#7239 - Statutory Interpretation And Ombudsman - Administrative Law

• “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 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 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)

• 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 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)

• 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”

• 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 are subject to their own methods of construction (A v Minister for Immigration and Ethnic Affairs)

• These common law principles are generally judicially inspired and are tantamount to “a common law bill of rights – a protection for the civil liberties of the individual against invasion by the state” (Pearce & Geddes Statutory Interpretation in Australia)

• But all common law presumptions are rebuttable – some easier than others by the words of a statute (for some an implication will suffice for others express/unambiguous language is required)

• Sometimes these presumptions operate in different directions and the approach taken depends on which predominates

• Sometimes powers aren’t directly conferred but statutes permit activities incidental/consequential upon the powers which are conferred – but absent this there is an implied power of similar effect:

  • “Those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited (Lord Blackburn – A-G v Great Eastern Railway Co [1880]

• Implied incidental powers were also considered in:

  • A-Gv Smethwick Corporation [1932] - local government agency could purchase equipment to undertake all its printing in house rather than contracting it

  • Health Insurance Comission v Freeman [1988] FCR – DPP, apart from its prosecutorial role can give legal advice to government agencies on investigations (legal privilege attaches to this too)

  • Binse v Williams [1998] CA – Statutory functions conferred on prison governors including an implied power to discharge these functions (e.g. applying physical restraints on prisoner threatening others)

  • Acts Interpretation Act 1901 (Cth) – power conferred by statutes to grant/issue instruments presumably includes the power to revoke/rescind them

• Principles of implied/incidental powers are limited by three other principles:

  • Clear/unambiguous statutory language is required to authorize conduct otherwise tortuous or interfering with fundamental rights to freedom/immunity (Coco)

  • Statutory powers mustn’t be used for an unauthorized purpose

  • Activity ancillary in nature must compliment not supplement the...