Statutory interpretation: mostly common sense?

• Jurisdiction: Australia
• Author: Middleton, John
• Date: 01 January 2017

I INTRODUCTION

I have chosen the title for this lecture to be 'Statutory Interpretation: Mostly Common Sense?' I emphasise the word 'mostly, as there do exist some 'rules' of construction introduced by legislation itself (although it could be argued these too are based on common sense). Further, the common sense that is to be applied, is to be applied with a background knowledge of the rudiments of English expression and a knowledge of the generally accepted approach taken in the consideration of legislative interpretation or construction. As stated by D C Pearce and R S Geddes in their book on statutory interpretation:

Legislation is, at its heart, an instrument of communication. For this reason, many of the so-called rules or principles of interpretation are no more than common-sense and grammatical aids that are applicable to any document by which one person endeavours to convey a message to another. Any inquiry into the meaning of an Act should therefore start with the question: 'What message is the legislature trying to convey in this communication?" (1) At the previous lecture given by the Hon Justice Stephen McLeish (when he was Solicitor-General for Victoria) there was concentration on the challenges to the future of the common law. Mr McLeish SC (as he then was) addressed issues concerning the interaction between statutory and common law. (2) My emphasis is upon statutory law, although we both recognise the symbiotic relationship with both common law and statute as applied by the courts being the subject of the same inherently dynamic legal process. (3) As Gleeson CJ pointed out in 2001: 'Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.' (4) As put by Justice Susan Kenny in 2013:

the common law rule, confirmed by statutory provisions in the Commonwealth, the States and Territories, requires that, so far as possible, we give effect to the purpose of the provision in question. Further, in the words of Project Blue Sky, a provision must not only be interpreted by reference to the statute viewed as a whole but so as to give effect to 'harmonious goals'. The assumption is that the legislature, being a rational body, can be taken to have intended to give effect to a rational purpose in enacting the provision. (5) Thus, the assumption is that:

the legislature acts reasonably, having regard to its purpose in making a law, its constitutional role and those of the other branches of government, and the rights, freedoms and immunities that the common law protects because they are seen as key in a liberal, representative democracy. (6) The principles governing the interpretation of a statute by a court in a common law setting are, by definition, common law principles and will evolve over time. The principle of legality can be seen as an example of the application of common law principles, and fundamental rights as defined may change over time. Take, for example, the current acceptance that legal professional privilege is a fundamental common law right, whereas in a former time, it did not have such an elevated position. (7)

Further, the common law will develop by the courts even after the time of the enactment of a statute. Therefore, it may well be that statutes will be interpreted by courts 'in the light of common law principles of interpretation as those principles exist, not simply at the time of enactment, but also at the time of application.' (8) I do not want to enter the debate of whether this involves the process of judicial legislation. Undoubtedly, just as judges develop a body of law through the common law approach, it may be also contended that in interpreting legislation, it is the court's interpretation that ultimately establishes the law. However, at least in the area outside constitutional discourse, Parliament has the ability to change that law if the court establishes a precedent that Parliament does not desire to continue to be adopted.

The role of the courts is to interpret, not make law, and to apply and interpret Acts of Parliament in the resolution of controversies. Contemporary Parliaments frequently legislate on a host of matters previously left to the common law. There is a tremendous output of federal, state and territory legislation. There has been a noticeable shift in the expression of law from court judgments to expositions in legislation. (9) Unfortunately, in some cases, the construing of legislation (whilst theoretically only capable of having one accurate meaning) often involves a long search to find that meaning.

However, the interpretation of legislation is not susceptible to being a mechanical or scientific task. In dealing with a legal problem, a lawyer does not reason from absolute to absolute; each consideration in the process depends upon a complex number of factors. And there is a multitude of forces to be found in solving a legal problem other than logic; such as tradition, history, sociology and morality. In the same way, a lawyer or court cannot determine the meaning of words by any strict logical or scientific approach; if for no other reason than that the lawyer speaks in a language that has all the uncertainties of English expression. At least a scientist is able to communicate through symbols and expressions of precision. In contrast, language is not always a perfect medium of precise expression. Those formulating laws do not have perfect prescience to make their laws cover every contingency.

II THE DRAFTING OF LEGISLATION

This leads me to consider the role of Parliamentary Counsel. Parliamentary Counsel in drafting legislation must deal with the joys and constraints of plain English expression. The joys are usually found in poetic works (usually drafted not by Parliamentary Counsel) and the constraints are found in the drafting of legislation. As described by Megarry:

the courts do not invariably display a deep reverence for every product of Parliamentary Counsel. In a sense, the scales are heavily weighted against the draftsman: if he has made himself plain, there is likely to be no litigation and so none to praise him, whereas if he has fallen into confusion or obscurity, the reports will probably record the results of the fierce and critical intellects of both Bar and Bench being brought to bear on his work. Yet the debt owed to him by the legal profession is incalculable. He has been pictured as happily singing to himself-- I'm the Parliamentary Draftsman, I compose the country's laws, And of half the litigation I'm undoubtedly the cause. (10) Often when one is confronted by a sentence or phrase that one does not understand, one of the simplest things would be to go to the writer and ask him or her what was intended. Obviously with the interpretation of legislation this is not possible; in any event, the relevant enquiry is what the words mean irrespective of the actual intent of the writer. I am mindful of the comments of Lord Halsbury LC in Hilder v Dexter:

My Lords, I have more than once had occasion to say that in construing a statute I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed. At the time he drafted the statute, at all events, he may have been under the impression that he had given full effect to what was intended, but he may be mistaken in construing it afterwards just because what was in his mind was what was intended, though, perhaps, it was not done. For that reason I abstain from giving any judgment in this case myself; but at the same time I desire to say, having read the judgments proposed to be delivered by my noble and learned friends, that I entirely concur with every word of them. I believe that the construction at which they have arrived was the intention of the statute. I do not say my intention, but the intention of the [legislature. I was largely responsible for the language in which the enactment is conveyed, and for that reason, and for that reason only, I have not written a judgment myself, but I heartily concur in the judgment which my noble and learned friends have arrived at. (11) Nevertheless, if one puts one's self in the position of Parliamentary Counsel who drafted the legislation, this may be a useful exercise. Parliamentary Counsel, in drafting legislation, have regard to their knowledge of grammar and the basic principles of construction, and obviously any statutory dictates of construction.

Parliamentary Counsel's lot is not easy (putting aside the issues of the absence of clear instructions and time pressures) because 'a considerable degree of precision is required'. (12) Precision, described by Stephen J years ago:

is essential to everyone who has ever had ... to draft Acts of Parliament, which, although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It is all the better if he cannot pretend to misunderstand it. (13) Sadly though, no Parliamentary Counsel can entirely cut away the penumbra of meaning each word potentially possesses.

Further, no lawyer should pretend that he or she is the master of his or her words; try as we may, there will always be times when words defy the drafters' will. Unlike Humpty Dumpty, the dominance of words in the law so impressed Pollock and Maitland, historians of English law, as to make them say, 'language is no mere instrument which we can control at will; it controls us.' (14) This may be one reason we so often encounter those 'nice sharpe Quillets of the Law' (15) which have brought the...