This week we have looked more at purpose and intention.
Parliament must be assumed to have intended each provision it has legislated, in some way and to some extent to give effect to the purpose of the legislation.
A statutory purpose can be seen to focus on the why and who. The intention is concerned with the what is done to meet the purpose and how it should be implemented.
The intended meaning can be affected by the legislative purpose itself – see Gummow, Hayne, Crennan and Bell JJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship {2011} HCA 32, where the Justices considered that the purpose of the legislation was to conform to the Refugee convention and that the particular section must have intended that too.
When talking about the intention of the Parliament this is the objective intention similar to the objective test used to decide matter of contract Law.
What of there was no actual intent – perhaps the parliament didn’t even turn their attention to the point in question. Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J: ‘[i]f it is possible as a matter of construction to repair the defect, then this must be done’.
Courts also use the effect, or outcome to work out what was not intended, per Gibbs J in Public Transport Commissioner of NSW v J Murray-More (1975) 132 CLR 366 at 350:
“where two meanings are open…it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust.”
This reference by the courts to the consequences of a particular interpretation is a variant on consideration of the purpose. If the outcome does not support the purpose then it could not have been intended.
We also looked at interpretive techniques.
Reading down – this is when the general words are given a more limited meaning.
Reading in – When the court will strain or read in words. Often drafting errors or parliamentary inadvertence (oversight) crate gaps or uncertainty in the legislation. This uncertainty can be avoided if additional words are used. McHugh J gave 3 conditions necessary before one can read in words:
- the court must know the mischief which the statute was dealing with
- the court must be satisfied that parliament overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved
- the court must be able to state with certainty what words the parliament would have used to overcome the uncertainty if their attention had been drawn to the defect.
Now we start to see a blurred line in terms of separation of powers, is the court now making its own legislation? or is it just altering the wording to give effect to the will of the Parliament?
McHugh J in Saraswati v R (1991) 172 CLR said at [8]:
[O]nce the court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to the purpose by addition to, omission from, or clarification of, the particular provision.
So provided we meet the 3 rules and that we are considering the purpose at all times we can chop or change the words of the statute to give effect to the purpose. (within reason of course).
Ambulatory and Dynamic Interpretation
The meaning of words changes over time. The meaning of a statute too changes over time. The statute is considered to be always speaking. An effort made to give effect to the ‘spirit’ of the law has been referred to ‘equity of the statute’.
Ambulatory means that very broad and general provisions were intended to be given an ambulatory meaning, that is, to take into account later changes.
Equitable Interpretation: interpreting their legislation using the ‘spirit and reason ‘ of the law
Dynamic interpretation involves interpreting in the light of the present context, including the common law, the present state of societal and political policy.
Rhys's Statutory Interpretation Site 