STATUTORY INTERPRETATION, LAW REFORM … · STATUTORY INTERPRETATION, ... a construction that would promote the ... A wider aimis to use this case study to evaluate Lord Wilberforce'sclaim

STATUTORY INTERPRETATION, LAW REFORM ANDSAMPFORD'S THEORY OF THE DISORDER OF LAW

PART TWO*

Jeffrey W Barnes**

If the rules are ... to "constrain the interpreter" - they themselves must be available or "readable"independently of interpretation ... Unfortunately, rules are texts. They are in need ofinterpretation and cannot themselves serve as constraints on interpretation.1

INTRODUCTION2

In 1981 and in following years Australian parliaments embarked upon a novelexperiment: statutory reform of the general approaches to statutory interpretation.3The best known of these provisions (called here "purpose rules") is s 15AA of the ActsInterpretation Act 1901 (Cth). It reads:

In the interpretation of a provision of an Act, a construction that would promote thepurpose or object underlying the Act (whether that purpose or object is expressly statedin the Act or not) shall be preferred to a construction that would not promote thatpurpose or object.

These reforms to the common law ,vere carried out despite the well known warning,given by Lord Wilberforce, that statutory interpretation was an unbuitable SUbjtLt forstatutory law reform.4 Clearly, the rule's promoters were not of that mind. In early1981 a high level seminar on statutory interpretation was opened with these words:

**

1

2

3

4

Part One appeared in (1994) 22 F L Rev 116.B Juris LLB(NSW) M Pub Law (ANU); Lecturer in Law and Legal Studies, La TrobeUniversity. I am grateful to the following persons for their comments and suggestions ondrafts of this article: Francis Bennion, Enid Campbell, Bruce Dwyer, Andrew Goldsmith,Justice Michael Kirby and William Twining. I would also like to acknowledge theassistance of the Faculty of Law, Monash University, in the preparation of this article.S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary andLegal Studies (1989) at 121. (Emphasis in original.).This is a condensed introduction. A longer introduction was given at the beginning of PartOne at 116-126.Part One at 158-159 summarises the relevant legislative provisions. While the experimentwas novel in Australia, other Commonwealth countries had earlier enacted weakerversions (Part One at 151) and some States in the United States of America have enacted arequirement that legislation be interpreted by a "Plain Meaning method": J Fagan, "TheLegal Phoenix: The Plain Meaning Rule is Dead, Long Live the Rule!" (1993) 29 CaliforniaWestern Law Review 373 at 388-340.Part One at 119.

78 Federal Law Review Volume 22 !

Lord Wilberforce ... has said that, as a topic for law reform, statutory interpretation is a"non-subject" ... Is it too pessimistic, as indeed I think it is, to say there is nothing that canbe done in the direction of law reform to deal with the confusion that, sometimes at least,marks the area of statutory interpretation?5

It is the aim of this two-part article to analyse the "confusion" or "disarray" inlstatutory interpretation and the effect of the purpose rule in that regard. Speciallattention is paid to the relationship between the purpose rule and its sibling rule inls 15AB of the Acts Interpretation Act 1901 (Cth) (and State equivalents).6 The latter!provision permits wider recourse by courts to extrinsic materials in the interpretation.iof legislation, especially where evidence of the purpose is concerned. It is submittedIthat the disarray in statutory interpretation has been widely recognised, yetiinsufficiently analysed. To assist in this analysis, I employ Charles Sampford's theorYrof the disorder of law, introduced in Part One.7 Essentially, this theory of law and of;society suggests that differences arising from human variability (called "disorderingrinfluences") tend to produce conflict and change, but they also tend to mute thoselchanges. The immediate object is bring to light a wider understanding of the disarraYIin statutory interpretation and to challenge the assumptions that the principles oj·statutory interpretation are essentially ordered and that the purpose rule would bring!added order. A wider aim is to use this case study to evaluate Lord Wilberforce's claim I

that statutory interpretation is a "non-subject" for statutory law reform.Part One of the article examined the pre-enactment phase of the purpose rule.1

Dissatisfaction with the disordered state of the common law first led the Law,Commission for England and Wales and the Scottish Law Commission jointly tcrecommend the enactment of a purpose rule similar to the one eventually enacted ir:Australia. Their recommendation found favour with the Renton Committee anc:eventually with the House of Lords, but to date has not been enacted in the UnitecKingdom. In Australia the recommendation was eventually promoted following [notorious period of interpretation in the courts concerning taxation legislation. In thrFederal Parliament the proposed rule received bipartisan support, though, in thrperiod immediately following its enactment, it was significant that jurists could noagree about its likely effects. The conclusion to Part One was that, immediately upon ihenactment, in its unused and apparently "green" state, the purpose rule was alread!'disordered and that the legislative plans were likely to go awry, wholly or partly. hshort,S it was argued that the potential for conflict arose from flaws in the process 0

making the rule and from the fact that after its introduction into Parliament th(assumptions of the purpose rule were undermined by the High Court of Australia iIthe landmark case of Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation ~

the Commonwealth of Australia.9 The disorder was manifested in the widely differin~

views of the rule expressed by jurists immediately after the rule was enactedHowever, the same influences which were potentially productive of conflict als(threatened to frustrate or mute any conflict. For instance, the eleventh hour change b)the High Court could be used to support the case that change was not now necessaryin other words, the rule was now (if not before) merely declaratory of the common law:

56789

P Brazil, "Opening of Seminar" in Another Look at Statutory Interpretation (1982) at 1.Part One at 159.C Sampford, The Disorder ofLaw: A Critique ofLegal Theory (1989).A more detailed summary appears in Part One at 168-170.(1981) 147 CLR 297.

1995 Statutory Interpretation, Law Reform And Sampford's Theory - Part Two 79

Part Two first examines the fate of the rule in the courts and tribunals, in particularthe interpretative issues generated by the rule. It finds that the rule has generated fewcertainties, but, rather, a myriad of legal issues. Drawing from this account, and fromthe analysis in Part One, this Part then synthesises and discusses the generaldisordering effects of the purpose rule on the law of statutory interpretation. Theparticular effects are, in summary: added conflict, decanonisation, fragmentation,pluralism, a greater level of indeterminacy and a deeper or altered contingency. Someconsideration is also given to the question whether the rule and purposivism have orcould have brought about different results in particular cases. The article concludes byreflecting on the benefits of a theoretical perspective of statutory interpretation. Aspecific question it considers at this stage is whether statutory interpretation is, as LordWilberforce claimed, an unsuitable subject for law reform. The answer is seen todepend on the criterion one selects.

INTERPRETATIVE ISSUES IN THE COURTS AND TRIBUNALS

Introduction

OverviewIn a commentary on the purpose rule after the failure to enact it in the UnitedKingdom, Bennion wrote:

In one sense [the rule] is a statement of the obvious ... In another sense it begs question.10

The purpose rule begged the question because it assumed a number of matters. _t\rrlongthese, for example, were a generally accepted understanding of a purposiveconstruction, a readily available purpose in a particular case and an inherent rightnessin its priority over all other constructions which did not promote the purpose or didnot "best" promote it. It also generally assumed that a statutory rule could cure or atleast reduce age-old disorder in this particular branch of the common law. As we sawin Part One, a study of the legislative history of the purpose rule added to the doubtsabout its rationale and scope.

Experience with the rule has seen numerous questions raised. These questions willbe examined below under the following main headings:(i) What is generally entailed by a purposive construction?(ii) How is the relevant purpose determined in a particular case?(iii) What does the rule require or permit?Before examining those issues, however, it is convenient to consider the background tothe High Court's decision in Mills v Meeking. 11 This is the leading case on the purposerule and it is frequently referred to in the discussion of the operation of the rule whichfollows.

10

11

FAR Bennion, "Another Reverse for the Law Commissions' Interpretation Bill" (1981) 131NL] 840 at 841.(1990) 169 CLR 214.

80 Federal Law Review Volume 22

Mills v Meeking12

While driving a motor vehicle, the appellant was apprehended by two police officers.No accident had occurred. He was questioned by one of the police officers whoconcluded that the appellant had been drinking. The police officer subjected him to apreliminary breath test which proved positive. The appellant was then taken to anearby police station where a breath analysis operator conducted a breath test. The testwas conducted in accordance with the procedures prescribed under the Road SafetyAct 1986 (Vic) (the Act). The tests produced readings in excess of the prescribedconcentration. The appellant was charged with an offence against s 49(1)(f) of the Act.He contended that a person could be charged under s 49(1)(f) only when the motorvehicle which he or she had driven or been in charge of had been involved in anaccident. He further argued that he could be charged only under s 49(1)(b).

Section 49 of the Act, so far as is relevant, provided:

(1) A person is guilty of an offence if he or she -

(b) drives a motor vehicle or is in charge of a motor vehicle while more than theprescribed concentration of alcohol is present in his or her blood; or

(f) within 3 hours after driving or being in charge of a motor vehicle furnishes a sampleof breath for analysis by a breath analysing instrument under section 55(1) and theresult of the analysis as recorded or shown by the breath analysing instrumentindicates that more than the prescribed concentration of alcohol is present in his or herblood; ...

Section 49(1)(f) required a sample of breath to have been given under s 55(1). Tllat subsection in turn required the person to have undergone a preliminary breath test whenrequired under s 53. Under that section a person could be required to undergo such atest in certain defined circumstances:

(1) A member of the police force may at any time require-

(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle;or

(b) the driver of a motor vehicle that has been required to stop at a preliminary breathtesting station under section 54(3); or

(c) any person who he or she believes on reasonable grounds has within the last 3preceding hours driven or been in charge of a motor vehicle when it was involvedin an accident -

to undergo a preliminary breath test by a prescribed device.

A further distinction between s 49(1)(b) and (f) was that if a person was charged underthe former it would be open for the person to prove that he did not have more than theprescribed concentration of alcohol in his blood at the time when he drove: s 48(1)(a).No such evidence is admissible under s 49(1)(f): s 49(6).

The magistrate held that s 49(l)(f) was not applicable. On review, Crockett J of theSupreme Court of Victoria came to the same conclusion, stating: "In my opinion

12 The facts are largely paraphrased from the judgment of Dawson J and the judgment ofMason CJ and Toohey J.

1995 Statutory Interpretation, Law Reform And SampJcord's Theory - Part Two 81

s 49(1)(f) has to be construed as if the words 'which has been involved in an accident'were inserted after the words 'motor vehicle'. On appeal, the Full Court disagreed withCrockett 1's construction of s 49(1)(b) and (f), saying:

Section 49(1)(b) and s 49(1)(f) create different offences. The first relates, in effect, tohaving more than 0.05 per cent alcohol in the blood when driving or in charge of a motorvehicle, while the second relates solely to having that excess within three hours afterdriving.13

In the High Court the appellant did not dispute that the facts of the case fellsquarely within the literal and grammatical meaning of s 49(1)(f). But he contendedthat, to give effect to the purposes of the Act, s 49(1)(f) must be read as Crockett J hadread it. Section 49 is found in Part 5 of the Act, which relates to offences involvingalcohol or other drugs, and consisted of ss 47-58. Section 47 provided that:

The purposes of this Part are to -

(a) reduce the number of motor vehicle collisions of which alcohol or other drugs are acause; and

(b) reduce the number of drivers whose driving is impaired by alcohol or other drugs;and

(c) provide a simple and effective means of establishing that there is present in theblood of a driver more than the legal limit of alcohol.

In short, the main issue of interpretation for the High Court was the meaning ofs 49(1)(f) and whether the literal construction of the Full Court was correct or whetherCrockett J's purposive construction should be preferred. The effect of the purpose ruleon the interpretation of the provision was an important consideration. Clearly the casewas an important test for the purpose rule. Would it clarify the interpretative positionor would it merely add to the interpretative possibilities?

I now turn to a general examination of the rule in operatiorL in the courts andtribunals; this "viII be undertaken against the backgroUIi.d of the High Court's judgmentin Mills v Meeking.

What is generally entailed by a purposive construction?

Different nuancesOutside the law, particularly in the fields of psychology and religion, "purpose" is aterm with a rich and contested meaning.14 By contrast, within the law, as Miers andPage observe, it has a "beguiling" appeal. They identify five different nuances of

1314

Meeking v Crisp [1989] VR 740 at 743.J A Simpson and ESC Weiner (eds), The Oxford English Dictionary (2nd ed 1989) Vol XII at878-879 gives 14 meanings. R L Gregory (ed), The Oxford Companion to the Mind (1987) at664 refers to the debate by theoretical psychologists over whether the concept may be saidto exist and, if so, in what form of behaviour it is manifested. He sums up the position asfollows: "[T]hroughout the history of psychology, this concept has been, an~ remains, oneof the most controversial of all". That work, incidentally, associates \purpose with"intentions, goals, aims, interests, ambitions, desires, wants, motives, [and] needs": ibid. Inreligion, it is associated with the belief in God (B Davies, An Introduction to the Philosophy ofReligion (1993), ch 6), and with the meaning of life: C Birch and J B Cobb Jr, The Liberation ofLife: From the Cell to the Con1munity (1981) at 197-198; and E de Bono, The Happiness Purpose(1979).

82 Federal Law Review Volume 22 !

purpose (reason or motive, objective, means, meaning and consequences) in one case I

alone.15 In Australia, the purpose rule does not define what is meant by "purpose". The I

Australian cases indicate a great diversity of meanings in respect of what is generally I

entailed by the concept of "purposive interpretation". Examples are given below of the I

following nuances, involving a regard to or for: precisely identified objects, the original I

purpose or intention, the purpose as dynamic and capable of shifting, the achievement I

of the "right" result, the mischief, the reason or motive, the policy underlying the I

relevant provision, the means, the consequences and the overall meaning or presumed 1\

intention. In a non-specific way, it can also be simply assumed to be an inherelltly Isuperior basis for interpretation.

At common law there is good authority for the view that a purposive approach is I

one which promotes a precise object identified (directly or by inference) by the Act. It I

requires the object and the part played by the provision in question to be identified, aSILord Diplock explained in ascertaining the meaning of a prohibition in the Landlord I

and Tenant Act 1954 (UK):A conclusion that an exception was intended by Parliament, and what that exception wascan only be reached by using the purposive approach. This means answering thequestions: What is the subject-matter of Part II of the Landlord and Tenant Act 1954?What object in relation to that subject-matter did Parliament intend to achieve? What partin the achievement of that object was intended to be played by the prohibition in s 29(3)?Would it be inconsistent with the achievement of that object if the prohibition wereabsolute? If so, what exception to or qualification of the prohibition is needed to make itconsistent with that object?16

Apart from this authority, there are several arguments which support this meaning I

of purpose in the context of the purpose rule. First, at the seminar conducted by the I

Attorney-General's Department before the rule was introduced into the Parliament, the I

promoter of the rule, Mr Pat Brazil, referred to Lord Diplock's formulation as "one oflthe earliest and most articulate expositions of the so-called purposive approach tOIinterpretation".17 In his kerote speech to the seminar, he referred to object and,purpose interchangeably.1 Secondly, although "purpose" has several differentlordinary meanings, "the object for which anything exists or is done, made, used, etc" iSIthe first meaning given in the Macquarie Dictionary.19 Thirdly, the purpose rule refers tc"purpose or object"; in light of the above it must be inferred that they are usedlinterchangeably. Fourthly, the sense of purpose as "end" is employed in the literature.2UFifthly, this understanding has international currency.21

15

1617

1819

20

21

Royal College of Nursing of the United Kingdom v Department of Health and Social Security,[1981] AC 800: DR Miers and A C Page, Legislation (2nd ed 1990) at 188-189.Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 880.P Brazil, "Purposive Versus Literal Approach" in Attorney-General's Department, Anothei,Look at Statutory Interpretation (1982) at 16.Ibid at 19.(Rev ed 1985) at 1379. The Oxford English Dictionary gives a similar definition. The firsmeaning offered is: "That which one sets before oneself as a thing to be done or attainedthe object which one has in view": JA Simpson and ESC Weiner (eds), above n 14 at 878.W Twining and D Miers, How to Do Things With Rules (3rd ed 1991) at 206: "In this contextclarity is served by confining 'purpose' to intended consequences"; R M Unger, Law i1Modern Society (1976) at 194.D N MacCormick and R S Summers, "Interpretation and Justification" in D N MacCormicland R S Summers (eds), Interpreting Statutes: A Comparative Study (1991) at 511 and 519.

i


An illustration par excellence of purposive meaning in this strict sense is found in thedissenting judgment of Dawson J in Mills v Meeking, the facts of which were set outabove. His Honour analysed the purpose as follows:

The stated purposes of Pt 5 of the Road Safety Act extend to the reduction of motorvehicle collisions caused by alcohol or other drugs by reducing the number of driverswhose driving is impaired by alcohol or other drugs ... It is no part of these purposes thata person should be penalised for having a blood alcohol concentration beyond theprescribed limit if it is unrelated to the driving of a motor vehicle.22

It was not therefore within the stated purposes to penalise a driver who had merelydriven within three hours of being tested and was found to have a blood alcoholconcentration above the prescribed limit. Yet, it would seem, that would be the effect ofs 49(1)(f) unless some limitation "as a matter of construction" were put upon it. Thelimitation which his Honour found to be appropriate was that the driver must havebeen involved in an accident. This would serve the legitimate purpose of preventing adriver who had been involved in an accident from frustrating the proof of his bloodalcohol level at the time of his accident.23

While broadly consistent with the idea that the purpose connotes the object, thereare two nuances which more specifically address the object referred to. The first seesthe purpose in terms of the original purpose or intention. It has been suggested that inmany cases a reference to "intention" or "the intention of the legislature" is in essence areference to the purpose.24 The Supreme Court of Canada has gone further. Its view isthat the original purpose is the benchmark of purpose. It has ruled that the "[p]urposeis a function of the intent of those who drafted and enacted the legislation at the time,and not of any shifting variable".25 As implied in that statement, there is a contendingnuance which sees the purpose or object as shifting, that is, subject to changing socialconditions.26 In Canada the Supreme Court may have formally rejected the "doctrine ofshifting purpose", but more recently it has adopted a theory of "expanded purpose".Under this theory, "as long as it can be argued that the purpose at issue was one of thepurposes contemplated by the drafters of the statute, it appears to be acceptable for acourt to assi~ different weights to that purpose in the ligllt of changed socialcircumstances".27 It has been argued that the differences between the two doctrines shifting and expanded purpose - are more semantic than functional.28 In Englishcourts, and semble Australian courts, a purpose is allowed to shift, or at least to lapse.29

222324

25

26272829

(1990) 169 CLR 214 at 235.Ibid at 236.D C Pearce and R S Geddes, Statutory Interpretation in Australia (3rd ed 1988) at para 2.15.See also, Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALD 261 at 267.R v Big M Drug Mart [1985] 1 SCR 295, extracted in S G Requadt, "Worlds Apart on WordsApart: Re-examining the Doctrine of Shifting Purpose in Statutory Interpretation" (1993) 51U of Toronto Fac L R 331.I am indebted to S C Requadt, above n 25.Ibid at 336.Ibid at 333.FAR Bennion, Statutory Interpretation (2nd ed, supplement 1993) at A66-67, referring to Rv Governor of Winson Green Prison, Birmingham, ex parte Littlejohn [1975] 1 WLR 893 at 900;and R v Greater London Council, ex parte Blackburn [1976] 1 WLR 550 at 556, states that theoriginal purpose may no longer be valid by reason of the lapse of time and alteredcircumstances.


Despite the powerful support for viewing the "purpose" as the object (whetherspecific or not), the concept has several other nuances. Most ambiguously, it canconnote nothing specific. Rather, it can signify what is thought to be an inherentlysuperior basis for interpretation, reflecting its newly acquired "politically correct"status. This nuance is graphically displayed in the standard student text on statutoryinterpretation, Laying Down the Law, by the political cartoonist Geoff Pryor. For thispublication he drew two judges. The first, labelled "LITERALIST", is very stern indemeanour and is fingering a small noose for added severity. The other, labelled"PURPOSIVIST" has a relaxed and smiling countenance, and sports beads and a shirtwith "MAKE LOVE NOT WAR" emblazoned on it. Instead of fingering a noose, thepurposivist judge is signalling "V".30 That the purpose approach is more popular thanthe literal approach in judicial circles was made emphatically clear in the remark ofLord Scarman:

When I, an English judge, read some of the decisions of the High Court of Australia, Ithink they are more English than the English. In London no-one would now dare tochoose the literal rather than a purposive construction of a statute and legalism iscurrently a term of abuse.31

However, the implications of putting the purposive approach on a pedestal disturbothers. Twining and Miers issued this warning:

[I]t is tempting to treat exegesis and literal interpretation as superficial, and liberal andhermeneutic approaches as profound. After all, the words and the text look like thesurface, while exploring meaning, purpose and context involves plunging into thosemurky depths; "the letter killeth, but the spirit giveth life". This is an attractive view but itinvolves assumptions that are both superficial and dangerous. It assumes, for example,that textual analysis is easier than ascribing or constructing purposes; it assumes thatliberal interpretation is always to be preferred to literal; it makes no allowance forpurposeless, irrational or meaningless rules; and, most dangerous of all, it sets uprigorous anallsis of texts in opposition to the exploration of meaning, intention, purposeand context.3

The mistaken belief that a purposive approach necessarily leads to correct results isoccasionally evident in the decisions of the courts and tribunals. In a recent case theFederal Administrative Appeals Tribunal took a "purposive" ll1terpretation so as toachieve a fair result in the circumstances of the case. Noting that no construction hadactually been formulated by the Tribunal, the Federal Court on appeal implied that theTribunal had improperly permitted its sense of fairness to dictate the result.33

More cornmonl~1 the purposive approach has been identified with the mischiefapproach or "rule". 4 Gifford points out, however, the error in assuming that themischief rule and the purposive approach are the same in substance. He argues that the

3031323334

G Morris et aI, Laying Down the Law (3rd ed 1992) at 151.Cited in P Brazil, "Purposive Versus Literal Approach", above n 17 at 17.W Twining and D Miers, above n 20 at 175 (emphasis in original).Secretary, Department of Social Security v Clear (1991) 23 ALD 22 at 27.C Enright, Legal Research and Interpretation (1988) at 229 refers to "the mischief rule, alsocalled purposive interpretation" and later states that "[the purpose rules] are a statutoryexpression of the common law mischief rule": at 230. D Gifford, Statutory Interpretation(1990) at 49 criticises Pearce (now Pearce and Geddes), but the criticism is not valid; thelatest edition of the latter (accurately) says only that: "The purpose approach has its originsin the so-called 'mischief rule"': above n 24 at para 2.14. See also R v Saraswati (1989) 18NSWLR 143 at 168.


purposive approach is somewhat broader "in that it is rather artificial to look at everyAct of Parliament as though it were brought in to remedy a mischief".35 Yet, in many ifnot most cases there will be a relevant mischief.36 In these cases it will be difficult tounderstand the purpose in the narrow preferred sense without taking account of themischief. Bennion includes both "mischief" and "remedy" in his definition of purpose.37Thus, even though it may be confusing to equate the mischief approach with thepurposive approach, the purposive meaning cannot fully be apprehended without anunderstanding of the mischief, if it can be ascertained.

Less fre~ently the purpose will be associated with the reason or motive. In tworecent cases 8 the courts have drawn a distinction between them. The distinctionappears to be between what is sought to be achieved (the purpose) and the reasons ormotives for that end result. Closely related to reason or motive is the ever-popularconcept of policy.39 It has many usages and no set meaning. Enright has broadlydefined it as "the planning entailed in law making".40 That author has neverthelessequated it with what the purpose rule directs a court to ascertain.41 However,Mahoney JA has neatly described policy in a way which also points up the problem inusing it as an interpretative tool:

The legislature may espouse a particular policy, eg, that there be no discrimination onthe ground of sex. And that policy may move it to enact legislation. But that which itintends the legislation to do will not necessarily be the full implementation of that policy... that which the legislature enacts by legislation is not policies but measures which carrypolicies into effect, to the extent to which, in the particular instance, it is intended thatthey be effected.42

Policy is a notoriously vague concept and when it is used to justify a purposiveapproach43 difficulties often arise. In Re Davis and Secretary, Department of SocialSecurity,44 the applicant challenged the decision of the respondent to raise anoverpayment in respect of payments made to the applicant while the applicant was anescapee from prison. Under the Social Security Act 1947 (Cth) the benefit the applicantreceived was "not payable to that person in respect of the period during which theperson is imprisoned" (emphasis added). The Administrative Appeals Tribunal based itspurposive meaning seemingly on the "rationale" or policy underlying the non-

3536

3738

39

40414243

44

D Gifford, above n 34 at 49.No mischief could be found in Re Tasmanian Ferry Services Ltd and Secretary, Department ofTransport and Communication (1992) 29 ALD 395 at 409.FAR Bennion, Statutory Interpretation: A Code (2nd ed 1992) at 660 and 669.Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 (distinguishedfrom "reason"); Municipality of Woollahra v Minister for the Environment (1991) 23 NSWLR710 at 714 (CA) (distinguished from "motives"). See J Barnes, "Administrative Law" inR Baxt and A Moore (eds), An Annual Survey of Australian Law 1991 (1992) 1 at 32-34. Thecases are administrative law cases, but the analysis would apply equally to statutoryinterpretation generally.A good introduction to this popular, though difficult, concept is given by C Enright, aboven 34, ch 11.Ibid at 204.Ibid at 230.Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32 at 52-53.Cross seems to run the two together: J Bell and G Engle, Cross on Statutory Interpretation(2nd ed 1987) at 18; see Part One at 133-134.(1992) 26 ALD 595.


entitlement of a person lawfully complying with a sentence. The Tribunal found that"while a person is lawfully complying with a sentence of imprisonment, he or she is notin need of and therefore should not be given, social welfare support".45 But how doessuch a policy determine or assist in determining whether an escapee is "imprisoned"within the terms of the statute?

Another nuance of the purpose, mentioned by Mahoney JA immediately above, ismeans; that is, the measure which carries a policy into effect, the effect constituting thepurpose in the narrow sense. In Mills v Meeking it could be argued that the meanswhich carried the policy into effect was the testing of the blood alcohol concentration ofdrivers. The minority argued forcefully that the purpose was not fulfilled under theparticular provision of the Road Safety Act, in respect of which the appellant wascharged, if the person so tested and found to have a prohibited concentration hadmerely driven within three hours of being tested. In other words, the means did notequate with the purpose, the latter being a narrower set of events and restricted in theirview to the driver having been involved in an accident.

Finding the meaning of a provision by having regard to the consequences of availableinterpretations is a well accepted method used by the courts46 and it has been claimedby Pearce and Geddes that regard to the consequences of one interpretation or another"is essentially a purpose approach to interpretation".47 In Mills v Meeking, Mason CJand Toohey J had regard to the consequences of interpreting s 49(1)(£) withoutconstruing it so as to require an accident to have occurred. They noted that becausethat provision requires a sample to have been taken under s 55(1) this meant that apreliminary breath test must have occurred in one of the circumstances permitted bys 53. In everyone of these instances, "apart from those believed to have been involvedin a motor vehicle accident, the provision is confined to persons who, while driving,have been intercepted by a member of the police force or by an officer of the RoadTraffic Authority". In their view, s 49(1)(f) did not need the limitation advanced byDawson and McHugh JJ as "[olne would expect SUCll a person to remain in thecompany of the member or officer until he or she has furnished a sample of breath foranalysis, as indeed occurred in this case".48 But is it true that a regard to consequencesis essentially purposive? In what sense might it be true? A regard to consequences ispurposive in the sense that a purposive construction must obviously have regard to theeffect of an interpretation. But regard to consequences is not strictly purposive if noobject is identified. Nor can it alone be determinative of the overall meaning, unlike thepurposive approach. As McHugh J reiterated recently (drawing on a famous statementof Cardozo J), "while consequences cannot alter the meaning of legislative provisions,they may help to fix their meaning".49 Thus we may say that a regard to consequencesis purposive in that it may assist in inferring the purpose in the strict sense.

The most radical nuance of purpose stems from an attempt to replace lfthe intentionof Parliamentlf with legislative purpose, that is, to equate purpose with meaning. This isunexceptionable in those cases (such as Cooper Brookes) where, the purposiveconstruction being reasonably open, it is found to be the preferable meaning. However,

4546474849

Ibid at 604.DC Pearce and R S Geddes, above n 24 at para 2.16.Ibid.(1990) 169 CLR 214 at 224.Saraswati v R (1991) 172 CLR 1 at 22.


some judgments go further in equating the purpose generally with the meaning. InDirector-General of Department of Corrective Services v Mitchelson, Kirby P stated:

The first rule for determining the meaning of the class of cases to which [the provision inquestion] will apply is that the Court must give meaning to the Parliamentary purpose asdiscerned from the words used by Parliament. Use of the word "intention" in the contextof determining the Parliamentary purpose can be misleading. It suggests, wrongly, thatthe search is one for the subjective ideas of the legislators whose approval to the Billwhich became the Act affords it the authority of law. Such subjective intentions, even ifthey could be ascertained, do not govern the court's approach to its function. Thatfunction is to pronounce the Parliamentary purpose ascertained from the words used.50

In another case his Honour's statement regarding the interpretative task before theCourt, namely that "[t]he ultimate objective of the Court is to discern the legislativepurpose",51 was accepted by other members of the Court. A similar statement has beenmade in England by Lord Scarman.52

The President's criticism of "the intention of Parliament" is well made. Clearly, thepurpose has greater utility. However, with great respect, there are difficulties insuggesting it as a golden rule or "ultimate objective" if by that it is thought that thepurpose should or could replace the intention of Parliament.53 First, the purposecannot be equated with the meaning in all cases, if purpose signifies the goal or object.The purpose in this sense is only one aid to the meaning of a provision, and this isparticularly the case if the relevant purpose ranges over more than the provision atissue.54 Other indications of the meaning may be available such as the ordinarymeaning of the words and the intention of Parliament.55 Even if in some cases thepurpose may be so broken down or can be so isolated that it relates only to theprovision at issue, this will not meet the second difficulty, which is that it cannot besaid to be the ultimate objective in those (other) cases in which the purpose cannot beascertained. As has been noted, the purpose is not the same as the "assumed desire ofthe legislature".56 It is argued below that ascertaining the purpose will often be asdifficult as ascertaining the intention or presumed intention. Where it is notascertainable, say because of legislative compromise or simply because of lack ofinformation, the court must rely on some other method. Thirdly, a purposive approachmay simp~ raise for consideration multiple, conflicting purposes which cancel eachother out.5 Fourthly (as recognised by his Honour), even if the purpose is ascertained(from extrinsic materials) it may not be relevant because it may be contrary to thewording of the Act. Finally, if the purpose was the ultimate objective, then it must be

5051

52

53

5455

5657

(1992) 26 NSWLR 648 at 653 (emphasis added).Smith v Allan (1993) 31 NSWLR 52 at 58. His Honour's statement was one of a number ofarguments which were said to have "strength" (ibid at 59). See also Royal Automobile Club ofAustralia v Sydney City Council (1992) 27 NSWLR 282 at 293.Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168: "[G]ur law requires the judge to choose theconstruction which in his judgment best meets the legislative purpose of the enactment".See W Twining and D Miers, above n 20 at 205: "[T]he relationship between 'intention','purpose' and 'reasons' needs to be clarified".Eg, Parke Davis Pty Ltd v Sanofi (1982) 43 ALR 487.R S Summers, "Statutory Interpretation in the United States" in D N MacCormick andR S Summers (eds), Interpreting Statutes: A Comparative Study (1991) 407 at 416-417.R v L (1994) 122 ALR 464 at 468 (Full Federal Court).Parke Davis Pty Ltd v Sanofi (1982) 43 ALR 487 at 509-510 per Deane J (dissenting).


equated with the meaning or presumed intention, in which case we would haveappeared to have swapped one nebulous term for another.58

Overlaps with other approachesWith regard to the conceptual meaning of purpose, a problem more fundamental thandifferences of nuance arises from its c01U1ection with other approaches, especially theliteral approach. Clearly, the purpose rule assumes that a purposive construction maybe distinguished from a construction that would not promote the purpose. Althoughthe rule does not explicitly mention the literal approach, the legislative history showsthat its proponents and law-makers clearly had this approach in their sights.59 Canpurposive constructions therefore be distinguished in theory from literal approaches?In Part One, I alluded to various understandings of the literal approach. A narrowconception is "its dictionary sense unaffected by considerations of the particularcontext" or "the meaning which results from giving to each word an ordinary meaningwithout much reference to the context or the statutory object".60 A wider conceptionhas been dubbed "literal in total context" and it includes proper regard to the objectssought to be achieved.61 The wider conception has the support of the influentialliterary theorist, Stanley Fish. He agrees with the observation that "[t]he distinctionbetween a 'literal' and a 'purposive' approach presents us with a false dichotomy".62Fish assumes that an interpreter (whether labelling an approach as "literal" or"purposive") is in no sense free to see the facts or law in any way he or she pleases; thatperson is always following a way marked out by a practice or a set of practices, thedefining "principles" of which include purposes.63 In a similar vein, he argues thatspecifjIDg meaning is exactly equivalent to specifying the intention of the author of atext.6

It has been little noticed that the wider conception of the literal meaning is alsoreflected in the Australian provisions relating to extrinsic materials (other than thoseoperating in Victoria).65 Section lSAB(l) of the Acts Interpretation Act 1901 (Cth)(which is typical) provides that consideration may be given to extrinsic material only:

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed bythe text of the provision taking into account its context in the Act and the purpose or objectunderlying the Act; or(b) to determine the meaning of the provision when

(i) the provision is ambiguous or obscure; or

5859606162

636465

See also M Zander, The Law-Making Process (2nd ed 1985) at 140-141.Part One at 154-162.Ibid at 139.Ibid at 134-135.S Fish, above n 1 at 591, referring to R N Moles, Definition and Rule in Legal Theory (1987) at156.S Fish, above n 1 at 12-13.Ibid at 100.I acknowledge my debt to McHugh Jin Saraswati v R (1991) 172 CLR 1 at 22-23 for raisingthis issue.

1995 Statutory Interpretation, Law Reform And Sampjord's Theory - Part Two 89

(ii) the ordinary meaning conveyed by the text taking into account its context in the Actand the purpose or oblect underlying the Act leads to a result that is manifestly absurdor is unreasonable.6

In Saraswati V R, McHugh Jpointed out that the terms of the equivalent New SouthWales provision "make it plain that 'the ordinary meaning conveyed by the text of theprovision' is the meaning conveyed by that provision after 'taking into account itscontext in the Act or statutory rule and the purpose or object underlying the Act orstatutory rule"'.67 In other words, that provision (which admittedly only applies to theuse of extriIlsic material) seems to reject the view that the literal construction alone canconstitute the ordinary meaning; it assumes, rather, that the "ordinary meaning" mustinclude a regard for the purpose as evident from the Act.

When one turns to see how the concepts of "literal" and "purposive" are applied inpractice, one finds support both for the view that the literal and the purposiveconstructions are distinct and for the view that they are not. There are cases where thepurposive meaning is found to be the same as the literal meaning.68 But there areseveral cases where the court has had to make a choice between plausible purposive andliteral meanings.69 In all of these cases it might be argued that the purpose could havebeen considered as part of an extended literal meaning, such as Driedger's "literal intotal context" or the "ordinary meaning" as constructed in s 15AB. In an ideal world thevarious afeF.roaches would combine. But, to quote Fish, readers, not just texts,"produce" meanings. Moreover, in a legal "interpretive community"71 interpretationsare multiplied because of the differing interests the parties are forced or choose todefend. Legislative drafters have long been aware of the need to take account of thisfact. As one nineteenth century exponent wrote:

I think that my late friend Mr Mill made a mistake upon the subject, probably because hewas not accustomed to use language with that degree of precision which is essential toeveryone who has ever had, as I have had on many occasions, to draft Acts ofParliament, which, although they may be easy io understand, people contitiually try tomisunderstand, and in which therefore it is not enough to attain to a degree of preLisionwhich a person reading in good faith can understand; but it is necessary to attain ifpossible to a degree of precision which a person reading in bad faith cannotmisunderstand. It is all the better if he cannot pretend to misunderstand it ... 72

666768

69

707172

Emphasis added.(1991) 172 CLR 1 at 21.Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343 at 347; RePaterson and ACT Institute ofTAFE and Comcare (No 2) (1989) 17 ALD 51 at 55; Re Farhat andAustralian Postal Commission (1989) 16 ALD 712 at 715.Re Secretary, Department of Social Security and Greenway (1990) 20 ALD 248 at 250; Re Davisand Secretary, Department of Social Security (1992) 26 ALD 595 at 604-605; GTK Trading PtyLtd v Export Development Grants Board (1981) 4 ALD 389 at 395-396 (Full Federal Court);Webb v Harris (1983) 47 ACTR 17 at 23; La Macchia v Minister for Primary Industry (1986) 72ALR23 at 27.S Fish, above n 1 at 68.Ibid at 83 and 141.In re Castioni [1891] 1 QB 149 at 167-168 per Stephen J; see also D C Pearce and R S Geddes,above n 24 at para 1.3. Another well known version of the self-serving litigant is OliverWendell Holmes' "Bad Man", the subject of W Twining, "The Bad Man Revisited" (1973) 58Cornell L Rev 275. -


La Macchia v Minister for Primary Industry73 is a good illustration of the way "literal"and "purposive" interpretations collide in practice. The appellant's livelihooddepended on him persuading the court that the relevant provision should beinterpreted literally. He was one of several holders of a fishing boat licence who hadbeen convicted of an offence under the Fisheries Act 1952 (Cth). The respondentcancelled the licence. The power of cancellation derived from s 9A(3A) of that Act,which read:

The Minister may, by notice in writing given to the holder of a licence granted undersection 9, cancel the licence if:

(b) in the case of a licence granted under sub-section 9(2) or (3) in respect of a boat

(i) the holder of the licence is convicted of an offence of a kind referred to in paragraph (a);or

(ii) during any period during which the holder of the licence held a licence in respect ofthe boat - another person is convicted of an offence of a kind referred to inparagraph (a) in relation to the use of a boat (emphasis added).

Counsel for Mr La Macchia put forward a literal interpretation of sub-paragraph (i). Heemphasised the first-mentioned definite article "the" in the phrase italicised whichwould suggest that there was no power of cancellation in the circumstances, since notall the holders of the licence concerned had been convicted. This interpretation wasalso reinforced by the equivalent reference to "the holder" in the opening words of thesub-section. This interpretation did not find favour with the Federal Court because itwas held that it was also open to hold that the legislature intended to cover thesituation where any person, whether the holder of a licence or not, was convicted of anoffence under the Act. Toohey J, with whom Bowen CJ agreed, referred to ~he terms ofsub-paragraph (ii) for support, noting that it was cast in wide terms so that the otherperson convicted of an offence in relation to the use the boat need stand in no specialrelationship to the holder of the licence. After referring to s 15AA of the ActsInterpretation Act, he explained that "undue emphasis on the use in sub-para (i) of thedefinite article in the expression 'the holder of the licence' diverts attention from theresult that Parliament intended to achieve and which, in my view, it did achieve".74

Conclusions

The purpose is clearly a complex concept. It has widely differing nuances. Noconsensus over its meaning is apparent. The considerable uncertainty surrounding"purpose" is magnified when comparisons are made between the purposive approachand the literal approach. This suggests that, at a conceptual level, the purpose ruleadded to the disorder in the law of statutory interpretation when it attempted tomandate the purposive approach over an approach, such as the literal approach, whichdid not promote the purpose of the relevant provision. However, to say that theconcept of purpose entails considerable conceptual problems does not mean that theseproblems will lead to added conflict. They may in fact mute the conflict to some extent.The more that purposive reasoning is perceived to be problematical, the more thatapproach may be avoided because of the loss of certainty that a court or one's peerswould be persuaded by that construction.

7374

(1986) 72 ALR 23.Ibid at 27 (emphasis added).

~rarurury lnrerprerarzon, Law l'<.eJorm Ana 5UlilPJOIU 5 llleoig 1 U; l 1 roo

How is the relevant purpose determined in a particular case?

31

Practical problems

The conceptual hurdle of what is entailed by "purpose" is accompanied by difficultiesin determining the purpose or object in a particular case. The claim that theparliamentary purpose is indeterminate75 is a strong one if direct evidence of thepurpose is sought by resort to extrinsic materials. Although there have been cases ofsuccessful resort to parliamentary proceedings to discover the purpose or meaning,76on many occasions the courts and tribunals have been frustrated, as the criticalliterature suggested, in ascertaining the purpose which Parliament had in mind.77 Inthe most simple case of this type, the purpose may be unobtainable from parliamentarysources because of the limited ambit of parliamentar; proceedings: normally only the"broad principles" of the legislation are considered.7 More complicated are the caseswhere the legislation was altered during the course of its passage through Parliament.In Mills v Meeking, Mason CJ and Toohey J found any inference of the "intention ofParliament" would be "unreliable" because of the alterations to the Bill after theMinister's introductory second reading speech.79

Even where statements of the purpose by members of Parliament or other rulemakers or promoters are theoretically available, there may be difficulties in obtainingcopies of them.80 If they can be obtained, they frequently do not offer conclusive

75

76

77

787980

W N Eskridge and P P Frickey, "Statutory Interpretation as Practical Reasoning" (1990) 42Stan L Rev 321 at 333.Rogers v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 at 381-383; Colla v Cooper [1987]VR 1007 at 1010; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 at 105-106; ReTween and Australian National Parks and Wildlife Service (1990) 22 ALD 101 at 111-112 (AAT)(ministerial letter and answer to question in Parliament); North Flinders Mines Ltd vHartogen Energy Ltd (1988) 14 ACLR 609 at 618 (explanatory memorandum); Lemair(Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167 at 170 (CA) (explanatory note and secondreading speech); R v L (1994) 122 ALR 464 at 469 (second reading speech) (Full FederalCourt); Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALD 261 at 267(second reading speech); Minister for Immigration and Ethnic Affairs v Sciascia (1991) 24 ALD11 at 20 (second reading speech); Re Secretary, Department of Social Security and Clemson(1991) 26 ALD 329 at 340; Re Bone-Thompson and Secretary, Department of Social Security(1993) 31 ALD 207 at 212 (explanatorv memorandum); Re Drs J JSullivan, N JNicolaides &Partners and Minister for Health, Housing, Local Government and Community Services (1993) 32ALD 508 at 515 (second reading speech and explanatory memorandum).Eg, Re Chemark Services Pty Ltd and Collector of Customs (1991) 24 ALD 578 at 584; Re DrsSullivan, Nicolaides & Partners and Minister for Health, Housing, Local Government andCommunity Services (1994) 32 ALD 517 at 525. However, on some occasions the absence of~ny. reference to purpose, where the dispute is over a common law right such as naturalJustIce, may assist the court in determining that the Minister was not intending to over-rulethe common law right, eg: Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR1 at 26.E Campbell et aI, Legal Research: Materials and Methods (3rd ed 1988) at 94.(1990) 169 CLR 214 at 224-226.House of Representatives Standing Committee on Legal and Constitutional'Affairs, ClearerCommonwealth Law (1993) at paras 11.50-11.54 and 11.70-11.72; K Cole, "Finding the Law"(1993) 18 AU LJ 298. But, as D Miers, "Taxing Perks and Interpreting Statutes: Pepper vHart" (1993) 56 MLR 695 at 705 notes, technological innovations such as the use of CDROMs, are likely to offer wider and more ready availability. For instance, the Legislative

92 Federal Law Review Volume 22"'

evidence of the intention of Parliament as a whole. As Miers points out, after reviewingthe new legal position in England which permits reference to statements by a promoterof the Bill as well as to notes on clauses prepared for Ministers and attached to the Bill,"[i]t hardly needs to be said that two (three, including the Act) texts are not necessarilyclearer than one."81 Conflicting statements of purpose may thus present arguments forboth sides.82 The influence of the executive and of political parties on Parliamentaryproceedings must also be (and is) taken into account. In the Mills case, Dawson Jwas ofthe view that the relevance of parliamentary proceedings "must more often than not bequestionable". He continued:

The report of a speech of a member of Parliament other than that of the Minister movingthe second reading of a Bill may often be unhelpful and even a second reading speechmay be of little relevance. If greater significance is to be attributed to a second readingspeech it seems that it must be based upon the assumption that it is less likely to express,a mere individual view.83

In Humphries v Poljak, McGarvie J noted that Dawson J's assumption about the secondreading speech was founded on the "practical reality that the modern Parliament tendsto be dominated by the executive government".84 It is ironic that the weight attached toa statement in Parliament depends on the statement being seen as the view of theexecutive - merely a powerful group in Parliament. However, it is certainly consistentwith the theory of disorder which emphasises the role of disordering influences, ratherthan consensus of independent minds, in producing apparent order. ill the case ofParliament, its domination by the Cabinet,85 and by the party system and its associated

8182

83

8485

Instruments Bill 1994 (Cth) provides for a Federal Register of Legislative Instruments(cI24); for the Register to be kept by computer (cl 25); for public inspection of the Register(cI26); and for an explanatory statement explaining the purpose and operation of theinstrument (cI32) to be delivered to each House of Parliament and laid before it (cI46).D Miers, above n 80 at 707.Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 17. In the UnitedStates of America, but not as yet in Australia, there is great concern from some seniormembers of the judiciary and comlnentators that the method of interpreting statutes hasbecome corrupted. According to J Fagan, above n 3 at 385: "Lawyer-lobbyists understandthe system ... they will attempt to have evidence placed in the legislative history which canbe used as a basis for interpreting the statute contrary to the statute's Plain Meaning,knOWing that courts will 'give legislative force to each snippet of analysis' found inlegislative history". This "political science approach to Congress" has led Justice Scalia ofthe Supreme Court, in a situation where a statute is unambiguous, to reject the use ofstatements of individual legislators or committees during the enactment process to expandor contract the interpretation: ibid at 383. Contrast D Miers, above n 80 at 706-707, whoseconcern about the ruling permitting reference to Hansard in English courts is that Ministersmay be discouraged from doing any more than repeating the advice they have alreadygiven in the brief prepared for them.(1990) 169 CLR 214 at 236. In R v Boucher (1994) 70 A Crim R 577 at 587 the Full Court ofthe Supreme Court of Victoria observed that the Attorney-General of Victoria wasmistaken as to the nature of the amendments proposed in the second reading speech.Humphries v Poljak [1992] 2 VR 129 at 163.G S Reid, "The Changing Political Framework", Quadrant, January-February 1980, 5;C Howard, The Constitution, Power and Politics (1980) at 29-32; the Honourable JusticeGerard Brennan, "Courts, Democracy and the Law" (1991) 65 ALI 32; K J Foley and W (Bill)Russell, Strategic Management Review of the Parliament of Victoria (1991) (Vic PP 1988-1992Vol 27 No 159 at Place 3); R D Lumb, Australian Constitutionalism (1983) at 68; Editorial

1995 Statutory Interpretation, Law Reforln And SamfJJford's Theory - Part Two 93

machinery,86 is a notorious fact. Reference to Parliamentary proceedings for the"intention of Parliament" needs to take account of these realities.

A further problem with inferring the purpose from statements in the Parliamentresults from the compromises over legislation which are frequently made before orafter its introduction into the Parliament.87 In Humphries, the dispute before theSupreme Court of Victoria was over the meaning of "serious" in the context of arequirement that a person suffer "serious injury" before a court could give leave forproceedin~s to be brought for the recovery of damages as a result of a "transportaccident". 8 The Act as finally passed was a compromise in a crucial respect. As firstintroduced, the Bill proposed a no-fault liability scheme and the complete abolition ofcommon law rights to sue. The Bill in that form was successfully opposed. (TheGovernment had the majority in the lower House, while the Opposition then controlledthe upper House.) The right to sue in the case of "serious injury" was the compromisewhich was accepted.89 The majority of the Supreme Court derived little assistance fromthe debates.90 McGarvie J dissented on the result, but his Honour's judgmentilluminates the difficulties in discovering the parliamentary purpose in circumstancessuch as these. The key fact was that the Act was "one for which, in reality, Parliamentdecided the ultimate content, not the Govemment":91 His Honour added:

The result of this review of the parliamentary debates is that no reliable indication of theintention of Parliament can be discerned. The intentions of particular members and ofparticular political parties do appear but often they are inconsistent with each other. Thatis not surprising as the Act is a result of compromise between inconsistent objectives. Itmight be said that from the debates it appears that the ministers and members on theGovernment side who spoke tended to favour the Act operating in the way thecommission now submits that it does and those on the Opposition and National Partyside tended to favour the Act operating as the injured persons now contend that itdoes.92

The dampening effect of parliamentary compromises as far as setting forth clearly thelegislative purpose has been summed up as follows:

[T]o see the key to the meaning of a section in the policy or purpose of the legislation is,in my opinion, to take a less than sophisticated view of the art of the parliamentarydraftsmen. In many cases, the interpretation of a provision is difficult, not because thepolicy or purpose of the legislation is not clear, but because the section is directed, notsimply to effecting that policy or purpose, but to achieving a compromise between it andother considerations.93

In short, resort to parliamentary statements of purpose is a classic disorderingfeature of statutory interpretation. On the one hand, a clear statement can mute conflict

8687

888990919293

Opinion, "Protecting our Rights", Age, 4 Apri11995 at 15. Cf P H Lane, An Introduction to theAustralian Constitutions (6th ed 1994) at 50-51 (role of "hostile Senate").C Howard, above n 85 at 32-39.For discussion of compromises in the context of public choice theory, see S Bottomley,N Gunningham and S Parker, Law in Context (1991), ch 8; and R Posner, The Problems ofJurisprudence (1990) at 275-278.Transport Accident Act 1986 (Vic), s 93.[1992] 2 VR 129 at 131.Ibid at 137.Ibid at 163.Ibid.Metal Manufacturers Ltd v Lewis (1988) 13 ACLR 357 at 366-367 per Mahoney JA.

94 Federal Law Review Volume 22 ~

dramatically, as occurred in the leading English case of Pepper v Hart.94 There ifconsiderable judicial confidence that the new authority given to Hansard in statuto~

interpretation can help avoid unnecessary litigation in a significant number of cases. tOn the other hand, where available, parliamentary statements can serve to stimulatrconflict because of indeterminacies in the statement and the possibility of conflict witli'

the literal wording of the statute.The difficulties in determining the parliamentary purpose are, in practice, reducec

by drawing on statements of purpose in the Act or by the making of inferences. Th~

Act may set out the purposes96 or they may be evident in the Act's long title.9~

However, they are often stated too generally to be of assistance in the particular case.9l

An interesting recent development is the ,.increasing use of more specific purpos{provisions applying to Parts, Divisions or even Sections.99 These provisions hav{obviously been designed to aid purposive interpretation, and have many obviou~

advantages over recourse to parli~mentary debates. lOO Of course, the limitations illexpress statements of purpose are overcome to some extent by the making of inference:about the Furpose from various sources, including the terms of the ~rovision iIquestion,lO its legislative history,l02 a nearby provision in the Act, 03 the Acgenerallrc,104 another Act,lOS the consequences of a literal meaning,106 reasoning b~

analogy 07 and logical reasoning. lOB Because of the subjective nature of the reasoningl

however, such inferences provoke argument. Inordinate amounts of time can be spen

94959697

9B

99

100

101

102103

104

105

106

107108

D Miers, above n 80 at 705.Ibid at 706.Mills v Meeking (1990) 169 CLR 214 at 235.Re Tween and Australian National Parks and Wildlife Service (1990) 22 ALD 101 at 111 (AAT~

Re Carvalho and Secretary, Depart1nent of Employment, Education and Training (1990) 22 ALI379 at 390 (AAT).Re Treacy and Department of Veterans' Affairs (1994) 32 ALD 785 at 788: purpose looked at iterms of the general purpose of the Act only ("to benefit national servicemen").I Turnbull, "Clear Legislative Drafting: New Approaches in Australia" (1990) 11(3) Stat L161 at 176-178.See generally, The Preparation of Legislation (Chairman: Sir D Renton) (Cmnd 6053, 197(Renton Committee) at paras 11.6-11.8; House of Representatives Standing Committee 0

Legal and Constitutional Affairs, above n 80 at para 8.14.Bushell v Repatriation Commission (1992) 175 CLR 408 at 413 per Mason CJ, Deane anMcHughJJ.Ibid; Phillips v Corporate Affairs Commission (SA) (1986) 11 ACLR 182 at 189.La Macchia v Minister for Primary Industry (1986) 72 ALR 23 at 27; Mills v Meeking (1990) 16CLR 214 at 243 per McHugh J.Re Secretary, Department ofSocial Security and Underwood (1991) 25 ALD 343 at 347 (AAT);Secretary, Department of Social Security and Pilgrim (1990) 21 ALD 34 at 342-343; Re Farhat aAustralian Postal Commission (1989) 16 ALD 712 at 715; Broken Hill Proprietary Co Ltd v BResources Ltd (1984) 2 ACLC 157 at 161-162.Enterprise Colorvideo Productions Pty Ltd v Corporate Affairs Commission (1984) 2 ACLC 239243-244.Re Secretary, Department of Social Security and Greenway (1990) 20 ALD 248 at 250; Re tNews Corporation Ltd (1987) 70 ALR 419 at 428.Repatriation Commission v Kohn (1989) 87 ALR 511 at 524.Nomad Films International Pty Ltd v Export Development Grants Board (1986) 66 ALR 427438.


also in making sense of complicated legislation, even so-called plain Englishlegislation.109

Compounding these difficulties are the practical objections which some judges andlawyers have to ascertaining the purpose from extrinsic sources.110 Kirby P of the NewSouth Wales Court of Appeal has warned that there is already a "crushing burden oflegal data" on legal interpreters.lll Some commentators object to the admission ofparliamentary material on the ground that it is in the nature of politics for legalpropositions to be expressed "in an inaccurate, if not downright misleading, way".112

Legal impediments: the Act and extrinsic materials legislationAside from the practical difficulties and objections to determining the purpose arefairly well known legal impediments to ascertaining the pUlfose. The most basic is thatthe purpose must be found to be consistent with the Act. II If the court considers "thepurpose" has not been expressed in the written law, it is not binding.114

Much more elaborate impediments arise from limitations in the common lawI15 andunder legislative provisions allowing use of extrinsic materials.116 In outline,Commonwealth legislation enacted in 1984 - s 15AB of the Acts Interpretation Act1901 (replicated in most other jurisdictions in Australia)117 - liberalised the rulesconcerning the use of extrinsic materials (materials external to the legislation beinginterpreted). But the legislation provided that consideration could be given to thesematerials only in limited circumstances (except in Victoria).118 The extrinsic evidencelegislation disorders statutory interpretation by making available materials whichsuggest interpretations not immediately obvious from the Act itself. The legislation,however, also shackles the purpose rule at the same time, because it generally limitsthe circumstances when the material may be used otherwise than to confirm theordinary meaning. Use of the explanatory nlaterial is 1.i any case discretion~!x, creatingfurther opportunities for differences to arise between judge and counse1.11':J If, i.rl the

109110111

112113

114115

116

117

118

119

Blunn v Cleaver (1993) 119 ALR 65 at 83 (Full Federal Court).For judicial objections, see FAR Bennion, above n 29 at A56.The Honourable Justice Michael Kirby, "Statutory Interpretation and the Rule of Law Whose Rule, What Law?" in D St L Kelly (ed), Essays on Legislative Drafting (1988) 84 at 97.FAR Bennion, above n 29 at A56.Trevisan v Federal Commissioner of Taxation (1991) 101 ALR 26. In rare circumstances, courtsare permitted to read words into legislation: Mills v Meeking (1990) 169 CLR 214 at 243-244.Humphries v Poljak [1992] 2 VR 129 at 164.In Re Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications(1992) 29 ALD 395, a Deputy President of the Administrative Appeals Tribunal consideredboth the common law and the Federal extrinsic materials legislation. The common law isoutside the scope of this article.It has been held that "[t]he use which may be made of these [extrinsic] materials includesthe purpose of identifying the purpose or object underlying the Act": Metropolitan FireBrigades Board v St Catherine's School [1993] 1 VR 351 at 358.Interpretation Act 1967 (ACT), s 11B; Interpretation Act 1987 (NSW), s 34; ActsInterpretation Act 1954 (Qld), S 14B; Interpretation Act 1984 (Vic), s 35(b); andInterpretation Act 1984 (WA), s 19.Section 35(b) of the Interpretation of Legislation Act 1984 (Vic) did not define the uses ofthe extrinsic material.R v Kean and Mills [1985] VR 255 at 259 (FC) held that a court is permitted, but not obliged,to refer to extrinsic material which counsel sought to place before it. "5 15AB(3) [of the Acts


opinion of the judge, there is no ambiguity or obscurity on the face of the legislation(with some exceptions) a court may decline to consider such material.120

Section 15AB of the Acts Interpretation Act 1901 (Cth) is typical of the extrinsicmaterials legislation applying in jurisdictions other than Victoria. It provides that:

(1) [I]n the interpretation of a provision of an Act, if any material not forming part of theAct is capable of assisting in the ascertainment of the meaning of the provision,consideration may be given to that material-

(a) to confirm that the meaning of the provision is the ordinary meaning conveyed bythe text of the provision taking into account its context in the Act and the purposeor object underlying the Act; or

(b) to determine the meaning of the provision when -

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text taking into account its context inthe Act and the purpose or object underlying the Act leads to a result that ismanifestly absurd or is unreasonable.

The effect of this provision is to restrict the use of extrinsic material to alter the"ordinary meaning". The Full Bench of the High Court has ruled that only in thecircumstances set out in paragraph (b) is recourse to extrinsic material permitted so asto justify departing from the ordinary meaning.121 This provision shackles the purposerule since understanding of the purpose gained from extrinsic material cannot beachieved unless the conditions of paragraph (b) are met.122 However, the shackling iscrudely achieved, because the conditions in paragraph (b) are loosely defined. It is notuncommon for courts or tribunals to disagree about whether the provision is"ambiguous or obscure" for instance.123

The parliamentary debates suggest that the restrictions were put in place out ofdeference to the judiciary;124 if so, they indicate contradictory policies both ofencouraging judicial law-making through purposive interpretation and of restricting itout of deference. The restrictive provisions may be redundant. They do not applyunder the Victorian legislation, though in a recent move, a five-member Bench of theSupreme Court of Victoria has overturned a previous majority ruling which hadsuggested that there were no formal restrictions on access. This is detailed below.

120

121122

123

124

Interpretation Act 1901 (Cth)] creates a nightmare for the lawyer attempting to advise hisclient as to the meaning of some possibly ambiguous provision, and also for the judge atfirst instance, because in effect it leaves it up to the individual judge (or appellate court) todecide whether to consider extrinsic material at all, as well as to decide how much weightto give to it if it is to be considered": D Gifford, above n 34 at 129.Federal Commissioner of Taxation v Bill Wissler (Agencies) Pty Ltd (1985) 85 ATC 4626 at 4629;cf Commissioner ofAustralian Federal Police v Curran (1984) 3 FCR 240 at 250.Re Australian Federation ofConstruction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420.Eg, see the refusal by the Administrative Appeals Tribunal (Cth) to consider an argumentbased on extrinsic purpose in Re Secretary of Department of Social Security and Diepenbroeck(1992) 15 AAR 411 at 414; and also in Re Sellars and Department of Employment, Education andTraining (1992) 88 Australian Administrative Law Bulletin at para 3090 (AdministrativeAppeals Tribunal, 11 June 1992).Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALD 261 and Re Secretary,Department of Social Security and Williamson (Administrative Appeals Tribunal, 13 August1993, unreported): (1994) 101 Australian Administrative Law Bulletin at para 3476.Sen Deb 1984, Vol 102 at 583.


The comparable Victorian provision is s 35 of the Interpretation of Legislation Act1984. It relevantly states that:

In the interpretation of a provision of an Act or subordinate instrument -

(b) consideration may be given to any matter or document that is relevant includingbut not limited to -

(i) all indications provided by the Act ...

This provision was discussed by certain members of the High Court in Catlow vAccident Compensation Commission. Brennan and Gaudron JJ began by distinguishingthe Victorian provision from the Commonwealth model, but surprisingly held thatsimilar restrictions applied:

This provision [s 35(b)] is extremely broad. Unlike s 15AB of the Acts Interpretation Act1901 (Cth), s 35 does not restrict the purposes for which it is permissible to consider theextrinsic materials referred to in that section ... It is only when the meaning of the text isdoubtful (to use a neutral term rather than those to be found in s ISAB(l) of the ActsInterpretation Act), that consideration of extrinsic material might be of assistance. Itfollows that it would be erroneous to look to the extrinsic material before exhausting theapplication of the ordinary rules of statutory construction. If, when that is done, themeaning of the statutory text is not doubtful, there is no occasion to look to the extrinsicmaterial.lis

The last sentence suggests that their Honours were not in favour of the consideration ofextrinsic material in the absence of any doubt on the face of the statute.

The Victorian Supreme Court has given different views of the provision in the threemain cases addressing it. When it first discussed the provision, it accepted that Its 35can at least have some operation where the meaning of a statutory provision remainsdoubtful after orthodox methods of statutory interpretation" have been employed.126

Later, in Humphries v Poljak, the majority considered but seemingly rejected any formallimit on using extrinsic material:

It may have been thought that, if this court were of opinion that the relevant language ofthe Act was not ambiguous or uncertain, then that language should be given its ordinaryand grammatical meaning without the need for recourse to extrinsic material. This mightbe expected to be so notwithstanding s 3S(b) ... However, s 3S(a) of the [Interpretation ofLegislation] Act requires a construction to be given to legislation "that would promotethe purpose or object underlying the Act". That "purpose or object" may not beascertainable without reference to the parliamentary debates. Accordingly, the betterview would appear to be that, even if it may be thought that the language of the Act isclear and unambiguous, it was not improper to have had recourse to the parliamentarydebates in order to ensure that to apply the ordinary and grammatical meaning of the words usedwould not give the statute a meaning which obviously tvas not intended: Mills v Meeking (1990)169 CLR 214, 223.127

It is clear that the majority were of the view that recourse to extrinsic material waspermitted where there was no ambiguity on the face of the statute. It is s~bmitted that,

125 Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 549-550 (emphasisadded).

126 Accident Compensation Commission v Zurich Australian Insurance Ltd [1992] 2 VR 1 at 12 perAshley J, with whom Crockett and Southwell JJ agreed.

127 [1992] 2 VR 129 at 136-137 (emphasis added).


in the italicised passage, they also made it clear that the result of the recourse couldpotentially alter the grammatical meaning if that meaning was obviously not intended,and (implicitly) the wording left that alternative meaning reasonably open.

At this point the apparent disagreement between members of the High Court andthe Supreme Court, over whether free resort may be had to extrinsic material, may beseen to reflect deep and traditional conflicts over interpretative methodology in thelegal community; that is, conflicts over what constitutes the relevant textualmaterials.128 The view that the Act marks the boundary of the textual material whichmay be referred to (in the absence of any judicially determined doubt) is reflected inthe strongly worded judgment of McGarvie Jin Humphries (dissenting on the facts):

For the commission it is submitted that, without first ascertaining whether there wasambiguity in the relevant provision, it is appropriate for the court to go straight toHansard and form a view of the provision in the light of what was said there. In myopinion that approach would be entirely inappropriate here. Many reasons make it mostdesirable that Parliament should express its intention in the writing of its statutes andthat the courts should apply that intention. I consider that it is no more permissible tolook at parliamentary history than it is to look at legislative history "not for the purposeof removing any uncertainty ... either patent or latent, but for the purpose, first ofintroducing uncertainty into plain words, and then of resolving the difficulty thusillegitimately created": per Kitto J, R v Metal Trades Employers' Association; ex parteAmalgamated Engineering Union (1951) 82 CLR 208, 263.129

The apparently more liberal view of the extrinsic material provision taken by themajority in Humphries was clearly influenced by the apprehended need to give effect tothe legislated purpose rule. While, therefore, the Commonwealth Parliament deferredto the judiciary in formulating restrictions on the use of extrinsic material in theinterpretation of federal law, the Victorian judiciary in Humphries deferred to theVictorian Parliament (at this point) in deciding not to impose formal restrictions on theuse of that material. What a contrast!

The view which has been put So far - of a conflict between certain members of theHigh Court and a majority of the Supreme Court of Victoria - was acknowledged byNathan Jof the Supreme Court of Victoria in Henderson v Read.130 But, in a surprisin~development, a unanimous five-member Bench of the Supreme Court in R v Boucher13

has obliterated the differences. Their Honours have sought to find the common groundbetween the judgments and have made implications both in the joint judgment ofBrennan and Gaudron JJ, and in the majority judgment of the Supreme Court inHumphries, to bring about this result. The implications made with respect to the HighCourt judgment are relatively minor and uncontroversial. It will be recalled thatBrennan and Gaudron JJ had disavowed extrinsic materials being "of assistance" unlessthe provision was "doubtful" on its face. The Supreme Court drew this conclusion:

[W]e do not regard [the reasons of Brennan and Gaudron JJ] as precluding referencebeing made to the extrinsic materials, by way of confirming that the interpretation givendoes in fact accord with or reflect the purpose or object of the legislation as identified

128 D Miers, ilLegal Theory and the Interpretation of Statutes" in W Twining (ed), Legal Theoryand the Common Law (1986) 115 at 122.

129 [1992] 2 VR 129 at 159-160.130 [1993] 1 VR 537 at 540.131 (1994) 70 A Crim R 577.


during the debates. That is, as we apprehend their reasons, all that the majority inHumphries purported to do ... 132

In this case the Supreme Court has embellished the High Court view by implying that,in the absence of any ambiguity on the face of the provision, recourse to extrinsicmaterials is not ruled out, but it may only confirm the meaning the provision has on itsface. The implication made in respect of the Supreme Court's earlier majority judgmentin Humphries is much more serious, however. As is apparent from the statement above,the Supreme Court in Boucher has assumed that in Humphries the Court countenancedrecourse to extrinsic material, in the absence of doubt on the face of the statute, only inorder to confirm the meaning it has on its face. With respect, this was not the previousunderstanding, as argued above. The effect of the rationalisation in Boucher is that theVictorian provision regarding extrinsic material has been read down so that resort tosuch material can only alter the meaning the provision has on its face when there isinitial, judicially-determined doubt about that meaning.

While the interpretation of the Victorian Supreme Court in Boucher may remove, forthe time being, the conflict between members of the High Court and a majority of theSupreme Court in Humphries, if my interpretation of Boucher is correct,133 that decisionnevertheless creates disorder in statutory interpretation. The first point is that it willstimulate conflict over whether there is a doubt on the face of the statute. This isimportant because, as is clear from the above analysis, recourse to extrinsic materialswill be of real assistance only if such a doubt can be established. The second point isthat the interpretation creates tension between the Victorian purpose rule and theVictorian extrinsic material legislation. While the purpose rule clearly favourspurposive interpretation, as interpreted in Boucher, the legislation governing resort toextrinsic material is to operate in such a way as to favour the construction the provisionin question bears on its face - ordinarily the grammatical meaning. Thus, where acourt considers that there is no doubt on the face of the statute, the grammaticalmeaning is to be preferred even where (if regard to extrinsic material was possible) itcould be shown that another n1eaning was "obviously intended" and the alternativeconstruction is reasonably open. The third point of disorder or conflict likely to beengendered by the judgment concerns the status of executive interpretation of the law:rather than facilitating the taking into account of the executive view of the law accommodating it in the process of interpretation - the Court has erected barriers toprevent that happening in the courts. We have seen that, in the absence of anyjudicially-determined doubt on the face of a provision, the executive view can only beused to confirm the meaning which is apparent on its face.

It might be thought that these critical conclusions miss the point: the somewhatcynical one that, since the courts may now have recourse to extrinsic materialsregardless of whether there is any doubt on the face of the statute, if that recoursegenerates a doubt, a court may then say that there is a doubt on the face of thestatute.134 Such a ruling would then permit the court to alter the meaning the provision

132133

134

Ibid at 591.Though the Supreme Court did not expressly state that, in the absence of any doubt on theface of the statute, regard to extrinsic material could not alter the meaning it has on its face,this was essentially the view stated in [1994] ALMD 7423.Is it so unrealistic? Judges in the past have had recourse to extrinsic materials on aninformal basis: see D Gifford, above n 34 at 132-134 discussing Lord Denning'scontroversial use of Hansard; and P Bridgman, "New Ways with Old Acts - Queensland's


has on its face if the court thought it was justified. In other words, the restrictive rulingin Boucher may permit things to go on as before. If this view has an element of truth, itdemonstrates that the disordering influence of judicial power can both provoke conflictand change, and mute it at the same time.

Conclusions

Purposive reasoning creates problems for interpreters: how to ascertain the purposeand how to deal with objections to the added time and cost frequently involved withextrinsic materials. There are added legal issues arising from the restrictions on the useof those materials and the need for a statement of purpose in an extrinsic source to bejustified by reference to the written law. All these factors suggest the rule will add tothe disorder in statutory interpretation. Yet these special features of purposivereasoning may also have the opposite result. The practical problems, not to mention thelegal impediments, may deter interpreters from using the purpose rule and therebymute the conflict and the potential for change in legal practice.

What does the rule require or permit?

Assuming now that there is some coherence in the concept of purpose and that it canbe ascertained, the principal question which remains concerns the application of apurposive construction. What does the purpose rule require or permit in this regard?The first thing that is noticeable is that the rule has generated a great number ofquestions which previously were not relevant under the pre-existing common lawregime or, if potentially relevant, were largely ignored in practice. I set out below thequestions which have arisen in courts and tribunals and I briefly detail the attempts(only partly successful) to give an authoritative and clear answer. The questions fallroughly into five main groups. The first group relates to the applicability of the rule,that is, the pre-conditions for the rule. Raised for consideration are the meaning of"interpretation of a provision of an Act", "construction", "promote", "purpose or object","underlying the Act", and "construction that wquld not promote that purpose orobject". The analysis also includes the question of the applicability of the rule in thecase of competing purposive constructions. The second group of questions relates tothe time when, and the circumstances in which, the purpose must be or is permitted tobe taken into account. The question of the time when, and the circumstances in which,consideration of extrinsic material is required or permitted in order to ascertain thepurpose is also dealt with at this point. The third group of questions relates to thegeneral discretion of the court or tribunal to decline to adopt a purposive construction.The fourth group concerns the operation of the rule. Questions asked at this pointinclude: How may a purposive construction in general be accommodated inlegislation? What is the status and effect of the purposive construction once it isinvoked pursuant to the rule? What is the status of a construction which a Minister orother pronloier has clearly referred to in Parliament in the course of promoting the Billwithin which the provision in question lies? The final group of questions iscomparative in nature: it looks at the differences which exist between the purpose rulesin each of the State and Federal jurisdictions in which the rule has been enacted.

Innovative Acts Interpretation Act" (1991) 21 Queensland Law Society Journal 333 at 340, whorefers to the practice of judges informally consulting extrinsic materials.


What is the meaning of "interpretation of a provision of an Act"?The purpose rules set out various pre-conditions for their application. The first one isthat they are said to apply to the interpretation of a provision of an Act (or in somecases subordinate legislation as well). Specifically, to bring the rule into play, theremust be two or more possible constructions of the legislative provision at issue. The ruledoes not apply therefore where the issue is whether there is some supplementalcommon law governing the provision. This point was seemingly made by the SupremeCourt of Victoria in Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd. 135 This casedealt with the application of s 38(4) of the Commercial Arbitration Act 1984 (Vic);under this provision appeals from awards of commercial arbitrators could be broughtin the Supreme Court only with the leave of the Court. The primary judge felt bound torefuse leave in view of certain "guidelines" (known as the Nema guidelines) which hadbeen laid down by the House of Lords. That judge was of the view that a purposiveinterpretation of the power to grant leave ought to be taken to achieve finality. TheAppeal Division disagreed with that approach. It saw the question as "whether theNema guidelines should be accorded the force of binding rules of law?"136 Fullagar J(with whom McGarvie and Ashley JJ relevantly agreed) concluded that the purposerule was not applicable:

I do not think s 35 of the Interpretation Act should be called in aid at all. Section 35applies only when there is a choice between two (or perhaps more) constructions of therelevant Act or section, and the applicability or not of The Nema guidelines cannot betreated as a question of construction of a section, because the section is in terms perfectlyplain and ... there was no ambiguity or inconsistency in the words of s 38 ... [T]he onlyquestion was ... when a court is by statute invested with a discretion without anyindication in the Act of the grounds or bounds upon or within which it is to be exercised,can the court lay down binding rules with a view to indicating the particular grooves inwhich the exercise of the discretion will run.137

This case elaborates on the obvious fact that the purpose rule is not relevant unlessthere is a dispute about the interpretation of legislation. It holds that where the onlyquestion about a statutory provision is whether it is subject to certain comments in thelaw reports, the status of vvhich is not clear, it is tIle Idw reports which are beingsubjected to legal analysis, rather than the statute being construed. This is so, eventhough the result of ruling on the effect of the extrinsic material will directly affect theextent of the statutory power concerned. In other words, the ruling in LeightonContractors is not clear-cut in its effect. In this respect the applicability of the rule wouldseem to depend on whether or not the legislation is being directly construed. If it is not,there is no call to consider the purpose rule.

What is the meaning of "construction"?Even where there is no doubt that legislation is being construed, the purpose rulerequires more than good intentions by the interpreter. If the purpose rule is to apply,the interpreter must do more than decide that a particular result is preferable. He orshe must identify a "construction of language, however, slight or tenuou~, which could

135 [1992] 2 VR 505.136 Ibid at 512.137 Ibid at 515. The guidelines referred to were laid down by the House of Lords in Pioneer

Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 (emphases in original).


be preferred to the obvious and literal meaning" so as to achieve that result.138 Thiscomment was made in a case before the Federal Court, in which a decision of theAdministrative Appeals Tribunal was found to be deficient in this respect. The Courtstated that no apparent attempt had been made to deduce a meaning. According to theCourt, the Tribunal had "simply said that the result was unfair and therefore a differentresult ought to follow".139 This case demonstrates an obvious but fundamental obstacleto implementation of the purpose rule: the need to articulate a verbal construction.

What is the meaning of "promote"?The application of the rule is dependent on a further express condition: that theconstruction which is favoured is one that does "promote" the purpose or object, andvice versa. This requirement was alluded to in Parke Davis Pty Ltd v Sanofi. The questionbefore the Full Federal Court was whether the Supreme Court of Victoria had power toallow the first respondent time before which to lodge a petition to extend the term ofthe patent, even though the patent had expired. Section 90(1) of the Patents Act 1952(Cth) provided:

A patentee of a standard patent who considers that he has been inadequatelyremunerated by this patent may, after advertising, as prescribed, his intention to do so,present to a prescribed court, at least 6 months before the expiration of the term of thepatent, or within such further period as a prescribed court allows, a petition praying thathis patent be extended for a further term.

After expiry of the terms of the letters patent, the respondent obtained orders whichpurported to extend time for the presentation of the petition for extension of the patent.The appellant argued that the Federal Court had power to extend time only up to andincluding the expiry of the patent. The respondent argued that the power of the Courtextended beyond that time. The Full Bench noted that the purposes of the Act were toencourage investors, and to permit the invention to be available to the public at the endof the term. The majority found that the appellant's interpretation promoted thepurpose of the Act, but that the respondent's interpretation "would not promote thewhole of that purpose but in relation to the interests of the public would tend to defeatit".140 The majority judgment preferred the appellant's interpretation, though it did notformally apply the rule in arriving at its decision. It therefore did not have to decide thequestion whether the rule mandates an interpretation which only partially promotesthe purposes of an Act.

What is the meaning of "purpose or object"?The purpose rules state that the construction which is to be promoted is theconstruction which promotes the "purpose or object". The question arises as to what ismeant by those words and, in particular, what the term "purpose" means. In order tohighlight its central importance, this issue was dealt with at length above under theheading of "What is generally entailed by a purposive construction?" In brief, it wasthere argued that there is no consensus on the meaning of purpose. While in a strictsense it focuses attention on the precise objects of the legislature, in practice itcommonly can have several other or more specific nuances, including the original

~~~ Secretary, Department ofSocial Security v Clear (1991) 23 ALD 22 at 27.Ibid.

140 (1982) 43 ALR 487 at 491.


purpose or intention, a dynamic or shifting sense, the achievement of the "right" result,avoidance of the mischief, the reason or motive, the policy, the means, theconsequences and the overall meaning or presumed intention. It can also signify, in anon-specific way, an inherently superior basis for interpretation. A more fundamentalproblem lies with the seeming overlap between the purposive approach and otherapproaches, especially the literal approach. While these considerations indicate thatpurpose is a complex, indeed powerful concept, they add to the uncertainty aboutwhat a purposive construction is in a particular case and whether a court or one's peerswill be persuaded by it.

What is meant by "underlying the Act"?The rule further states that the purpose or object to be promoted must be one"underlying the Act". The argument has been put that "underlying the Act" should beunderstood in its literal sense,141 which would of course restrict the rule greatly. Onthis point the interpretation by courts and tribunals has been uniformly purposive!There now seems little doubt that the relevant purpose may be a specific purposeunderlying a section142 or part of an Act.143 The rule also applies so as to give effect tomultiple purposes.144 However, since an Act can have differing purposes stated atvarying levels of generality, this interpretation creates difficulties in ascertaining thepurpose which is to have priority.

What is meant by a "construction that would not promote that purpose or object"?The final pre-condition mentioned by the rules in general is the avoidance of aconstruction which does not promote the purpose or object. Commonly of course, aconstruction which may not promote the purpose or object will be a literal one as in ReDavis and Secretary, Department of Social Security, and other cases discussed above. Butsince the rule refers merely to a construction that does not promote the purpose orobject, the question arises as to what approau,.es fall with1.~ this category. Of concern tosome commentators145 and legislatures,146 was the potential for the purpose rule toincrease criminal liability, that is, to over-ride the presumption that a penal statuteshould be strictly construed in favour of the accused. In some cases147 judges haveadopted a purposive interpretation which over-rode the conventional strict penal

141142

143144145

146

147

Counsel for the applicant in R v Boucher (1994) 70 A Crim R 577 at 592-593.Ibid at 592-593; Mills v Meeking (1990) 169 CLR 214 at 243 per McHugh J; Re Transphere PtyLtd (1986) 10 ACLR 776 at 778.Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J.Re Guardian Investments Pty Ltd (1984) 2 ACLC 165 at 170.C Corns, "Purposive Construction of Legislation and Judicial Autonomy" (1984) 58 LIJ 391at 393; Law Council of Australia, cited in J G Starke, "Statutory Guidelines for InterpretingCommonwealth Statutes" (1981) 55 ALJ 711 at 712. D Miers, above n 80 at 708-710 hasraised a similar concern with respect to the ruling of the House of Lords in Pepper v Hart«1993) 1 All ER 42), which has been interpreted as possibly requiring, in the event ofabsurdity, obscurity or ambiguity, primacy be given to ministerial statements inParliament over the common law principle that "persons should not be penalised under adoubtful law".Acts Interpretation Act 1915 (SA), s 22(2): "[The purpose rule] does not operate to create orextend any criminalliabilityll.Webb v Harris (1983) 47 ACTR 17 at 23; Darvall v North Sydney Brick & Tile Co Ltd (1989) 15ACLR 230 at 257 per Kirby P (dissenting).


construction in favour of accused persons. Of course, the question in the case of penalprovisions is still what is the purpose - it would be theoretically open for a judge toadopt a purposive construction that accommodated to some extent the presumption ofindividual liberty. But it is also possible for the purposive construction to be statedmore widely in terms of protecting the public. While a purposive approach may,therefore, accommodate concerns about criminal liability and added conflict will bemuted, there is no guarantee that this will be the case. In this respect, there is yetanother source of change and conflict generated by the compulsory nature of the rule.

Does the rule cater to a situation with different or competing purposive constructions?If the rule may potentially be used to resolve conflicts between a variety of approaches,can it be said that the rule applies where the conflict is between a general purpose ofthe Act and a more specific purpose underlying the provision at issue, or a situationwhere conflicting specific purposes underlie a provision? For example, the objectprovision in the Freedom of Information Act 1982 (Cth) (s 3(1)(b» promotes access bythe public to information held by government, and also enshrines exceptions andexemptions. Does the rule require or permit the court to choose amongst the purposeswhich are to be Eromoted by the Act? If so, is it sufficient for the court to focus on theprime purpose? 48 It was suggested in one case that the rule required the constructionwhich "best" promoted the purpose for which the provision was enacted.149 However,in a discussion of the Victorian purpose rule, three members of the High Court havetaken a contrary view:

The choice directed by s35(a) of the Interpretation of Legislation Act is not as to theconstruction which "will best achieve" the object of the Act. Rather, it is a limited choicebetween "a construction that would promote the ~urpose or object [of the Act]" and one"that would not promote that purpose or object".l 0

The Victorian purpose rule is typical of purpose rules other than the Queenslandversion. The latter reads: "(1) In the interpretation of a provision of an Act, theinterpretation that will best achieve the purpose of the Act is to be preferred to anyother interpretation."151 If the ruling by the High Court is correct, the Queenslandprovision will have a significantly wider application in that it appears to apply to thesituation of competing interpretations which both promote a purpose of the Act. 152This is because the reference to "any other interpretation" probably refers to anyinterpretations which, upon analysis, will not best achieve the purpose of the Act. TheQueensland version therefore invites to a much greater extent consideration ofpurposive constructions and choice-making amongst competing purposiveconstructions. In time, it is likely to encourage a general jurisprudence about purposiveinterpretation, whereas the limitation in the other versions as interpreted by the HighCourt may have the effect of retarding knowledge of purposive reasoning in therespective jurisdictions.

148 Crosley Ltd v North Broken Hill Holdings Ltd (No 2) (1986) 10 ACLR 656 at 670 (Vic Sup Ct,FC).

149 Rogers v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 at 382 per von Doussa}.150 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron J}.151 Acts Interpretation Act 1954 (Qld), s 14A.152 See further P Bridgman, above n 134 at 335-336.


When and in what circumstances does the rule require or permit the purpose to betaken into account?Assuming the purpose rule is prima facie applicable, the second group of questionsrelates to the appropriate time at which the rule may be brought into play. In Part One,different views were expressed on this matter. Brazil, a key promoter of the rule, andthe authors, Pearce and Geddes, thought that the rule was required at "first levelinterpretation", and presumably in every case where the interpretation was at issue(here called the "obligatory view"). Some other writers presented an intermediate viewthat the rule abolished at least the requirement that there needed to be an ambiguitybefore the purpose or mischief could be considered (the "liberal view"). The mostconservative view, that the rule might change nothing (the "status quo view"), wasmooted by a leading member of the judiciary.

Authorities for all three positions may be found in the case law. Not less than a fivemember Bench of the Supreme Court of Victoria has come down in favour of theobligatory view. In R v Boucher, their Honours stated that:

Section 35 [of the Interpretation of Legislation Act 1984] imposes an obligation upon thecourts to seek to ensure that an interpretation of legislation which is consistent with thepurpose or object of the Act is adopted rather than one which is not.153

On the High Court the clearest exponent of the obligatory view is Dawson J in Mills vMeeking:

Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposesstated in Pt 5 of the Road Safety Act are to be taken into account in construing theprovisions of that Part, not only where those provisions on their face offer more than oneconstruction, but also in determining whether more than one construction is open.154

It would seem that in that case Mason CJ and Toohey J agreed in principle.However, their view is stated very abruptly and a little elliptically. On this issue theymerely stated that "[s]ection 35(a) of the Interpretation of Legislation Act 1984 (Vic)requires a construction 'that would promote the purpose or object underlying theAct"'.155 Their Honours do not say expressly when such a construction is required. Doesthe absence of any qualification imply that there is no pre-condition? But their Honoursalso approve of Cooper Brookes156 as does McHugh J.157 That case does not provideclear support for mandatory consideration of the purposive approach because the mostliberal judgment only talked of departing from the literal approach where there was"good reason" to do so.

Another authority on the obligatory view is Saraswati v R. McHugh J, with whomToohey J agreed, took exception to the view expressed in the Court of Criminal Appealof New South Wales that resort could be had to the mischief only if the provision wasambiguous or obscure. His Honour considered that that approach was "an undulynarrow one which was not in accordance with the ajproach to statutory constructionreflected in the Interpretation Act 1987 (NSW)".15 Interestingly, this was not just

153154

155156157158

(1994) 70 A Crim R 577 at 590.Mills v Meeking (1990) 169 CLR 214 at 235. See also Re Wan and Secretaiy, Department ofSocial Security (1992) 30 ALD 899 at 904.(1990) 169 CLR 214 at 222.Ibid at 223.Ibid at 242-243.(1991) 172 CLR 1 at 21.


because s 33 of that Act directed a court to give preference to a construction that wouldpromote the purpose underlying the Act over a construction that would not promotethat purpose (the purpose rule). It was because s 34 (which provided for the use ofextrinsic materials) made it plain that the ordinary meaning conveyed by the text of theprovision was the meaning conveyed by that provision after taking into account thepurpose or object underlying the Act or statutory rule.159 His Honour seemed toassume that the prescription of the "ordinary meaning" in s 34, which expressly appliedonly to the use of extrinsic materials, applied to statutory interpretation generally. Thisassumption is evident in the following extract:

Hence, it is always necessary in determining the "ordinary meaning" of a provision suchas s 61E(2) to have regard to the purpose of the legislation and the context of theprovision as well as the literal meaning of the provision. Sometimes the purpose of thelegislation is expressly stated; sometimes it can be discerned only be inference after anexamination of the legislation as a whole; and sometimes it can be discerned only bd'reference to the history of the legislation and the state of the law when it was enacted.16

While there is plenty of support, particularly amongst members of appellate courts,for the mandatory view, such an interpretation creates difficulties. It may be askedwhether there is any point in commanding that the purpose be considered when it isfrequently indeterminate or ambiguous. The obligatory view could also create practicaldifficulties for appeal courts. They might be required to ascertain whether a failure toconsider the purposive approach constitutes a breach of the purpose rule. On the otherhand, the obligatory view can be justified to some extent. It makes good sense for thecourts to attempt to ascertain the legislative purpose. If there is no obligation to seekout purposive constructions, then the choice required by the rule can be circumventedand the rule perhaps consigned to legal history. The mandatory view is alsosubstantially supported by the "alternative tradition" of statutory interpretationdescribed in Part One.161 Furthermore, some say162 or imply163 that consideration ofthe purpose is necessarily involved; if so, a rule requiring consideration of the purposecannot do any harm, and might perform a valuable educative function.

There is also strong support for the liberal view in the reported cases. It is set out byDawson Jin Mills v Meeking as follows:

The requirement that a court look to the purpose or object of the Act is thus more than aninstruction to adopt the traditional mischief or purpose rule in preference to the literalrule of construction. The mischief or purpose rule required an ambiguity or inconsistencybefore a court could have regard to purpose [authorities omitted]. The approach requiredby s 35 needs no ambiguity or inconsistency; it allows a court to consider the~urposes ofan Act in determining whether there is more than one possible construction.1 4

In favour of this approach is the obvious fact that the rule does not in terms (that is,literally) require consideration of the purpose in every case, the rule being most

159160161162

163164

Ibid.Ibid.At 134-135.Mr Justice Bryson, "Statutory Interpretation" (1992) 8 Aust Bar Rev 185 at 187 ("practicallyimpossible to resist"); D C Pearce and R S Geddes, above n 24 at para 2.16; P Brazil inAttorney-General's Department, Another Look at Statutory Interpretation (1982) at 4 ("in theappropriate cases"). See also the discussion of S Fish above 88, to which n 63 refers.M Byers in Attorney-General's Department, above n 162 at 20-21.(1990) 169 CLR 214 at 235.

1995 Statutory Interpretation, Larv Reform And Sampford's Theory - Part Two 107

obviously a rule of priority.165 It must also be noted that the "obligatory view" was onlyreferred to obliquely in the parliamentary debates;166 whereas the view that s 15AA atleast liberalises the common law is consistent with the aim of the Minister responsiblefor the legislation167 to correct over-literal interpretation. The liberal view is supportedin a number of judgments. Apart from Dawson J, Mason CJ and Toohey J effectivelysubscribed to this view in Mills v Meeking by seeking out Parliament's intention eventhough they found that there was no ambiguity on the face of the statute.168 The liberalview can also be seen as an efficient response to the problem of interpretation. Unlikethe obligatory view, the liberal view does not require purposive interpretation where itwould be very expensive of resources, or indeed impossible, to discover the purpose.And it removes much of the sting in the criticism that the common law had been tooreliant on the controversial assertion that no regard to the purpose in extrinsic materialwas necessary in the absence of any (perceived) ambiguity on the face of thelegislation.169 However, the discretion to take account of the purpose under the liberalview is in effect fettered in most jurisdictions in Australia because the legislationallowing recourse to extrinsic materials permits (with few exceptions) those materialsto be used only to confirm the ordinary meaning in the absence of any ambiguity orobscurity.

The view that the rule did not change the common law position that an ambiguitywas required on the face of the statute ("the status quo view") has occasionally beenaired by courts170 and by the Administrative Appeals Tribunal.171 Its strength is thecommon law assumption that the law is not altered by statute unless clear words areused. From the point of view of precedent this view is nevertheless outweighed by thehigher authorities mentioned above. However, the important point to be made here isthat this view is put forward, indicating the disorder in the law when one looks to seehow the law operates in the lower courts and tribunals.

On any or all of these views, there is evidcrLce of increased disorder. For instance,the obligatory view would cornmand that which cannot be done in all cases - theascertaining of the purpose. The liberal view would create or perpetuate ambiguitybecause it merely removes barriers and does not prescribe anything. The status quo

165166167168

169170

171

This point was made by C Corns, above n 145 at 392.Part One at 161 (Mr Duffy).Ibid at 159-160.(1990) 169 CLR 214 at 223. See also Re Jones and Secretary to the Department ofHealth (1985) 7ALD 385 at 393 (AAT).Professor D Pearce in Attorney-General's Department, above n 162 at 7.Described as "an old principle recently expressed in s 15AA": Webb v Harris (1983) 47 ACTR17 at 23. See also R v Saraswati (1989) 18 NSWLR 143 at 168. Badgery-Parker J referred tothe old mischief rule only: "Resort may be had to the mischief rule only where the statutoryprovision is ambiguous".Re Secretary, Department of Social Security and Jessop (1989) 17 ALD 62 at 66 ("Section 15AAdid not amend the common law rules of interpretation"); Re Chasty an;d RepatriationCommission (1993) 30 ALD 528 at 531 at 535; Re Secretary, Department of Social Security andSrpcanski (1993) 31 ALD 559 at 565; Re Treacy and Department of Veterans' Affairs (1994) 32ALD 785 at 788: "Section 15AA of the Acts Interpretation Act 1901 was available as an aidto construction, only when a choice was to be made. In the face of clear legislativelanguage, its application was not possible when construing [the section underconsideration]."


view would conflict with one of the policies behind the rule: the fostering ofpurposivism.

When and in what circumstances is consideration of extrinsic material required orpermitted in order to ascertain the purpose?uiUike consideration of the purpose as evident from the Act (which, as we sawinUllediately above, on some authorities is mandatory), it is not mandatory to considerextrinsic materials.172 (It has been explained that no mandatory duty is required on thedoubtful assumption that evidence of purpose may be available from the Act itself.)173The use of extrinsic materials is made more complicated by the vague and debatableterms in which recourse is permitted, however. For instance, in the absence ofambiguity or obscurity on the face of a provision, s 15AB (1) of the Acts InterpretationAct 1901 (Cth) permits recourse to extrinsic material to establish a meaning other than"the ordinary meaning" only where the ordinary meaning would lead to a result that is"manifestly absurd or unreasonable". Although the legislation in Victoria does notprescribe this limitation, the Supreme Court and members of the High Court havebrought about a broadly similar result. They have held that, in the absence of any suchambiguity, recourse to extrinsic materials may only confirm the meaning the provisionhas on its face. The effect of this ruling was seen above to add a measure of disorder tothe purpose rule since determining the purpose is a fundamental part of the rule'soperation.

When, despite the tenor of the rule, may a court or tribunal exercise a discretion todecline to employ a purposive construction?The fact that a purposive construction is available does not mean that it will be used ina particular case. The third group of questions concerning the content of the purposerule therefore relates to the general discretion of the courts and tribunals to decline toemploy the purposive construction in a particular case. It seems there is considerableroom for the exercise of such a discretion, creating consequential uncertainty as regardsthis aspect of the rule.

Generally speaking, a purposive construction will not be adopted if the court doesnot find it "reasonably o~en" within the wording of the Act. In Trevisan v FederalCommissioner of Taxation,l 4 the Tribunal had stated that it was aware that it could notremedy defects in the drafting of legislation, but thought that "this is a case wheres. 15AA applies and must be given effect ..."175 The Federal Court was quick to rejectwhat it perceived to be an heretical view:

I do not think I can support the Tribunal's approach in this matter. It did not "stretch" thelanguage ... it found the language inelastic, and threw it away upon the footing that adecision contrary to it would be in keeping with what the Tribunal thought to be thelegislative purpose.176

The assumption that words in particular contexts have limits to their possiblemeanings, and that a purpose which is outside the Act is not to be considered, is

~;; R v Boucher (1994) 70 A Crim R 577 at 592.174 Ibid at 590 (emphasis added).

(1991) 101 ALR 26.~~~ Ibid at 31 (emphasis added).

Ibid.


assumed by the courts177 and also by most commentators.178 It is no guarantee ofacceptance that the purpose is reflected in a parliamentary statement,179 or is generallywell-intentioned.180 A theory of disorder is not nihilistic; it does not attempt to arguethe reverse of these propositions.181 It would, however, accentuate the possibilities andpotential conflicts which underlie the threshold test of what is "reasonably open". Agood illustration of all these points is Baron v Director-General of Social Security.182 In1949 the appellant had gone through a form of marriage with a Walter Baron (WB).However the latter had been married in Germany in 1941; that marriage was notdissolved until 1951. Two children were born to WB and the appellant. The appellant'smarriage was declared null and void in 1975 because the court was satisfied that at thetime of the 1949 ceremony, WB was still lawfully married. In 1980 the appellantapplied for a widow's pension under the Social Security Act 1947 (Cth). "Widow" wasrelevantly defined as "a woman whose marriage has been dissolved and who has notremarried". Counsel for the appellant argued that the facts fell within the dictionarymeaning of dissolved ("annulled, put an end to") and that "the context in which thedefinition appeared was not that of matrimonial law, but of a scheme for assistingwomen whose reliance upon men for domestic support has been terminated".183 Onthe other hand, the technical legal meaning of dissolved referred to the termination of avalidly contracted marriage. Further, the scheme could be viewed less beneficially as ascheme of support available only to persons in particular categories. The conflict in thiscase arose over whether the context should be read in the terms suggested by counsel,or more legalistically; and whether the ordinary, dictionary meaning (which theappellant was also very likely to accept) should be preferred to the legal meaning. TheFull Court found for the Department on the basis of legal authorities. They required,first, that an applicant bring a claim for a pension or benefit within one of thedesignated categories; it was not sufficient to be a person who is "in need". Secondly,where a word in dispute had a legal meaning different from its ordinary meaning, theauthorities favoured the legal meaning. Altllough the case could be fairl)' easilyresolved by reference to precedent and to the context in which the words were used,what was "reasonably open" was still a matter for argument, counsel for the appellantputting forward plausible, if unsuccessful, submissions.

177

178

179

180

181182183

In Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518 Mason eJ, Wilson and Dawson JJstated that "[t]he words of a Minister must not be substituted for the text of the law" - thisassumes textual limits in enacted law. Cf the attitude of the European Court which,according to Twining and Miers, is prepared to prefer a legislation's purpose even over anunambiguous text: above n 20 at 367.Eg, M Zander, above n 58 at 141-142; W Twining and D Miers, above n 20 at 382; 5 Fish,above n 1 at 512-513.Humphries v Poljak [1992] 2 VR 129 at 164 per McGarvie J. In Re Young and Secretary,Department of Social Security (1991) 22 ALD 649 at 654, it was noted that the legislation wasanomalous having regard to the intentions set out in the second reading speech.Re Secretary, Department of Social Security and Chaplin (1990) 20 ALD 516 at 518; Re Jovanovicand Secretary, Department of Social Security (1988) 16 ALD 8 at 10; Re William~ and Secretary,Department of Social Security (1992) 26 ALD 47 at 50-53 (anomaly not enough); Baron vDirector-General ofSocial Security (1983) 48 ALR 345 at 349 (nothing in words to assist).Cf some strands of Critical Legal Studies discussed in D Miers, above n 128 at 116-118.(1983) 48 ALR 345.Ibid at 348.


Another reason - and a most important one - why purposive constructions maynot be employed lies in the fact that, despite the claim by the High Court that there isnow an emphasis on purposivism,184 the Court has, on other occasions, maintained thecommon law presumption in favour of the literal approach. This has had the result ofplacing a burden of proof on those who wish to argue a purposive construction.18S Forinstance, in Mills v Meeking, Mason CJ and Toohey J did seek out the purpose,inferentially by looking at the consequences of a literal interpretation, and by a closereading of the parliamentary debates, but the principle they adopted subordinated thepurpose to the ordinary meaning. The presumption that the literal approach will beapplied is evident in the following passage:

[I]f the language is not ambiguous or uncertain, a court will apply its ordinary andgrammatical meaning unless to do so will give the statute an operation which obviouslywas not intended: see generally Cooper Brookes (Wollongong) Pty Ltd v Federal Commissionerof Taxation ... 186

The requirement that the purposive meaning be "obvious" before it is adopted is notapplied to the literal meaning. Consistently with a literal approach Eresumption, wefind the majority in Mills v Meeking relying on the "plain language" 7 and finding itsufficient if the consequences of the ordinary meaning can be "intelligibly applied".188The latter expression is borrowed from the conservative judgment of Gibbs CJ in CooperBrookes.189

The continuing preference for the literal construction is a potent example ofSampford's theory of disorder. Application of this common law presumption originallydisordered the law by causing the purpose rule to be enacted; the continuingpreference for the literal approach compowlds the disorder by creating a tension withthe statutory purpose rule. On the other hand, the presumption also mutes the disorderby providing a principle by which the obligation, in the purpose rule, to prefer thepurposive meaning may be circumvented and by which the general movement topurposivism may be stalled.

Despite the continuing application of the literal approach presumption, there isplenty of surport for the claim that there is now increased "emphasis" on purposivereasoning.19 But what factors are involved in the decision whether or not to apply thepurposive construction? The requirements, alluded to above, that the purposiveconstruction must be "reasonably open" and "obvious" in the face of the literalpresumption give little guidance, apart from a presumed preference for the values of

18418S

186187188189190

Bropho v State ofWestern Australia (1990) 171 CLR 1 at 20.Cf the Federal Court of Australia in Bond v Trustee of Property of Bond (A Bankrupt) (1994)125 ALR 399 at 421 and 425. It should also be noted that such a presumption even appliesin the United States of America: R S Summers, above n 55 at 438-440. J Fagan further pointsout that, in that country, the "plain meaning rule" (if "the language is plain and admits ofno more than one meaning, the duty of interpretation does not arise, and the rules whichare to aid doubtful meanings need no discussion") is being resurrected: above n 3 at 375376 and 381. The presumption applies, unsurprisingly, in England: FAR Bennion, aboven 37 at 598.(1990) 169 CLR 214 at 223 (emphasis added).Ibid at 224.Ibid.See Part One at 166.See n 265 below.

1995 Statutory Interpretation, Law Reform And Sampford 's Theory - Part Two 111

literalism.191 It is submitted that the High Court's decision in Mills v Meeking192

demonstrates that disputes about purposive meanings can turn on political questionsfor which there is no objectively right answer, or on factual issues for which the systemdoes not currently provide such an answer. This case, it will be recalled, was aboutwhether the offence in s 49(1)(f) of the Road Safety Act ought to be interpreted asrequiring there to have been an accident. Turning to the majority first, Mason CJ andToohey J were not persuaded by the argument that the object of s 49(1)(f) was to catchthose who had been involved in an accident. After considering the pre-conditions fors 49(1)(f), that the person be subjected to a preliminary breath test, they concluded:

[A]part from those believed to have been involved in a motor vehicle accident, theprovision is confined to persons who, whilst driving, have been intercepted by a memberof the police or by an officer of the Road Traffic Authority. One would expect such aperson to remain in the company of the member or officer until he or she has furnished asample of breath for analysis, as indeed occurred in this case. In that circumstance, adefence based on post-driving consumption of alcohol could at best be regarded asfanciful and, at worst, evidence of a deliberate attempt to frustrate the breath analysis.The withholdin! of such a defence in that circumstance cannot be said to beunintelligible.19

The disagreement of the minority (Dawson and McHugh JJ) highlights the disorderinginfluences which purposive interpretation can entail. Their reasoning is rooted in adifferent understanding of the operation of the statutory scheme, in a different scale ofpublic interest values and in a different reading of the text. Both Dawson andMcHugh JJ noted that there was a period of three hours from the time of driving for thepreliminary breath test to be undertaken and for the sample of breath to be furnishedfor analysis. Dawson J reasoned that:

[I]t is quite conceivable that such a person may have imbibed no alcohol at the time ofdriving but may have consumed sufficient alcohol after the driving to take his bloodalcohol concentration above the prescribed limit. And he may have imbibed that alcoholwithout any thought of frustrating the proof of his blood alcohol level, there havinJi beenno accident or other incident to warn him that the police may wish to ascertain it.1

191192

193194

See Part One at 135.It is true that the cases that reach the High Court probably inherently involve a greaterdegree of choice as to what is the applicable law. For Miers, such cases are "almost alwaysatypical [for] they are precisely the cases in which the interpretive practices within thecommunity fail to generate a preferred reading": above n 128 at 128. I tend to agree, but the"atypical" tag should not be pushed too far. First, whether cases reach the higher courts isalso a function of litigants' desires and resources, which is a completely different matterfrom the nature of the case. Secondly, cases that reach the higher courts do tend to involvemore rarefied disputes on points of law, but these are not the sole preserve of the highercourts. Mills v Meeking, which I discuss shortly, was in fact representative of many suchcases which had been brought to the Magistrates' Court, ie it was a test case. Thirdly,settling the law in this sense is a distinctly political function; as this has only recently beengenerally accepted (see Sir Anthony Mason, "Future Directions in Austra1i~nLaw" (1987)13 Mon U L Rev 149 at 154; The Honourable Mr Justice Michael McHugh, "The Lawmaking Function of the Judicial Process - Parts I and II" (1988) 62 AL] 15 and 116), itwould be unwise to dismiss it for the reason that it is not the norm in dispute resolutiongenerally.(1990) 169 CLR 214 at 224.Ibid at 232.


McHugh J took the same view.l95 The factual assumption of the minority is at oddswith the majority's assumption that the driver would always remain in the company ofthe police. McHugh J made another factual point which was not met by the majority:

By reason of the delay which takes place between the ingestion of alcohol and itspresence in the blood, cases can occur where a breath analysis test shows more than theprescribed concentration of alcohol present in a driver's blood, yet at the time of drivingthe person concerned would have had less than the prescribed concentration.196

The disordering factor which seems to have produced the above conflict between themajority and the minority is the way that factual matters are left for judicial inferencerather than being established on the basis of hard, incontrovertible evidence. Less amatter of criticism, and more a matter for individual judicial preference, was thedisagreement over the relative importance of the rights of motorists in this case. MasonCJ and Toohey J did not give these rights any emphasis in comparison with the publicsafety objectives of the legislation. With regard to the possibility that on their view thepolice would have the choice whether to charge a person under s 49(1)(b) (severaldefences) or under s 49(l)(f) (few defences), they merely noted, "[t]here is nothingexpress in the Act which would require that the appellant be prosecuted under par (b)of s 49(1) rather than par (f)".197 The minority, on the other hand, strongly asserted themotorists' (read individuals') rights. McHugh J could not accept that, "[g]iven theconstitutional tradition of Victoria", the availability of the defence under s 48(l)(a)could "depend entirely on the unfettered discretion of the a~frehendingpolice officer",which would occur if s 49(1)(f) were interpreted literally.1 Dawson J took a similarview.199

It is submitted that the disagreements in Mills v Meeking turned ultimately not uponwhat the text said, but upon assumptions about the way the laws are enforced andabout the hierarchy of values implicit in the Act.200 Conflicts over factual matters canusually be remedied by appropriate evidence; but conflicts over values are endemic tolegislation. This is particularly so where statutes are written with purposiveinterpretation in mind, that is, where the courts are expected to resolve conflicts ofprinciple by resort to the stated or imputed purpose.

In summary, it is not clear, as a matter of general principle, when a court willdecline to bring a purposive construction into account. The construction must passthrough gates labelled "must be reasonably open" and "must be obvious". Despite thepurpose rule, there is continuing application of the common law presumption in favourof the literal approach. Whether a purposive construction will be employed is not somuch a function of these tests, however, but of the persuasiveness of the construction.If Mills v Meeking is any guide, this in turn will hinge on such opinions as the hierarchy

195196197198199200

Ibid at 241.Ibid.Ibid at 226.Ibid at 242 and 243.Ibid at 233.See also Bond v Trustee of Property of Bond (A Bankrupt) (1994) 125 ALR 399 for a conflictamong judges of the Federal Court over the purposes under the Bankruptcy Act 1966(Cth), in particular whether the case should be treated as an "ordinary bankruptcy case" (at422 per Carr J) or whether emphasis should be placed on the interests of creditors in lightof "a public mischief which has allowed some bankrupts to enjoy lifestyles ofundiminished splendour" (at 414 per French J).

1995 Statutory Interpretation, Law Reform And SampJ~ord's Theory - Part Two 113

of values expressed in the Act as well as general understandings of the law. Clearly thepresence of such factors may be the subject of some disagreement, though thesubordination of the purposive approach to the literal approach mutes somewhat thepotential for conflict over the purposive construction.

How in general1nay a purposive construction be accommodated in legislation?Turning now to the operation of the purpose rule - the focus of the fourth group ofquestions surrounding the content of the rule - it is apparent that myths about theoperation of purposivism abound. For instance, it is commonly believed that apurposive construction is equivalent to a liberal construction.201 This is not necessarilythe case. A liberal construction is simply an expansive construction which broadens theeffect of the enactment. It may be contrasted, of course, with a strict construction,which "narrows the operation and effect of the enactment".202 It may be noted thatstrict and liberal constructions are not interpretative criteria - merely the result ofapplying criteria such as the literal or purposive approaches. Thus, a purposiveconstruction may be either restrictive (strict) or expansive (liberal) in its effect depending on what the circumstances require.203 An example of an expansivepurposive interpretation is found in Re Davis and Secretary, Department of SocialSecurity204 (discussed above) in which "imprisoned" in the Social Security Act was readso as to extend to a situation where a person is de jure, or constructively, imprisoned inthe sense that he or she, although in fact at liberty, is not lawfully at liberty.205 Anexample of a restrictive purposive construction is seen in Parke Davis Pty Ltd v Sanoji,206discussed previously. It will be recalled that the question before the Full Federal Courtwas whether the Supreme Court of Victoria had power to allow the first respondenttime 'Alithin which to lodge a petition to extend the term of the patent, even though thepatent had expired. The appellant argued that the court had power to extend time onl}Tup to and including the expiry of the patent. The respondent argued that the power ofthe court extended beyond that time. For the reasons alluded to above, by majority, theFederal Court preferred the more restrictive purposive interpretation put forward bythe appellant.

In exceptional cases, a purposive construction may also be accommodated byimplying certain words into the legislation, provided certain conditions are met. Thecourts frequently say that they are not in fact permitted to alter the words oflegislation, even if the alternative would give effect to a clear parliamentary intent orpurpose. For example:

Section 35 requires a court to construe an Act, not to rewrite it, in the light of itspurposes.207

[Section 15AA] is not a warrant for redrafting legislation nearer to an assumed desire ofthe legislature. It is not for the courts to legislate; a meaning, though illuminated by the

201

202203

204205206207

Sen Deb 1981, Vol 90 at 2310-2311 (Sen~tor G Evans); W Twining and D Miers, above n 20at 167.FAR Bennion, above n 37 at 381.D Gifford, above n 34 at 56 makes a similar point. See also D N MacCormick, in relation tothe literal approach, in Legal Reasoning and Legal Theory (1978) at 210-211.(1992) 26 ALD 595.Re Davis and Secretary, Department of Social Security (1992) 26 ALD 595 at 605.(1982) 43 ALR 487.Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson].


statutory injunction to promote the purpose or object underlying the Act, must be foundin the words of Parliament.208

The requirement that the meaning be found in the words of the Parliament has anelement of truth: a court cann9t delete any words in a statute. But it can read wordsinto a statute under the guise of construction so as to add further qualifications to whatis expressly stated. In Mills v Meeking, McHugh J set out the circumstances when acourt could "read down" a statute to give effect to the purpose or the assumed intentionof Parliament:

[A]s Lord Diplock pointed out in Jones v Wrotham Park Estates [[1980] AC 74, 105] "thetask on which a court of justice is engaged remains one of construction; even where thisinvolves reading into the Act words which are not expressly included in it". His Lordshipsaid that words could only be read into a statute if three conditions were fulfilled. First,the court must know, from a consideration of the legislation read as a whole, preciselywhat the mischief was that it was the purpose of the legislation to remedy. Secondly, thecourt must be satisfied that by inadvertence Parliament has overlooked an eventualitywhich must be dealt with if the purpose of the legislation is to be achieved. Thirdly, thecourt must be able to state with certainty what words Parliament would have used toovercome the omission if its attention had been drawn to the defect.209

In that case the members in the minority (Dawson and McHugh JJ) drew on one of thepreliminary breath-testing provisions, s 53(1)(c), and would have added, after thewords "motor vehicle" in s 49(1)(f), the words "when it was involved in an accident".210

If purposive interpretations can effectively re-write the statute book, theirdisordering potential is manifest, although it must be acknowledged that, for obviousreasons, disorder is not a common occurrence.

What is the general status and effect of the purposive construction once it is invokedby operation of the rule?If, despite the obstacles considered so far, a court or tribunal finds a purposiveconstruction to be reasonably open and another construction does not promote thepurpose, the law at least is clear. The courts and tribunals are directed to prefer thepurposive construction pursuant to the rule.211 Thus, Dawson Jhas held:

[T]he literal rule of construction, whatever the qualifications with which it is expressed,must give way to a statutory injunction to prefer a construction which would promotethe purpose of an Act to one which would not, especially where that purpose is set out inthe Act~12

Many other cases have referred to this requirement.213 Illustrations of the purposiveconstruction being preferred were provided above in the discussion of the overlaps

208209

210211

212213

Trevisan v Federal Commissioner of Taxation (1991) 101 ALR 26 at 31.(1990) 169 CLR 214 at 243-244. Lord Diplock's third requirement is disputed byFAR Bennion, above n 37 at 661.(1990) 169 CLR 214 at 236 and 244.Gifford claims that where the purpose of the Act comes into conflict with the literal rule,"the plain meaning of the statute would be expected to prevail": D Gifford, above n 34 at 6,but this is in the context of a discussion of the common law. The purpose rule gets shortshrift in his "overview": ibid at 56-57.(1991) 169 CLR 214 at 235.Saraswati v R (1991) 172 CLR 1 at 21; GTK Trading Pty Ltd v Export Deve19pment Grants Board(1981) 40 ALR 375 at 383; Trade Practices Commission v TNT Management Pty Ltd (1985) 58

1995 Statutory Interpretation, Law Reform And Sampford 's Theory - Part Two 115

between purposive and literal constructions.214 A purposive construction may evenover-ride a construction which does not promote the purpose but which has a powerfuladvantage in ordinary meaning.215 In this respect the purpose rule has radicallyaltered the pre-existing common law. It did not mandatorily require the purposivemeaning to prevail over a non-purposive construction such as a literal construction.216In other words, the common law never contained such a rule. At best it permitted thepurpose to be taken into account (if there was an ambiguity on the face of thelegislation or, on some authorities, at the "first level" of consideration) and, ifappropriate, to be a justification for a particular meaning, as occurred in Cooper Brookes.

Although the purpose rule may appear to impose a neat requirement as to the overriding principle in statutory interpretation, it has not been universally adopted in thisrespect because the courts have at times continued to implement the more flexibleapproach of the common law. In Part One it was noted that, shortly before the rule'scommencement, all the judgments of members of the High Court in the Cooper Brookescase gave "the intention of Parliament", not the purpose, as the over-riding "principle".Even the most liberal judgment in Cooper Brookes, that of Mason and Wilson JJ, did notexpressly require the purpose to prevail in all cases. They provided that a judge maydepart from the literal approach "in any situation in which for good reason theoperation of the statute on a literal reading does not conform to the legislativeintent".217 The common law's position, particularly after Cooper Brookes, was thereforeultimately a pragmatic one, not bound to any particular dominant approach.218 Theinfluence of the common law could be seen in cases after the purpose rule commencedto operate. The resolution of conflict between competing literal and purposiveconstructions was not nearly as straightforward as the rule might suggest. We sawabove that, in Mills v Meeking, Mason CJ and Toohey J required a non-literalconstruction to be "obvious" before it would be invoked. I am not suggesting that thecourts, pursuant to general common law authority, would be likely to prefer a

214215

216

217218

ALR 423 at 471; Adams v Carr (1987) 81 ALR 151 at 159; and Hilton v Federal Commissioner ofTaxation (1992) 110 ALR 167 at 173-174.See above 88 ("Overlaps with other approaches").Re Davis and Secretary, Department of Social Security (1992) 26 ALD 595 at 604-605(discussion of "imprisoned").JG Starke, above n 145 at 711; Vif Twining and D Miers, above n 20 at 369. FAR Bennion'scomment is acute (above n 37 at 662-663): "As always in statutory interpretation, it isnecessary, when considering the pOSSIbility of applying a purposive construction, to takeaccount of any other applicable criteria as well. The overriding object is to give effect toParliament's intention, and this is unlikely to be to achieve the immediate purpose at nomatter what cost. Contrary purposes of a more general nature may supervene. Parliamentis presumed to intend to further the general policy of the law, and to legislate in theknowledge that if it does not expressly provide to the contrary the accepted interpretativecriteria will be applied." Cf the view of the Northern Territory Law Reform Committee:"[T]he literal words of an Act may be disregarded if they are clearly inconsistent with thepurpose of the Act": Report on Statutory Interpretation (1987) at 9; and: "The Committeeconcludes that the common law requires courts to interpret provisions of an Act in amanner that is consistent with the object of the Act. The common law enables ambiguousprovisions to be interpreted in this light and enables courts to reject a literal interpretationif it is inconsistent with that object.": ibid at 27.Part One at 166.The pragmatic tradition of Anglo-Australian law is elaborated on in FAR Bennion, aboven 37 at 16, and in W Twining and D Miers, above n 20 at 368.


construction which did not promote the pu~ose rather than a purposive constructionwhich was admitted to be reasonably open.2 9 It is more likely that, if a court does notwish to implement the purposive construction, it will decline to give it any weight onthe grounds that it is not reasonably open, as occurred in Mills v Meeking. The result isthat the purposive approach can be subordinated without any contravention of theletter of the law. In this way the conflict over the status of the purposive approach hasnot been cured by the rule; it has been removed to the threshold stage. Moreover, thequestion at that stage is framed in nebulous terms: is the purposive construction"reasonably open"? The insistence in Mills that the non-purposive construction be"obvious" suggests that, rather than being minimal and somewhat inconsequential, thethreshold requirement is a substantial gloss on the statutory injunction. It must beasked, therefore, whether the rule's place in the hierarchy adds a great deal in terms ofcertainty in the law.

Must the court give effect to a construction which a Minister or other promoter hasclearly referred to in Parliament in the course of promoting the Bill within which theprovision in question lies?

A subsidiary question concerns the status and effect of a parliamentary statement ofpurpose.220 In R v Bolton; ex parte Beane, the primary issue to be resolved by the HighCourt was whether the warrant under which Mr Beane was arrested and detained wasauthorised by the Defence (Visiting Forces) Act 1963 (Cth). It was said that Mr Beane,who had been granted the status of a permanent resident, was a deserter or absenteewithout leave from the armed forces of the United States of America. It was allegedthat the desertion or absence without leave occurred in Vietnam in 1970. Mason eJ,Wilson and Dawson JJ accepted that the second reading speech of the Minister whenintroducing the Bill for the Act into the House of Representatives in 1963 "quiteunambiguously asserts that Pt II relates to deserters and absentees whether or not theyare from a visiting force". Despite this, the majority found against the interpretationurged by the respondents. They reasoned that the statement of a Minister "of itself,while deserving of serious consideration, cannot be determinative; it is available as anaid to interpretation".221 The important point emanating from this case is not thefamiliar one that a parliamentary statement of purpose which conflicts with the actualtext of the statute cannot be given effect to. It is that, where the provision in question isambiguous, an "unambigt.!ous" statement of intent in a second reading speech is notnecessarily determinative.222 In the words of Deane J, who formed part of the majorityin that case:

A legislative provision should not be construed as effecting such a derogation fromfundamental principle relating to the freedom of the subject in the absence of a clearlegislative intent that it should be so construed. No such clear legislative intent is to bediscerned in the provisions of the Act and, notwithstanding s 15AB of the Acts

219

220

221

222

But see R v Bolton; Ex parte Beane (1987) 162 CLR 514, discussed immediately below, wherean interpretation supported by a clear statement of parliamentary intent was not upheld,even though three members of the High Court implied it was a reasonable one.See generally P Bayne, "Who is in Charge? Do We Need a Rationality Test for Questions ofLaw?" (1991) 66 Canberra Bulletin ofPublic Administration 77.(1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. See also Deane J at 532:the second reading speech "should be seen as no more than an aid to interpretation".DC Pearce and R S Geddes, above n 24 at para 3.18.

1995 Statutory Interpretation, Law Reform And Sampford '5 Theory - Part Two 117

Interpretation Act, the second reading speech of the responsible Minister cannot supplythe deficiency.223

An even stronger limitation on the effect of extrinsic materials can be implied in thejoint judgment of Mason CJ, Wilson and Dawson JJ. Their Honours observed that:"Theprocess of construction is in this case a difficult one and it is not surprising thatreasonable minds may differ in the conclusions to which they come, as indeed hashappened here."224 This seems to imply that a purposive interpretation which issupported by a clear Parliamentary statement, and which is a reasonable one (semble, onewhich is not in conflict with the statute), is not necessarily determinative either.225

The limitation placed upon the legal effect of a clear statement of a Minister isfaithful to the "values ... that for centuries have illumined the common law",226 but, ona number of fronts, it creates further grounds for conflict over interpretation. The HighCourt's decision in this case not to implement the parliamentary statement of intent hasbeen interpreted as a deliberate limit on the effect of a Minister's words "when theintention stated by the Minister but unexpressed in the law is restrictive of the libertyof the individual".227 It therefore raises questions as to the identification of othercircumstances when a clear parliamentary statement of intent may be subordinated toimplications in the statute based on "fundamental freedoms ... guaranteed by ancientprinciples of the common law".228 The decision also increases uncertainty over theeffect of an executive interpretation. It cannot now be assumed that, where a legislativeprovision is ambiguous, the interpretation of the executive, albeit a clear one and even,it seems, a reasonable one, will be upheld in the courts. The reasoning of the majoritystirs academic controversy since the much manipulated concept of "legislative intent"took a new tum in this case: a "constructed" sense of legislative intent built around theterms of the statute and common law rights was preferred to the "actual" legislativeintent.229 Nor will the decision please the executive, who generally comrlain that itsclear "policies" are ignored, passed over or altered by courts and tribunals. 30

In its recent pronouncement of the law governing the admissibility of parliamentarymaterial, the House of Lords appeared to take a similar view in permitting suchmaterial to be referred to only as an "aid to construction".231 However, at other pointsin the principal judgment of Lord Browne-Wilkinson there are implications that theEnglish courts would invariably give effect to the meaning clearly given by the Ministeror other promoter. For instance, his Lordship referred to "the basic need for the courts

223

224225226227

228229230

231

(1987) 162 CLR 514 at 532 (emphasis added). Contra Toohey J (dissenting) (ibid at 537): "Ifthere is any doubt about the matter, that doubt is put to rest by reference to the secondreading speeches in the Parliament when the 1963 legislation was introduced and whenthe 1981 amendments were made."Ibid at 517.I am indebted to P Bayne, above n 220 at 87.(1987) 162 CLR 514 at 517 per Mason CJ, Wilson and DawsonJJ.D Miers, above n 80 at 709-710. The quotation is from R v Bolton; ex parte Beane (1987) 162CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.(1987) 162 CLR 514 at 520 per Brennan J.See Part One at 129-130.L Woodward, "Does Administrative Law Expect Too Much of the Administration?" inS Argument (ed), Administrative Law and Public Administration: Happily Married or LivingApart Under the Same Roof? (1994) at 42-43.Pepper (Inspector ofTaxes) v Hart [1993] AC 593 at 634; see generally, D Miers, above n 80.


to give effect to the words enacted by Parliament in the sense that they were intendedby Parliament to bear".232 Later, he stated that, "The purpose of looking at Hansardwill not be to construe the words used by the Minister but to give effect to the wordsused so long as they are clear".233 His Lordship concluded in similar vein: "Since thewords of [the particular section being considered] are perfectly capable of bearing [themeaning expressed by the Minister in Parliament], in my judgment that is the meaningthey should be given".234 The implications to be derived from these comments havedisturbed English commentators for the reason that it is the executive's intention whichin practice will be unquestioningly accepted.235 While, therefore, in theory and inpractice in Australia a view expressed in Parliament as to the meaning of particularwords is not decisive in law, it is feared by some that the practice in England may turnout to be quite different.

Are there any significant differences in the requirements of the rule arising from thedifferences in its formulation?Lastly, we may justifiably ask: what differences are there between the various State andFederal versions of the purpose rule? The differences are subtle but important,particularly in the South Australian and Queensland versions, and they serve tocomplicate the overall legal picture. As noted by the authors of Laying Down the Law,23~the purpose rule in South Australia imposes restrictions not found elsewhere. Section22 of the Acts Interpretation Act 1915 (SA) provides:

(1) Subject to sub-section (2), where a provision of an Act is reasonably open to morethan one construction, a construction that would promote the purpose or object ofthe Act (whether or not that purpose or object is expressly stated in the Act) shall bepreferred to a construction that would not promote that purpose or object.

(2) This section does not operate to create or extend any critninalliability.

Sub-section (2) is novel,237 and sub-section (1) appears to contain a requirement that isnot present in the other purpose rules, nor has it been implied as yet. The requirementthat the provision be reasonably open to more than one construction would notmandate first level consideration of the purpose, nor would it permit the rule to applywhere there is no ambiguity. To this extent it equates with the "status quo view"discussed above. It is a rule of hierarchy only. However, it does mandate the purposivemeaning in the stated circumstances, whereas the common law never contained such arule; at best it permitted the purpose to be taken into account and, if appropriate, to bea justification for a particular meaning.

In the above discussion of the rule's applicability in the situation of competingpurposes, reference was made to the Queensland version of the rule. It is not simply arule for ensuring priority of purposive interpretations over other interpretations

232233234235

236237

[1993] AC 593 at 637.Ibid at 638.Ibid at 642.FAR Bennion, above n 29 at A52; D Oliver, "Pepper v Hart: A Suitable Case for Referenceto Hansard?" [1993] PL 5 at 12-13. D Miers, above n 80 at 706 and 709.G Morris et aI, Laying Down the Law (3rd ed 1992) at·158-159.Cf Webb v Harris (1983) 47 ACTR 17 at 23 (on s 15AA), and see the discussion of the nonpurposive approaches which application of the rule may over-ride in other jurisdictions,above 103-104 ("What is meant by a 'construction that would not promote that purpose orobject'?").


(usually literal) which do not promote the purpose. While such situations wouldclearly be covered, it goes further by including within its ambit competinginterpretations which promote the purpose in part or in full. It therefore goes furtherthan the other purpose rules in encouraging purposivism generally.

ConclusionFar from being a rule which was "drafted ... in perfectly clear terms"238 experience sofar in the courts and tribunals suggests that this was a vast underestimation of the rule.It has provoked many questions concerning purposive interpretation and the othergeneral approaches which, previously, were either not asked or were largely ignored.The questions range from the conceptual (what does purpose mean?) to the forensic(how may the purpose be ascertained in a particular case?) and to the doctrinal (whatdoes the rule require or permit?). With few exceptions, these questions have received amultiplicity of answers. Not for the first time, a great irony now attends statutoryinterpretation. The rule which was designed to cure ambiguities has turned out to bepart of the problem.

GENERAL EFFECTS OF THE PURPOSE RULE ON STATUTORYINTERPRETATION

The p~rpose rule was designed merely to give "a nudge in the direction of thepurpOSIve approach",239 but it has had a number of unintended effects going farbeyond that simple outcome. The general effects of the purpose rule on the law andpractice of statutory interpretation are explored in this section, together with someconsideration of the operation of the extrinsic materials regime as it relates to the ruleand the general effect of the trend towards purposivism. The section draws on thelegislative, political and curial history of the rule discussed in Part One, and on theinterEretation and application of the rule in the courts and tribunals discussed in thisPart. 240 Two works of a theoretical nature have been influential in the analysis whichfollows. The first is that of Sampford, who sees the effects of law on individuals and onsociety as tending to be "relatively crude, conflicting, incomplete and non-uniform".This is "[b]ecause the effects of law... have to be achieved through a melee of

238239

240

Part One at 153.Above n 17 at 20. In view of the several noted differences and tensions between Brazil'sown view and the proposed purpose rule, it may be asked why the purpose rule wasborrowed rather than being constructed afresh in order to meet his concerns more fully?The public administration literature generally suggests that policy-making is "confined to aseries of well-rehearsed options familiar to all the participants", rather than being a highlyrational process in which the consequences of the policy chosen most closely match thegoals to be secured: W Twining and D Miers, above n 20 at 325. The purpose rul~ wouldhave been very familiar, since it had been proposed by the Law Commissions and putbefore the United Kingdom Parliament, but without more information', we cannot becertain whether the process of choosing the purpose rule reflects the general view in theliterature.Because this study has, in respect of the post-enactment phase of the rule, focused on itsoperation in the courts and tribunals, it is acknowledged that not all the social effects of thepurpose rule have been traced. See Part One at 124 where my methodology is set out.


institutions and relations".241 The other work which has generally assisted me is byHassan, who usefully crystallised the tendencies of postmodernism in society.242 Someof these tendencies seem particularly applicable to the effects of the purpose rule andpurposivism.

Six general effects of the purpose rule and purposivism on statutory interpretationare briefly considered. In outline, they are: added conflict, decanonisation,fragmentation, pluralism, a greater level of indeterminacy, and a deeper or alteredcontingency. In additioIl, some attention is given to the question whether the rule andpurposivism have brought about different results in particular cases. Three points mustbe emphasised at the outset. The first is that, as Sampford would argue, the effects arenot full blown, merely tendencies, because each of the effects is muted to a degree bydisordering influences. The second is that the effects overlap and are not entirelyconsistent with each other. I have not attempted to reconcile them because this is to beexpected of disorder!243 The third is tllat the effects are not comprehensively described(that would require a much longer work); rather they are illustrated.

Added conflict

The purpose rule set up a many-sided conflict over the interpretation of legislation. Theconflict has been constitutional: between the executive (or the executive-dominatedParliament) and the courts.244 It has been a conflict of strategies: between the courts'pragmatism and the rule-oriented Parliament.245 At the core, it has been a conflict ofideologies: between the literal approach and a rule which mandated the purposiveapproach.246 This conflict has been unwittingly promoted by some commentators whocontinue to insist that, in spite of the terms of the purpose rule, the plain meaningshould continue to prevail in case of conflict.247 However, the courts have notstubbornly maintained that position. They have accorded some force to the purposerule and have thereby lessened conflict between the rules they have developed (thecommon law) and those made by Parliament. Most obviously, in many cases thepurposive approach has been preferred in express accordance with tIle terms of therule. However, a prior conflict remains because the courts have assumed the power todecide whether the rule will be employed at all. It will be recalled that in Mills vMeeking Mason CJ and Toohey J required the non-purposive construction to be"obvious", but did not impose a similar requirement on the literal construction.

241242

243

244

245246

Sampford, above n 7 at 252.I Hassan, "Pluralism in Postmodern Perspective" (1986) 12 Critical Inquiry 503. Therelationship between postmodernism and Sampford's work was touched on previously:Part One at 121 and 123.Hassan aptly qualifies his analysis by noting that: "I want to offer a catena of postmodernfeatures, a paratactic list, staking out a cultural field. My examples will be selective; traitsmay overlap, conflict, antecede, or supersede themselves": above n 242 at 504. See alsoC Sampford, above n 7 at 262.Eg, the conflict over the effect of a clear statement of intent by a Minister in introducing therelevant Bill into Parliament seen in R v Bolton; ex parte Beane (1987) 162 CLR 514. Seegenerally, 0 C Pearce, "Executive Versus Judiciary" (1991) 2 PLR 179.See the discussion above 116, to which n 218 refers.This conflict extends to the "calm haven" of statutory interpretation authorship: seeD Maclean, book review of "Statutory Interpretation" by D Gifford in (1991) 65 ALI 302,referring to Gifford's differences with Pearce and Geddes.


It may be thought, however, that there has been no added conflict as a result of theenactment of the purpose rule because, so the argument runs, the purpose rule standsin place of the "mischief rule". At common law, the mischief rule required a purposiveapproach and, as originally stated, was unqualified. However, the difference betweenthat rule and the purpose rule is that, over the years, the famous statement in Heydon'sCase became less influential; it became qualified by requirements such as that theremust first be an ambiguity on the face of the statute. It was available if and only if thecourts saw fit to draw upon it. The purpose rule, on the other hand, could not so easilybe integrated into the pragmatic tradition of the common law because of its legislativesource and because it was enacted in unqualified terms. The easiest accommodationwith the common law would have been to interpret it simply as a codification of themischief rule. This was not done; it would have been a sleight of hand to equate theun-qualified purpose rule with the mischief rule, and the courts must have realised thatit was clearly not the intention of the rule's makers. Therefore, the purpose rule hasadded a different kind of conflict in statutory interpretation (between the literalapproach and a "statutory mischief" approach); it added a sharper conflict because therule was unqualified; and, because it required fresh interpretation of its terms (it wasexpressed in different terms to the mischief approach), there would be added conflictover what the terms of the rule required or permitted, at least initially.

DecanonisationFor a long time the formal law of statutory interpretation as it is applied in the courtsand tribunals has been dominated by two concepts: "the intention of Parliament" andthe literal approach. The former functioned as the overall justificatory concept and thelatter as the dominant methodology for ascertaining that intention. Both these conceptshave been decanonised in the sense that they have lost the authoritative position theyonce held or their authority has at least been diminished. The concept of the intentionof Parliament has come under increasing attack even from within the courts. Dawson Jin Mills v Meeking has described it as "somewhat of a fiction"248 and Kirby P hascriticised it in judgments249 and in extra-curial WritinJis.250 Significantly, both judgesare strong advocates of the purposive approach.2 Instead of the L.~tention ofParliament, reference is increasingly made to the context252 or to the legislativepurpose253 as the governing principle or rule. The intention of Parliament is lesspopular in part because it is antithetical to a degree to purposivism and the purposerule.254 Although purposive interpretation can be founded on legislative statements orinferences, it will be recalled that the purpose rule was deliberately introduced to

247248249

250251

252

253254

D Gifford, above n 34 at 6.(1990) 169 CLR 214 at 234.Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at653.The Honourable Justice Michael Kirby, above n 111 at 88-89.The Honourable Justice Michael Kirby has pointed to the limits of the purposive approach:ibid at 94-95. "Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 75 ALR 271 at 280;Re the News Corporation Ltd (1987) 70 ALR 419 at 428 per Bowen CJ.See the discussion above 87-88, to which nn 50-58 refer.Note how in R v Bolton; ex parte Beane (1987) 162 CLR 514 "legislative intent" was used totrump a clear statement of intent in a second r~ading speech.


encourage the courts to make law in place of Parliament (within the constraints of thestatute). In addition, in the circumstances when the rule applies, the rule makes the I

purposive construction, and not the more fluid concept of the intention of Parliament,paramount. As mentioned previously, the latter concept did not require the purposive I

meaning to prevail or even, on one view, to be taken into account.With the rise of purposivism and the introduction of the purpose rule into I

Parliament has come a simultaneous movement to "dethrone" the literal approach. In I

Cooper Brookes, Mason and Wilson JJ led the way by freeing up the circumstances when, I

in their view, a judge could depart from the literal approach. Importantly, no groundother than "good reason" would be necessary. Their judgment has been highlighted inthe literature and texts255 and applied in many cases.25 It is now common to read ofdecentred methodologies such as these:

[The] process of statutory construction calls for examination of the terms of the statute intheir context, using "context" to embrace the other provisions of the statute, the preexisting state of the law, other statutes in pari materia, and the mischief the court candiscern as that the statute was intended to remedy ... 257

In the end the task of the court is to ascertain and to enforce the actual commands of thelegislature ... This will best be achieved b~ studying the words used and the context andthe purpose or object underlying the Act. 58

But the common law has at the same time muted the tendency to decanonise its I

anciel1t ideals. In Mills v Meeking, a reaction set in against the purposive approach andthe purpose rule. In that case, Mason CJ and Toohey J in the majority relied on themore traditional reasoning of Gibbs CJ in Cooper Brookes to re-assert the literal approachas the presumptive approach. In a gloss on the purpose rule the purposive constructionnow needs to be "obvious" to displace the literal construction.

FragmentationIn the area of general approaches, there was formerly said to be only one "rule" - themeaning of a word or phrase in doubt was derived by ascertaining the intention ofParliament. Subsumed under this general rule lay a number of presumptions andcanons such as the literal approach, which functioned as interpretative aids. After theenactment of the purpose rule, the law is more fragmented in several respects. Mostobviously, there are a greater number of rules and alternative approaches broughtabout by the enactment of the purpose rule. Its "sub-rules" concern such matters as:

• what is generally entailed by "purpose";

255

256

257258

G Morris et aI, above n 30 at 153 ("determining the appropriate approach"); A I MacAdamand T M Smith, Statutes: Rules and Examples (2nd ed 1989) at 274-276 ("a modemperspective"); Mr Justice Bryson, above n 162 at 191 ("a new beginning").Hospital Benefit of WA Inc v Minister for Health, Housing and Community Services (1992) 111ALR 1 at 6-7; R v Hawkins [1988] VR 256; Browne v Smith and Son Pty Ltd (1985) 60 ALR 431at 435; Commonwealth of Australia v Christoffelsz (1988) 79 ALR 611 at 619; Hunter DistrictWater Board v Tomago Sands Pty Ltd (1988) 66 LGRA 190 at 192; R v Hawkins [1988] VR 256at 258, 259; Repatriation Commission v Kohn (1989) 87 ALR 511 at 523-525; Genex CorporationPty Ltd v Commonwealth ofAustralia (1991) 101 ALR 161 at 174.Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 75 ALR 271 at 280.Re the News Corporation Ltd (1987) 70 ALR 419 at 428 (authority omitted).

1995 Statutory Interpretation, Law Reform And Sampjbrd's Theory - Part Two 123

• the determination of the purpose and the limitations on drawing on extrinsicmaterials;

• what is meant by "interpretation of a provision of an Act";

• what is meant by "construction";

• what is meant by "promote";• what is meant by "purpose or object";

• what is meant by "underlying the Act";• what is meant by "construction that would not promote that purpose or object";• the applicability of the rule in the case of competing purposive constructions;• the time when, and the circumstances in which, the purpose must be or is

permitted to be taken into account;

• the time when, and the circumstances in which, consideration of extrinsic materialsis required or permitted in order to ascertain the purpose;

• when the courts may exercise a general discretion to decline to bring a purposiveconstruction into account;

• how a purposive construction may in general be accommodated in legislation;• the status and effect of the purposive construction once it is brought to account

pursuant to the rule;

• the status of a construction which a Minister or other promoter has clearly referredto in Parliament in the course of promoting the Bill within which the provision inquestion lies; and

• the differences between the rules in each of the jurisdictions in which it has beenenacted.

Of course these "rules" are in many instances quite unsettled in their content - this isfurther evidence of the fragmentary nature of the law. Although this is due to someextent to the relative newness of the rule, complete resolution of all outstanding issuesis most unlikely. In addition to the requirements and issues generated by the pQrposerule, its enactment has had consequential effects on the literal approach. As mentionedabove, in Mills v Meeking the High Court reasserted the presumption about the literalapproach to the extent that where the purpose rule is not brought into play the literalapproach prevails.

The tendency for the law to fragment as a result of the purpose rule andpurposivism has been muted, however, by the widely accepted trend topurposivism.259 It promises to bring a degree of unity to statutory interpretation,although it cannot be said that, on the evidence to hand in the literature and reportedcases, purposivism dominates interpretation across the board.26o In some courts the

259260

See further n 265 below.Some will be quick to say, "of course!" Bennion, above n 37 at 13 says that the legalmeaning of an enactment "normally corresponds to the grammatical or literal meaning. Ifthis were never so, the legislative system would collapse." I agree, but we need to be awarethat the literal meaning is also the product of "interpretation" (in the special sensearticulated by Fish): see Part One at 137-139. Also, the fact that obvious cases are settled (bydefinition) by the literal approach does not tell us about other cases in which the meaning


tendency to purposivism is associated with a blatant attempt to re-assert order at thetop of the hierarchy of rules. By adopting the purposive meaning as the ultimate rule ofinterpretation, it is intended that legislative purpose replace the much criticisedconcept of "the intention of Parliament". It was argued that this attempt to create orderis not likely to succeed, since the indefinable notion of meaning cannot be reducedpurely to a purposive framework.

Pluralism

Bennion's treatise on the common law suggests that statutory interpretation alwaysought to have been viewed as a complex body of law. The purpose rule, together withthe extrinsic materials regime and the trend to purposivism, have now madecommentators more aware of this fact. 261 The old boundaries such as the heavypresumption in favour of the literal approach, the impermissibility of considering themischief if there was no ambiguity on the face of the legislation, and the rulespreventing extrinsic evidence from being considered in most circumstances, have beenabandoned or relaxed to permit a greater variety of sources and factors to beconsidered. As Mason CJ has observed, "The modem approach to interpretation insiststhat the context be considered in the first instance, especially in the case of generalwords, and not merely at some later stage when ambiguity might be thought toarise".262

The principal general factors taken into account by the common law were referredto by Mason and Wilson JJ in Cqoper Brookes.263 A convenient list of 11 basic types ofarguments has been compiled in a recent comparative study.264 The legislative purposeis, of course, one of the factors more commonly sought and considered,265 although

261262263264

265

is disputed. As Bennion goes on to say (at 13) : "The cases in which it is not so [settled] arethe main object of our enquiry."Mr Justice Bryson, above n 162 at 185.K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315.Part One at 165-166 and 167.R S Summers and M Taruffo, "Interpretation and Comparative Analysis" inD N MacCormick and R S Summers (eds), Interpreting Statutes: A Comparative Study (1991)at 461 and 464-474. They cite the following arguments or bases for arguments: ordinarymeaning; technical meaning; contextual-harmonisation arguments; precedents; statutoryanalogies; implications from general legal concepts; general legal principles within thesame field; legislative history; statutory purpose; other substantive reasons; and theintention of the legislature.Observations of the trend as observed by Lord Diplock in the 1970s were referred to in PartOne at 141. There is considerable judicial support in more recent times: in 1987 McHugh JA(now of the High Court) adjudged that "[a] purposive and not a literal approach is themethod of construction which now prevails": Kingston v Keprose Pty Ltd (1987) 11 NSWLR404 at 423. In 1988 the Honourable Justice Michael Kirby, above n 111 at 92, wrote of a"swing towards favouring the purposive approach". Six members of the High Courtreferred in Bropho v State of Western Australia (1990) 171 CLR 1 at 20 to "the contemporaryapproach to statutory construction, with its added emphasis on legislative purpose". For aHouse of Lords endorsement, see Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 617, 633and 634. Commentators are similarly inclined: D Maclean, above n 246 at 302;FAR Bennion, above n 37 at 599; P Parkinson, Tradition and Change in Australian Law(1994) at 244-245. The House of Representatives Standing Committee on Legal andConstitutional Affairs, above n 80 at para 8.13, has reported that "many people, including a

1995 Statutory Interpretation, Law Reform And Samr~ford's Theory - Part Two 125

precise surveys have yet to be undertaken. To the extent that one can rely on reportedcases, they indicate increasing usage of purposive interpretation.266 Purposivearguments take a variety of forms themselves. To reiterate, they may be based, directlyor by inference, on parliamentary debates, explanatory memoranda, the Act's statedpurposes, the long title, the legislative history, the term concerned, a nearby provisionin the Act, the Act generally, another Act, the consequences of a literal meaning,reasoning by analogy, and logical reasoning.

The institutions which have stimulated statutory interpretation into becoming amore complex and pluralistic activity have also muted this tendency. Except inVictoria, Australian parliaments shackled the purpose rule by imposing restrictions inthe extrinsic evidence legislation. The Victorian extrinsic evidence provision hasreceived some restrictive interpretation by members of the High Court and by theSupreme Court too. The courts also "chilled"267 the tendency to pluralism by reasserting the principle that the literal approach is to apply unless another constructionis obvious.

Greater level of indeterminacyIn partnership with the common law, the purpose rule has brought about a greaterlevel of indeterminacy in statutory interpretation, as evidenced in the cases which havebeen brought before courts and quasi-judicial tribunals. The enlarged common lawnow contains many more ambiguous categories which either did not exist before orwhich had rarely before been in issue because of the previous law and practice. Thesecategories were summarised above under the heading "Fragmentation". The mainquestions raised with respect to the applicability and operation of the purpose rule inthe courts and tribunals are three in number. What is generally entailed by a purposiveconstruction? How can the relevant purpose be determined? What does the rulerequire or permit? The last question was seen to involve many specific issues. Forinstance, problems have arisen with the relationship between the rule and the regimewith respect to extrinsic materials. The advent of the rule has not brought any addedcertainty to the status of a Minister's statement in Parliament. Even if relevant,

266

267

number of drafters, believe that purposive interpretation is well enough established toencourage a less detailed style of drafting". Against the weight of opinion is D Gifford,above n 34 at 6-7 and 51, who argued (December 1989) that the trend mentioned by LordDiplock "was reversed in the space of a few years": at 51. But he cites only two authorities,one English (1978) and one New Zealand (1979), the latter of which relies entirely on theEnglish authority. The English case referred to, Stock v Frank Jones (Tipton) Ltd [1978] 1WLR 231 [HL], is not, with respect, good authority in any case for the proposition claimed.In the leading judgment, Viscount Dilhorne acknowledged that: "It is now fashionable totalk of a purposive construction of a statute" (at 234). Furthermore, the speeches show thattheir Lordships did consider the purpose. For example, Lord Scarman, who agreed withViscount Dilhorne, stated, with reference to the provision in dispute, that "its plain termsare wholly consistent with the Act's intention to prevent victimisation of workers on strike;and it matters not that this purpose could have been fulfilled in other w~ys and withdifferent consequences" (at 239). "A survey undertaken in 1980 of cases on the interpretation of statutes in the New ZealandLaw Reports of 1958 and 1978 revealed a greater increase in the purposive over the literal:A A Farrar, "Judicial Approaches to Meaning in the Interpretation of Statutes", LLM thesis,University of Canterbury, NZ (1982) Part C.Mr Justice Bryson, above n 162 at 197.


unambiguous and reasonably open, it is not necessarily determinative. While the i

purpose rule has generated few certainties, it is now clear that a purposive construction I

which is adjudged to be reasonably open will prevail over a construction which does notpromote the purpose. Previously, the common law did not mandate such a result.

Deeper contingency

The general approaches to statutory interpretation are not grounded in absolute truths.As MacCormick and Summers point out:

[V]alues form the ultimate level of justification of interpretative arguments and of theirunderlying directives of interpretation. Our claim is that interpretative arguments havegenuine justificatory force to the extent that they are grounded in values, particularly theunderpinning values of legal and constitutional order These are of course controversialat least in detai1.268

It is the notion of contingenc~which expresses the relationship between the approaches I

and their underlying values. 69 The changes to interpretative practice brought about bythe purpose rule and purposivism have been accompanied by changes in underlyingvalues. They have accordingly altered the law's contingency in two main respects. i

First, Parliament's intervention in the interpretative process by the enactment of the I

purpose rule is suggestive of new constitutional arrangements in the area of statutoryinterpretation in Australia; it reflects a new attitude towards the respective roles of I

Parliament and the courts in statutory interpretation. The traditional function of the !

judiciary "to interpret with a minimum of direction from parliament as to how they !

should set about their task"270 has been radically altered. The courts are no longer the !

sole law-makers with respect to general approaches to interpretation: their actions are i

subject to Parliament. In other words, the courts' fundamental interpretative rules are ~

no longer their preserve and they remain free from interference only so long as the !

executive government effectively approves.271 It is to be noted that, whatever view is I

taken of the scope of the purpose rule, most agree it is prescriptive; and the later or I

simultaneous enactment in most jurisdictions of a regime liberalising resort to extrinsic I

materials gave users of the rule valuable resources from which they could draw. Of I

course, the contingent relations between the executive-dominated Parliament and the I

courts run both ways. In this study it has frequently been seen that Parliament's role in I

law-making in the area of statutory interpretation is contingent upon the views and iinterpretations of the courts. There is nothing new in this. During the parliamentary I

debate over the rule, one member in fact predicted this would be the case:

268269

270

271

D N MacCormick and R S Summers, above n 21 at 532.The particular values which "ground" the literal and purposive approaches were described Iin Part One at 135-137.W TWining and D Miers, above n 20 at 359. See also H Lords Deb 1980, Vol 405 at 276 i

(Lord Scarman): it has been "axiomatic ... that the interpretation of statutes is a matter for I

the judges; it is not a matter for legislation".D C Pearce, above n 244 at 186. This radical change has prompted one commentator to I

suggest that the purpose rule may be susceptible to a constitutional challenge on the I

ground of breach of the doctrine of separation of powers; but such a challenge has not as I

yet eventuated: C Enright, above n 34 at 229.


[I]t is a matter of regret that the legislation is still inadequate as it will depend almostentirely on the goodwill of the courts to continue their new-found desire to move awayfrom literal interpretations in the taxation area.272

The second change in the law's contingency arises out of the shift from an emphasison literalism towards a more pluralistic practice.273 This is particularly evident informulations of the task of interpretation in terms of broadly analysing theinterpretative "context". Because pluralism in statutory interpretation embraces moreapproaches than literalism, the contingency appears at first to have deepened in thesense that it is "grounded" in the values of plural concepts and approaches. However,another way to view this shift is to see it as a shift from the values of literalism to thoseof pluralism. The difficulty with accepting pluratism's values as the new basis forstatutory interpretation is in identifying them. In literary theory, pluralism has beensaid to imply a capacious and liberal theory and a tolerance for diverse views, but notany or all views: "plurality is not an infinity". Rather, it is said to be an attempt to avoidextreme positions, to steer a middle course between competing versions of the truth.274

But one problem with the coherence of pluralism is that the diversity may mask mutualincompatibility.275

It has been assumed so far that the law's contingency has appeared to have"deepened" in the sense that, post purposivism and the purpose rule, statutoryinterpretation is grounded in a more complex set of values governing institutional rolesand the interpretative approaches. However, it may be more accurate to view the law'scontingency in this area as having been altered. As Fish has stated:

Contingency itself is never on trial, only those divisions and hierarchies that follow fromthe institution of some or other contingent plan; and when those divisions andhierarchies have been abandoned or supplanted it will only be because other divisionsand hierarchies, themselves no less contingent, have been instituted in their place. Inshort, contingency, the fact that every formative context is revisable, is never overcome,even in part; it is merely ~iven a new form in the victory (always temporary) of onepartial vision over another. 76

For interpretation is grounded now, as before, in values, and values are notfoundational in the absolute sense of being an end-point; they too rest on subjectiveassumptions and understandings. TIle view that the law's contingency J:las alteredrather than deepened also broadly bears out Sampford's theory of disorder, a theorywhich emphasises how disordering influences such as values contribute not just toconflict in law and society but also to inertia. In this area we can say that the lawremains contingent, despite signs of fundamental change.

A reflection

Some of the effects described above focus on the formulation of the written law ofstatutory interpretation: decanonisation, fragmentation and a greater level ofindeterminacy seem to fit into this category. Others, in particular pluralism and adeeper contingency, focus more on the practice of interpreters and the interpretative

272 H Rep Deb 1981, Vol 123 at 3439.273 Contrast the situation in the United States of America, where there is a "battle to resurrect

the Plain Meaning Rule" : JFagan, above n 3 at 381.274 S Fish, above n 1 at 70-71.275 T Eagleton, Literary Theory: An Introduction (1983) at 198.276 S Fish, above n 1 at 432.


context. It might be argued, however, that whether one looks to the state of the writtenlaw, to interpretative practices or to context, these effects leave out of account animportant issue: whether the advent of the purpose rule and purposivism means thatdifferent results in particular cases have been arrived at. This is a large question whichdemands empirical study and is therefore beyond the scope of this article which, inrespect of the post-enactment phase of the purpose rule, has drawn mostly on reportedcases in the courts and tribunals. But some brief and tentative remarks based on thesematerials may be ventured.

The first comment is that the mere fact that purposivism and the purpose rule are atone level different methodologies suggests that different results occur, though notnecessarily in every case. The nature of a methodology, of course, is that it is a processfor bringing about, or at least justifying, a particular result. Reference to the casesexamined in this paper supports this suggestion. They indicate that the result wasaffected by the methodology employed, whether purposive or non-purposive. Mills vMeeking is such a case. The majority employed a literal approach, declining to bring apurposive construction into account. The minority employed the purpose rule or apurposive approach based on the purposes either stated expressly in the Act or byinference from the Act's provisions. Of course, such "evidence" is only anecdotal.Against this argument, it must be stated that in several cases the courts and tribunalshave integrated both literal and purposive approaches, demonstrating that whichevermethodology was employed, the same result followed in their view.277 (Ratherdifferent results may arise from how the purpose is stated.278) We may say then that interms of the effect of changed results, the purpose rule and purposivism is adisordering influence in the special sense employed by Sampford - it tends to suggestthat different results occur in some cases, while in other cases inertia is theconsequence.

GENERAL CONCLUSIONS

This study of statutory interpretation has consciously applied a particular theory oflaw, Charles Sampford's theory of the disorder of law. Within the constraints imposedby the abstractions of that theory (discussed further below), it is apparent that such atheory can prompt informed questions of substantive law and illuminate it.279 Thegeneral importance of Sampford's theory for statutory interpretation is that it providesa conceptually rigorous means to analyse the widely accepted "disarray" in that bodyof law and practice instead of taking the usual path: a search for order amongst itsnotoriouslr disparate elements.280 A search for order is admittedly not without itsbenefits.28 But the assumptions the search makes means it inevitably presents the law

277278279280

281

Eg, Bond v Trustee ofProperty ofBond (A Bankrupt) (1994) 125 ALR 399.Ibid.See generally C Sampford, above n 7 at 276-278.See Part One at 117-118. For a wider, historical perspective on the common law juristictradition, see D Sugerman, "Legal Theory, the Common Law Mind and the Making of theTextbook Tradition" in W Twining (ed), Legal Theory and the Common Law (1986) 26.To state the obvious, difficulties are removed or reduced, and the "law" is therefore mademore amenable to application to particular facts. But texts which search for order can stillbe a rich source of material for those with more subversive purposes; the references toFAR Bennion, above nn 29 and 37 in this article are testament to this fact. See also


in an incomplete, if not false light: as wholly rational, coherent and ordered.282 This iswhere "disorder" analysis can be of assistance. Despite the name, it is not a techniquetailor-made for nihilists. Neither does it pretend to describe the law in a perfectlybalanced way. It simply claims to offer a perspective which cannot be ignored - auseful (if partial) corrective to the orthodox way of analysing the substantive law.

Specifically, the theory of disorder has permitted us to go beyond the outwardappearances of consensus and order and present a differing picture of the origins,nature and effects of the purpose rule, first enacted in s 15AA of the Acts InterpretationAct 1901 (Cth). In summary, the rule was seen to have been shaped by disorder, to bedisordered, and, together with the closely related regime regarding the use of extrinsicmaterials, to have brought about, or been involved in producing, certain identifiableeffects of a disordering nature. In Part One, the history of the purpose rule until itsenactment was analysed. The disarray in the pre-existing common law was analysed indetail before examining the law-making process which led to the purpose rule. Theflaws in this process and other disordering influences meant that, even before the rulehad been used, its potential to add to the disorder was apparent. In Part Two we haveseen that its smooth application in the courts and tribunals has been marred by therecurrence of three main questions. What is generally entailed by "purpose"? How isthe purpose ascertained in a particular case? What does the rule require or permit? Aconsideration of the various interpretative issues raised by the rule together with thehistory of the rule suggested that the general effects of the rule and purposivism havetended to add conflict, to decanonise the law of statutory interpretation, to fragment itand to give rise to a more pluralistic practice, a greater level of indeterminacy and adeeper or altered contingency. It was also suggested that the results in some individualcases have been affected.

The benefits flowing from this theoretical perspective are not confined toilluminating the disarray in statutory interpretation caused by the introduction of thepurpose rule, and hence to revealing the law to be essentially disordered rather thanordered. They permit us to evaluate a well known claim concerning the potential forstatutory interpretation to be reformed by Parliament. I am here referring to LordWilberforce's oft-referred to warning that statutory interpretation is a "non-subject" as

282

D Sugerman, above n 280, who, while ready to criticise the narrowness of the textbook(expository) tradition (a task he carries out at length), acknowledges the "richness,complexity and achievements of this tradition" (at 28). For instance, he refers to how theclassical legal scholars "simultaneously assisted in the construction of a liberal legal science":at 52-53 (emphasis in original).Eg, Bennion's work, above n 37, is framed as "a Code with comments". His intention isthat the Code should be "self-consistent". He does this by "reconciling" inconSIstentprinciples of interpretation (at 2). In this sense Bennion would appear to be carrying on thetradition of "classical legal education and scholarship" criticised by D Sugerman, aboven 280. The latter's main point is that such a tradition is "shot through with selfcontradictions, omissions and absurdities, which generations of judges and jurists havesought to repress": at 27. He instances how "the -quest for underlying p~inciples mustinvolve a selection from the sum of principles available and, therefore, a strong evaluativeelement": ibid. Sugerman approves of the view of Montrose that: "More often [jurists'writings] are but the writer's views as to what the law ought to be, expressed in languagewhich speaks of principles of what the law is": ibid. However, in fairness to Bennion, hiswork has a dual character since, more than any other text writer on statutoryinterpretation, he includes a lengthy commentary on the principles.


far as the Law Commission (and therefore Parliament) is concerned, and hence more amatter for "educating the judges and practitioners and hoping that the work is betterdone".283 In this matter it is wise to begin with a caveat or two. Since Sampford'stheory of law admits to highlighting the disordering aspects of law, any answer to thequestion whether statutory interpretation is a "non-subject" which is based upon atheory of disorder will seem to be weighted from the outset in favour of LordWilberforce's sceptical position. But, as mentioned already, this "problem" arises withany theory or perspective, which cannot claim to provide complete neutrality orcomplete answers to complex questions involving interpretation and personaljudgement.284 A second preliminary comment which seems to be called for is that hisLordship cannot be taken to have been referring to the technical matters whichconstitute the bulk of Acts Interpretation Acts, for these are largely uncontroversialreforms.285

With these qualifications, the question whether the general approaches to statutoryinterpretation are suitable for statutory reform depends in my view on the evaluativecriterion one selects.286 Let us recall the aims of one Australian reformer in respect ofthe purpose rule:

[The] approach does not involve trying to restate a fundamental comprehensive rule ofstatutory interpretation. It involves, rather, an intervention in the process of statutoryinterpretation that gives a nudge in the direction of the purposive approach and havingdone that it does no more.287

If the criterion we select is as suggested by this reformer, that is, the achievement of aparticular result and no more (or a determinate set of results), then it is submitted thatthis study generally supports Lord Wilberforce's view. In the case of the purpose rule,statutory reform of the general approaches has surely proved to be an unpredictableexercise not without dangers.288 The main reasons lie in the presence of the manydisordering influences acting upon the common law289 and in the fact that theintroduced law was neither neutral nor neutralising, but added to the disorder.Legislative reform has certainly proved to be a far more complex and disorderingexercise than its promoters foresaw; with hindsight there is irony in the LawCommissions having criticised the common law for being "too simple".290 The dangersin this law reform exercise ranged from outright failure to achieve anything, to a wholerange of unintended effects. As it happened, it was more the latter which occurred, andthe general effects we saw were a mixed bag: decanonisation and pluralism will begenerally welcomed, but added conflict, fragmentation, and greater levels of

283284285

286

287288289290

H Lords Deb 1966, Vol 277 at 1294.Part One at 123.For example, the rule that words in the singular presumptively include the plural, and viceversa. See generally, D C Pearce and R S Geddes, above n 24, ch 6.On the nature of evaluation in law, see J Goldring et aI, "Evaluating AdministrativeTribunals" in S Argument (ed), Administrative Law and Public Administration: HappilyMarried or Living Apart Under the Same Roof? (1994) 160.P Brazil, above n 17 at 20 (emphasis added).See also A A Farrar, above n 266 at 251.Part One at 126-149.The Law Commission and the Scottish Law Commission, The Interpretation of Statutes(1969) at para 13. -


indeterminacy are the disadvantages. To this extent, as Unger foretold,291 the rule oflaw ideal is discredited.

If, however, the criterion selected for assessing whether statutory interpretation is asuitable subject for statutory law reform is not the capacity to deliver a determinate setof results, but simply the capacity to bring about improvements in some respects (suchas, in this case, giving "a nudge in the direction of the purpose rule"), then we may takea different view. We may then conclude, again with the benefit of hindsight, that LordWilberforce was too pessimistic. For it cannot be denied that legislating has promotedpurposivism and has brought about several beneficial effects. Decanonisation andpluralism (including an increased emphasis on purpose) have further relaxed emphasison legal formalism in the form of literalism and abstract legal reasoning. This is awelcome trend for the reasons advanced elsewhere.292 The rule has also stimulatedmuch useful questioning of the interpretative task at the general level, though many ofthe questions raised defy simple answers and probably will continue to do so.Inevitably, some of these questions have been technical ones, such as in whatcircumstances does the purpose rule apply at all? And what is the meaning of"promote"? But others have been more meaningful for the practice of interpretation inthat they have increased our awareness of what we do when we interpret - questionssuch as what does it mean to take a purposive construction? What obstacles are there indetermining the purpose? What is the relationship between the purpose rule and theextrinsic materials legislation? How maya purposive construction be accommodated?And how does a greater emphasis on purpose impact on other approaches? The rulehas raised normative issues as well, such as are the current restrictions on thecircumstances when extrinsic materials may be used desirable? And should executivestatements of intended meaning have a greater status in the courts and tribunals?

The law of statutory interpretation therefore cannot, and must not, be seen andtreated any longer as if it were a d~1 formal subject, a "calm haven" for technicicu:~.293It is the busiest port in the law2 4 and, upon analysis, its cargo e3G.lUbits political,constitutional and theoretical dimensions. This study of the general approaches tointerpretation is instructive in that regard. The political history of the purpose rule,including the pre-existing common law, was the focus of Part One. There it was seen

291

292293

294

R M Unger, above n 20 at 197. He emphasised the damage to the rule of law ideal broughtby changes in social life and the law, including the movement to purposivism: Part One at143-144.See further Sir Anthony Mason, above n 192 at 155-161; S C Requadt, above n 25.D Maclean, above n 246 at 302. See also the references in Part One at 116. I broadly concurwith the view of R S Summers, cited in FAR Bennion, above n 37 at 1: "[S]cholars havetraditionally underestimated the demands of the subject". D Sugerman, above n 280 at 27explains how the common law frame of mind - "the dominant tradition of classical legaleducation" - has ignored or marginalised other aspects of the law, such as legislation.At least where the work of tribunals and the higher courts is concerned. FAR Bennioncites Lord Hailsham's view that "over nine out of ten cases heard on appeal before theCourt of Appeal or the House of Lords either turn on or involve the mea~ing of wordscontained in enactments of primary or secondary legislation": above n 37 at 1': The figure isstill very high if trial courts are considered. D C Pearce and R 5 Geddes, above n 24 at para1.1, record that "[A] rough sample shows that in approximately 50 per cent of recentreported cases the courts were required to rule upon the meaning of some legislativeinstrument. In a further 25 per cent of cases the courts had to apply an Act, regulation, rule,etc - its meaning this time not being in dispute".


that any consensus about the rule was superficial; in reality there was disorder in themaking. ConstitutioIlally speaking, the rule was enacted (according to theCommonwealth Attorney-General) so as to engineer changes in the respective lawmaking responsibilities of the courts and the Parliament. However, this agenda hasbeen side-tracked by the many interpretative issues raised by the rule itself;underneath which no doubt lie constitutional issues, such as the proper role of theexecutive in determining meaning. Employing Sampford's theory of the disorder oflaw as the general framework for the study has permitted the general approaches, andin particular the purposive approach and the purpose rule, to be analysed from a freshangle: its disarray. In this light, the purpose rule has had a chequered career so far inthe courts and tribunals. It has brought about some certainties but, on the whole, ratherthan constraining interpretation as its promoters had hoped, it has increased thecomplexity of that task.

Documents

STATUTORY INTERPRETATION, LAW REFORM … · STATUTORY INTERPRETATION, ... a construction that would promote the ... A wider aimis to use this case study to evaluate Lord Wilberforce'sclaim