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Stubbs, Matthew T --- "From Foreign Circumstances to First Instance Considerations:Extrinsic Material and the Law of Statutory Interpretation" [2006] FedLawRw 4; (2006) 34(1) Federal Law Review 103

  • INTRODUCTION
  • THE RELEVANCE OF EXTRINSIC MATERIAL
  • LIMITS ON THE USE OF EXTRINSIC MATERIAL
  • TEXTUAL INTERPRETATION OF SECTION 15AB
  • EXTRINSIC MATERIAL AND THE INTERPRETATION OF SECTION 15AB
  • JUDICIAL RELUCTANCE TO CONSIDER EXTRINSIC MATERIAL
  • EVOLVING JUDICIAL ACCEPTANCE OF EXTRINSIC MATERIAL
  • RECENT TRENDS
  • RECONCILING SECTION 15AB WITH THE NEW COMMON LAW APPROACH
  • CONCLUSION
  • FROM FOREIGN CIRCUMSTANCES TO FIRST INSTANCE CONSIDERATIONS: EXTRINSIC MATERIAL AND THE LAW OF STATUTORY INTERPRETATION

    Matthew T Stubbs[∗]

    INTRODUCTION

    [T]he sages of the law heretofore have construed statutes … upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances.[1]

    That conclusion was reached in the 1560 case of Stradling v Morgan,[2] and may be taken to correctly state the law at that time. In its context, it is clear that the phrase 'foreign circumstances' was intended to refer not to the state of international relations, but rather to the use of extrinsic material in statutory interpretation.

    Despite this early acceptance by the English courts of the use of extrinsic material in statutory interpretation, strident restrictions on the use of extrinsic material were later to be introduced into the common law.[3] In discussing the principle that, 'Parliament speaks only through an Act of Parliament,' Dicey stressed the point that, 'the English Bench have always refused, in principle at least, to interpret an Act of Parliament otherwise than by reference to the words of the enactment.'[4]

    The classic expression of the English approach is that of Viscount Haldane, who proclaimed that in the process of interpreting a statute, a court must, 'exclude consideration of everything excepting the state of the law as it was when the statute was passed, and the light to be got by reading it as a whole'.[5] This expression was quoted with approval by the High Court in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd.[6]

    Today, the use of extrinsic material is once again an important aspect of statutory interpretation under Australian law, following the introduction of statutory permission to do so in 1984 when s 15AB was inserted into the Acts Interpretation Act 1901 (Cth).[7] In the context of the restrictive common law approach prevailing at the time, the introduction of s 15AB represented a substantial change to methods of statutory interpretation, even arousing concerned opposition.[8] It will be argued that these concerns have not been realised. Instead, it is suggested that a modern species of statutory interpretation has evolved which permits the use of a wide range of extrinsic material while respecting the text of the relevant enactment as the fundamental basis of statutory interpretation.

    This article begins by considering the rationale in principle for allowing reference to extrinsic material in statutory interpretation. The provisions of s 15AB are then examined, first on the basis of the text of the enactment and then with reference to relevant extrinsic material. The development of the relationship between s 15AB and the common law of statutory interpretation is then considered. It is argued that while the statutory provision played an important role in adjusting the judicial approach to statutory interpretation, thereby spurring developments in the common law of statutory interpretation, the reforming statute is now itself in need of reform in order to remain relevant and to fully secure the objectives it was designed to secure.

    In the process, the passage of the common law of statutory interpretation in Australia from a strict conservative approach through to the evolution of the modern common law of statutory interpretation is shown, a process through which extrinsic materials have changed from foreign circumstances to first instance considerations.

    THE RELEVANCE OF EXTRINSIC MATERIAL

    In an address on a recent visit to Australia, Lord Steyn observed that '[i]t will be rare for a statute to have one obvious meaning which can be determined without taking into account the context of the legislation. … While the text of the statute is of pre-eminent importance, it cannot be understood in a vacuum.'[9]

    Indeed, it has long been accepted that the meaning of a statutory provision may not be immediately obvious from words alone. In some instances, it may truly be observed of a statutory provision that it, 'yields up its secret only to the patient inquirer; its truth lies at the bottom of the well.'[10] One reason for this difficulty is that the use of written language does not permit absolute precision in every circumstance, so no written law can ever exclude the possibility of ambiguity.[11] Recently, Kirby J has gone so far as to suggest that, in the search for meaning, '[c]ontext is as important as text.'[12]

    Another reason is that a written law is not an end in itself, but is a tool used by the representatives chosen by the people to achieve the aspirations of the community. Whatever the aspirations to which the law is designed to give effect, and irrespective of the skill used by legislative drafters, no complex conception representing part of a social blueprint or grand societal design can be reduced to mere words with absolute precision: while a picture may paint a thousand words, a complex idea is not necessarily capable of unambiguous replication no matter how many words are allowed.[13]

    Recognition of the inherent inability of statutory language to capture completely or permanently the aspirations of the community that lie behind the words of a statute is not a justification for abandoning the endeavour to interpret it, but rather provides the key to resolving the difficulty and finding the correct interpretation. Justice Felix Frankfurter observed that, 'laws are not abstract propositions. They are expressions of policy arising out of specific situations and addressed to the attainment of particular ends.'[14]

    Acceptance of the proposition that a statute, 'has an aim,' that, 'it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government,'[15] drives the purposive approach that lies at the heart of modern statutory interpretation. The inevitably sparse and stark words of a statute can be illuminated by consideration of the purpose that the statute was designed to fulfil in order that the courts in interpreting statutes may genuinely contribute to the attainment of the societal aspirations the statute is intended to achieve.[16]

    The difficulty arises in determining that purpose, and it is here that extrinsic materials become important. As McHugh J has observed:

    in the case of legislative purpose … the tribunal of fact must attribute a purpose to an artificial or notional mind that is deemed responsible for some act or omission … the tribunal of fact deduces the purpose of the artificial or notional person from the background of the act or omission including relevant statements and what was done or not done.[17]

    Acceptance that a statute has an aim, that the aim is relevant to the process of interpretation, and that consideration of extrinsic material may be essential to determining that aim, creates a link between statutory interpretation and the constitutional notion of representative democracy. Representative democracy, 'government by the people through their representatives,'[18] has been recognised as one of the fundamental principles of the Australian Constitution.[19] It may be that recognition of the constitutional status of representative democracy is of significance for the process of statutory interpretation undertaken by the courts.

    Limits on the ability of Parliament to intervene in the process of statutory interpretation have been suggested,[20] with Justice Michael Kirby explicitly raising the prospect of there being, 'a constitutional question … if the Parliament were to say what … courts may not have regard to in statutory interpretation.'[21] Against the background of the modern approach to statutory interpretation examined in this article, any such implications will remain a matter for conjecture. However, it would appear possible that implications could be discovered to limit the ability of the Parliament to prevent courts from relying on extrinsic material if that material is indispensable to the ascertainment of the purpose of a statute passed by the representative Parliament to give effect to the will of the people.[22]

    Recognition that something more than the mere words of the statute may be required in the process of statutory interpretation, and that reference might properly be had to extrinsic material, raises the question of what limits might be placed on the use of extrinsic material.

    LIMITS ON THE USE OF EXTRINSIC MATERIAL

    The broadest approach to the use of extrinsic material can be traced to United States authorities. In United States v Fisher,[23] Marshall CJ declared that '[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.'[24] More recently, Justice Felix Frankfurter expressed similar sentiments in support of the conclusion that '[i]f the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded.'[25]

    These approaches are as simple as they are compelling. Both judges argue against arbitrary restrictions on the use of extrinsic material, but they also both express implicit restrictions on its appropriate use. While the use of extrinsic material should not be limited by distinctions as to the source or nature of the material alone, the relevance of the material should be determinative.[26]

    However, others have seen this approach as too broad and argued for restrictions on the classes of extrinsic material that may be considered. These arguments are well illustrated in the published proceedings of two symposia on statutory interpretation held in advance of the insertion of s 15AB into the Acts Interpretation Act 1901 (Cth).

    There was considerable support in the symposia for adopting relevance as the only restriction of the use of extrinsic material. Sir Maurice Byers argued that, 'while only some aids may be useful, all are, or should be, legitimate'.[27] A similar approach, allowing consideration of, 'anything that is relevant,' was advocated by Dr Gavan Griffith.[28]

    There were objections to the broad relevance approach based on concerns about the practical conduct of litigation if reference to extrinsic material were to be permitted. Lord Wilberforce cautioned that reference to extrinsic material might 'complicate and prolong' the task of judicial interpretation of statutes.[29] Others worried about increasing the cost of litigation,[30] creating difficulty for practitioners,[31] or interfering in the efficient running of lower courts.[32]

    Concerns were also expressed that relevant extrinsic material would simply be impossible to obtain. Reference to explanatory memoranda was resisted on the basis that, 'you just can't find the little beasts'.[33] Gareth Evans expressed concern at, 'real limitations to the kinds of materials to which even the most conscientious citizens and their advisers can get access.'[34]

    Legitimate though these concerns might appear, they are not necessarily determinative. From a practical viewpoint, many of these concerns will have been alleviated by advances in the accessibility of relevant extrinsic materials that have occurred since the introduction of s 15AB. In any event, it is not clear that a practical concern could justify abandoning the principled justification considered above.

    Another alternative suggested that particular sorts of extrinsic material were particularly unreliable. This concern resonates with a later passage in which Lord Steyn memorably observed that '[i]n the Westminster Parliament, exchanges sometimes take place late at night in nearly empty chambers whilst places of liquid refreshment are open.'[35] This is a good argument in support of making only very careful use of relevant parliamentary material, but with respect appears to be an insufficient argument for the exclusion of all parliamentary material.[36]

    Against these concerns were the arguments of principle advanced earlier, as well as an argument from gritty reality. A number of speakers recognised that extrinsic material was considered informally in any event. If it was acknowledged that, 'we all use extrinsic aids whenever we are interpreting legislation … that process might as well become explicit'.[37] Indeed, informal consideration of extrinsic material might raise concerns about fairness. There was no real challenge to the claim that extrinsic material was sometimes considered. It is therefore advantageous that the use of extrinsic materials in the process of statutory interpretation be clearly acknowledged.

    That extrinsic materials have been used somewhat more surreptitiously in any event is well illustrated in an article by the present Chief Justice of New South Wales which considers the decision of the High Court in R v Wilson, Ex Parte Kisch.[38] The first recorded submission in this case was from Piddington KC who opened by stating that: 'The history of the legislation dealing with immigration is shown in the Australian Encyclopedia'.[39] Chief Justice James J Spigelman observes that:

    This little bit of extrinsic material was handed up, without comment, it appears, from either the bar or the bench. None the less, it was powerful as a guide to the eventual result in Kisch. It is a technique of advocacy that the late Sir Maurice Byers QC, a barristers' barrister, used to describe as: 'Putting the ball in the scrum.'[40]

    However effective this technique of advocacy might be, and however useful a guide to interpretation the extrinsic material so handed to the Court might be, this is clearly a use of extrinsic material by stealth. It is interesting to note that, even in times when the use of extrinsic material was seen as far more restricted at common law, some use did occur. Surely it is better that the use of extrinsic material be openly acknowledged and debated before the courts, than it be used informally and potentially unfairly.

    In the end, the result of the symposia favoured the broad relevance approach to the use of extrinsic material in statutory interpretation. Summarising the outcome, Professor Leslie Zines indicated that, 'the vast majority, were of the view that the judges should have regard to any materials that they think would be relevant'.[41]

    This outcome was replicated in s 15AB, which rejects the suggested restrictions on the use of classes of extrinsic material. Instead, s 15AB(1) is phrased in the broadest possible terms and permits the use of, 'any material … capable of assisting in the ascertainment of the meaning of the provision.' A non-exhaustive but nevertheless extensive list of permissible sources of extrinsic material is then provided in s 15AB(2). The result, consistent with the broad relevance approach outlined above, is that any relevant extrinsic material may be considered.

    It is necessary at this point to stress an important distinction. To assert the relevance of extrinsic material is not to invite a departure from the text as the primary basis of statutory interpretation. Justice Felix Frankfurter once stated that extrinsic materials, 'may be allowed to infiltrate the text on the theory that they were part of it, written in ink discernable to the judicial eye.'[42] Extrinsic material is not capable of altering the text of the statute, but merely of assisting in the interpretation of the actual words of the statute.

    The wry criticism of potential abuses of s 15AB, that the day would arrive when, 'it is only where the extrinsic materials are ambiguous that you turn to the text of the Act,'[43] has been explicitly guarded against by Parliament and the courts.

    Parliament has provided an explicit protection in s 15AB(3), which requires a court, both when 'determining whether consideration should be given' to extrinsic material, and also when 'considering the weight to be given to any such material,' to have regard 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.

    This provision alleviates a concern expressed about the use of extrinsic material by Justice Lionel Murphy, who objected to its use on the basis that '[i]t is common sense that those who have to use an enactment should be able, as far as possible, to find what they are supposed to do, or not do, from reading that enactment'.[44]

    The provision also relates more deeply to the role of the courts, a point discernable through comparison to the work of Professor Lon Fuller. He suggested that law operates by, 'subjecting people's conduct to the guidance of general rules by which they may themselves orient their behavior'.[45] This function is reflected in the eighth potential failure of law identified by Fuller, 'a failure of congruence between the rules as announced and their actual administration.'[46] The application of this canon of the internal morality of law posited by Fuller to statutory interpretation has been said to require, 'a congruence between what the average citizen thinks a statute means and the interpretation given to it by judges.'[47] In this sense, the function performed by s 15AB(3) is of fundamental importance to the role of courts interpreting legislation.

    Courts themselves have been conscious of the need to avoid any over-use of extrinsic material. As Kirby J has recently emphasised, the modern approach to statutory interpretation 'does not justify judicial neglect of the language of the statute, whether in preference for historical or other materials, perceived legal policy or any other reason. … Ultimately, in every case, statutory construction is a text-based activity. It cannot be otherwise.'[48]

    In Re Bolton, Ex Parte Beane,[49] the High Court was faced with a Minister's Second Reading speech which expressed an intention not translated into the text of the statute.[50] The Court refused to adopt the construction suggested by the Second Reading speech, and observed an inherent limitation on the use of extrinsic material, that:

    It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.[51]

    This concept has also been clearly expressed by the present Chief Justice of New South Wales, who has stated that the role of courts is to, 'determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say.'[52] In other words, the process of statutory interpretation by courts, 'cannot be used to rewrite the enacted language'.[53]

    These two qualifications must therefore be borne in mind. First, in no sense is purposive interpretation an invitation for courts to substitute what Parliament might have intended to legislate for what it actually legislated. Secondly, extrinsic material should only be considered if it is relevant and capable of genuinely assisting in the task of interpretation. Subject to the operation of those two qualifications, there are clear reasons of principle to support an approach to statutory interpretation that takes account of the legislative purpose as determined by the use of any relevant extrinsic material.

    It now remains to be seen how the Parliament, through interpretive legislation, and the courts, through developments in the common law of statutory interpretation, have responded to these arguments of principle in exerting their influences on the law of statutory interpretation in Australia.

    TEXTUAL INTERPRETATION OF SECTION 15AB

    The starting point in interpreting s 15AB(1) of the Acts Interpretation Act 1901 (Cth) is the text of the provision itself, which relevantly provides that:

    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.

    This is a permissory provision, but it is neither mandatory nor exhaustive — it does not positively require reference to extrinsic material in the circumstances it identifies,[54] nor does it explicitly limit reference to extrinsic material which may arise independently of its provisions.[55] It facilitates reference to extrinsic material in the interpretation of a provision in three circumstances: to confirm its ordinary meaning; to determine its meaning where there is ambiguity or obscurity; and to determine its meaning where the ordinary meaning is manifestly absurd or unreasonable.[56]

    Although the provision is not exhaustive, the implication may still arise that in listing three permissible uses of extrinsic material other potential uses are excluded: expressio unius est exclusio alterius.[57] This was the approach the High Court took in Re Australian Federation of Construction Contractors; Ex Parte Billing.[58] Refusing to rely on a Second Reading speech, the Court stated that s 15AB

    does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.[59]

    The most obvious difficulty with this restrictive interpretation of s 15AB occurs where reference is made to extrinsic material for the purpose of confirming the ordinary meaning under s 15AB(1)(a), but such reference generates doubt about the ordinary meaning. In these circumstances, the interpretation adopted by the Court would appear to have the result that the extrinsic material cannot be used to determine the meaning of the provision and must be set aside, despite the ambiguity created by reference to the extrinsic material, unless the proviso of s 15AB(1)(b)(ii) applies, that is, unless the ordinary meaning is manifestly absurd or unreasonable.

    This results in an apparent anomaly. An ambiguity revealed in determining the ordinary meaning justifies determination of the meaning by reference to extrinsic material, whereas an ambiguity revealed by reference to extrinsic material may not be resolved by reference to that material. An example of the impact of this anomaly is given by the use of extrinsic material in the interpretation of s 15AB itself.

    EXTRINSIC MATERIAL AND THE INTERPRETATION OF SECTION 15AB

    The Explanatory Memorandum to the Acts Interpretation Amendment Bill 1984 circulated by the Attorney-General,[60] Gareth Evans, indicated that:

    The section does not propose that extrinsic material should be used to overturn the ordinary meaning of a provision conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act unless there is ambiguity or obscurity or the result is manifestly absurd or unreasonable.[61]

    Applying s 15AB(1)(a), it is permissible to refer to this extrinsic material in order to confirm the ordinary meaning of the section. The intention to restrict the use of extrinsic material to the three circumstances identified above is explicitly indicated in the Explanatory Memorandum, and it does therefore confirm the ordinary meaning.

    Ironically, though, the precise weakness of s 15AB which is complained of here is revealed in this reference to the Explanatory Memorandum. While the intention to restrict the use of extrinsic material is manifest, the Explanatory Memorandum employs a startling turn of phrase, describing the purpose of using extrinsic material in permitted circumstances as, 'to overturn the ordinary meaning of a provision'. This description is hardly consistent with either the text of s 15AB(1) which refers to the use of extrinsic material which is capable of, 'assisting in the ascertainment of the meaning,' of a provision; or with the cautionary provisions of s 15AB(3). However, the overall tenor of the statement in the memorandum appears to be consistent with the legislative text. This is probably a good example of the fact that parliamentarians may well use language in a looser sense in the context of their various speeches and memoranda than the parliamentary drafting staff should in the preparation of legislative texts.[62]

    Use of extrinsic material to confirm the ordinary meaning of s 15AB(1) has created some form of uncertainty. The approach suggested by s 15AB(1) itself, at this point, is that reference to the extrinsic material is no longer permitted and the ambiguity just revealed must now be 'forgotten' in favour of the more simplistic unambiguous reading without reference to extrinsic material. Surely, it is not appropriate for the Parliament to require such an instance of judicial amnesia and oversimplification in the face of potentially relevant extrinsic material.[63]

    In this particular instance, the apparent intention revealed in the Explanatory Memorandum is in conflict with the clear words of s 15AB, inconsistent with the history underlying the adoption of the provision, and at variance with the inherent nature of statutory interpretation identified earlier. The ambiguity created by reference to the extrinsic material in this case may be easily dismissed. However, ambiguities raised by the use of extrinsic material may not always be so lightly discarded. In those circumstances, where genuine ambiguity appears only once extrinsic material is being used to confirm the ordinary meaning of a provision, the common law of statutory interpretation has a role to play in supplementing the permission to consider extrinsic material expressed in s 15AB.

    JUDICIAL RELUCTANCE TO CONSIDER EXTRINSIC MATERIAL

    In the 1989 case of Catlow v Accident Compensation Commission,[64] the joint judgment of Brennan and Gaudron JJ discussed the use of extrinsic material. The case arose in the context of the statutory authorisation to consider extrinsic material contained in s 35 of the Interpretation of Legislation Act 1984 (Vic). The joint judgment noted that the Victorian provision was framed more broadly than s 15AB of the Acts Interpretation Act 1901 (Cth), in that it, 'does not restrict the purposes for which it is permissible to consider the extrinsic materials'.[65]

    However, despite this explicit and broad statutory direction to use extrinsic material, the joint judgment of Brennan and Gaudron JJ is clear in indicating a preference for only a narrow use of extrinsic material through the advancement of two major premises. The first was that, in the absence of the statutory directive, 'material relating to the evolution of the Act could not properly be taken into account at all'.[66] The second was that, even with the explicit statutory directive, the potential for reference to extrinsic material was inherently limited. The judgment specifically stated that:

    Whether or not extrinsic material is considered in interpreting a statutory provision, it is clear that the meaning attributed to the statute must be consistent with the statutory text. If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful … that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material.[67]

    The first element of that dictum, in giving emphasis to the centrality of the statutory text, expresses the clear and enduring axiom of statutory interpretation. The second element, though, resulted in a drastic reading-down of the effect of s 35 of the Interpretation of Legislation Act 1984 (Vic), so that a provision textually broader than s 15AB of the Acts Interpretation Act 1901 (Cth) would not justify reference to extrinsic material even to confirm the ordinary meaning, a technique explicitly permitted by the more restrictive provisions of the Commonwealth Act.

    In restricting the use of extrinsic material to the context of a statutory authorisation, and taking a narrow view of that statutory provision, the joint judgment of Brennan and Gaudron JJ in Catlow illustrates the persistence of the traditional reluctance to use extrinsic material in statutory interpretation.

    EVOLVING JUDICIAL ACCEPTANCE OF EXTRINSIC MATERIAL

    On 5 October 1989, when the judgments in Catlow were delivered, the writing was already on the wall for the narrow approach to the use of extrinsic material in statutory interpretation employed in that case by Brennan and Gaudron JJ. In Hoare v The Queen,[68] a criminal appeal decided on 30 June 1989, the High Court was called upon to interpret a South Australian law. The Court in Hoare was composed of five Justices, who by coincidence were the five serving Justices other than Brennan and Gaudron JJ.

    The unanimous judgment of the Court noted the 'absence [from South Australian law] of a[ny] provision corresponding to s 15AB of the Acts Interpretation Act 1901 (Cth)'[69] authorising reference to extrinsic material.[70] Nonetheless, on the basis of a concession made by the parties, the Court proceeded by reference to extrinsic material, indicating that it was 'prepared to assume' that the common law would permit reference to extrinsic material either on the basis that such reference was permissible to identify the 'mischief' to which the enactment was directed or to ascertain the 'purpose' of the enactment.[71] While couched in terms of being prepared to accept the concession made, this provided an early indication of the approach that would be adopted thereafter.

    That indication was carried into effect the following year in Bropho v Western Australia,[72] where the joint judgment of Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the existence in Australian statutory and common law of a 'contemporary approach to statutory construction, with its added emphasis on legislative purpose … and permitted reference to a range of extrinsic materials for the ascertainment of that purpose'.[73]

    The issue was put beyond doubt by the decision of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd.[74] The joint judgment identified two propositions relating to the use of extrinsic material in statutory interpretation.

    First, it was decided that the common law, independently of statute, allowed reference to extrinsic material in statutory interpretation, the judgment stating '[i]t is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure.'[75]

    Secondly, building on the modern approach to interpretation identified in Bropho, the joint judgment identified the use of extrinsic material not merely as a supplementary tool in the case of ambiguity, rather observing that:

    the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.[76]

    The modern approach to statutory interpretation benefits from the combined effect of those two propositions. Not only can relevant extrinsic material now be considered at common law, but it can and should be considered as part of the first instance approach to interpretation, rather than being confined to use as a mere subsidiary tool for use only in case of primary interpretive ambiguity.

    Judicial acceptance of these propositions vindicated the earlier dissent of Mason J in K & S Lakes City Freighters Pty Ltd v Gordon & Gotch Ltd,[77] where his Honour stated that:

    Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.[78]

    Subsequently, in Newcastle City Council v GIO General Ltd,[79] Gaudron J joined in a judgment which approved CIC Insurance and McHugh J delivered a judgment which also gave approval to the modern approach.[80] In his judgment, McHugh J emphasized the primary importance of the text,[81] but concluded that 'a court is permitted to have regard to the words used by the legislature in their legal and historical context.'[82]

    In one of his Honour's final judicial pronouncements on the law of statutory interpretation, McHugh J expanded on his Honour's view of what forms part of the context of a provision, stating that:

    context is not limited to the text of the rest of the statute … [C]ontext includes the state of the law when the statute was enacted, its known or supposed defects at that time and the history of the relevant branch of the law, including the legislative history of the statute itself. It also includes in appropriate cases 'extrinsic materials' such as reports of statutory bodies or commissions and parliamentary speeches — indeed any material that may throw light on the meaning that the enacting legislature intended to give to the provision.[83]

    The evolution of the broader modern approach to extrinsic material occurred through the trilogy of cases that began with an assumption in Hoare, developed through acceptance of the emergence of a distinct approach in Bropho, and concluded with an explicit embrace of the two propositions advanced by the majority judgment in CIC Insurance. While retaining the understanding that the statutory text still drives the process of statutory interpretation, the modern approach to the use of extrinsic material in statutory interpretation has now been clearly accepted as the common law of Australia.

    RECENT TRENDS

    This article has traced the evolution of the modern approach to the use of extrinsic material in statutory interpretation. Since the recognition of the modern approach, the two key principles of the approach, that relevant extrinsic material may be referred to at common law and that such reference should be part of the primary process of interpretation, have been consistently accepted and applied.[84] They continue to underlie the interpretation of statutes undertaken in more recent decisions of the High Court.

    In Network Ten Pty Ltd v TCN Channel Nine Pty Ltd,[85] the High Court was faced with a question of interpretation of the Copyright Act 1968 (Cth). The joint judgment of McHugh ACJ, Gummow and Hayne JJ quoted at length and with apparent approval from both CIC Insurance and Newcastle City Council.[86] Their Honours went on to refer to a substantial quantity of extrinsic material in order to determine the context of the legislation.[87]

    That extrinsic material included the Minister's Second Reading speech,[88] as well as the reports of two committees that had been established to investigate copyright law where those reports had then formed the basis of legislative reforms. The first was the report of a committee appointed by the Commonwealth Attorney-General which related to the relevant legislative change in Australia.[89] The second was a report of a committee in the United Kingdom which had similarly reported on copyright laws in advance of an earlier British legislative change.[90] In referring in detail not only to reports related to Australian legislative change but also to reports related to earlier British legislative change, the Court illustrated the broad range of extrinsic material which is permitted under the modern common law approach.

    Three important decisions handed down in 2005 confirm the Court's ongoing, widespread and possibly still-expanding use of extrinsic material in the process of statutory interpretation. At the same time, judicial controversy in at least one case has illustrated that extrinsic material cannot answer every question and itself may be capable of generating differing interpretations and therefore supporting differing outcomes.

    In Allianz Australia Insurance Ltd v GSF Australia Pty Ltd,[91] the Court was required to interpret s 3(1) of the Motor Accidents Act 1988 (NSW). In the course of the judgments, each of the Justices made use of extrinsic material. The Second Reading speech was considered by McHugh J,[92] as well as in the joint judgment of Gummow, Hayne and Heydon JJ,[93] which also undertook a detailed and explicit examination of the legislative history to confirm the conclusions drawn from the Second Reading speech.[94]

    However, it is the judgment of Callinan J that is of most interest. The opening passage of his Honour's judgment reveals that more than a mere question of differing interpretation of the legislation is at stake. In what could only be described as an extraordinary attack mounted by his Honour on the judges who formed the majority on the NSW Court of Appeal, and particularly the President of that latter court, Callinan J stated that:

    this appeal raises a question whether courts may bring to the construction and application of amending legislation an inclination to read it as intended to produce a result that the legislature has fairly and clearly eschewed, and with a view to effecting a form of justice according to a judge's, or judges' particular perceptions of moral responsibilities or to who happens to be the longer-pocketed defendant.[95]

    Of relevance to this article is the importance placed by Callinan J on the relevant extrinsic material. His Honour stated that, 'resort could and should have been had' to the Second Reading speech, 'if the language were thought to be ambiguous'.[96] His Honour clearly regarded the extrinsic material as determinative of the correct interpretation in the circumstances, indicating that '[i]f there were any doubt about any of these matters the doubt could have been resolved by reference to the Second Reading speech.'[97] Further, Callinan J indicated that the failure of the lower court to consider the relevant extrinsic material was, in itself, a substantial error:

    The majority in the Court of Appeal did not consider the definition to be clear. That being so they were, by s 34 of the Interpretation Act 1987 (NSW) required to have regard, among other things, to the second reading speech. This in my opinion, they did not do. The Court of Appeal erred in this regard.[98]

    This is a most interesting finding by Callinan J. The wording of s 34 of the Interpretation Act 1987 (NSW) is relevantly identical to the wording contained in s 15AB(1) of the Acts Interpretation Act 1901 (Cth), providing that if any extrinsic material, 'is capable of assisting in the ascertainment of the meaning,' then, 'consideration may be given to that material'. His Honour took this apparently facilitative statutory provision much further, holding that the Court of Appeal was subject to a positive requirement to have regard to the Second Reading speech, and that failure to do so constituted appellable legal error.

    Each of the judgments in Allianz Australia made use of extrinsic material, but it is the strong view taken by Callinan J that reached the level of a positive requirement to consider extrinsic material rather than a mere permission to do so that is most striking. This is the furthest point reached by any of the Justices in encouraging the use of extrinsic material, and it may well be that with this decision, the logical conclusion has now been reached in the application of the modern approach to statutory interpretation which insists on the use of extrinsic material as a first instance consideration, rather than a mere subsidiary tool of interpretation.

    In the judgments handed down only a few days later in Palgo Holdings Pty Ltd v Gowans,[99] the Court was required to construe s 6 of the Pawnbrokers and Second-hand Dealers Act 1996 (NSW) ('Pawnbrokers Act') to determine if the appellant had carried on a 'business of lending money on the security of pawned goods' without a licence. The use of extrinsic material, and the process of statutory interpretation more generally, were to be the subject of a spirited dissent by Kirby J. In order to understand the basis of this dissent, it is necessary to begin by considering the Court's hearing of the case.

    At the conclusion of the successful special leave application, Gummow J addressed counsel for the applicant and stated: 'I know you think it is as plain as a pikestaff. Other minds might find more subtlety.'[100] This observation was proved true at the oral hearing of the case. Despite taking less than one and a half hours in total, the hearing did reveal considerable ideological tensions between members of the Court. These tensions are worth exploring by reference to the transcript in order to assist in understanding the relevant passages in the subsequent judgments.

    One exchange between Kirby J and Hayne J concerned the task of legislative drafting. Beginning a discussion of legislative history, Hayne J suggested to counsel that '[i]f the drafter of the Act wanted a very plain English version of that they had a wonderful example in the old English Act which would have conveyed the meaning perfectly.' The following exchange ensued:

    Kirby J: Maybe the drafter was putting his faith in the modern interpretation of statutes, [and] did not think he had to go back to the 19th century English statutes. Perhaps he does?

    Hayne J: Yes, to learn how to draft in plain English, in the plainest possible words, rather than using technical terms having technical meanings.[101]

    This same theme was developed in a later exchange, after Kirby J asked counsel to explain the reasons behind the removal of a particular phrase from the statute. Although counsel was unable to offer an answer, and informed the Court of his inability to locate an answer within the extrinsic material, one was forthcoming from Gummow J, who proposed that the source of the problem was indicated by a phrase used by the Minister during the Second Reading speech in which the legislative reform was described as, 'streamlining,' together with what Gummow J described as 'insufficiently educated draftsmen'. There followed another judicial discussion:

    Kirby J: It is fashionable to denounce draftsmen, but perhaps the draftsmen thought that the word was sufficiently clear in the English language.

    Gummow J: Which meant they were wrong.

    Kirby J: Depending upon the interpretation the Court gives to the statute, whether we are here to uphold statutes or to destroy them.[102]

    On the basis of the transcripts, there is a potential difference between the apparently more textualist and formalist approach of Gummow and Hayne JJ and the apparently more purposive approach of Kirby J. Somewhat surprisingly, while there is a detailed discussion of interpretive techniques in the dissenting judgment of Kirby J, the apparent difference in approach is scarcely evident on the face of the joint judgment of McHugh, Gummow, Hayne and Heydon JJ. This provides some indication that the majority may not have set out to adopt different techniques of statutory interpretation. Examination of the judgments themselves confirms this indication.

    Despite the tensions which are apparent in the transcripts and the fears expressed in the judgment of Kirby J, the majority judgment does not represent a break with the modern techniques of statutory interpretation identified in this article. Instead, it reveals that the use of extrinsic material is not a panacea, and will not shed light on all issues in all circumstances for all judges. Indeed, it is the use of extrinsic material that leads the majority judges, as well as the lone dissentient, to their respective conclusions. While there was strong disagreement about the conclusions to be drawn from the extrinsic material, the use of extrinsic material formed the backbone of each of the judgments.

    In dissent, Kirby J charged the majority with 'a turning back to literalism'.[103] This is said to be marked by a departure from three interrelated principles of statutory interpretation, identified by Kirby J to be the use of the purposive approach, interpretation in context, and the use of extrinsic material.[104] In particular, Kirby J cautions against 'unthinking importation of technical legal meanings into statutory interpretation', when doing so 'would frustrate the intention of the legislature.'[105]

    The majority clearly rejected this charge, stating:

    No doubt the 1996 Pawnbrokers Act is to be given a purposive construction. But that purpose is not to be identified by making an a priori assumption that the 1996 Pawnbrokers Act was intended to reach all of the transactions just identified. Nothing in the text of the Act, its history, or what (little) was said about its purpose in the second reading speech warrants the conclusion that the purpose of the Act was so wide. On the contrary[.][106]

    The essential difference between the Justices did not concern the relevant techniques of statutory interpretation to be applied, nor was there a difference in the views taken about the permissible use of extrinsic material. It was simply a different view of the legislative purpose revealed by that material. Indeed, a consideration of the judgments reveals that an extraordinary quantity and variety of extrinsic material was referred to.

    Kirby J drew on legal history dating back to Roman law,[107] tracing the common law position through the 18th, 19th and 20th centuries,[108] as well as drawing on statutes from as early as 1849.[109] From the text of the Act itself, his Honour considered section headings,[110] which although not formally part of the Act,[111] are part of the permissible extrinsic material.[112] Extensive reference to the Minister's Second Reading speech was another important element in the judgment of Kirby J.[113]

    In complete accord with this approach is the use of extrinsic material in the joint judgment. In some ways, their Honours embrace an even larger variety of extrinsic material than Kirby J. Like Kirby J, the majority refer to section headings as permissible extrinsic material.[114] Their Honours also make use of Roman law,[115] as well as the evolution of common law and statutes from the 18th century onwards.[116] The joint judgment also refers to the Minister's Second Reading speech,[117] but goes on to eclipse the material considered by Kirby J, referring to the provisions of legislation in other States, including reference to the Second Reading speeches in those mainland States that adopted similar reforms to consumer credit, pawnbroking and second-hand dealing regulation, as well as to Second Reading speeches for other related New South Wales legislation, and finally to related Law Reform Commission reports from Victoria and Western Australia.[118]

    Whatever might be said about the majority perception of legislative purpose in Palgo Holdings, there is no evidence of any change in the approach to the interpretation of statutes generally, and certainly no basis for suggesting a reduction in the use of extrinsic material in particular. Indeed, it was Gummow J who first brought up the use and potential value of extrinsic material during argument, explicitly raising with counsel the content of the Second Reading speech.[119] Considering the judgment of the majority, a more comprehensive sweep of extrinsic material could scarcely be imagined.

    The third recent case of relevance is Povey v Qantas Airways Ltd.[120] In this case the Court continued its broad approach to the use of extrinsic material, relying on an extensive and detailed analysis of international treaties in order to determine the liability of the respondents under the Civil Aviation (Carriers' Liability) Act 1959 (Cth), which gave the force of law in Australia to international treaties relating to carriage by air.[121] The explicit statutory authorisation for such an approach is provided by s 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth), although even in the absence of such a provision, reference to the international material would appear to be an indispensable element in the reasoning of the Court in such a case.

    Perhaps more interesting is the explicit use by the Justices of principles of treaty interpretation derived from the Vienna Convention on the Law of Treaties,[122] including the use of extrinsic material (primarily the travaux préparatoires) under that interpretive convention.[123] It is noteworthy that the High Court construed the relevant Commonwealth legislation by reference to the international conventions it incorporates, and in the process of so doing made reference to the extrinsic material relating to those conventions in accordance with international treaty law.

    What is clearly shown by this examination of the recent cases is a strong commitment by the Court to the use of extrinsic material in the process of statutory interpretation. Despite the difference of opinion as to the meaning of the extrinsic material in Palgo Holdings, there has been no evidence of any retreat from the use of extrinsic material at first instance in the process of statutory interpretation.

    The most recent cases reveal not just a consensus about the expanded use of extrinsic material in theory, but that the consensus is backed by the practical use of a very wide range of extrinsic material across a number of different contexts. If there is any suggestion of change, it is the possible recognition in the common law of statutory interpretation of a positive requirement to consider extrinsic material. Such a requirement appears to have been imposed by Callinan J in Allianz Australia and may in itself be a logical consequence of the principle that extrinsic material should form part of the first instance process of interpretation. Whether this positive requirement to consider extrinsic material will achieve majority acceptance is a question for the future.

    RECONCILING SECTION 15AB WITH THE NEW COMMON LAW APPROACH

    The broader modern common law approach to statutory interpretation represents a substantial change from the traditional narrow view of the relevance of extrinsic material. It is no longer possible to reconcile the restrictions on the use of extrinsic material contained in s 15AB(1) of the Acts Interpretation Act 1901 (Cth) with the modern common law approach. There are two primary sources of this inconsistency.

    First, the restriction apparently imposed by s 15AB is failing in practice as well as in principle. As we have seen, s 15AB does not permit reference to extrinsic material 'to demonstrate ambiguity'.[124] However, independently of that statutory direction, the common law through the modern approach to statutory interpretation does now permit reference to extrinsic material in such circumstances.[125] The restriction thus appears to be failing in practice.

    It is also failing in principle. As discussed earlier in this article, in some circumstances an apparently clear statute will take on a substantially different appearance in light of extrinsic material. The common law of statutory interpretation is able to respond to this, allowing reference to potentially illuminating extrinsic material that s 15AB presently does not. In this context, an observation made in the joint judgment in CIC Insurance assumes particular relevance 'if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance.'[126]

    Secondly, inconsistency arises from the fact that the restrictions contained in s 15AB are predicated on the assumption that recourse to extrinsic material will be only a subsidiary tool of interpretation. The modern common law approach to statutory interpretation, in allowing reference to extrinsic material as a consideration in the first instance, rather than as a mere supplementary tool, has overtaken the restrictions contained in s 15AB in this respect as well.[127]

    This is not a case of improper judicial development of the common law in the face of an inconsistent statute. Section 15AB erects a statutory permission to consider extrinsic materials in the circumstances examined above, but it does not constrain the development of the common law of statutory interpretation, which has continued to evolve independently of the statute.

    It is time to reform the reformer. In 1984, the insertion of s 15AB into the Acts Interpretation Act 1901 (Cth) was a bold step which resulted in a progressive enhancement of judicial techniques of statutory interpretation. Since that time, and most likely as a result of this reform, there has been an evolution in judicial attitudes towards the use of extrinsic material, and with that change has come a development of the common law of statutory interpretation. It is time now for the reforming statute to take account of the developments which it spawned, but which have now overtaken it.

    The limitations on the use of extrinsic material contained in s 15AB are now inappropriate and in any event are largely ineffective in restricting recourse to extrinsic material where there is no obvious ambiguity in the statutory text. As s 15AB is a permissive provision, the common law has been able to permit recourse to extrinsic material outside of s 15AB. It is time for the restrictions on the use of extrinsic material under s 15AB(1) to be removed, so that that provision may return to being a useful facilitative provision (or at least an accurate codification of the common law position), rather than a futile and slightly anachronistic relic of outdated concerns about the potential overuse or misuse of extrinsic material in statutory interpretation.

    CONCLUSION

    Writing in 1984 of the introduction of a statutory permission to consider extrinsic material in statutory interpretation, one commentator expressed the hope that 'the rigidly conservative approach to statutory interpretation which has, unfortunately, been predominant in Australian jurisdictions for some time, may be replaced by one which will ensure that the intention of Parliament is more closely followed.'[128]

    That hope appears to have been borne out by subsequent experience. The rigid and conservative approach to the use of extrinsic material did remain in judicial use for some time. Nonetheless, through a clear evolution and now through consistent recent application, the position has been reached where the modern common law rules of statutory interpretation have embraced the use of extrinsic material where such reference is capable of assisting a court to determine the intention of the Parliament.

    At one point during argument in Palgo Holdings Gummow J rebuked counsel by asking, '[h]ow do we read the words? We are construing a statute, not making a mood poem.'[129] His Honour was referring to the centrality of the text in the process of statutory interpretation, but it is ironic that, by referring to poetry, his Honour also reminds us that text alone is often replete with ambiguity. There is a passage in the work of the American poet Donald Justice that captures this spirit:

    Night is the sky over this poem.

    It is too black for stars.

    And do not look for any illumination.

    You neither can nor should understand what it means.[130]

    The contrasting metaphors of day and night, light and dark, illumination and ignorance, resonate strongly with the contrast between the enlightened techniques of modern statutory interpretation and what Kirby J recently described as 'the dark days of literalism.'[131] While ambiguity can be an essential element in poetry,[132] statutory interpretation must proceed as an attempt to resolve potential ambiguities in order to reach the inevitable conclusion of the adversarial common law system: the vindication of one claim to legal right over another.

    The use of extrinsic material in the interpretation of statutes, not only under the relevant interpretive legislation but also at common law, is an inseparable component of the modern approach to statutory interpretation, providing a valuable source of potential illumination for any court undertaking the task of interpreting legislation. Subject to the caveat that statutory interpretation is and must remain an exercise in interpreting the actual words of a statute, this explicit embrace of extrinsic material to assist in the purposive interpretation of statutes must surely be seen as a positive development, enabling courts to better give effect to the aspirations of the community as enacted by the representative Parliament.


    [∗] BFin, BEc, HonsLLB, GDLP, Barrister and Solicitor of the Supreme Court of South Australia and High Court of Australia, Joyner Scholar and PhD Candidate, Law School, University of Adelaide. The author wishes to thank Mark Jackson for his comments on a draft of this article.

    [1] Stradling v Morgan (1560) 75 ER 305, 315.

    [2] Ibid.

    [3] The leading ancient authority is Millar v Taylor [1769] EngR 44; (1769) 98 ER 201; a modern reaffirmation appears in Viscountess Rhondda's Claim [1922] 2 AC 339, 383 (Viscount Haldane). For a discussion of this strict English position see, Justice Felix Frankfurter, 'Some Reflections on the Reading of Statutes' (1947) 47 Columbia Law Review 527, 540–2. The position in England has, however, changed in more recent times, as to which see, Pepper v Hart [1992] UKHL 3; [1993] AC 593. Cf Lord Steyn, 'Pepper v Hart: A Re-examination' (2001) 21 Oxford Journal of Legal Studies 59; Lord Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' [2003] SydLawRw 1; (2003) 25 Sydney Law Review 5.

    [4] A V Dicey, Introduction to the Study of the Law of the Constitution (6th ed, 1902) 351.

    [5] Vacher & Sons Ltd v London Society of Compositors [1912] UKHL 3; [1913] AC 107, 113.

    [6] [1920] HCA 54; (1920) 28 CLR 129, 148–9 (Knox CJ, Isaacs, Rich and Starke JJ).

    [7] Acts Interpretation Amendment Act 1984 (Cth) s 7.

    [8] Patrick Brazil, 'Reform of Statutory Interpretation – the Australian Experience of the Use of Extrinsic Materials' (1988) 62 Australian Law Journal 503, 512.

    [9] Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' above n 3, 12.

    [10] Ellerman Lines Ltd v Murray [1931] AC 126, 144 (Lord Blanesburgh).

    [11] On the difficulties inherent in interpreting written words, see: Frankfurter, above n 3, 528–29.

    [12] Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 218 ALR 457, 477.

    [13] In a recent case which turned on a question of statutory interpretation, Kirby J (in dissent) specifically noted the, 'basic nature of television broadcasting in which minutes or seconds, visually captured, especially with sound and images, may tell a thousand stories which the print media or other forms of human communication cannot precisely match': Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, 311. Notwithstanding the different context in which his Honour's remarks were made, the underlying recognition of the limitations of textual forms of communication remains relevant.

    [14] Frankfurter, above n 3, 533.

    [15] Ibid 538–9.

    [16] This process of purposive interpretation, in addition to its common law foundation, is mandated by statute under s 15AA of the Acts Interpretation Act 1901 (Cth) and its State and Territory equivalents.

    [17] News Ltd v South Sydney District Rugby League Football Club Ltd [2003] HCA 45; (2003) 215 CLR 563, 580.

    [18] Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 2.

    [19] An explicit textual basis for this conclusion is provided by ss 1, 7, 24 and 25 of the Constitution, as to which see, Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 137 (Mason CJ). There are, however, competing theories about the exact basis of representative government: Jeremy Kirk, 'Constitutional Implications (II): Doctrines Of Equality And Democracy' [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24, 45–8. Kirk concludes of the theories that, 'all are plausible': at 48. The cases exploring the significance of this recognition in the context of the implied freedom of political communication are legion: Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. Cases have also explored the relevance of representative government to the electoral process itself: Attorney-General (Cth) Ex Rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1; McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140. Contrasting the freedom of political communication cases with the electoral process cases, Professor Lindell has observed that the approach of the High Court seems, 'on the whole, to be more concerned with matters which could influence the vote cast by the electors rather than the vote itself': Geoffrey Lindell, 'Expansion or Contraction? Some Reflections about the Recent Judicial Developments on Representative Democracy' [1998] AdelLawRw 11; (1998) 20 Adelaide Law Review 111, 126.

    [20] See, eg, Sir Anthony Mason, 'Summing Up' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 81.

    [21] Justice Michael Kirby, 'Comments' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 51.

    [22] An avalanche of expert commentary has supplemented the cases which deal with representative government, much of it focussing on the implied freedom of political communication – see, eg, A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 232; Adrienne Stone, 'Freedom of Political Communication, the Constitution and the Common Law' (1998) 26 Federal Law Review 219. Some commentary has focussed on other potential rights derived from the doctrine of representative government, see eg, Jeremy Kirk, 'Constitutional Implications for Representative Democracy' [1995] FedLawRw 2; (1995) 23 Federal Law Review 37. The cases and commentary identified refer to the significance of representative government in terms of the potential for implied rights relating to the political process. The relevance of the recognition of responsible government in the context of statutory interpretation remains to be explored.

    [23] 6 US [1805] USSC 18; (2 Cranch) 358 (1805).

    [24] Ibid 386.

    [25] Frankfurter, above n 3, 541.

    [26] Of course, the proposition that relevance provides the criterion for determining the admission of evidence is not novel, see, eg, Andrew Ligertwood, Australian Evidence (3rd ed, 1998) 39. As to the issue of the varying weight and relevance of extrinsic materials, see, Brazil, above n 8, 508–9; Frankfurter, above n 3, 543; Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' above n 3, 13–16.

    [27] Sir Maurice Byers, 'Comments' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983),22.

    [28] Gavan Griffith, 'A Practitioners Viewpoint' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 29.

    [29] Lord Wilberforce, 'A Judicial Viewpoint' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 7.

    [30] John Greenwell, 'Statutory Interpretation and the Mischief Rule' (Paper presented at Another Look at Statutory Interpretation, Canberra, March 1981) 2; Dennis Pearce, 'The Use of Explanatory Memoranda' (Paper presented at Another Look at Statutory Interpretation, Canberra, March 1981) 28.

    [31] Geoffrey Kolts, 'Comments' (Paper presented at Another Look at Statutory Interpretation, Canberra, March 1981) 28.

    [32] Lord Wilberforce, above n 29, 7.

    [33] Philip Selth, 'Discussion' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 43.

    [34] Gareth Evans, 'Comments' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 20.

    [35] Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' above n 3, 13.

    [36] Cf: ibid 13–16; Steyn, 'Pepper v Hart: A Re-examination' above n 3.

    [37] Stephen Mason, 'Discussion' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 44. See also: Catherine Weigall, 'Discussion' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 24.

    [38] [1934] HCA 63; (1934) 52 CLR 234.

    [39] Ibid 237.

    [40] Chief Justice James J Spigelman, 'The Poet's Rich Resource: Issues in Statutory Interpretation' (2001) 21 Australian Bar Review 224, 229.

    [41] Leslie Zines, 'Report of Syndicate No. 3 – Use of Parliamentary Debates, Reports and Other Materials' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 77.

    [42] Frankfurter, above n 3, 529.

    [43] This expression appears in Brazil, above n 8, 512, and it appears to be a variant of the older expression, 'only when legislative history is doubtful do you go to the statute,' which was referred to in Frankfurter, above n 3, 543.

    [44] Justice Lionel Murphy, 'Comments' (Paper presented at the Symposium on Statutory Interpretation, Canberra, 5 February 1983) 40. See also, Barry Leader 'Comments' (Paper presented at Another Look at Statutory Interpretation, Canberra, March 1981) 7–8.

    [45] Lon Fuller, 'A Reply to Professors Cohen and Dworkin' (1965) 10 Villanova Law Review 655, 657.

    [46] Lon Fuller, The Morality of Law (1964) 39.

    [47] Roderick A Macdonald, 'The Fridge-Door Statute' (2001) 47 McGill Law Journal 11, 24.

    [48] Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, 306 (citations omitted).

    [49] (1987) 162 CLR 512.

    [50] Consideration of a Minister's second reading speech is expressly permitted by Acts Interpretation Act 1901 (Cth), s 15AB(2)(f).

    [51] Re Bolton, Ex Parte Beane (1987) 162 CLR 512, 517–18 (Mason CJ, Wilson and Dawson JJ), 532 (Deane J). See also, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 499 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

    [52] Spigelman, above n 40, 225.

    [53] Ibid 226.

    [54] The wording used in s 15AB(1) is 'consideration may be given'. Under s 33(2A) of the Acts Interpretation Act 1901 (Cth), use of the word 'may' results in a discretion as to whether or not consideration should be given to extrinsic materials in any particular case.

    [55] See discussion in Brazil, above n 8, 505.

    [56] Ibid 503–4.

    [57] The maxim is, of course, 'a valuable servant, but a dangerous master': Colquhoun v Brooks (1888) 21 QBD 52, 65; see also, Houssein v Under Secretary of Industrial Relations [1982] HCA 2; (1982) 148 CLR 88, 94 (Stephen, Mason, Aickin, Wilson and Brennan JJ).

    [58] [1986] HCA 74; (1986) 68 ALR 416.

    [59] Ibid 420 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

    [60] Reference to explanatory memoranda is permitted by Acts Interpretation Act 1901 (Cth), s 15AB(2)(e).

    [61] Explanatory Memorandum, Acts Interpretation Amendment Bill 1984 (Cth) 3.

    [62] The source of this description in the Explanatory Memorandum may be surmised from the appearance of the same description in an article subsequently published by the Secretary of the Attorney-General's Department: see Brazil, above n 8, 503.

    [63] It is here that an argument on the basis of the doctrine of representative government might arise if it were not for the developments in the common law to be discussed shortly.

    [64] [1989] HCA 43; (1989) 167 CLR 543 ('Catlow').

    [65] Ibid 549.

    [66] Ibid.

    [67] Ibid 549–50.

    [68] [1989] HCA 33; (1989) 167 CLR 348 ('Hoare').

    [69] Ibid 360.

    [70] Section 22 of the Acts Interpretation Act 1915 (SA) provides a statutory direction to adopt a purposive interpretation in a similar manner to s 15AA of the Acts Interpretation Act 1901 (Cth), subject to the qualification that the common law presumption that penal provisions are strictly construed is expressly replicated in s 22(2) of the Acts Interpretation Act 1915 (SA). The classic statement of that presumption remains the formulation of Brett J in Dickenson v Fletcher (1873) LR 9 CP 1, 7: 'Those who contend that the penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty.' It may be that the introduction of such a qualification to s 15AA of the Acts Interpretation Act 1901 (Cth) would usefully clarify the relationship of the common law presumption to the purposive approach mandated by the statute. At present, the approach taken in Murphy v Farmer (1988) 165 CLR 19, 28–9 (Deane, Dawson and Gaudron JJ) commends itself, but cf Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576 (Gibbs J).

    [71] Hoare [1989] HCA 33; (1989) 167 CLR 348, 360.

    [72] [1990] HCA 24; (1990) 171 CLR 1 ('Bropho').

    [73] Ibid 20.

    [74] (1997) 187 CLR 384 ('CIC Insurance').

    [75] Ibid 408.

    [76] Ibid. The legitimate means referred to in this case involved detailed reference to a relevant report of the Australian Law Reform Commission.

    [77] [1985] HCA 48; (1985) 157 CLR 309.

    [78] Ibid 315.

    [79] [1997] HCA 53; (1997) 191 CLR 85 ('Newcastle City Council').

    [80] Ibid 88 (Toohey, Gaudron and Gummow JJ), 111–113 (McHugh J).

    [81] Ibid 109 (McHugh J).

    [82] Ibid 112.

    [83] Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 79 ALJR 1850, 1870. A similar approach to context was taken in R v Lavender [2005] HCA 37; (2005) 218 ALR 521, 530–1 (Gleeson CJ, McHugh, Gummow and Hayne JJ), 549 (Kirby J).

    [84] See, eg, Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53, 87 (Gummow, Hayne and Heydon JJ) (with whom Gleeson CJ and Callinan J agreed). My approach here is also consistent with that taken by the Full Court of the Federal Court of Australia in Tisand Pty Ltd v Owners of the Ship MV Cape Moreton (ex Freya) [2005] FCAFC 68; (2005) 143 FCR 43, 59–60.

    [85] [2004] HCA 14; (2004) 218 CLR 273.

    [86] Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; (2004) 218 CLR 273, 280–1.

    [87] Ibid 283–7.

    [88] Ibid 286 (McHugh ACJ, Gummow and Hayne JJ). See also the extensive reference to the Second Reading speech: at 322 (Callinan J).

    [89] Ibid 283–6 (McHugh ACJ, Gummow and Hayne JJ).

    [90] Ibid.

    [91] [2005] HCA 26; (2005) 215 ALR 385 ('Allianz Australia').

    [92] Ibid 396–8.

    [93] Ibid 403–4.

    [94] Ibid 404–5.

    [95] Ibid 408.

    [96] Ibid 408–9.

    [97] Ibid 416.

    [98] Ibid 416–17.

    [99] [2005] HCA 28; (2005) 215 ALR 253 ('Palgo Holdings').

    [100] Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 280.

    [101] Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 461.

    [102] Ibid. It is possible that Gummow J was simply having a bad morning. Later, Hayne J referred to Joseph Story, Commentaries on the Law of Bailments (1863, 7th ed) ('Story on Bailment'), only to be cut off by an acerbic question from Gummow J: 'He is dead and in another country, so why do we bother about him?' The judgments delivered refer on numerous occasions to Story on Bailment: Palgo Holdings [2005] HCA 28; (2005) 215 ALR 253, 257–8 (McHugh, Gummow, Hayne and Heydon JJ), 271–2 (Kirby J).

    [103] Palgo Holdings [2005] HCA 28; (2005) 215 ALR 253, 280.

    [104] Ibid 262–3.

    [105] Ibid 264, 272–3.

    [106] Ibid 261.

    [107] Ibid 271–2.

    [108] Ibid 272–3.

    [109] Ibid 273.

    [110] Ibid 274.

    [111] Acts Interpretation Act 1901 (Cth), s 13(1).

    [112] Acts Interpretation Act 1901 (Cth), s 15AB(2)(a).

    [113] Palgo Holdings [2005] HCA 28; (2005) 215 ALR 253, 274–5.

    [114] Ibid 255–6.

    [115] Ibid 257.

    [116] Ibid 256–9. There is also a biblical reference highlighted in the footnotes (at 257), although whether the reference to Genesis 38:17–20 is a good choice is questionable, relating as it does to the provision of personal goods as pledge for the eventual payment of a goat in return for a service of prostitution.

    [117] Palgo Holdings [2005] HCA 28; (2005) 215 ALR 253, 259.

    [118] Ibid 261–2.

    [119] Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 461.

    [120] [2005] HCA 33; (2005) 216 ALR 427 ('Povey').

    [121] These treaties are identified in the judgments: ibid 428 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 439 (McHugh J), 451–3 (Kirby J).

    [122] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

    [123] Povey [2005] HCA 33; (2005) 216 ALR 427, 433 (Gleeson CJ, Gummow, Hayne and Heydon JJ), 440 (McHugh J), 458 (Kirby J). It would appear that, despite explicit acknowledgement of the permissible use of extrinsic materials in construing the international conventions, the reasons of the joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ (with which Callinan J agreed) did not actually rely on any of the material from the travaux préparatoires, instead basing their decision on the earlier decisions of English-speaking courts of treaty parties from the common law tradition. In lone dissent, McHugh J did refer to a statement of the President of the Drafting Committee of the Warsaw Convention: at 441. Not unexpectedly, the most explicit interaction with the international material was undertaken by Kirby J, who considered: minutes of the 1929 Conference to draft the Warsaw Convention: at 456; academic commentary on the conventions, drawn from Andreas Lowenfeld and Allan Mendelsohn, 'The United States and the Warsaw Convention' (1967) 80 Harvard Law Review 497, at 447, 456, 458; parts of the travaux préparatoires at 458, 463; and the authoritative French language text of the convention at 454–5, 461–2.

    [124] Newcastle City Council [1997] HCA 53; (1997) 191 CLR 85, 112 (McHugh J).

    [125] Ibid.

    [126] (1997) 187 CLR 348, 408.

    [127] High Court Practice Direction No 1 of 1984 requires advance notice to be given of extrinsic materials which are to be relied on by a party invoking s 15AB of the Acts Interpretation Act 1901 (Cth). It may well be that this Practice Direction should be also modified, on the basis of the expanded acceptance of extrinsic materials at common law, to include reliance on extrinsic materials at common law as well as under s 15AB.

    [128] Jocelynne A Scutt, 'Statutory Interpretation and Recourse to Extrinsic Aids' (1984) 58 Australian Law Journal 483, 496.

    [129] Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 461.

    [130] Donald Justice, 'Poem' in Departures (1973) 38.

    [131] Palgo Holdings [2005] HCA 28; (2005) 215 ALR 253, 264.

    [132] See eg, William Empson, Seven Types of Ambiguity (2nd ed, 1947).

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