Statutory interpretation hierarchy and process

A. Context

1. First approach to interpreting statute in isolation: discovering plain/ordinary meaning, context and
purpose (Commission of Taxation v Unit Trend).
Project Blue Sky v Australian Broadcasting Authority:
Plain and ordinary (grammatical) meaning; natural default context of words, grammatical
absurdities, purpose of the act, may require a different meaning (335).
Process of construction must always begin by examining the context of the provision that is being
construed. (347)
CIC Insurance v Bankstown Football club
Modern approach requires context considered at first instance, not later ambiguity.

2. Definitions

Definitions section of the Act this will supersede anything else.

If not, consult dictionary to find plain/ordinary meaning or, where appropriate, technical
meaning: State Chamber of Commerce and Industry v Commonwealth (357). Ofc this gives way to
its context in the act [Also see intended audience].
If not, definitions in AIA s 2B also subject to contrary intention; also note ss 2C (person terms
apply to bodies/corporates) & 23 (gender and singular/plurals).

3. Other parts of the legislation

In finding ordinary/natural meaning, context incs the language used in the Act as a whole:
Engineers Case (350).
AIA s 13 says what is in an Act: start 1st section end nth section (or schedule); long title;
preamble; enacting words; all headings.
Notes permissible as legit source to help (though not part of act). Weak aid; [they] cannot control
the meaning of a section: Ombudsman v Moroney (354).
Punctuation permissible: Re Collins; Ex parte Hockings (355-6).
Examples may extend operation of act: AIA s 15AD.

4. External context

Other relevant legislation, similar in subject matter; grounded in assumption Parliament intended
legislation to operate rationally, efficiently and justly: CSD v Permanent Trustee (363).
 Particularly for reciprocal legislation: Abdi v Release on License Board (363).
Doesnt necessarily hold; defined in one act & not in another may indicate Parliament
intended special meaning in the first & ordinary meaning in the latter: R v Scott (363).
(Intended) audience: Herbert Adams v FCT (364) [pastry case].
Usually to effect a technical meaning.
Technical meaning is presumed re recognised legal terms unless contrary intention appears
[legal profession an audience of all statutes]: AG (NSW) v Brewery Union of NSW (364).
Prior or existing law.
Prior (statutory history): important to note that while it may be helpful, must not reinstate
problems that current legislation was intended to cure: DCT v Clark (364) [where
possible, try not to use this; use presumption that re-enactment of a provision constitutes
approval of previous judicial interpretation]
Existing law: generally regarding common law principles: affirmed Fisher v Bell [note:
before s 15AA] (365-6).

5. Maxims

A maxim is a valuable servant, but a dangerous master: Dean v Wiesengrund

Noscitur a sociis meaning by accompanying words: R v Ann Harris (348)

Ejusdem generis subsequent general words limited by preceding specific words ( >1 : DCT v
Clark) forming a genus DCT v Dick (348)
Consistent use of repeated words is assumed: Wilson v CSD (357). Flipside is that where different
words are used, a different usage shouldve been intended.
All words assumed to carry meaning: Project Blue Sky (358).
Words interpreted in accordance with current meaning: DCT v Clark (358). Modern technology
exception: Wilson v CSD (359).
Expressio unius est exclusion alterius express mention of one thing [may be] the exclusion of
another: CMFEU v Hodgkiss (359).
(Rare) Generalia specialibus non derogant general things do not derogate from special things:
Dean v Wiesengrund (360). Re later general act impliedly repealing past specific act

B. Purposive

s 15AA: interpretation that best serves the purpose of the Act

Determining purpose of a provision, read statute as a whole, inc preamble: Project Blue Sky.
Mischief contributes to purpose (check CIC)
Operation of s 15AA not limited to ambiguity;
 Rem purposive construction may not be possible (if language/intention is clear);
Mills v Meeking (319): construe the text of the act; not permissible to rewrite the text; must still
be consistent with the wording.
Correcting oversights, reading down (normally for general words, eg prepositions) Bermingham
v CSC NSW (322): exercise caution; must know the mischief, satisfied Parl overlooked an
eventuality, & correcting word(s) be certainly statable, before reading down is possible.
MAJOR CBS

C. Extrinsic materials (can be used both as context (meaning) and as purpose

Use at CL already established by CIC: may consider reports of law reform bodies to ascertain the
mischief which a statute is intended to cure (334): (parliamentary docs/commissions: Wacando v
Commonwealth; international agreements: Enzed Holdings; The Banco (even if not mentioned in Act);
D & R Henderson (enacted before ratification). Only permits reference to discover the mischief being
remedied, rather than the actual meaning of a provision. So goes more to purposive.

Extrinsic materials recourse under s 15AB much more useful, can ascertain meaning of a provision
(but so this means it goes to contextual approach).
But only permitted under 3 circumstances (triggers):

(1)(a) "to confirm that the meaning is the ordinary meaning" OR

(1)(b)(i) "the provision is ambiguous or obscure" OR

(1)(b)(ii) ordinary meaning (in context/purpose) leads to "a result that is manifestly
absurd or unreasonable". See Re Shingles (340).

(2) lists everything considered extrinsic materials for (1); know all, but esp:
(a) bits of Act not covered by s 13,
(e) explanatory memorandum,
(f) second reading speech.
(3) weight of considered extrinsic material is (a) level of consistency with ordinary meaning of
provisions text in context/purpose.

D. Presumptions

(Strong) No retrospective operation affecting an existing right/obligation, unless expressly or by

necessary implication required: Rodway v The Queen (374).
 Statutes mentioning past facts/events in a prefacing manner, as a basis for what it
prescribes, dont constitute retrospection: Robertson v City of Nunawading (373).
Procedural statutes are an exception (dont affect civil rights/obligations), so are
retrospective: Rodway v The Queen (374).
(Strong) Parl doesnt interfere with common law rights: Coco v The Queen (377).
Again, principle of legality, clear expression of unmistakable and unambiguous
intention (can be implied) needed to rebut: Coco, citing Potter (378).
Personal liberty/autonomy covered by this presumption: Al-Kateb v Godwin (376).
Property rights protected without adequate compensation: Coco, Durham v NSW
(385).
Self-incrimination protected: Crafter v Kelly (380)
Legal professional privilege protected: Daniels Corp v ACCC (380).
Parl doesnt deprive access to courts: Plaintiff S157/2002 v Cth (381).
(Strong) Parl intends to conform with international law: Minister for IEA v Teoh (387).
(Strong) Legislation doesnt have extraterritorial effect
s 21(1): In any Act (b) references to localities jurisdictions and other matters and
things shall be construed as references to such localities jurisdictions and other
matters and things in and of the Commonwealth.
(Weak) Re-enactment constitutes approval of prior judicial interpretation: Flaherty v Girgis (382).
Note re-enactment means exactly reproducing the same words/phrases/sentences in a provision.
While may be useful, difficulty is in discerning the existence of parliamentary
approval; ie look for rewording, context change, really any differences, that might
indicate a shift in statutory intention, which would void Parl approval.
(Weak) Penal provisions are strictly construed (err on the side of D): Beckwith v The Queen (384).
Can be applied, but the rule is perhaps one of last resort; ordinary rules of
construction must be applied.
Resolving in favour of D justified by refusing to extend the category of criminal
offences.
(Weak) legislation doesnt bind the Crown: Bropho v WA
Can be rebutted by implicit intention or by reading in construed context; express
words This Act shall bind the Crown ofc also flatly rebut it.