Interpeting the law assigment PDF

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Why are purposive and contextual approaches preferred in statutory interpretation in Australia at present?

The approach to statutory interpretation has undergone immense change over the past decades, particular in relation to the shift from textualism to contextualism. The CJ Spigelman make a valid point in saying that contemporary methods of statutory interpretation have in fact emerged overtime, changing from an approach of textualism to one of contextualism. Contextualism is the process in which the words of the statute are interpreted in a way where weight is given to surrounding circumstances, both intrinsic and extrinsic material to ascertain the overall meaning, central purpose and objective of the particular statute in question. This method of interpretation has been singularly favored by the high court as it allows for thorough examination of surrounding materials, deep analysis of statutes given the current landscape of society at the time and ensures accurate ascertainment of the purpose and meaning of the words in the statute and therefore ensures accurate application of the law.

With regard to the literal approach of statutory interpretation, the literal approach was one which encompassed looking to the plain and ordinary meaning of the words of the statute. The contemporary approach placed greater emphasis and weight on the context of the text in question. Context is considered in the first instance by high court judges and this ultimately means consideration is given to the statute as a whole, the existing state of the law, and the purpose of the statute. This was further emphasised by the Hon M Kirby, “the modern approach requires a combination of analysing the text, context and purpose of the statute”1. This approach is favoured now over the interpretation of the plain meaning of words. The 1 Philip P Frick,’From the big sleep to the big heat: The Revival of Theory in Statutory interpretation” (2010)

literal rule includes the judge considering what the legislation actually says than what it might mean. In order to achieve this end, the judge should give words in legislation their literal meaning; that is, their plain, ordinary, every meaning, even if the effect of this to provide what might be considered an otherwise unjust or undesirable outcome. The purposive approach goes further by seeking to determine Parliament intentions in passing the act. Main arguments for using a purposive approach are that it is realistic approach, acknowledging that the courts are being creative when they interpret legislation, and that they should exercise that creativity in a way that support the purpose of the legislation, thereby paying due respect to the sovereignty of Parliament. While giving greater weight to the purposive element is, therefore, the most sensible approach to take, it is not always easy for the courts to identify the purpose of the legislation2. The contextual approach allows for more accuracy than the literal approach, because words don’t always mean what they say this was also emphasised in the Project Blue Sky V ABA case, “words don’t always mean plainly what they say and it is important to read words in light of the current context” 3. In looking to the contemporary approach adopted and singularly favoured by the judiciary today, we can see that context is central to the contemporary approach. The very reason for the change from the literal approach to the contemporary approach was due to the fact that the meaning of words are better ascertained when looked at in their overall context. It is often that words do not mean simply what they say, they can often be ambiguous and hold more than one meaning. The literal approach restricted judicial discretion whereby judges simply had to focus on the direct wording of the act in question. This brought about many technical and procedural issues and brought about unresolved issues of ambiguity. The “From the big sleep to the big heat: The 2 Philip P Frick,’From the big sleep to the big heat: The Revival of Theory in Statutory interpretation” (2010) 83 Statute Law Review 31

3 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28

Revival of Theory in Statutory interpretation” journal article by Philip P. Frickey4 reinforces the negative repercussions of the former literal approach.

With regard to the contemporary approach today, it can be held that such an approach encompasses a process by which judges ascertain meaning by reading the words of the statute with regard to intrinsic and extrinsic material. This allows for a less restrictive interpretation of the statute, greater accuracy and therefore consistent reasoning of judgments. The courts insist that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise. Furthermore, it is vital to utilize context in this widest sense to include such things as the existing state of the law and the mischief, which by legitimate means such as those mentioned, one may discern the statute was intended to remedy5. The court also referred to the inconvenience or improbability of a result, which may assist the court in preferring a construction other than the literal meaning if that meaning is reasonably open and in a way that conforms to legislative intent6.

The modern approach is a purposive one, but not in a way that departs from the written text. Context must include the words of the text as a whole, the consequence of a particular construction and canons. In R V Young7, what was referred to an ‘literal in total context’ , the words dominate but judges should look at the larger context when looking at the words. This includes intrinsic materials, immediate context, reading the act as a whole and the broader context. The purposive approach promotes the purpose or object underlying the act or statutory rule. The importance of purpose in interpretation has been supported through 4 Philip P Frick,’From the big sleep to the big heat: The Revival of Theory in Statutory interpretation” (2010) 83 Statute Law Review 31 5 Ibid. 6 Ibid.

7 R v Young [1969] Qd R 417

legislation, so the acts Interpretation Act 19018 ,Commonwealth and Interpretation act 1987. Those acts include provisions that are designed to promote the purpose or object underlying the act or statutory rule. In giving effect to that, the court has found that the means you don’t need ambiguity or inconsistency underneath, so as a result the court can consider the purposes of an act in determining whether there is more than one possible construction. Justice Dawson stated a modification for the literal meaning of provisions should be precisely identifiable as that which is necessary to effectuate those purposes, and consistent with the wording otherwise adopted9. If you are intending to look at something, apart from the literal meaning of the words, it is only so that you can achieve the purposes of the act, and that interpretation needs to remain consistent. In summary, the purposive approach gives direction to judges to read into the statues to fit the particular circumstances of contemporary day issues, furthermore it allows the law to stay relevant, accurate and as an everlasting framework.

Whilst the purposive approach brings about many positives; so too does it bring about some negatives. Such an approach gives judges a green light for the abuse of power to an extent. Judges are given a wide discretion; they are able to read in read down and to an extent give the words their own conditional meaning. It is not the role of the judges to make legislation this is for the legislature. The purposive approach allows for consideration from other bodies such as the parliament as under the approach of context, you can look to the second reading speech and see what the specific aim of the legislature was and therefore apply the law according to that particular 8 Acts Interpretation Act (1901)

9 Duffy, James; O'Brien, John, "When Interpretation Acts Require Interpretation: Purposive Statutory Interpretation and Criminal Liability in Queensland" [2017] 43 UNSW Law Journal 952.

purpose. Furthermore it allows the judges to have a clear reasoning as to why they made the decisions they do; more faith in the judiciary because they are reading the legislation in light of its overall purpose, looking towards surrounding material and broader things which help in this interpretation; this makes their job easier- making statutory interpretation easier for them with a more consistent outcome. There is a more flexible approach allowing judges greater scope to advance and establish the law in line with what they perceive to be Parliament's intention. The purposive approach more readily embraces the use of extrinsic aids to assist in finding Parliament's intention10. This was further reinforced in the case of Pepper V Hart11 in relaxing the rule on reference to Hansard. the House of Lords adopted a purposive approach. There are many negatives to this method of interpretation, it allows for a wide discretion to be given to judges, they are able to read into statutes, read down, apply their own meaning at times; this is overstepping their power inter vivos- (beyond their power). They have been given too much power to develop the law and usurping the power of parliament. This encroaches upon the rule of law but also the separation of powers. It is not for the judiciary to give an overly wide meaning to statute as this deviates away from the intention of the law maker, law making powers belong solely to the parliament. Furthermore, there has also been a vast majority that reference Hansard12 , allowing this reference will drive lawyers to examine irrelevant material for a lengthy amount of time which in turn adds to the cost and length of litigation.

In conclusion, The CJ Spigelman make a valid point in saying that contemporary methods of statutory interpretation have in fact emerged overtime, changing from an approach of textualism to one of contextualism. Contextualism has been singularly favoured by the high

10 Philip P Frick,’From the big sleep to the big heat: The Revival of Theory in Statutory interpretation” (2010) 83 Statute Law Review 31 11 Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 12 Ibid.

court as it allows for thorough examination of surrounding materials, deep analysis of statutes given the current landscape of society at the time and ensures accurate ascertainment of the purpose and meaning of the words in the statute and therefore ensures accurate application of the law.

A – Articles/Books/Reports Duffy, James; O'Brien, John, "When Interpretation Acts Require Interpretation: Purposive Statutory Interpretation and Criminal Liability in Queensland" [2017] 43 UNSW Law Journal 952.

Philip P Frick,’From the big sleep to the big heat: The Revival of Theory in Statutory interpretation” (2010) 83 Statute Law Review 31

B- Cases Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 R v Young [1969] Qd R 417

C- Legislation Acts Interpretation Act (1901) Interpretation act (1987).

D – Treaties

E- Other...