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Outside the Text: Inside the use of Extrinsic Materials in Statutory Interpretation

Published online by Cambridge University Press:  01 January 2025

Jacinta Dharmananda
Jacinta Dharmananda*
Affiliation:
University of Western Australia
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Abstract

When s 15AB of the Acts Interpretation Act 1901 (Cth) was enacted over 30 years ago, its purpose was to establish clear and particular rules about when extrinsic materials could be used in the interpretation of Commonwealth legislation. Accordingly, s 15AB stipulates three threshold tests, at least one of which must be satisfied before extrinsic materials can be considered as an aid to interpretation. However, developments in the common law since that enactment have largely overtaken the utility and effect of s 15AB (and its State equivalents). In particular, the development of the ‘contextual’ approach to statutory interpretation has meant that the common law now permits recourse to extrinsic materials, including parliamentary ones, without the need to pass any gateway test. Consequently, the important emerging issue is, not when such materials can be considered, but how they may be used. This article, using recent High Court cases, examines some of the key threads that have emerged about the ‘appropriate use’ of parliamentary materials, particularly with respect to identifying the purpose of the statute and as against the weight of the statutory text.

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Article
Information
Federal Law Review , Volume 42 , Issue 2 , June 2014 , pp. 333 - 356
Copyright
Copyright © 2014 The Australian National University

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Footnotes

Thank you to the anonymous referees for their valuable comments.

References

1 Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (1977) 139 CLR 449, 461 (Gibbs J). Barwick CJ and Stephen J agreed on this point.

2 Byrnes v Kendle (2011) 243 CLR 253, 284 [97] (Heydon and Crennan JJ).

3 The search used the key words of parliamentary debates, second reading speeches and explanatory memorandum. The search engine used was <http://www.austlii.edu.au/databases.html>.

4 In 2012, of 61 High Court decisions, 24 referred to at least one of these materials. In 2013, of 60 decisions, 19 referred to at least one of these materials.

5 Attendees included the High Court Chief Justice and Justices, other judiciary members (including from the UK), members of Parliament, senior counsel, parliamentary drafts people and academic scholars.

6 A direct consequence of the first symposium — Attorney-General's Department, Another Look at Statutory Interpretation, Canberra, 1981 (Australian Government Publishing Service, 1982). Note that s 15AA was amended by the Acts Interpretation Amendment Act 2011 (Cth) but still refers to a purposive approach.

7 It was the second of the two symposiums that concentrated on the use of extrinsic materials. See Attorney-General's Department, Symposium on Statutory Interpretation, Canberra, 5 February 1983 (Australian Government Publishing Service). The first symposium focussed on the purposive approach but also provided some commentary on the use of extrinsic materials.

8 States with legislation substantially similar to s 15AB are Interpretation Act 1987 (NSW) s 34; Interpretation Act 1987 (NT) s 62B; Acts Interpretation Act 1954 (Qld) s 14B; Acts Interpretation Act 1931 (Tas) s 8B and Interpretation Act 1984 (WA) s 19. Section 35 of the Interpretation of Legislation Act 1984 (Vic) and s 141 of the Legislation Act 2001 (ACT) have broader wording with no limitation on the circumstances in which material can be considered. South Australia has no equivalent provision and relies solely on the common law for recourse to parliamentary materials.

9 See, eg, Symposium on Statutory Interpretation 1983, above n 7, 29, 77–8; Commonwealth, Parliamentary Debates, Senate, 8 March 1984, 583 (Senator Gareth Evans) and Commonwealth, Parliamentary Debates, Senate, 30 March 1984, 955 (Senator Peter Durack).

10 Symposium on Statutory Interpretation 1983, above n 7, 82–4.

11 It is arguable that Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (‘Alcan’) may have been the first indication of a more cautious approach in the High Court. See later in article.

12 Interpretation legislation provides guidance on what forms part of a statute. See Acts Interpretation Act 1901 (Cth) s 13; Legislation Act 2001 (ACT) s 12; Interpretation Act 1987 (NSW) s 35; Interpretation Act 1987 (NT) s 55; Acts Interpretation Act 1954 (Qld) s 14; Acts Interpretation Act 1915 (SA) s 19; Acts Interpretation Act 1931 (Tas) s 6; Interpretation of Legislation Act 1984 (Vic) s 36 and Interpretation Act 1984 (WA) ss 31, 32.

13 Edgar, S G G, Craies on Statute Law (Sweet & Maxwell, 7th ed, 1971) 98.Google Scholar

14 International treaties and agreements were discussed at the Symposium and were specifically included in the list in s 15AB(2) of the Acts Interpretation Act. However, although there is overlap with use of parliamentary materials, use of international materials in statutory interpretation is subject to separate common law development. It is therefore beyond the scope of this paper. See Pearce, D C and Geddes, R S, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011) 79–82.Google Scholar

15 To borrow a phrase used by Heydon, Justice in ‘Developing the Common Law’ in Gleeson, J T and Higgins, Ruth C A (eds), Constituting Law (Federation Press, 2011) 93, 117Google Scholar where he discusses the sources of legislative facts.

16 See above n 8. The statement of compatibility is a relatively new type of parliamentary material, now required pursuant to the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). It is usually attached to the explanatory memorandum.

17 Dworkin, Ronald, Law's Empire (Fontana, 3rd ed, 1990) 342-3.Google Scholar

18 Ekins, Richard, The Nature of Legislative Intent (Oxford University Press, 2012) 274.CrossRefGoogle Scholar

19 See Beaulac, Stephane, ‘Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or of Weight?’ (1998) 43 McGill Law Journal 287, 315–21Google Scholar which gives a summary of practical reasons for objecting to the use of parliamentary materials. Compare Patrick Brazil, ‘Reform of Statutory Interpretation — the Australian Experience of Use of Extrinsic Materials: With a Postscript on Simpler Drafting’ (1988) Australian Law Journal 503 where some of the practical concerns, such as longer proceedings, were found not to have eventuated in the early Australian experience.

20 For the United Kingdom generally see Bennion, Francis, Bennion on Statutory Interpretation: A Code (LexisNexis, 5th ed, 2008) 614–73Google Scholar and Duxbury, Neil, Elements of Legislation (Cambridge University Press, 2013) 214–21Google Scholar for an overview of the law since the seminal UK case of Pepper (Inspector of Taxes) v Hart [1993] AC 593. For the United States generally see Eskridge, William N Jr, Frickey, Philip P and Garrett, Elizabeth, Legislation and Statutory Interpretation (Foundation Press, 2nd ed, 2006) 303–22.Google Scholar For a contrasting view see Scalia, Antonin and Garner, Bryan A, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012)Google Scholar which contains a chapter entitled ‘The false notion that committee reports and floor speeches are worthwhile aids in statutory construction’ 369–90. For a comparative view see Fleischer, Holger, ‘Comparative Approaches to the Use of Legislative History in Statutory Interpretation’ (2012) 60 American Journal of Comparative Law 401CrossRefGoogle Scholar for a comparison of German, US and UK law.

21 Paul Lanspeary, ‘Statutory Interpretation for Drafters’ (Paper 8 presented at 4th Australasian Drafting Conference, Parliament House, Sydney, 3–5 August 2005) 14.

22 Symposium on Statutory Interpretation 1983, above n 7, 81 (Sir Anthony Mason).

23 Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (1977) 139 CLR 449; South Australia v The Commonwealth (1942) 65 CLR 373; Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200.

24 Barker v The Queen (1983) 153 CLR 338, 346 (Mason J).

25 Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust) Ltd (1977) 139 CLR 449, 480 (Murphy J).

26 Wacando v Commonwealth (1981) 148 CLR 1, 25–6 (Mason J); Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355, 373–5 (Mason J); Wacal Developments Pty Ltd v Realty Developments (1978) 140 CLR 503, 509 (Gibbs J).

27 Symposium on Statutory Interpretation 1983, above n 7, 32 (Dr Gavan Griffiths QC quoting Lord Hailsham LC, New Law Journal, 13 August 1981, 841). See also 39 (Murphy J) and 44 (Stephen Mason.) This practical reality is also recognised by Duxbury, above n 20, 219 and Beaulac, above n 19, 320.

28 Symposium on Statutory Interpretation 1983, above n 7, 32.

29 Symposium on Statutory Interpretation 1983, above n 7, 82–4.

30 The bill, the Acts Interpretation Amendment Bill 1984, originated in the Senate.

31 The list in s 15AB includes reports of Royal Commissions, Law Reform Commissions, Parliamentary Committee reports, international treaties or agreements, explanatory memoranda, Second Reading Speeches, declared documents and parliamentary debates.

32 Commonwealth, Parliamentary Debates, Senate, 30 March 1984, 958 (Senator Gareth Evans).

33 Ibid, 963 (Senator Gareth Evans).

34 Commonwealth, Parliamentary Debates, House of Representatives, 3 May 1984, 1795 (Alan Griffiths).

35 Commonwealth, Parliamentary Debates, Senate, 30 March 1984, 963 (Senator Gareth Evans).

36 South Australia has no equivalent provisions and relies solely on the common law for recourse to parliamentary materials.

37 An attempt to explain the rationale behind the ‘confirm’ limb was made by Senator Hill. See Commonwealth, Parliamentary Debates, Senate, 30 March 1984, 961 (Senator Robert Hill).

38 See Saraswati v The Queen (1991) 172 CLR 1, 22–3 where McHugh J summarises the three limbs in the context of the NSW equivalent of s 15AB.

39 Acts Interpretation Act 1901 (Cth) s 15AB(1).

40 Confirmed in Singh v Commonwealth (2004) 222 CLR 322, 336 [20] (Gleeson CJ). See also Explanatory Memorandum, Acts Interpretation Amendment Bill 1984 (Cth) 3 where it states that s 15AB(2) ‘sets forth, in a non-exhaustive way, the main categories of extrinsic materials that can assist in the interpretation of Acts’.

41 Explanatory Memorandum, Acts Interpretation Amendment Bill 1984 (Cth) 3.

42 See Stubbs, Matthew T, ‘From Foreign Circumstances to First Instance Considerations: Extrinsic Material and the Law of Statutory Interpretation’ (2006) 34 Federal Law Review 103CrossRefGoogle Scholar; Geddes, R S, ‘Purpose and Context in Statutory Interpretation’ (2005) 2 University of New England Law Journal 5.Google Scholar

43 See Stubbs, above n 42, 111–12 and Brazil, above n 19, 503–4; Pearce and Geddes, above n 14, 84–6; R S Geddes, above n 42, 14–15.

44 Stubbs, above n 42, 113. See also the concerns expressed in Brazil, above n 19.

45 R S Geddes, above n 42, 14–15; Pearce and Geddes, above n 14, 85–6.

46 Commonwealth, Parliamentary Debates, Senate, 8 March 1984, 583 (Senator Gareth Evans).

47 Pearce and Geddes, above n 14, 86.

48 Momcilovic v The Queen (2011) 245 CLR 1, 154 [389] n 692 (Heydon J); K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501, 521 [51]–[52] (French CJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 (McHugh J); Catlow v Accident Compensation Commission (1989) 167 CLR 543, 549 (Brennan and Gaudron JJ); Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416, 420 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

49 Examples include Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 and Newcastle City Council v GIO General Ltd (1997) 191 CLR 85. See also Brazil, above n 19, which contains an examination of cases citing s 15AB or its equivalent in the first few years after its enactment.

50 Although note that there has been some academic commentary calling for reform of s 15AB. See R S Geddes, above n 42, 23 and Stubbs, above n 42, 123–4.

51 Note that s 15AA previously contained subsection (2) which provided that the common law on extrinsic material remained. This subsection was deleted in the same Act enacting s 15AB.

52 (1997) 187 CLR 384, 408 (‘CIC Insurance’).

53 Ibid.

54 Examples are Network Ten Pty Ltd v TCN Channel Nine (2004) 218 CLR 273, 280 [11] (McHugh ACJ, Gummow and Hayne JJ); Attorney General v Oates (1999) 198 CLR 162, 175 [28] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ); Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 99, 112 (McHugh J).

55 See above n 42.

56 For example, see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 595 [83], 599 [98] (Heydon and Crennan JJ).

57 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193, 230 [124]–[125] (McHugh J); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, 599 [98] (Heydon and Crennan JJ).

58 Spigelman, J J, ‘The Intolerable Wrestle: Developments in Statutory Interpretation’ (2010) 84 Australian Law Journal 822, 827.Google Scholar

59 This particular phrase has been referred to in the recent cases of Monis v The Queen (2013) 249 CLR 92, 202 [309] (Crennan, Kiefel and Bell JJ) (‘Monis’) and Baini v The Queen (2012) 246 CLR 469, 484 [42] (Gageler J) (‘Baini’).

60 Pearce and Geddes, above n 14, 77–8.

61 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378, 388 [23] (French CJ and Hayne J), 411–12 [88]–[89] (Kiefel J) (‘Cross’); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 516 [41] (French CJ and Crennan J) (‘Board of Bendigo’); Baini (2012) 246 CLR 469, 484 [42] (Gageler J); AB v Western Australia (2011) 244 CLR 390, 398 [10] (French CJ, Gummow, Hayne, Kiefel, Bell JJ); Alcan (2009) 239 CLR 27, 31 [4] (French CJ).

62 (1584) 3 Co Rep 7a; 76 ER 637.

63 Ibid, 7b. It referred to the ‘mischief and defect’ for which the common law did not provide.

64 Kirby, Michael, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35 Melbourne University Law Review 113, 127Google Scholar; Board of Bendigo (2012) 248 CLR 500, 516 [41], (French CJ and Crennan J); Cross (2012) 248 CLR 378, 411-12 [88]–[89] (Kiefel J); Monis (2013) 249 CLR 92, 119-120 [36] (French CJ); Commissioner of Police v Eaton [2013] HCA 2, [100].

65 See Pearce and Geddes, above n 14, 78 which cites numerous cases where reference has been made to parliamentary material to identify the purpose or object of a provision.

66 That s 15AA and its State equivalents ‘require’ a purposive approach has been recognised by the High Court on several occasions. See, eg, Lacey v Attorney-General of Queensland (2011) 242 CLR 573, 592 [45] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Carr v The State of Western Australia (2007) 232 CLR 138, 142–3 [5] (Gleeson CJ); Airlink Pty Ltd v Paterson (2005) 223 CLR 283, 311 [79] (Kirby J). However a contrary view that the purposive approach is not mandatory has been suggested recently: Justice Michael Barker, ‘First You See It, Then You Don't – Harry Houdini and the Art of Interpreting Statutes’ (Speech delivered at JCA Colloquium, Fremantle, Western Australia, 5 October 2012) [16] <http://www.fedcourt.gov.au/publications/judges-speeches/justice-barker/barker-j-20121005>.

67 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 203 (Gibbs CJ).

68 Saraswati v The Queen (1991) 172 CLR 1, 22–3 (McHugh J). However, note absurd or unreasonable results of an ordinary meaning are more often used in the context of a consequential argument to assist in choosing between competing constructions, rather than as a means for accessing parliamentary material. See Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].

69 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, 388–9 (Wilson J); Re Bolton, Ex parte Beane (1987) 162 CLR 514, 517–18 (Mason CJ, Wilson and Dawson JJ); Coco v The Queen (1994) 179 CLR 427, 444 (Mason CJ, Brennan, Gaudron and McHugh JJ); Crimmins v Stevedoring Committee (1999) 200 CLR 1, 68 [192] (Kirby J); Australian Communication Exchange Ltd v Deputy Commissioner of Taxation (2003) 201 ALR 271, 285 [61] (Kirby J); Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249, 265 [38] (Kirby J).

70 James C Raymond, ‘Saving the Literal — Fundamentalism versus Soft Logic in Statutory Interpretation’ in Tom Gotsis (ed), Statutory Interpretation: Principles and Pragmatism for a New Age, Education Monograph 4 (Judicial Commission of NSW, 2007) 177, 213.

71 Symposium on Statutory Interpretation 1981, above n 6, 7 (Dennis Pearce). Professor Leslie Zines made similar comments at the Symposium on Statutory Interpretation 1983, above n 7, 78.

72 For recent contributions to the ambiguity discussion in contractual interpretation see Wong, Derek and Michael, Brent, ‘Western Export Services v Jireh International: Ambiguity as the gateway to surrounding circumstances?’ (2012) 86 Australian Law Journal 57Google Scholar and Martin, Justice Kenneth ‘Contractual Construction: Surrounding Circumstances and the Ambiguity Gateway’ (2013) 37 Australian Bar Review 118.Google Scholar

73 In Lacey v Attorney General (2011) 242 CLR 573, 606 [91], Heydon J said that the fact that the President of the Court of Appeal and six judges of the High Court construed a provision one way and that four judges of the Court of Appeal and McHugh J construed it another was sufficient to show ambiguity. Isaacs ACJ made similar comments many years ago in Pickard v John Heine & Son (1924) 35 CLR 1, 9 with respect to the interpretation of an award.

74 Repatriation Commission v Vietnam Veterans’ Association of Australia NSW Branch Inc (2000) 48 NSWLR 548, 577–8 [116] (Spigelman J).

75 Parrett v Secretary, Department of Family and Community Services (2002) 124 FCR 299, 310 [34] (Madgwick J); F, BV v Magistrates Court of South Australia (2013) 115 SASR 232, 240 [10] (Kourakis CJ). See also Beckwith v The Queen (1976) 135 CLR 569, 576–7 (Gibbs J); Catlow v Accident Compensation Commission (1989) 167 CLR 543, 550 (Brennan and Gaudron JJ).

76 K-Generation Pty Ltd v Liquor Licensing (2009) 237 CLR 501, 521 [52] (French CJ).

77 Eskridge, Frickey and Garrett, above n 20, 322.

78 Re Bolton; Ex parte Beane (1987) 162 CLR 514, 517–18 (Mason CJ, Wilson and Dawson JJ).

79 Alcan (2009) 239 CLR 27.

80 Ibid 31 [4] (French CJ), 45 [44] (Hayne, Heydon, Crennan and Kiefel JJ).

81 Ibid 47 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

82 See, eg, Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510, 531 [82] (Crennan and Bell JJ); K-Generation Pty Limited v Liquor Licensing Court (2009) 237 CLR 501, 522 [53] (French CJ). The older case of Re Bolton; Ex parte Douglas Beane (1987) 162 CLR 514, 517–18 (Mason CJ, Wilson and Dawson JJ) is also still regularly cited as authority for the importance of the text. There have also been numerous examples of statements about the importance of text at intermediate appellate court level. In New South Wales, for example, see especially Harrison v Melham (2008) 72 NSWLR 380 (Spigelman CJ and Mason P). The judgments of Campbell JA in the NSW Court of Appeal (such as in Amaca Pty Ltd v Novak [2009] NSWCA 50 [73]–[81]) are also worthy of consideration.

83 (2010) 241 CLR 252 (‘Saeed’).

84 Although the plurality does note that the section had been noted in other cases as ‘difficult’ or ‘ambiguous or obscure’: Ibid 263 [27] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

85 For example, see the Second Reading Speech in Commonwealth, Parliamentary Debates, House of Representatives, 13 March 2002, 1106–7 (Phillip Ruddock).

86 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

87 Saeed (2010) 241 CLR 252, 265–7 [34]–[42], 271 [56] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), 277–8 [73]–[74] (Heydon J).

88 Ibid 265 [33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

89 Spigelman, above n 58, 830.

90 Kirby, Michael, ‘The Never Ending Challenge of Drafting and Interpreting Statutes — A Meditation on the Career of John Finemore QC’ (2012) 36 Melbourne University Law Review 140, 173.Google Scholar

91 Justice Nye Perram, ‘Context and complexity: Some reflections by a new Judge’ [2010] Federal Journal Scholarship 19, [24]. However, compare the doubt expressed by Justice Susan Kenny in ‘Current Issues in the Interpretation of Federal Legislation’ (Speech delivered at the National Commercial Law Seminar Series, Melbourne, 3 September 2013) 8 <http://www.fedcourt.gov.au/publications/judges-speeches/justice-kenny>.

92 Pearce and Geddes, above n 14, 76.

93 Herzfeld, P, Prince, T & Tully, S, Interpretation and Use of Legal Sources: The Laws of Australia, (Thomas Reuters, 2013), 283.Google Scholar

94 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 (explanatory memorandum); Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 (explanatory memorandum); Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 347 (explanatory memorandum); The Queen v Getachew (2012) 248 CLR 22 (various); Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 (explanatory memorandum and second reading speech).

95 (2012) 248 CLR 378. This appeal was heard together with New South Wales v Williamson (2012) 87 ALJR 154, which involved the same issue, but on later versions of the relevant legislation.

96 The relevant sections of the CLA were amended and their location in that Act changed by further amendments in 2002 and some of these substituted provisions are referred to in the judgment. However, those subsequent amendments did not bear on the issue before the court.

97 Cross v Certain Lloyds Underwriters [2011] NSWCA 136.

98 Including a pre-enactment Ministerial Statement and a Commonwealth Committee Report on the law of negligence.

99 New South Wales, Parliamentary Debates, Legislative Assembly, 28 May 2002, 2085–8 (Robert Carr, Premier).

100 Cross v Certain Lloyds Underwriters [2011] NSWCA 136 [49].

101 See Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16 [47] (French CJ, Crennan, Kiefel, Gageler and Keane JJ); Board of Bendigo (2012) 248 CLR 500, 516 [41] (French CJ and Crennan J); Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, 13 [26] (French CJ, Hayne, Kiefel and Bell JJ); AB v Western Australia (2011) 244 CLR 390, 398 [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ. Of course the seminal case that, arguably, identified a coherent principle is Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 381 (McHugh, Gummow, Kirby and Hayne JJ).

102 Cross (2012) 248 CLR 378, 388–9 [23]–[24] (French CJ and Hayne J), 404–5 [68]–[70] (Crennan and Bell JJ) and 411–12 [88] (Kiefel J).

103 Ibid 391 [28] (French CJ and Hayne J), citing CIC Insurance.

104 Ibid 412 [88] (Kiefel J), citing CIC Insurance.

105 Ibid 404–5 [68]–[69] (Crennan and Bell JJ).

106 Ibid 405–6 [70], citing CIC Insurance.

107 Ibid 391 [28] (French CJ and Hayne J), 405–6 [70] (Crennan and Bell JJ), 412 [88] (Kiefel J); See also the discussion on the breadth of ‘context’ under the ‘Elements of the CIC Principle’ heading above.

108 This is substantially equivalent to Acts Interpretation Act 1901 (Cth) s 15AB.

109 Cross (2012) 248 CLR 378, 406 [70] n 100.

110 Board of Bendigo (2012) 248 CLR 500, 516 [41] n 31; Baini (2012) 246 CLR 469, 484 [42] (Gageler J); AB v Western Australia (2011) 244 CLR 390, 398 [10] (French CJ, Gummow, Hayne, Kiefel & Bell JJ).

111 See, eg, Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379, 408 [71] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). This includes an explanatory memorandum and second reading speech; Construction Forestry Mining & Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619, 633 [45], 636 [57] (French CJ, Kiefel, Bell, Gageler and Keane JJ). The Court respectively refers to the explanatory memorandum and second reading speech.

112 Cross (2012) 248 CLR 378, 388–90 [23]–[25].

113 Ibid 412 [89].

114 Ibid 405–6 [70].

115 Kirby, above n 64, 127.

116 See, eg, Acts Interpretation Act 1954 (Qld) sch 1 (definition of ‘purpose’). ‘Purpose’ includes ‘policy objective’.

117 Lee v New South Wales Crime Commission [2013] HCA 39, [45] (French CJ).

118 Dworkin, above n 17, 343. See also 342–5 where Dworkin discusses the basis for a distinction to be made between different types of statements by members of parliament.

119 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529, 538 [22] (Gleeson CJ, Gummow, Hayne and Heydon JJ). See also Pearce and Geddes, above n 14, 91–2.

120 Hunter Resources v Melville (1988) 164 CLR 234, 241 (Mason CJ and Gaudron J).

121 See Raymond, above n 70, 204–5. Raymond argues that ambiguity is never cured by an author's commentary about intention as this only indicates what the author wants the text to mean.

122 SirDiplock, Kenneth ‘The Court as Legislators’ in Harvey, Brian W (ed), The Lawyer and Justice (Sweet and Maxwell, 1978) 263, 274.Google Scholar

123 Cross (2012) 248 CLR 378, 390 [26] (French CJ and Hayne J).

124 Ibid 395 [41].

125 Ibid 394–5 [40]–[41].

126 (2012) 248 CLR 1.

127 Ibid 14 [28]. See also the comment by the Court about imputing policy in Newcrest Mining Limited v Thornton (2012) 248 CLR 555, 588 [93] (Crennan and Kiefel JJ).

128 Cross (2012) 248 CLR 378, 405 [70].

129 Ibid citing, among others, Alcan (2009) 239 CLR 27.

130 Ibid 412 [89].

131 Cross v Certain Lloyds Underwriters [2011] NSWCA 136 [76].

132 Cross (2012) 248 CLR 378, 392–3 [33].

133 Ibid 392–4 [33]–[39].

134 Ibid 394 [38].

135 Ibid [39].

136 Ibid 413–4 [95].

137 Ibid 415 [102].

138 Ibid [103].

139 Ibid 405 [69] citing Bennion, Francis, Statutory Interpretation (Butterworth, 3rd ed, 1997) 343–4.Google Scholar

140 Ibid 405–6 [70].

141 Ibid 407–8 [74].

142 Ibid 407 [73].

143 Ibid 405–6 [70].

144 Ibid 407 [73].

145 Saeed (2010) 241 CLR 252, 277 [74].

146 Cross (2012) 248 CLR 378, 394 [38] (French CJ and Hayne J).

147 Ibid 413 [94] (Kiefel J).

148 Ibid 412 [89] (Kiefel J).

149 Ibid 405–6 [70] (Crennan and Bell JJ).

150 Ibid.

151 Ibid 413 [94] (Kiefel J).

152 See, eg, Baini (2012) 246 CLR 469, 482 [34]–[35] (French CJ, Hayne, Crennan, Kiefel & Bell JJ); Construction Forestry Mining & Energy Union v Mammoet Australia (2013) 248 CLR 619, 633 [45] (Crennan, Kiefel, Bell, Gageler and Keane JJ). See also Kline v Official Secretary to Governor General (2013) 249 CLR 645, 664 [48] (French CJ, Kiefel, Crennan and Bell JJ). Their Honours refer to their statutory construction as being ‘fortified’ by resort to secondary materials.

153 Cross (2012) 248 CLR 378, 389 [25] (French CJ and Hayne J). See also 405–6 [70] (Crennan and Bell JJ).

154 See, eg, Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379, 408–10 [71]–[75] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) where extensive reference was made to a ‘very large body of extrinsic material’ with most of it being unhelpful. Other examples include Wicks v State Rail Authority of New South (2010) 241 CLR 60, 75 [41] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) and Lehman Brothers Holdings Inc v City of Swan (2010) 240 CLR 509, 526 [49] (French CJ, Gummow, Hayne and Kiefel JJ) and 535 [72] where Heydon J stated that ‘there can be few cases in which extrinsic materials have been less useful — a large claim, but a true one.’

155 Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257, 269 [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

156 Saeed (2010) 241 CLR 252, 264–5 [31] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

157 See Momcilovic v The Queen (2011) 245 CLR 1, 74 [111] (French CJ) referring to Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 591–2 [43]–[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

158 Saeed (2010) 241 CLR 252, 271 [58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) citing Coco v The Queen (1994) 179 CLR 427. The relevance of this presumption, the ‘principle of legality’ in Saeed, was recently noted in Lee v New South Wales Crime Commission [2013] HCA 39, [171] (Kiefel J), [312] (Gageler and Keane JJ).

159 (2011) 244 CLR 325, 340 [47] (French CJ, Heydon, Crennan and Bell JJ).

160 (2011) 244 CLR 508, 527 [50] (French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ).

161 (2011) 245 CLR 1, 43 [31] (French CJ).

162 (2012) 246 CLR 469, 476 [14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

163 (2013) 249 CLR 645, 659–60 [32] (French CJ, Crennan, Kiefel and Bell JJ).

164 Cross (2012) 248 CLR 378 405–6 [70].

165 Hon Keith Mason AC, ‘Legislators Intent: How judges discern it and what they do if they find it’ (Speech delivered at Institute of Advanced Legal Studies, London, 2 November 2006) <http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/vwPrint1/SCO_mason021106>.

166 Frankfurter, Justice Felix, ‘Some Reflections on the Reading of Statutes’ (1947) 47 Columbia Law Review 527, 541.CrossRefGoogle Scholar

167 To paraphrase Kirby J in R v Lavender (2005) 222 CLR 67, 102 [109] who said: ‘If context is important for statutory construction, why is it not always important?’.

168 Momcilovic v The Queen (2011) 245 CLR 1, 181 [450] (Heydon J). Heydon J was referring to purpose more broadly in this paragraph but the analogy seems particularly apt here.

169 Kirby, above n 64, 118.

170 See, eg, Weinberg JA's discussion in SM v Director of Public Prosecutions [2013] VSCA 342, [49]–[56] where his Honour refers to recent High Court discussion on legislative intention and use of extrinsic materials, including in Cross, as a ‘reversion to text’.

171 Duxbury, above n 20, 214.