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Published online by Cambridge University Press: 24 January 2025
[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.
That conclusion was reached in the 1560 case of Stradling v Morgan, 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. 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.’
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) 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, JusticeFelix, Frankfurter, ‘Some Reflections on the Reading of Statutes’ (1947) 47 Columbia Law Review 527, 540–2Google Scholar. The position in England has, however, changed in more recent times, as to which see, Pepper v Hart [1993] AC 593. Cf Lord, Steyn, ‘Pepper v Hart: A Re-examination’ (2001) 21 Oxford Journal of Legal Studies 59Google Scholar; Lord, Steyn, ‘The Intractable Problem of the Interpretation of Legal Texts’ (2003) 25 Sydney Law Review 5Google Scholar.
4 A V, Dicey, Introduction to the Study of the Law of the Constitution (6th ed, 1902) 351Google Scholar.
5 Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, 113.
6 (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, 512Google Scholar.
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) 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) 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) 215 CLR 563, 580.
18 Tony, Blackshield and George, Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 2Google Scholar.
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) 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) 25 Melbourne University Law Review 24, 45–8Google Scholar. 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) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (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) 135 CLR 1; McGinty v Western Australia (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) 20 Adelaide Law Review 111, 126Google Scholar.
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) 232Google Scholar; Adrienne, Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219Google Scholar. 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) 23 Federal Law Review 37Google Scholar. 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 (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) 39Google Scholar. 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) 52 CLR 234.
39 Ibid 237.
40 Chief JusticeJames, J Spigelman, ‘The Poet’s Rich Resource: Issues in Statutory Interpretation’ (2001) 21 Australian Bar Review 224, 229Google Scholar.
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, 657Google Scholar.
46 Lon, Fuller, The Morality of Law (1964) 39Google Scholar.
47 Roderick, A Macdonald, ‘The Fridge-Door Statute’ (2001) 47 McGill Law Journal 11, 24Google Scholar.
48 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (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) 148 CLR 88, 94 (Stephen, Mason, Aickin, Wilson and Brennan JJ).
58 (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) 167 CLR 543 (‘Catlow’).
65 Ibid 549.
66 Ibid.
67 Ibid 549–50.
68 (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) 135 CLR 569, 576 (Gibbs J).
71 Hoare (1989) 167 CLR 348, 360.
72 (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) 157 CLR 309.
78 Ibid 315.
79 (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) 79 ALJR 1850, 1870. A similar approach to context was taken in R v Lavender (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) 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) 143 FCR 43, 59–60.
85 (2004) 218 CLR 273.
86 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (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) 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) 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)Google Scholar (‘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) 215 ALR 253, 257–8 (McHugh, Gummow, Hayne and Heydon JJ), 271–2 (Kirby J).
103 Palgo Holdings (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) 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) 215 ALR 253, 259.
118 Ibid 261–2.
119 Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 461.
120 (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) 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 497Google Scholar, 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) 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, 496Google Scholar.
129 Transcript of Proceeedings, Palgo Holdings [2004] HCATrans 461.
130 Donald, Justice, ‘Poem’ in Departures (1973) 38Google Scholar.
131 Palgo Holdings (2005) 215 ALR 253, 264.
132 See eg, William, Empson, Seven Types of Ambiguity (2nd ed, 1947)Google Scholar.