Statutory Interpretation Principles and pragmatism for a new age Judicial Commission of New South Wales Education Monograph 4 – June 2007 Statutory Interpretation Principles and pragmatism for a new age Education Monograph 4 Published in Sydney by the: Judicial Commission of New South Wales Level 5, 301 George Street Sydney NSW 2000 DX 886 Sydney GPO Box 3634 Sydney NSW 2001 www.judcom.nsw.gov.au National Library of Australia Cataloguing-in-publication entry Statutory interpretation : principles and pragmatism for a new age. Includes index. ISBN 9780731356195 1. Judicial process — New South Wales. 2. Law — New South Wales — Interpretation and construction. 3. Judicial discretion — New South Wales. I. Gotsis, Tom. II. Title. (Series : Educational monograph (Judicial Commission of New South Wales)). 347.94405 © Judicial Commission of New South Wales 2007 This publication is copyright. Other than for the purposes of, and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior permission. Enquiries should be addressed to the publisher. The views expressed in this monograph are the views of the individual authors and do not represent any official views of the Judicial Commission of New South Wales, nor are they necessarily shared by all members of the staff of the Commission. Whilst all reasonable care has been taken in the preparation of this publication, no liability is assumed for any errors or omissions. Editor: Tom Gotsis Graphic design and typesetting: Lorraine Beal Printed by: Emerald Press Table of contents Foreword . v Editor’s Note . vii Statutes . 1 The Honourable WMC Gummow AC Justice of the High Court of Australia The Principles of Legality and Clear Statement . 13 The Honourable JJ Spigelman AC Chief Justice of New South Wales The Intent of Legislators . 33 The Honourable Justice Keith Mason AC President, New South Wales Court of Appeal The High Court of Australia and Modes of Constitutional Interpretation . 45 The Honourable Justice Susan Kenny Judge of the Federal Court of Australia Legislative Drafting and Statutory Interpretation . 81 Ms Hilary Penfold QC First Parliamentary Counsel Commonwealth Office of Parliamentary Counsel, 1993–2004 Statutory Interpretation in Canada . 105 Professor Ruth Sullivan Faculty of Law, University of Ottawa Purpose and Context in Statutory Interpretation . 127 Associate Professor RS Geddes School of Law, University of New England Structuring Purposive Statutory Interpretation . 159 Professor Philip P Frickey School of Law, University of California at Berkeley Saving the Literal . 177 Professor James C Raymond Consultant in Legal Writing and Reasoning Index . 217 Table of Statutes . 225 Table of Cases . 229 iii Foreword Lawyers are traffickers in words. Words are the vehicle by which the law and legal relationships must be conveyed. Words are our basic tools of trade. Interpreting words is a large part of what we do. Lawyers, including parliamentary draftsmen, attempt to be as precise and clear as possible and to anticipate the kinds of issues that may arise in the course of application of legislation. However, clarity and precision can never be capable of complete achievement, not least because the verbal formulae devised in legislative form often have to be stretched to factual situations that no-one could have or did anticipate. Hence litigation about what words mean. As Lord McMillan once put it: “One of the chief functions of our courts is to act as an animated and authoritatie dictionary.”1 One of the difficulties is, of course, the richness of our language which gives rise to ambiguity, indeterminacy or inexplicitness. In English, as in French, in the words of Joseph Joubert: “Words are like eyeglasses, they blur eerything which they do not make more clear.”2 Over the last two or three decades there appears to have been a paradigm shift in all forms of interpretation of legal texts, including constitutional, statutory and contractual interpretation. The shift is from text to context. Literal interpretation — a focus on the plain or ordinary meaning of particular words — is no longer in vogue. Purposive interpretation is what we do now! Of course context was always accepted as significant. Sir Owen Dixon, who many would place at the literalist end of the spectrum of judicial approaches to interpretation, said in 1934: “The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with which the instrument deals and the object it seeks to achiee, so as to arrie at the meaning attached to them by those who must use them.”3 Nevertheless, there does appear to have been a change in the emphasis given to context, by referring to it in the first instance and not simply after some verbal or grammatical ambiguity has been identified. Justice Learned Hand explained the approach now generally applied: “Of course it is true that the words used, een in their literal sense, are the primary, and ordinarily the most reliable, sources of interpreting the meaning of any writing: be it a statute, a contract, or 1 Lord McMillan, Law and Other Things, 1937, Cambridge Uniersity Press, Cambridge, p 163. 2 J Joubert, Pensées, 1842, Section 21, Part 15. 3 See R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244. Statutory Interpretation anything else. But it is one of the surest indices of a mature and deeloped jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always hae some purpose or object to accomplish, whose sympathetic and imaginatie discoery is the surest guide to their meaning.”4 However, as Felix Frankfurter once put it: “While courts are no longer confined to the language, they are still confined by it. Violence must not be done to the words chosen by the legislature.”5 The collection of essays in this monograph is a testament to the recognition by judges and legal scholars of the central significance of statutory interpretation to contemporary legal practice, including litigation. There is now a widespread acceptance that statutory interpretation constitutes a distinct body of law. As I have said in the paper that is reprinted herein, many areas of law are entirely the creation of statute and no area of the law has escaped modification by statute, often substantial modification. It is perhaps somewhat ironic that one of the areas of the law that has been least modified by statute is the law of statutory interpretation. Not least for that reason, the principles of statutory interpretation require the kind of detailed attention that appears in this monograph. The Honourable JJ Spigelman AC Chief Justice of New South Wales 4 Cabell v Markham 148 F 2d 737 at 739 (1945). 5 F Frankfurter, “Some Reflections on the Reading of Statutes” (1947) 47Columbia Law Review 527 at 543. i Editor’s Note Comparing different societies, past and present, it readily becomes apparent that law is not static but adapts its form to reflect the social, economic and political characteristics of the particular society in which it operates.1 In Australia today there are over 1000 Acts in force in New South Wales alone.2 Our specialised, information-age society requires an A–Z set of specialised, information-age laws — and statute law is the form of law that has evolved to meet this need.3 Whether on paper or computer screen, statutes make the will of those who govern indelible. Indelible but inert, like all words, until enlivened when read. Statutory interpretation — as opposed to statutory declaration, discovery or divination — is a term that explicitly alludes to the low-fidelity nature of reading and writing.4 A reader cannot recreate a writer’s intent with the precision of copying a digital computer file; nor can a writer ensure that any particular form of words will perfectly transmit their ideas to all readers. Reading is an analogue process because words are ambiguous, irreducible to fixed units of meaning. As Justice Mason and Professor Raymond explain in their respective articles, this is why dictionaries can do no more than list the various alternative meanings of a particular word and leave it up to the reader to choose which meaning is appropriate in any given context. It is the judiciary’s ongoing effort to grapple with the inherent linguistic ambiguity of statutes — a specialised exercise in hermeneutics — that gives rise to the principles and practice of statutory interpretation. It follows that statutory interpretation ultimately endeavours to reduce ambiguity to background noise, so that meaning becomes discernable. Precisely how this occurs is examined by the authors of the following selected articles. Collecting and juxtaposing the different perspectives offered by the individual authors — judicial, legislative drafter, academic, Australian, American, Canadian — adds richness to the insights offered and provided the rationale for the form of this publication. Justice Gummow draws attention to how, despite much being said in judgments about purposive interpretation, legislative drafters cannot be released from the requirements of precision of thought and expression. Purposivism cannot provide determinative answers 1 P Goodrich, Reading the Law, 1986, Basil Blackwell, Oxford, Ch 1 “Ideational and Institutional Sources of Law”. 2 Chief Justice Gleeson has explained that “[i]f you compare the amount of legislatie output of a modern parliament with the legislatie output of 100 or 50 years ago, the change is extraordinary.”: “Law is now too complex for juries to understand”, The Sydney Morning Herald, 26 March 2007. 3 Chief Justice Spigelman has described our time as the “age of statutes”, where “no area of the law has escaped statutory modification”: JJ Spigelman, “The Poet’s Rich Resource: Issues in Statutory Interpreta- tion” (2001) 21 Australian Bar Review 224 at 224.