#6505 - Legislative Interpretation I - Australian Legal Foundations

LEGISLATIVE INTERPRETATION I * * * * * * statutory interpretation statutory construction o the interpretation of words, clauses and sections We need it when words are not clear, or the intentions of Parliament are not represented in those word Judiciary BUT lawyers engage in it Rules to interpret rules o everyone is interpreting to the same end Legislation o communicating to courts, administrators and other citizens SS? represents views of the people SS? outlives the generation it was created to serve SS? the meaning of words can change * "communicate" in the postal act o telegrams etc when it was originally written, but texts/phones now SS? words inadequately convey ideas SS? words are symbols for our ideas SS? meaning of words can be unclear The need for interpretation: * clarify the meaning of sections, clauses or even individual words in legislation * give "legal" meaning, or new meaning, to words which have changed over time * lawyers construct ambiguity for clients to advance their claims * role of judges to make common law is something we see less of o most cases are about legislative interpretation SS? wording in the constitution SS? what constitutes a 'right' The Role of the Court in Interpretation ... the construction of statutes is now, probably, the Kirby, J (13th July single most important aspect of legal and judicial work. 2002) ... The world of common law principle is in retreat. It now circles in the orbit of statute PAGE 27 Issues in interpretation: * whether a person is in breach of an Act * meaning and scope of particular words * ambiguous and ill--expressed passages * absurd clauses or words represented in outcomes * whether legislation is to apply retrospectively o comes down to the construction of words TOOLBOX FOR INTERPRETATION: Common Law Rules (used in Australia -- KNOW THIS RULE) * Literal approach o objective, neutral, unbiased o the legislation means exactly what the literal words mean o plain and ordinary meaning SS? Whitely v Chappel (1869) * D voted in the name of a dead person * found NOT GUILTY of impersonating "any person entitled to vote" * A dead person is not entitled to vote therefore he was not guilty under that section of the law o COURT IS SOLELY CONCERNED WITH WHAT IS WRITTEN BY PARLIAMENT NOT WHAT THEY INTENDED BUT DIDNT WRITE! SS? if they wanted to say anything different they would have SS? interpret it literally o can lead to unjust and absurd outcomes SS? "one armed swimmer" * law says they must touch the wall with two hands * the one armed swimmer won the race convincingly o cannot win because they didn't touch with both hands! PAGE 28 The Engineers Case -- Amalgamated Society of Engineers v Adelaide Steamship Co Ltd * "The more the decisions are examined, and compared with each other and with the Constitution itself, the more evident it becomes that no clear principle can account for them. They are sometimes at variance with the natural meaning of the text of the Constitution; some are irreconcilable with others, and some are individually rested on reasons not founded on the words of the Constitution or on any recognized principle of the common law underlying the expressed terms of the Constitution, but on implication drawn from what is called the principle of 'necessity', that being itself referable to no more definite standard than the personal opinion of the Judge who declares it" - Knox, CJ Appealing to judges because it takes the blame off them Can often clarify nothing SS? * * Golden Rule (not used in Australia) * A variation on the literal approach o the literal approach should be preferred unless SS? it would lead to some absurdity, repugnance or inconsistency with the rest of the case * Grey v Pearson (1857) VI HLC 61, 107 o "whosoever being married shall marry another..." SS? a married person cannot marry whilst still being married o can be interpreted as "shall attempt to marry" in order to remove the absurdity of the interpretation should it be taken literally SS? CLARIFICATION OF THE LEGISLATION ON FACE VALUE, AND READ IT IN SUCH A WAY TO REMOVE ABSURDITY PAGE 29