Annotated Case List

Module 1 - Introduction to Statutes

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [per: French CJ] - text,context, purpose.

Brennan v Comcare (1994) 50 FCR 555 [per: Gummow J at 572-3] - dealing with legislation is different to dealing with case law/precedent operates differently.

Coleman v Power (2004) 209 ALR 182 [per: Kirby J] - ‘court may adopt a construction not argued by the parties’

Commissioner of Stamps (SA) v Telegraph Investment Co (1995) 184 CLR 453 [per: Brennan CJ, Dawson and Toohey JJ] - approach to reading amended legislation - read Act and amendment together.

Concrete Constructions v Nelson [1990] HCA 17 - discussion of role of headings to Parts and Divisions.

Goodwin v Phillips (1908) 7 CLR 1 - example of repeal by implication.

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 - discussion of use of headings, and other sections as context for section being interpreted.

Ogden Industries Pty Ltd v Lucas [1970] AC 113 [ref: Lord Upjohn at 127] - job of the Court to construe the legislation each time, not simply rely on past interpretations.

R v White (1899) 20 LR (NSW) 12 - insert brief summary/key principle here.

Ragless v Prospect City Council [1922] SASR 299 at 311 [per: Murray CJ] - Rules re use of headings

Re the Commercial Bank of Australia Ltd (1893) 19 VLR 333 - the Part provides the immediate context for the section

Re Wakim; ex parte McNally (1999) 198 CLR 511 - cross vesting not possible

Telstra Corp v Treloar (2000) 102 FCR 595 [ref: Branson and Finkelstein JJ] - court’s attitude to precedent.

Module 2 - Common Law Approach to Statutory Interpretation

K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4 [ref: French CJ] - K-Generation applied for a liquor license, Police Commissioner intervened in process and said they were not ‘fit and proper’ but said information was classified under s28A of Liquor Licensing Act. K-Gen said s28A was invalid as it denied procedural fairness. French CJ:

‘Before the constitutional validity of a statute is considered its meaning and operation must be ascertained. The point of departure in that exercise is the ordinary and grammatical sense of the words having regard to their context and legislative purpose. Interpretation is also to be informed by the principle that the Parliament, whether of the State or the Commonwealth, did not intend its statute to exceed constitutional limits. It should be interpreted, so far as its words allow, to keep it within constitutional limits. That is a principle of general application.’ [text, context, purpose]

Engineers case (Amalgamated Society of Engineers v Adelaide Steamship (1920) 28 CLR 129 [at 161-2 Higgins J] - “a statute is to be expounded according to the intent of the Parliament ... found by an examination of the language used in the statute as a whole … when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we consider the result to be inconvenient or impolitic or improbable.”

Weitman v Katies Ltd (1977) ATPR 40-041 - used Oxford English Dictionary to establish meaning of ‘misleading’ and ‘deceptive’.

ACCC v Lux [2004] FCA 926 - used dictionary to establish meaning of ‘unconscionable conduct’ .

State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329 - used Macquarie Dictionary to establish meaning of ‘fringe benefits’.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [McHugh, Gummow, Kirby and Hayne JJ at 384] - “…the duty of the court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

Grey v Pearson (1857) 6HL Cas 61 [Lord Wensleydale] - (discussing Golden Rule) “I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.”

Adler v George [1964] 2 QB 7 - Golden rule was used to fix an absurdity. “In the vicinity of any prohibited place” was taken to mean “in or in the vicinity of any prohibited place.”

R v Oakes [1959] 2QB 350 - Golden rule was used to fix an absurdity. ‘Any person who aids or abets and does any act preparatory to the commission of an offence’ should have read “or does any act preparatory’

Heydon’s case (1584) - First case to use the mischief rule. Allowed the Court to look at the “the mischief and defect for which the common law did not provide” to establish the purpose of Parliament where there is ambiguity or inconsistency.

Kennon v Spry (2008) 83 ALJR 145 [Gummow and Hayne JJ] - Despite statutory definition of ‘property’, attention must still be paid to: “the subject matter, scope and purpose of the relevant statute” to determine its meaning in a way which advances that purpose.

Parkdale v Puxu [Gibbs CJ] - “misleading or deceptive or likely to mislead or deceive. Those words are on any view tautologous. One meaning which the words "mislead" and "deceive" share in common is "to lead into error". If the word "deceptive" in s. 52 stood alone, it would be a question whether it was used in a bad sense, with a connotation of craft or overreaching, but "misleading" carries no such flavour, and the use of that word appears to render "deceptive" redundant. The words "likely to mislead or deceive", which were inserted by amendment in 1977, add little to the

section; at most they make it clear that it is unnecessary to prove that the conduct in question actually deceived or misled anyone.”

Fallas v Mourlas [2006] NSWCA 32 [Ipp JA] - “In a case of clear ambiguity … a construction that might result in potential unfairness and injustice should be avoided and a fair and just construction is to be preferred.”

Wacando v Commonwealth of Australia and the State of Queensland (1981) 148 CLR 1 Re: extrinsic materials - Mason J: generally speaking, reference could not be made to Hansard, but an exception could be made where a Bill was introduced to remedy a mischief.

Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126 ]Kirby P] - “The legislation relevant to the present appeal…does nothing to add to the coherency of this body of law. It is a jumble of ill-matched and poorly integrated enactments. If there is now to be found a common thread through it all, it would seem to be nothing more than revenue raising. The conclusion suggests that the only safe approach to the construction of the web of applicable legislation is an attention to the literal words of the legislation. A ‘purposive’ approach founders in the shallows of a multitude of obscure, uncertain and even apparently conflicting purposes.”

Shipping Corp of India Ltd v Gamlen Chemical Co (A’asia) Pty Ltd (1980) 147 CLR 142 - where legislation adopts international convention or treaty it should be interpreted consistently with international principles for reading treaties.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 - where legislation incorporates provisions of treaty, the meaning should be determined in accordance with the treaty provisions, eg Vienna Convention on Interpretation of Treaties and “the rules generally applicable to the interpretation of domestic statutes give way”.

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 [Mason J] - the Act must be read as a whole - “the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context”.

CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384- “context operates in its widest sense – to ‘include such things as the existing state of the law and the mischief which...one may discern the statute was intended to remedy.’

Re Castioni [1891] 1 QB 149 - words are assumed to be used consistently

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 [Hodges J] - “any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document … There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”

Commissioner of Taxes (Vic) V Lennon (1921) 29 CLR 579 [Higgins J] - Intention is paramount. “...although it is always well to use the same word for the same thing and not to change the language unless a change in meaning is intended, the presumption that arises from variations in language is of very slight force if the words in themselves are sufficiently clear.”

Chappell and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350 - copyright legislation restricted ‘public performances’. Playing of a record was deemed a public performance even though the technology did not exist, and thus was not in contemplation when the legislation was written.

Re Treneski and Comcare (2004) 80 ALD 760 - Federal Court scale allowed recovery of costs for "machine made copies". This was deemed to include hard copies of emails, even though the technology did not exist when the scale was prepared.

National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd - Court prefered a “technology neutral interpretation” of “make” e.g. copyright could be breached in ways not foreseeable at time of enactment. Did not apply to this case as there was a clearly limited legislative purpose.

Woodside Energy Ltd v Federal Commissioner of Taxation (2009) 174 FCR 91- insert brief summary/key principle here.

Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691 [Stamp J] - “Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language”

R v Ann Harris (1836) 7C&P 446 - Noscitur a sociis. “Stab, cut or wound”. Biting did not qualify as words imply that an instrument needed to be used.

Attorney-General v Brown [1920] 1 KB 773 - Ejusdem generis. “the importation of arms, ammunition, gunpowder, or any other goods... “

Quazi v Quazi [1980] AC 744 [Scarman LJ] - Ejusdem generis is “is, at best, a very secondary guide to the meaning of a statute. The all important matter is to consider the purpose”

Mattison v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 [Majoney JA] - Ejusdem generis has very limited use.

Module 3 - Role of Statutory Interpretation Legislation

Re Flavel [1916] SALR 47 - example of how commencement works - minute past midnight

Lipshut v MacKay [1950] VLR 57 [Deane J] - the exact moment at which a repealed Act ceases to apply and a new Act commences is said to be seamless – no gap. No “hiatus nor any overlapping”:

Mills v Meeking (1990) 169 CLR 214 [Dawson J]

YOU NEED TO DO THIS

R v L (1994) 49FCR 543 [Burchett, Miles and Ryan]- “the requirement of s15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”

Chugg v Pacific Dunlop Pty Ltd (1990) 95 ALR 481- Old s15AA was limited to two interpretations

W v City of Perth (1997) 191 CLR 1 - A purpose or objects clause should be interpreted in the context of the Act as a whole

Victims Compensation Fund v Brown (2002) 54 NSWLR 668 - no legislation pursues its purpose at all costs; limits on role of purpose

Bermingham v Corrective Services Commission of New South Wales (1988) 15NSWLR 292 [McHugh JA] - “To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”

R v Young (1999) 46 NSWLR 681 per Spigelman CJ - “Construction must be text based”

Nelson v Nelson [1995] HCA 25 - YOU SHOULD DO THIS

Lacey v A-G (Qld) (2011) 242 CLR 573 - YOU SHOULD DO THIS

Zheng v Cai (2009) 239 CLR 446 - YOU SHOULD DO THIS

NAAV v Minister for Immigration (2002) 123 FCR 298 - insert brief summary/key principle here.

Momcilovic v The Queen (2011) 245 CLR 1 - “‘intention’ is a conclusion reached about the proper construction of the law in question and nothing more”

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 - “the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

Module 4 - Use of Extrinsic Material

Insert case name here - insert brief summary/key principle here.

Insert case name here - insert brief summary/key principle here.

Module 5 - Statutory Interpretation and the Protection of Human Rights

Insert case name here - insert brief summary/key principle here.

Insert case name here - insert brief summary/key principle here.

Module 6 - Legislative Drafting

Insert case name here - insert brief summary/key principle here.

Insert case name here - insert brief summary/key principle here.

Commencement of Acts

Acts Interpretation Act 1901 (Cth) - Section 3 and 3A

3 When Acts come into operation

If an Act or a provision of an Act is expressed to come into operation on a particular day (whether the expression “come into operation” or “commence” is used), it comes into operation at the start of the day.

3A Commencement of Acts

(1) This section does not apply to an Act so far as it provides for its commencement.

(2) An Act (other than an Act to alter the Constitution) commences on the 28th day after the day on which that Act receives the Royal Assent.

(3) An Act to alter the Constitution commences on the day on which that Act receives the Royal Assent.

Interpretation Act 1987 (NSW) - Section 23

23 Commencement of Acts

(1) An Act shall commence, or shall be deemed to have commenced:

(a) except as provided by paragraphs (b) and (c)—on the day occurring 28 days after the date of assent to the Act,

(b) if the Act provides for its commencement, whether by proclamation under the Act or otherwise—on the day or days specified in, or ascertained in accordance with, that provision, or

(c) if a day is appointed for its commencement by a proclamation under subsection (2)—on the day so appointed.

(2) The Governor may, by proclamation, appoint a day for the commencement of an Act that does not provide for its commencement, being a day that occurs:

(a) no earlier than the date of assent to the Act, and

(b) no later than the day occurring 28 days after the date of assent to the Act.

(3) A power to appoint by proclamation a day on which an Act shall commence does not include power to appoint a day prior to the day on which the proclamation appointing the day is published.

(4) A power to appoint by proclamation a day on which an Act shall commence does not include power to appoint different days for different portions of the Act unless express provision is made in the Act for that purpose.

(4A) A power to appoint by proclamation different days for the commencement of different portions of an Act includes the power to appoint different days for the commencement of the repeal of different portions of any previous Act or instrument repealed by a provision of the Act.

(5) A proclamation appointing a day on which an Act shall commence does not fail merely because the proclamation is not published until after that day but, in that event, the Act shall not commence on that day but shall commence:

(a) except as provided by paragraph (b)—on the day on which the proclamation is published, or

(b) in the case of a proclamation under subsection (2):

(i) on the day on which the proclamation is published, or

(ii) on the day on which the Act would have commenced had the proclamation not been made,

whichever is the earlier.

(6) An Act may be referred to by its short title (or name) even though the provision that specifies the short title (or name) has not commenced.

(7) If an Act provides for its commencement, whether by proclamation under the Act or otherwise:

(a) that provision has effect for the purposes of subsection (1) (b), and

(b) in the case of an Act that provides for its commencement by proclamation under the Act—such a proclamation may be made and shall have effect,

even though that provision has not commenced.

(8) In this section, published means published on the NSW legislation website.

Construction of Acts

Acts Interpretation Act 1901 (Cth) - Sections 15A - 15AB

15A Construction of Acts to be subject to Constitution

Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

15AB Use of extrinsic material in the interpretation of an Act

(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act 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 by the text of the provision taking into account its context in the Act and the purpose or 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 of the provision taking into account its context in the Act and the purpose or object underlying the Act

leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;

(c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;

(d) any treaty or other international agreement that is referred to in the Act;

(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and

(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Interpretation Act 1987 (NSW) - Sections 31 - 34

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.

32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.

33 Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is

expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

34 Use of extrinsic material in the interpretation of Acts and statutory rules

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule 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 by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.

(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:

(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer,

(b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the provision was enacted or made,

(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(d) any treaty or other international agreement that is referred to in the Act,

(e) any explanatory note or memorandum relating to the Bill for the Act, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister or other member of Parliament introducing the Bill before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section, and

(h) any relevant material in the Minutes of Proceedings or the Votes and Proceedings of either House of Parliament or in any official record of debates in Parliament or either House of Parliament.

(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Headings etc.

Acts Interpretation Act 1901 (Cth) - Section 13

13 Material that is part of an Act

(1) All material from and including the first section of an Act to the end of:

(a) if there are no Schedules to the Act—the last section of the Act; or

(b) if there are one or more Schedules to the Act—the last Schedule to the Act;

is part of the Act.

(2) The following are also part of an Act:

(a) the long title of the Act;

(b) any Preamble to the Act;

(c) the enacting words for the Act;

(d) any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act.

(3) However, text is not part of an Act, or a compilation of an Act within the meaning of the Legislation Act 2003, if the text:

(a) only indicates the effect of an element of the Act; and

(b) is accessible in an electronic version of the Act or compilation; and

(c) does not appear in the printed text of the Act (or any amendment of the Act) as enacted by the Parliament, or any other printed version of the Act or compilation.

Interpretation Act 1987 (NSW) - Section 35

35 Headings etc

(1) Headings to provisions of an Act or instrument, being headings to:

(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or

(b) Schedules to the Act or instrument,

shall be taken to be part of the Act or instrument.

(2) Except as provided by subsections (3) and (4):

(a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)),

(b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or

(c) a marginal note, footnote or endnote in an Act or instrument,

shall be taken not to be part of the Act or instrument.

(3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being the date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument.

(4) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)), or a marginal note, footnote or endnote in an Act or instrument, shall be taken to be part of the Act or instrument if:

(a) it is referred to expressly, otherwise than by means of matter within some other provision of the Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of the firstmentioned provision) or by means of a symbol, in some other part of the Act or instrument, or

(b) not being so referred to, it is a heading, marginal note, footnote or endnote to a table or form in the Act or instrument.

(4A) The number of a section, subsection, clause or subclause of an Act or instrument is taken to be part of the Act or instrument even though it appears in a heading to the section, subsection, clause or subclause.

(5) This section does not limit the application of section 34 in relation to the use of any heading, marginal note, footnote or endnote in the interpretation of the provision to which the heading, marginal note, footnote or endnote relates.

Glossary of terms to remember

Hendiadys Noscitur a sociis Ejusdem generis Expressio unius est exclusio alterius Expressum facit cessare tacitum Generalia specialibus non derogant Reddendo singular singulis In pari materia

MUD-MAP FOR INTERPRETATION OF LEGISLATION

1.Jurisdiction

(a) Legislative approach –e.g s15AA

2.Commencement/Assent

3.Identify relevant section(s)

(a) Is it operative or machinery?

i. Find relevant operative provision

(b) Context = place in Act

1. Other sections

2. Part? Division? Relevant headings??

3. Method of drafting employed

4. Purpose – s15AA

Section

•Identify elements

• Apply literal approach

• Context? Syntax?

•With each element

• Definitions

• Common law tools as required (eg ejusdem generis)

• Check against purpose using intrinsic materials – eg s15AA

• Interpretation Act definitions

• Other tools

Consider:

•Is section clear on its face?

• Consult purpose (Mills v Meeking) – meaning unchanged - STOP

• Consult purpose- choice of meanings? Select meaning closest to purpose of parliament (s15AA)

•Is section unclear?

• Consult purpose (s15AA)- choice of meanings? Select meaning closest to purpose of parliament

Where to look for purpose?

•Intrinsic materials

• Context

• Long title

•Extrinsic – subject to s15AB(1) tests OR common law tests

Other tools?

•Prior judicial interpretation

•Common law tools

•Presumptions of interpretation

•A host of tools can be used but they are all subject to the overriding principle of preferring the meaning closest to Parliament’s purpose.