Statutory Interpretation: The Meaning of Meaning
Kirby, Michael, Melbourne University Law Review
[Statutory interpretation has replaced the analysis of judicial reasons about the common law as the most important task ordinarily performed by Australian lawyers. This was inevitable as the amount of law made by, or under, legislation increased and the room for the residual common law narrowed The development has, or should have, important consequences for legal education and professional training. The basic principles governing statutory interpretation are repeatedly stated, without apparent disagreement, in decisions of the High Court of Australia. According to the author, they involve deriving meaning from close consideration of the text, context and purpose (policy) of any contested provisions. But the process is an art and not a science, as illustrated by reference to the divided decision of the High Court in Carr v Western Australia. The author accepts Professor James Raymond's challenge that judges should 'dig deeper' in explaining their real reasons for preferring one available interpretation over another. Without venturing into 'pop psychology ', the author considers that deep-lying legal values can often be revealed and that any reversion to the former error of textual literalism needs to be resisted.]
CONTENTS I The Main Task of Modern Lawyers II Some Basic Rules of Approach III Digging Deeper for Meaning IV A Bank Robbery and Carr's Case A The Facts B The Decisions of the Courts C The Applicable Statutory Provisions V Text, Context and Purpose in Carr A The Text B The Context C The Purpose or Policy VI Digging Further for 'Deep-Lying' Considerations A Constitutional Bedrock B History and Law Reform C Accusatorial Trial D Policy and Public Officials VII The Challenge of Explanation and Persuasion
I THE MAIN TASK OF MODERN LAWYERS
The distinctive feature of contemporary Australian law derives from the overwhelming importance of the laws made by or under Parliament. I refer to statutes, regulations, by-laws, executive instruments, rules of court and all the other ways in which the written law now manifests itself. In my youth, the statutory law of the State of New South Wales was collected in 12 manageable volumes, supplemented by a three-volume index. (1) These books included many important statutes, arranged alphabetically according to their short titles, commencing in the colonial period, some of which, like the Crimes Act 1900 (NSW), still apply today.
The volumes also included notes on important case law and various annotations. The legislation of Parliament was expressed more briefly in those days, leaving more space for judges to expound and apply the principles of the common law as derived from their forebears in England. Even in my early days in the law, some judges regarded statutory law as an unpleasant intrusion on the judge-made law. When I attended law school in the 1950s and early 1960s, most of the time was spent learning how to analyse binding judicial pronouncements on the law (the ratio decidendi) and to apply such pronouncements to the facts of any new problem.
Today there is nothing modest about the output of federal, state and territory legislation. Every year it is contained in multiple volumes of printed paper. Happily, it is now more readily accessible because of the advances that have occurred in electronic technology. The shift in the expression of law from judge-made expositions to statutory and other rules has led to a number of changes in how statutory interpretation is undertaken.
First, by the mid 20th century, it was generally appreciated that the words of judges, written in their opinions, should not be subjected to the precise analysis appropriate to statutory and similar texts. Deriving the ratio decidendi of judicial holdings was recognised to be an art. Yet it was still commonly thought that securing the meaning of legislation was more of a science. …