Basten JA (2019) 93 Australian Law Journal 367
In 1981, 2 judges said the principles of interpretation ‘are no more than rules of common sense’12. Basten JA says the days have passed since interpretation was to be seen as some exercise in common sense13. Is there inconsistency between these 2 statements?
Rhetorical ‘common sense’, as unanalysed dogmatic truth, has no role in legal work14. It is evasive & may conceal political choices – Basten JA. Interpretation principles, however, reflect a plain and practical ‘common sense’. They relate back to ordinary usage, shared understandings, language conventions and experience. Common sense of this practical kind is always important in statutory interpretation15.
This principle is from Episode 58 of interpretation NOW!
Footnotes:
12 Cooper Brookes (1981) 147 CLR 297 (at 320), Pearce 9th ed (at [4.1]).
13 cf Middleton (2016) 40 MULR 626 (at 632), Episodes 22 & 51.
14 McHugh (1999) 73 ALJ 37 (at 45), cf Burton (2005) 1/3 JATTA 1.
15 cf Sullivan Statutory Interpretation (at 36-37), Maher 8 MULR 587.