iNOW! first published in 2015 and now turns 100. What has happened over that period and what does it mean for the interpretation of statutes? Two things stand out. The first is the stability of the system. The principles and the methods by which they are to be applied are well-established, known and flexible. The second is the place and power of purpose in our system. Section 15AA of the Acts Interpretation Act is a mandatory rudder not an optional sail. The next chief justice of the High Court, Stephen Gageler, called s 15AA an ‘unqualified statutory instruction’1. The days of literalism, acontextual readings and the idea that interpretation is a judicial pendulum are gone. The past 100 episodes detect no radical shift in how we are to read statutes. What we see is the progressive affirmation of purpose and context as the drivers of everyday answers to everyday questions.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au
See here for the official PDF of Episode 100 of interpretation NOW!
1 process
Interpretation involves a method or process, as E66 illustrates – text > context > purpose > text2. Consider each in order as well as together. Look for objective evidence of meaning and purpose – A2 [2019] HCA 35 [32].
2 text first
Interpretation is a text-based activity. Always start with the text. Only the text may carry statutory meaning. Get a preliminary understanding of the text before reading other materials – Alcan [2009] HCA 41 [47].
3 context
Consider context in the ‘widest sense’. Context is everything relevant beyond the text (including common law rules). No ambiguity is necessary. Look for evidence of alternative meanings – CIC (1997) 187 CLR 384 (408).
4 purpose
Search objectively within and outside the statute for evidence of the purpose of your provisions3. Select between properly available meanings the one which best achieves that purpose (s 15AA) – Jacobs [2023] HCA 23 [24].
5 text last
On selecting the meaning which best achieves the purpose, return to the text to make sure that meaning is reasonably open on the words of the provision. This is a final but necessary reality check – CMH [2012] HCA 55 [39].
6 coherence
Statutes are rarely perfect but are to be read wherever possible to make them work4. Inconsistency is resolved by reading the provisions as a whole in harmony and by seeking coherence5 – PBS [1998] HCA 28 [70].
7 always speaking
Statutes as a rule take into account evolving meanings of words via changes in science, technology, medicine etc6. Purpose is key in fixing the scope of this principle in practice – A2 [2019] HCA 35 [169].
8 preconception
Don’t think you just know the answer. Don’t angle for any particular outcome. Don’t assume what the purpose was or should be. Apply the process and see what comes out – Certain Lloyds [2012] HCA 56 [24-26].
9 compromise
Legislation usually involves compromise. It rarely pursues one purpose 100%7. Sometimes purpose is obscure or unexpressed. Frame purpose at the correct level. Beware of general objects – Carr [2007] HCA 47 [5-7].
10 extrinsic materials
Always consider these materials as part of wider context. Look for hard evidence of meaning and purpose. Be vigilant not to read whatever the EM may say into the words of the Act – Mondelez [2020] HCA 29 [70].
11 consequences
Absurd, irrational, capricious or obscure outcomes may signal that your reading does not conform with purpose > reconsider! Mere inconvenience of result is not sufficient8 – Cooper Brookes 147 CLR 297 (319-321).
12 Interpretation Acts
These Acts are a treasure-trove of aids, rules and conventions affecting interpretation. They are part of wider context and all jurisdictions have one. Always check their relevance – Pearce Interpretation Acts (book).
13 rules of construction
Also part of wider context9, these common law principles are soft help not hard rules. They provide guidance where relevant and appropriate. Consult textbooks on their uses10 – AMMAI [2018] FCAFC 223 [79].
14 statutory definitions
These aids operate to shorten the text, not to enact substantive law. Read them into the provision and construe the whole11. Smoothing out minor wrinkles in expression is OK12 – Qantas [2023] HCA 27 [80].
15 kinds of Acts
All Acts are now subject to the same general principles of interpretation. Old rules on penal, fiscal and beneficial provisions are overtaken by the need to align meaning to statutory purpose – Alcan [2009] HCA 41 [57].
16 kinds of meaning
Ordinary meaning is the default. Trade meaning must be proved by evidence. Other meanings may emerge from context. Choose between them, where possible, by purpose (s 15AA) – A2 [2019] HCA 35 [32-33].
17 dictionaries
These are no substitute for interpretation as they tell us nothing about context13. Consult with care – Macquarie first. Don’t shop them, make them a fortress14 or apply them robotically – Will [2020] NSWCA 355 [53-57].
18 remediation
Adding or subtracting words from statutes is OK for minor glitches only. Tread cautiously – strict criteria apply15. Repairing statutes is verboten in our system, as it crosses the legislative line – Minogue [2018] HCA 27 [43].
Thanks – Oliver Hood, Patrick Boyd & Jacinta Dharmananda.
Footnotes:
1 SZTAL [2017] HCA 34 [39], cf Calidad [2020] HCA 41 [91].
2 Qantas [2023] HCA 27 [47-57] provides an example of the process.
3 Thiess [2014] HCA 12 [23], SZTAL [2017] HCA 34 [39].
4 Taylor [2014] HCA 9 [60], Douglas [2020] FCAFC 220 [90-91].
5 SAS Trustee [2018] HCA 55 [20], Jacobs [2023] HCA 23 [45].
6 Aubrey [2017] HCA 18 [29-30], Eaton [2013] HCA 2 [97].
7 Rodriguez (1987) 480 US 522 (525-526), Woodside [2009] FCAFC 12 [51].
8 De Paolo [2015] VSCA 230 [48], ConnectEast [2009] FCAFC 22 [41].
9 Fairfax [2019] NSWCA 172 [258-259], cf Lacey [2011] HCA 10 [46].
10 top 3 – Pearce; Barnes, Dharmananda & Moran; Herzfeld & Prince.
11 Kelly [2004] HCA 12 [103], Piastrino [2022] VSC 202 [68].
12 Carr [2022] NSWSC 166 [94], Kennedy [2007] NSWCA 328 [44-45].
13 Hunter’s [2017] NSWCA 188 [78-83], Will [2020] NSWCA 355 [56].
14 Thiess [2014] HCA 12 [23], Cabell (1945) 148 F (2d) 737 (739).
15 Taylor [2014] HCA 9 [35-40], Disorganized [2023] HCA 22 [14-15].