Topic 4 – Context and Purpose

This week has been a look at context and purpose. When these things should be considered. It seems they should always be considered. We have also looked at the differences between the ‘best achievement’ approach and the ‘preferred construction’.

• Read the provision to gain a sense of the ordinary meaning
• Consider the context and the purpose of the provision
• Consider intention
• Return to assess if the meaning is the ordinary meaning

The Qld Acts interpretation legislation demands that one use the ‘best achievement approach’

ACTS INTERPRETATION ACT 1954 – SECT 14A

14A Interpretation best achieving Act’s purpose

(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

(2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act’s purpose is expressly stated in the Act.

(3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.

In 2011 The Commonwealth Act was changed to a ‘best achievement’ wording too:

ACTS INTERPRETATION ACT 1901 – SECT 15AA

Interpretation best achieving Act’s purpose or object

                   In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

Before this change a ‘preferred construction wording was employed and still is in some states including Victoria:

INTERPRETATION OF LEGISLATION ACT 1984 – SECT 35

Principles of and aids to interpretation

In the interpretation of a provision of an Act or subordinate instrument—

(a)     a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument)shall be preferred to a construction that would not promote that purpose or object;

So we need to understand how each approach works:

Best Achievement – choose the interpretation that best achieves the will of the Parliament

Preferred construction – chose the construction that promotes the will of the parliament over one that doesn’t – these is a little bit of trouble here in that sometimes there might be 2 or more constructions that promote and none that do not promote. how are we to choose….

In Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 the court said

The choice directed by section 35(a) of the Interpretation of Legislation Act is not as to the construction which will “best achieve” the object of the Act. Rather, it is a limited choice between a construction that would promote the purpose or object (of the Act) and another that does not.  It is not which would best achieve the objects of the Act.

Indeed there must be at least one construction that does NOT promote the purpose to use this approach.

So we can see how the best achievement approach is more broad than preferred construction.

Next we looked at context and the move away from the literal approach of Higgins J in the 1920 Engineers case:

The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole.

Now we look at much more than the words to gain insight to the context. In In CIC Insurance Ltd v Bankstown Football Club Limited(1997) 187 CLR 384 the High Court said:

It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

so not only should other sources than the words of the legislation itself be used but there does not need to be any ambiguity in the ordinary meaning of the words, it is rather expected that context is considered from the outset. In the words of Gleeson CJ, “Utility, not necessity, is the reason for reference to context.”

We should consider

• The broader context
• Historical circumstances and government policy
• Parliamentary debates and explanatory memoranda
• The constitution and international law including treaties.

The High Court took a similar view in the Project Blue Sky Inc. case, suggesting that context should be considered in the first instance as part of the process of understanding the legislation.

We now move to purpose. We have had since the days of Heyden’s case the Mischief rule

• Consider the state of the law before the new act
• The mischief the Act was intended to address
• The remedy Parliament has adopted
• Now find an interpretation that suppresses the mischief and advances the remedy

Interpretation legislation does not require any such ambiguity or inconsistency – it allows a court to always construe an Act in light of its purpose.

So the modern approach is to always consider both context and purpose from the outset.

1. If there is one purpose and one possible meaning

check the meaning promotes the purpose taking into account the context

2. If there is more than one possible meaning but only one purpose

choose the meaning that promotes or best achieves the purpose

3. If there is more than one possible meaning and multiple purposes

select the dominant purpose and choose the meaning that gives effect to the purpose

4. If there is more than one possible meaning and more than one purpose (conflicting)

how has the balance between conflicting purposes been struck?

chose a meaning which gives effect to the balance