Academic journal article Melbourne University Law Review

Statutory Interpretation: Mostly Common Sense?

Academic journal article Melbourne University Law Review

Statutory Interpretation: Mostly Common Sense?

Article excerpt


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. …

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