What are extrinsic Materials – they are those things outside of the Act itself. Outside the piece of legislation.
Why should we consider extrinsic materials?
Remember in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 – the modern approach requires the context to be considered in the first instance, not later. Context is to be given its widest meaning, this includes things like ethe history of the legislation itself.
Another reason is that the Statutory rules themselves like s 15AB of the Commonwealth Interpretation Act says we can ise extrinsic materials in these circumstances:
- To confirm the meaning is the ordinary meaning.
- To work out the meaning when the provision is ambiguous or obscure.
- The ordinary meaning of the text leads to a result that is manifestly absurd or unreasonable.
The list of the materials in the legislation is not exhaustive. Not mentioned in the legislation is previous case-law or reference to using a dictionary.
Explanatory memorandum – this is the document which accompanies the bill. Whereas Hansard is the record of proceedings in the parliament itself. Edwards v Santos Ltd [2011] HCA 8. the court looked at the explanatory memorandum to put into context the use of indigenous lan Use Agreements.
When we refer Second Reading Speech we are talking about Hansard. The proceedings of Parliament are all recorded. See Re Bolton; Ex parte Beane (1987) 162 CLR 514. This is the deserter case, the court read the second reading speech.
Law Reform Commission Reports: The commissions themselves are not part of the court system, they are part of the executive arm of government. You can look at a Law reform Commission report to see what the commission had in mind in terms of changes to the Legislation. Spencer v Commonwealth of Australia (2010) 241 CLR 118: The ALRC made some recommendations on how to conduct migration cases. Due to a huge load of cases of people delaying their repatriation the legislation sought to put into effect ‘summary judgements’. this was also an example of using the Second reading speech to see what was on the Minister’s mind.
International Treaties – there is a database of these ion the DFAT website. when legislation gives effect to International treaties, a court may look at the treaty to resolve ambiguity.
LIMITATIONS ON THE USE OF EXTRINSIC MATERIALS
Re Bolton: If the speech is at odds with the legislation, Extrinsic materials can not redeem a failure to translate that intention. You can not use the extrinsic materials to give a very unnatural meaning to the words. if the meaning is very clear, from the legislation, then the extrinsic material can not cure that problem.
The interpretation Act itself says
- extrinsic material is there to firstly confirm the ordinary meaning
- Ambiguous or obscure – there is a couple of possible meanings
- Manifestly unreasonable – absurd result
Section 15 AB(3), assuming the evidence is allowed, what weight should we be giving to the evidence? These rules are just possibilities, what weight should they be given? if you do try to throw up arguments that really aren’t ever going to succeed, you might end up with a costs order against you!
These days all of these materials are much more readily accessible by the court; see Vanity v R, as per Kirby J “As is usual nowadays, the court was taken to the second reading speech…”. he seems to be comfortable that there will be a fairly broad range to look at. It is a rare case that there is no obscurity in the ordinary meaning, especially when it comes to court.
ANother case to follow is Insurance Commission of Western Australian Container Handlers Pty Ltd (2004) 218 CLR 89.
Rhys's Statutory Interpretation Site 