Statutory Interpretation; Ombudsman

• “To a large extent judicial review of administrative action is a specialized branch of statutory interpretation” (S A de Smith Constitutional and Administrative Law

• “The Cardinal rule of statutory interpretation ... requires the words of a statute to be read in their context (K & S Lake City Freighters v Gordon [1985] HCA)

  • Context includes other sections, the title and divisional structure and the legislative history (Newcastle City Council v GIO General)

  • In administrative law this context is broader and includes aspects of government and the legal system that lies outside of the statute

• But regardless of these attempts at prescription “there is no simple rule of thumb...What the court does is take an overall view, weigh all the relevant interpretive factors and arrive at a balanced conclusion (Francis Bennion, Statutory Interpretation)

• The interpretive criteria are: common law and statutory rules; principles derived from legal policy, presumptions based on the nature of the legislation and linguistic canons applicable to any prose

The Language of the Statute

• The starting point is always the literal approach – “If the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning” (Gleeson CJ in Cooper Brookes v Federal Commissioner of Taxation)

• There also exists the purposive approach to work alongside this:

  • In interpreting a provision... “a construction that would promote the purpose or object of the underlying Act [whether or not expressly stated] shall be preferred to a construction that would not promote that purpose or object” (s15AA of the Acts Interpretation Act 1901 (Cth))

  • s15AA(1) implies that this approach works alongside the literal approach

  • Purpose is taken into account not only whether the provisions offer more than one construction but also whether more than one is open (Mills v Meeking [1990] – Dawson J)

  • The purpose of the statute/canons of construction may require legislative provisions to be read in a way not corresponding with the literal/grammatical meaning (Project Blue Sky v Australian Broadcasting Authority [1998])

  • The reason for the shift from semantic construction to purposive/contextual follows:

    • Respect for suffrage and due accord to the will of parliament when ascertained

    • Appreciation of the complexities of government in an era of detailed regulation

    • Growing understandings of the function of context in all human communication

    • The impetus given by the provisions themselves which promote this approach

    • Judicial recognition that the price of simplification of law reflects a need for courts to give effect to the purpose

Kirby J – Australian Finance Direct v Director of Consumer Affairs Victoria [2007]

• This approach was favoured in

  • Sales v Minister for Immigration and Citizenship [2008] – statutory power to cancel visa ‘granted’ to person did not authorization cancellation of visa ‘held’

  • Australian Crime Commission v AA [2006] ALD – court took account of the history/purpose of legislation establishing the commission and its purpose

• Also note how both approaches can arise indirectly: Vardalis – FCA was divided as to whether or not the Migration Act comprehensively defined government power over entry or operated alongside executive governmental power to safeguard sovereignty

The nature of the subject matter being regulated and interests apt to be affected

• The area of community life to which the statute applies is also important

  • Woodward – subject matter of the statute is national security and this supports an expansive construction

  • Bradbury – Power to regulate activity varies in scope according to whether the activity is socially desirable or obnoxious

• Whether or not the decision affects individual interests is also important

  • FAI – court generally don’t regard the exercise of statutory discretion that affect the rights of a citizen as absolute and unfettered (Mason J)

  • Coco – Express language is required to authorize interference with basic immunities that are the foundation of individual freedom

  • But individual interests shouldn’t be over emphasised – it is in the nature of legislation to have an impact on individuals that may seem harsh (e.g. unemployment benefits to people who fit criteria)

The nature of the power being exercised

• Generally powers which are polycentric in nature are construed broadly to accommodate the range of competing claims and interests that fall within their scope.

• The same is true for subordinate legislation (Tanner)

• Powers with prerogative ancestry reflect that origin in their construction (Coutts v Commonwealth [1985]

The nature of the decision maker

• The conferral of power upon a minister is relevant to the standard of impartiality to be expected of that minister and the range of matters considered in reaching that decision (Jia, Peko, Murphyores), the same applies to a vice-regal officer (FAI) or local government body (Bowser)

Interpretation Statutes

• All jurisdictions have interpretation statutes; (Acts Interpretation Act 1901/1987 (Cth/NSW) which define the meaning of commonly used statutory terms

• Some jurisdictions (VIC and ACT) have enacted human rights legislation that aid in the interpretation of statutes (e.g. in Vic statutes must “so far as it is possible to do so consistently with their purpose” interpreted in a way “compatible with human rights (which is further defined”

Extrinsic Materials

• All interpretation statutes make it permissible to have regard to contemporary material extrinsic to the Act (explanatory memoranda, second reading speeches etc.) which form a resource in gleaning policy objectives

• International conventions can also be given regard but only as an “interpretive influence” that does not override domestic. These instruments...

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