can be a really helpful source to consider when we're interpreting. What Parliament was attending every bill of Parliament? That is ultimately enacted as an act is introduced Speaker 1 initially to the members of parliament, with an explanatory memorandum, and this document seeks to explain to the ministers and members of parliament, the purpose of the bill and the need for the Speaker 2 What I guess Mischief or issue the law is trying to Speaker 1 address by the bill being proposed and this enables members of parliament to understand the bill before it is debated. Speaker 2 There is a very handy video from our law librarian embedded in topic. Six of your subject site that shows you how to look up parliamentary speeches and explanatory Speaker 1 memorandum together with all of the other Speaker 2 extrinsic material that will cover. In this lecture, Speaker 1 the next type of extrinsic material are Elementary Speaker 2 debates. Now, traditionally the courts would not refer to reports of two parliamentary debates, which we call Hansard when they Speaker 1 were interpreting statute. However, in 1981 before, Speaker 2 the amendment inserted 15, a b and the act, the high court actually found and indicated that it would make an exception to that position and it would consider parliamentary debates. Since that judgment. We know in 1984 section 15, a be was also enacted. Speaker 1 No, from the process of legislation passing through parliament's that bills are debated in Parliament with explanations often, given about why it was required an explanatory memorandum and the speeches or debates can Speaker 2 show where controversial sections or Provisions. May have been refined or change through the Parliamentary process and can be very helpful to a court. In determining, the legislative purpose, behind a particular provision or statute Speaker 1 courts in South Australia, follow a more lenient approach and they were you Parliamentary debates to determine both the mischief and the purpose or Speaker 2 object of the legislation Hall and mac and make the very valid point that although the debates do not necessarily represent the intention of parliament as a whole, we should take note that we have to be very careful in considering parliamentary debates as indeed. Do the courts because what might be debated in Parliament may not necessarily be what is ultimately enacted and we have to make sure that the debate reflects the Intent of Parliament and is put in its appropriate context, the next extrinsic sauce. Speaker 1 Our convention debates or what are these convention debates are very old. He pertain to the Australian Speaker 2 Federation Conference of 1890 and the australasian federal conventions of 1891, and 1897 and 1898. Speaker 1 And these documents concern, how the Speaker 2 constitution of Australia was put together their the founding Moments of our nation. Now, these records of debate, although very old give us a unique insight, into the Speaker 1 thoughts and process, and debate that was going on around Speaker 2 the provisions of the Constitution. Why they were drafted in the Speaker 1 way that they were and what their intention Speaker 2 was. So, if we're interpreting the Constitution and a constitutional provision, then these can be really helpful for statutory interpretation as instruments of interpretation for constitutional. It's, since the decision of the high court in: Whitfield of 8, 1988, the high court has permitted use of the constitution convention debates and also referendum material, when seeking to interpret provisions of the Commonwealth Constitution, Speaker 1 the court will also interpret the Constitution where relevant with reference to Speaker 2 relevant International treaties, that Australia might be a signatory to. And also in accordance with principles of international law in this regard, have a look at the case of cutting yeri in the and wealth of 1988. The next type of extrinsic material are reports of law. Reform commission's, Royal commissions parliamentary committees, the communities of inquiry and other government committees Speaker 1 law reform. Commission's are independent bodies that are appointed to review an area of law by the Speaker 2 government and to make suggestions and report on proposed changes to the law. Speaker 1 And this can meaning amendment of old Speaker 2 legislation or enactment of new legislation. Speaker 1 Laura phone commissions are able to conduct inquiries into the area and to hear Speaker 2 submissions by a variety of interested parties and stakeholders from the public Speaker 1 commissions are guided Speaker 2 in their inquiries Speaker 1 by the terms of reference that the government gives the Speaker 2 law Reform Commission with respect to a particular legal aspect. Speaker 1 After an inquiry is Speaker 2 conducted, the commission will usually produce a written report that will Speaker 1 summarize its findings and recommendations. It will take Speaker 2 submissions from the public and this might ultimately Refine its Speaker 1 recommendations, but these reports can be quite important because they can go to clarifying. The Mischief that Parliament ultimately tries to address when they subsequently enact the legislation. On the basis of Speaker 2 recommendation by the law Reform Commission, Speaker 1 Australian law Reform Commission has approximately Speaker 2 85% of its recommendations adopted Speaker 1 by legislation in Speaker 2 Parliament subsequently. So as you can imagine these reports can be quite important Speaker 1 courts can also admit Speaker 2 It's from Royal commissions and parliamentary committees Committees of inquiry and so forth. Speaker 1 Again, they Speaker 2 do this to ensure that they can understand the Mischief or defect that the legislature is trying to Speaker 1 address and that it Speaker 2 may not have been provided for in the provision that's being interpreted. It's important to note that such commissions and committees operate both its state and federal level. So we have law reform, Commissions in New Speaker 1 South, Wales, for example, and other states, Speaker 2 And we also have parliamentary committees that are state and federal level. The next source of law is international treaties and agreements. Sometimes Parliament will enact legislation to give effect to an international agreement of which Australia is a signatory. Now, in these instances, the courts have held that reference to such agreements is appropriate when resolving ambiguity of a provision within an act that seeks to implement Australia's International obligations. Speaker 1 Australia, Speaker 2 does assume these obligations under agreements and treaties. Speaker 1 This might even be so Speaker 2 even if the legislation that's being interpreted, doesn't refer to the international agreement that it's trying to implement sometimes legislation Imports specific meanings of words that are used in international treaties or conventions. So for example in applicant a and the minister for immigration and ethnic Affairs, 1997 the high court determined the definition of the word Refugee under the migration Act of the Wealth by referring to the definition of refugee. Under Article, 1 of the convention relating, to the status of refugee refugees, which Australia was a party in 1951. So sometimes definitions can be imported in interpretation. By virtue, of the fact that an international instrument has defined something in that case, this was, despite the fact that the convention hadn't actually been enacted in Australian law, so international law, can often be used to help interpret domestic law as well. And that raises, an interesting point. Courts can have recourse to these agreements even when they haven't been enacted by Australian Parliament. So it's a little bit like delegated legislation, really the way to conceptualize it in that to interpret delegated legislation will always look to the ACT that enables the delegated power and the legislation the delegated legislation being made because that's really important. It gives its power off Gives it as meaning. So, to International Agreements are important for interpreting domestic legislation that seeks to Implement International obligations Australian courts, have taken the view that in those circumstances, the parliament intends the court, to interpret the legislation by reference, to the rules of interpretation of treaties, and that is, and that the normal domestic principles of legislative interpretation or to give way to such rules Speaker 1 in that regard. Have a look at kuwata and biacchi Speaker 2 Pederson of 1882. Speaker 1 The next type of material is legislative history. Earlier in the subject, we looked at how we could look up earlier versions of legislation that have been superseded by subsequent amendments or Acts or alternatively repeal. These earlier laws can be used to help interpret later legislation in gaining an understanding of what the latter Act is trying to achieve as Hall and machen note however, earlier legislative Provisions that differ in meaning and purpose from latter, Provisions should not and will not be applied over the later act where it's clear on the face of the later act, what Speaker 2 the meaning is, because it's clear Speaker 1 that Parliament might actually have a intention for changing earlier law or updating it, but earlier legislation and amended legislation can be quite useful. In understanding, the passage of an act, particularly the evolution of a mischief and the issues of parliament is trying to deal Speaker 2 with. Speaker 1 This is a quiet, have a quiet word about section 15, a be of the Speaker 2 acts interpretation Speaker 1 act, John carven notes in his text and you should have a look at this. A paragraph 6.85 that there are four important observations concerning the use of extrinsic material when you're working with statutory interpretation. And you'd be very wise to include these in your study notes and to make a note of them and these are from John Calvin's text, this is not my own work, firstly, the courts are not limited to the list of Extrinsic materials that is given in section 15, a be. Secondly the courts may use these materials but they're not compelled to thirdly that the use of extrinsic materials is to confirm the meaning of words in their ordinary sense to resolve ambiguities and promote the purpose of the legislation and finally section 15. A be subsection 3. Provides that Speaker 2 judges should use extrinsic materials with Speaker 1 care, avoidance of unnecessary, litigation and use for the Speaker 2 Consistency is what is Paramount. Speaker 1 So in addition to noting these aspects, it's important to be aware of the different ways and presumptions in which the court. Also applies common law assumptions in statutory interpretation and that's what we'll turn to now. Now a presumption when we talk about that in law, particularly common law is something that is assumed in the absence of evidence contradicting. The fact, when interpreting statutes Shoots. Unless there is clear evidence to the contrary courts have a list of presumptions that they apply or assume when interpreting legislation. Now some of these assumptions will not be relevant to legislation and to the process of a particular act, others maybe and more than one can be at any given time as well. The assumptions include and here is the less. It's contained in your subject site. Firstly, that statutes do not operate retrospectively. That we've talked a bit about this previously with respect to the rule of law and we'll talk about this in a moment. Secondly the presumption the parliament does not interfere with common law rights. Thirdly, that Parliament does not wind making legislation intended to abrogate the privilege against self-incrimination because this is a fundamental, right? Fourthly that the parliament, when legislating, doesn't seek to abrogate Legal, Speaker 2 Professional privilege, you'll do. Speaker 1 Legal Professional privilege in evidence and also in law 309 further that the re-enactment constitutes approval of Speaker 2 a previous judicial interpretation that the penal Provisions in, Speaker 1 obviously, criminal codes or criminal, Provisions are strictly construed. And we can understand the reason for that, and the presumption that property rights are not taken away. Without compensation the presumption that legislation doesn't have extra territorial. Real application or effect. And finally, the presumption that Parliament intends to legislate in Speaker 2 Conformity with international law and international principles. Speaker 1 Now, I won't go through every single presumption. Some of them are fairly self-evident such as a presumption against self-incrimination, but I'm going to touch on some of the main Speaker 2 presumptions first that of retrospective Atif. Speaker 1 Now, we discuss this idea when we talked about the rule of law way back in, was it topic one or two? One of the It's of the rule of law is the idea that Speaker 2 law is known Speaker 1 by the citizens over which it governs. Now, if Parliament changes the law to apply retrospectively that is a law today. Operated on things that happened in the past, then this can challenge that premise of the law being known and being able to be Speaker 2 obeyed. This is particularly the case when the law affects people's rights and responsibilities. Speaker 1 So therefore there is a presumption that Parliament does Speaker 2 not intend Be perfect in Speaker 1 legislation. However, that doesn't mean that Parliament cannot and does not ever pass legislation with retrospective effect indeed. We saw in our previous podcasts that it can and it does when we consider the re way Kim ex parte. McNally judgment with cross vesting legislation, and we know, we know that Parliament, then enacted the jurisdiction of Courts, legislating Amendment Act of 2000 in order to make valid. Those judgments that had Been made by the courts in the past to prevent matters having to be relitigated after the high Court's Speaker 2 judgment. So, that's a good example of legislation having retrospective effect, Speaker 1 although retrospective effect Speaker 2 can be implemented and intended by the Speaker 1 parliament, the presumption operates when it's not clear, that that's what the parliament intended to do. Speaker 2 It's important to note that this presumption does not apply to Speaker 1 statutes, that concern matters of procedure as against Speaker 2 matters. We'll all It consumed suits, Speaker 1 substantive, legal rights and Speaker 2 responsibilities. The next presumption is called the principle of Speaker 1 legality. This presumption is going to be very important for you to understand because it comes up quite nicely in the case, that is the Speaker 2 subject of your assessment, three, Speaker 1 unless stated, otherwise, it's presumed that Parliament does not intend to legislate an act that interferes with the fundamental rights freedoms and immunities, that people have at common law. Or by virtue of the separation of powers. Now, this is an interesting concept, isn't it? Because the idea of people having inalienable human rights or Liberties is something that's very common in America because they have a Bill of Rights, we don't in Australia. So what are we talking about? When were talking about inalienable rights? Well, this common law presumption is that under the rule of law, Parliament is not to interfere with the basic rights of citizens with it beyond the scope of its Speaker 2 powers. The Constitution, Speaker 1 this goes back almost to Magna Carta and the idea that people do have rights and Liberty Liberties and that there must be some limit on Executive government power. Now it's important to remember, as I said that Australia has no Bill of Rights and so the rights we're talking about essentially are those rights that courts? Find as a matter of construction usually by way of implied rights when they're Speaker 2 interpreting Speaker 1 the Constitution and the separation of Of power in this regard Justice French explain the role of the courts when protecting these implied, common law rights and freedoms and I'm quoting Justice French. Now in the Judgment of my mom syllabic and the queen. A 2011 judgment. The principle of legality has been applied on many occasions by this court. It is expressed as a presumption that Parliament does not intend to interfere with common law Rights and Freedoms. Except by clear and unequivocal language for which Parliament may be accountable to the electorate. Speaker 2 It requires that statues. Be construed, where constructional choices are open Speaker 1 to avoid, or minimize their encroachment upon rights and freedoms at common law. So, again, the principle of legality doesn't mean that Parliament cannot legislate regarding implied, common law rights Speaker 2 indeed, it can, and if you look at counterterrorism laws, as a good example, they do, Do significantly interfere with implied common law Speaker 1 rights, but if the legislation is going to do, so it has to do. So in clear and unequivocal terms, there are a number of these common law implied rights that Australian common law has found and that are protected by that principle of legality. These include for example, and I won't list the cases that Speaker 2 support them, but you can find many of them in your Speaker 1 text, the right to privacy. Although we have Speaker 2 no strict right to privacy in legislation. Speaker 1 So it's there in some of the law. The right to not give evidence or answer questions that may incriminate you the right to maintain and a certain Legal Professional privileged access to court. Now again this is considered an implied common law, right? But access to Speaker 2 justice is fraught and not always upheld in Australia. Speaker 1 Procedural fairness and due process for those affected by the exercise of Public Power. Speaker 2 Again, access to Justice. Can he do this? Sometimes Speaker 1 the right to freedom of movement and vested property rights and the right to be compensated on just an equitable terms when property is taken Speaker 2 away. Speaker 1 Now, in relation to property rights there, this raises another presumption. We know that under legislation governments can and Speaker 2 do compulsorily acquire land. If you've ever seen the Speaker 1 castle, it's a good example. However, it is important to note that there is a common law presumption. The parliament does not intend to take away or change vested property rights unless the statute does so Inc. Clear and unequivocal terms, thus a construction of a provision that is unclear. The may result in The Speaker 2 Taking of property rights is to be interpreted in such a way that is in accordance with the presumption that this was not parliament's intention to do. So, Speaker 1 as I mentioned before, for good kasler examples, please have a closer look at Hall and machen. Speaker 2 The next presumption is that Speaker 1 Parliament does not intend to Speaker 2 violate international law. It's assumed as Speaker 1 a presumption that when enacting legislation domestically Parliament, does Speaker 2 not intend to legislate in breach of or contrary to international law. Certainly this is the case. When Australia is a signatory to an international treaty or Covenant or convention, Speaker 1 however, this presumption also operates though, even in cases where Australia Speaker 2 hasn't legislated to implement in international obligation domestically. Speaker 1 The idea is that Australia as law-abiding Speaker 2 Nation within the International Community would normally legislate in accordance with the principles and rules of international law and not be intending to breach Speaker 1 these. Unless again, it was starting clear and unequivocal terms. So if there's room for doubt in Speaker 2 terms of statutory Consultants construction, then it will be presumed that Australia is trying to Legislate in a way that does not violate international law. Speaker 1 Another important presumption is that words are to have the same construction throughout the legislative instrument. Now, this makes good sense, doesn't it that unless it's stated Speaker 2 to, the contrary in the act and normally this would be done by a note in the legislation or alternatively, a dictionary section in separate parts of the Speaker 1 act. The words that Parliament uses in Speaker 2 legislation are to Speaker 1 be taken to have Speaker 2 consistent meaning throughout Out the legislative instrument. This is especially, so, when Parliament gives a particular Speaker 1 definition to a word. For example, the example I gave you in the last podcast lecture of the Speaker 2 definition of director under section 9 of the corporations act, it's probably brought up. Then the everyday way, we use that word because it encompasses Shadow directors. Speaker 1 But it's when we receive the word director in that piece of legislation, we are to Speaker 2 assume it has the Speaker 1 same meaning as Speaker 2 is defined in section 9 of the definitions of the ACT. Speaker 1 Finally, the hospice option to touch on is that Speaker 2 Parliament does not intend legislation to have extraterritorial effect. Speaker 1 It is a statutory common law presumption that the legislation enacted in Speaker 2 one jurisdiction is not intended to have effect or to be in force over people in other jurisdictions. This is Speaker 1 part of being a Federated system. So, therefore Commonwealth legislation is presumed to apply only to those people in areas that are within the legislative power of the And wealth which is governed by Speaker 2 the Constitution sections, 51 and 52 New South Wales Speaker 1 legislation. Only affects those in New South Wales. It doesn't have control over those people who live in Victoria or other states. Speaker 2 Unless, of course, those people are actually in the jurisdiction of New South Wales, under New South, Wales law, Speaker 1 as makinen Hall Speaker 2 note. This presumption is also reflected in section 21, subsection 1, B of the acts interpretation Act. Speaker 1 All of these common law presumptions exist unless they are rebutted by a clear and unequivocal Speaker 2 statutory intention Parliament can make explicit that they intend to legislate contrary to these Speaker 1 presumptions and contrary to these implied rights and freedoms by clear wording and also Speaker 2 often with the explanatory memorandum. Speaker 1 But where that is not clear and it is not obvious Speaker 2 through extrinsic material or Really intrinsic material in the act itself. Speaker 1 Then the presumptions that exist at Speaker 2 common law will apply. Thanks for listening.