Interpretation involves a process of working out what legislation means. It’s not intuition, it’s not revelation, and it’s not working back from some desirable outcome. The basic process under our ‘modern approach’ is directed by the High Court1. Start with the text, consider context up-front in the ‘widest sense’2, choose between open meanings firstly by reference …
Following the death of Ruth Bader Ginsburg, Amy Coney Barrett has been appointed to the US Supreme Court. The high-octane confirmation process for the new judge illustrates a basic truth – interpretation matters! In a country with no working consensus on how the Constitution or statutes are to be read, the stance of any candidate is of great importance to …
It’s not only the High Court which provides key guidance on interpretation principles. All courts high and low make their contribution, but the NSW Court of Appeal stands out as an engine of scholarship. From the time of Project Blue Sky until retirement in 2011, Spigelman CJ progressed evolution and explanation of the ‘modern approach’. In the first Spigelman Public …
iNOW! turned 60 back in May. What started as a little in-house ATO experiment to boost awareness of basic interpretation principle now has its own website, 400–odd subscribers and a fat kudos file. It was expected that, after a few years, there would be little new to write about and we could go home. Precisely the opposite turned out to …
Context is always important and often decisive, as the case on access to correspondence between Sir John Kerr and the Queen shows1. Marked ‘personal and confidential’, these papers have been the subject of intense speculation ever since the dismissal. Public access could be had if each was a ‘Commonwealth record’, defined as ‘a record that is the property …
Statutory interpretation rarely makes the front page. But news outlets everywhere1 have reported the US Supreme Court decision making it illegal to sack people simply for being gay or transgender2 – Bostock v Clayton County3. Much of the ruckus was over the fact that it was a Trump appointee, Neil Gorsuch, who held that the Civil …
In R v A21, the High Court articulated an overall method of statutory interpretation. Although judges and academics have approached this topic before2, A2 is notable for its extended discussion by the majority. Under the heading, ‘Construction – method’, the court outlines a method to be followed. First, the judges reaffirm that the task is ‘to …
Are interpretation principles to be thrown out as we grapple with COVID-19? Some thoughts … The legal system must be functional just as much in a pandemic or war as at other times – ‘amid the clash of arms, the laws are not silent’1. Neither the statute book nor the principles for reading it are suspended by emergencies …
Is big data coming to statutory interpretation? In a recent US case, judges considered corpus linguistics as an aid to determining the ordinary meaning of statutory words1. Corpus linguistics involves analysis of vast databases of language to identify common usage. One judge argued it ‘will yield a broader and more empirically-based understanding of the ordinary meaning of a …
Episode 55 observes a ‘certain stability of the law’ on interpretation. But, given that stability, why is the task so hard, and why do so many cases still turn on a complicated application of the rules? A few points can be made. The first is that interpretation is first and always an objective exercise. Absent objectivity, it becomes too easy …
