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Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law — Part Two

Published online by Cambridge University Press:  24 January 2025

Jeffrey W Barnes
Jeffrey W Barnes*
Affiliation:
La Trobe University
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Extract

If the rules are … to “constrain the interpreter” — they themselves must be available or “readable” independently of interpretation … Unfortunately, rules are texts. They are in need of interpretation and cannot themselves serve as constraints on interpretation.

In 1981 and in following years Australian parliaments embarked upon a novel experiment: statutory reform of the general approaches to statutory interpretation. The best known of these provisions (called here “purpose rules”) is s 15AA of the Acts Interpretation Act 1901 (Cth).

Type
Research Article
Information
Federal Law Review , Volume 23 , Issue 1 , March 1995 , pp. 77 - 132
Copyright
Copyright © 1995 The Australian National University

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Footnotes

*

Part One appeared in (1994) 22 F L Rev 116.

I am grateful to the following persons for their comments and suggestions on drafts of this article: Francis Bennion, Enid Campbell, Bruce Dwyer, Andrew Goldsmith, Justice Michael Kirby and William Twining. I would also like to acknowledge the assistance of the Faculty of Law, Monash University, in the preparation of this article.

References

1 S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989) at 121. (Emphasis in original.).

2 This is a condensed introduction. A longer introduction was given at the beginning of Part One at 116-126.

3 Part One at 158-159 summarises the relevant legislative provisions. While the experiment was novel in Australia, other Commonwealth countries had earlier enacted weaker versions (Part One at 151) and some States in the United States of America have enacted a requirement that legislation be interpreted by a “Plain Meaning method”: J Fagan, “The Legal Phoenix: The Plain Meaning Rule is Dead, Long Live the Rule!” (1993) 29 California Western Law Review 373 at 388-340.

4 Part One at 119.

5 P Brazil, “Opening of Seminar” in Another Look at Statutory Interpretation (1982) at 1.

6 Part One at 159.

7 C Sampford, The Disorder of Law: A Critique of Legal Theory (1989).

8 A more detailed summary appears in Part One at 168-170.

9 (1981) 147 CLR 297.

10 FAR Bennion, “Another Reverse for the Law Commissions' Interpretation Bill” (1981) 131 NLJ 840 at 841.

11 (1990) 169 CLR 214.

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

13 Meeking v Crisp [1989] YR 740 at 743.

14 J A Simpson and ES C Weiner (eds), The Oxford English Dictionary (2nd ed 1989) Vol XII at 878-879 gives 14 meanings. R L Gregory (ed), The Oxford Companion to the Mind (1987) at 664 refers to the debate by theoretical psychologists over whether the concept may be said to exist and, if so, in what form of behaviour it is manifested. He sums up the position as follows: “[T]hroughout the history of psychology, this concept has been, and remains, one of the most controversial of all”. That work, incidentally, associates 'purpose with “intentions, goals, aims, interests, ambitions, desires, wants, motives, [and] needs”: ibid. In religion, it is associated with the belief in God (B Davies, An Introduction to the Philosophy of Religion (1993), ch 6), and with the meaning of life: C Birch and J B Cobb Jr, The Liberation of Life: From the Cell to the Community (1981) at 197-198; and Ede Bono, The Happiness Purpose (1979).

15 Royal College of Nursing of the United Kingdom v Department of Health and Social Security, [1981] AC 800: DR Miers and AC Page, Legislation (2nd ed 1990) at 188-189.

16 Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 at 880.

17 P Brazil, “Purposive Versus Literal Approach” in Attorney-General's Department, Anothe; Look at Statutory Interpretation (1982) at 16.

18 Ibid at 19.

19 (Rev ed 1985) at 1379. The Oxford English Dictionary gives a similar definition. The firs meaning offered is: “That which one sets before oneself as a thing to be done or attained the object which one has in view”: J A Simpson and ES C Weiner (eds), above n 14 at 878.

20 W Twining and D Miers, How to Do Things With Rules (3rd ed 1991) at 206: “In this context clarity is served by confining 'purpose' to intended consequences”; RM Unger, Law in Modern Society (1976) at 194.

21 D N MacCormick and R S Summers, “Interpretation and Justification” in D N MacCormid and RS Summers (eds), Interpreting Statutes: A Comparative Study (1991) at 511 and 519.

22 (1990) 169 CLR 214 at 235.

23 Ibid at 236.

24 D C Pearce and RS Geddes, Statutory Interpretation in Australia (3rd ed 1988) at para 2.15. See also, Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALD 261 at 267.

25 R v Big M Drug Mart [1985] 1 SCR 295, extracted in S G Requadt, “Worlds Apart on Words Apart: Re-examining the Doctrine of Shifting Purpose in Statutory Interpretation” (1993) 51 U of Toronto Fae LR 331.

26 I am indebted to S C Requadt, above n 25.

27 Ibid at 336.

28 Ibid at 333.

29 FAR Bennion, Statutory Interpretation (2nd ed, supplement 1993) at A66-67, referring to R v Governor of Winson Green Prison, Birmingham, ex parte Littlejohn [1975] 1 WLR 893 at 900; and R v Greater London Council, ex parte Blackburn [1976] 1 WLR 550 at 556, states that the original purpose may no longer be valid by reason of the lapse of time and altered circumstances.

30 G Morris et al, Laying Down the Law (3rd ed 1992) at 151.

31 Cited in P Brazil, “Purposive Versus Literal Approach”, above n 17 at 17.

32 W Twining and D Miers, above n 20 at 175 (emphasis in original).

33 Secretary, Department of Social Security v Clear (1991) 23 ALD 22 at 27.

34 C Enright, Legal Research and Interpretation (1988) at 229 refers to “the mischief rule, also called purposive interpretation” and later states that “[the purpose rules] are a statutory expression of the common law mischief rule”: at 230. D Gifford, Statutory Interpretation (1990) at 49 criticises Pearce (now Pearce and Geddes), but the criticism is not valid; the latest edition of the latter (accurately) says only that: “The purpose approach has its origins in the so-called 'mischief rule"': above n 24 at para 2.14. See also R v Saraswati (1989) 18 NSWLR 143 at 168.

35 D Gifford, above n 34 at 49.

36 No mischief could be found in Re Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communication (1992) 29 ALD 395 at 409.

37 FAR Bennion, Statutory Interpretation: A Code (2nd ed 1992) at 660 and 669.

38 Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 (distinguished from “reason”); Municipality of Woollahra v Minister for the Environment (1991) 23 NSWLR 710 at 714 (CA) (distinguished from “motives”). See J Barnes, “Administrative Law” in R Baxt and A Moore (eds), An Annual Survey of Australian Law 1991 (1992) 1 at 32-34. The cases are administrative law cases, but the analysis would apply equally to statutory interpretation generally.

39 A good introduction to this popular, though difficult, concept is given by C Enright, above n 34, ch 11.

40 Ibid at 204.

41 Ibid at 230.

42 Tullamore Bowling & Citizens Club Ltd v Lander [1984] 2 NSWLR 32 at 52-53.

43 Cross seems to run the two together: J Bell and G Engle, Cross on Statutory Interpretation (2nd ed 1987) at 18; see Part One at 133-134.

44 (1992) 26 ALD 595.

45 Ibid at 604.

46 DC Pearce and RS Geddes, above n 24 at para 2.16.

47 Ibid.

48 (1990) 169 CLR 214 at 224.

49 Saraswati v R (1991) 172 CLR 1 at 22.

50 (1992) 26 NSWLR 648 at 653 (emphasis added).

51 Smith v Allan (1993) 31 NSWLR 52 at 58. His Honour's statement was one of a number of arguments which were said to have “strength” (ibid at 59). See also Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 293.

52 Duport Steels Ltd v Sirs [1980] 1 WLR 142 at 168: “[O]ur law requires the judge to choose the construction which in his judgment best meets the legislative purpose of the enactment”.

53 See W Twining and D Miers, above n 20 at 205: “[T]he relationship between 'intention', 'purpose' and 'reasons' needs to be clarified”.

54 Eg, Parke Davis Pty Ltd v Sanofi (1982) 43 ALR 487.

55 R S Summers, “Statutory Interpretation in the United States” in D N MacCormick and RS Summers (eds), Interpreting Statutes: A Comparative Study (1991) 407 at 416-417.

56 R v L (1994) 122 ALR 464 at 468 (Full Federal Court).

57 Parke Davis Pty Ltd v Sanofi (1982) 43 ALR 487 at 509-510 per Deane J (dissenting).

58 See also M Zander, The Law-Making Process (2nd ed 1985) at 140-141.

59 Part One at 154-162.

60 Ibid at 139.

61 Ibid at 134-135.

62 S Fish, above n 1 at 591, referring to RN Moles, Definition and Rule in Legal Theory (1987) at 156.

63 S Fish, above n 1 at 12-13.

64 Ibid at 100.

65 I acknowledge my debt to McHugh Jin Saraswati v R (1991) 172 CLR 1 at 22-23 for raising this issue.

66 Emphasis added.

67 (1991) 172 CLR 1 at 21.

68 Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343 at 347; Re Paterson and ACT Institute of TAFE and Comcare (No 2) (1989) 17 ALD 51 at 55; Re Farhat and Australian Postal Commission (1989) 16 ALD 712 at 715.

69 Re Secretary, Department of Social Security and Greenway (1990) 20 ALD 248 at 250; Re Davis and Secretary, Department of Social Security (1992) 26 ALD 595 at 604-605; GTK Trading Pty Ltd v Export Development Grants Board (1981) 4 ALD 389 at 395-396 (Full Federal Court); Webb v Harris (1983) 47 ACTR 17 at 23; La Macchia v Minister for Primary Industry (1986) 72 ALR23 at 27.

70 S Fish, above n 1 at 68.

71 Ibid at 83 and 141.

72 In re Castioni [1891] 1 QB 149 at 167-168 per Stephen J; see also DC Pearce and RS Geddes, above n 24 at para 1.3. Another well known version of the self-serving litigant is Oliver Wendell Holmes' “Bad Man”, the subject of W Twining, “The Bad Man Revisited” (1973) 58 Cornell L Rev 275.

73 (1986) 72 ALR 23.

74 Ibid at 27 (emphasis added).

75 W N Eskridge and PP Frickey, “Statutory Interpretation as Practical Reasoning” (1990) 42 Stan L Rev 321 at 333.

76 Rogers v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 at 381-383; Colla v Cooper [1987] VR 1007 at 1010; Mangion v James Hardie & Co Pty Ltd (1990) 20 NSWLR 100 at 105-106; Re Tween and Australian National Parks and Wildlife Service (1990) 22 ALD 101 at 111-112 (AAT) (ministerial letter and answer to question in Parliament); North Flinders Mines Ltd v Hartogen Energy Ltd (1988) 14 ACLR 609 at 618 (explanatory memorandum); Lemair (Australia) Pty Ltd v Cahill (1993) 30 NSWLR 167 at 170 (CA) (explanatory note and second reading speech); R v L (1994) 122 ALR 464 at 469 (second reading speech) (Full Federal Court); Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALD 261 at 267 (second reading speech); Minister for Immigration and Ethnic Affairs v Sciascia (1991) 24 ALD 11 at 20 (second reading speech); Re Secretary, Department of Social Security and Clemson (1991) 26 ALD 329 at 340; Re Bone-Thompson and Secretary, Department of Social Security (1993) 31 ALD 207 at 212 (explanatorv memorandum); Re Drs J J Sullivan, NJ Nicolaides & Partners and Minister for Health, Housing, Local Government and Community Services (1993) 32 ALD 508 at 515 (second reading speech and explanatory memorandum).

77 Eg, Re Chemark Services Pty Ltd and Collector of Customs (1991) 24 ALD 578 at 584; Re Drs Sullivan, Nicolaides & Partners and Minister for Health, Housing, Local Government and Community Services (1994) 32 ALD 517 at 525. However, on some occasions the absence of any reference to purpose, where the dispute is over a common law right such as natural justice, may assist the court in determining that the Minister was not intending to over-rule the common law right, eg: Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 26.

78 E Campbell et al, Legal Research: Materials and Methods (3rd ed 1988) at 94.

79 (1990) 169 CLR 214 at 224-226.

80 House of Representatives Standing Committee on Legal and Constitutional-Affairs, Clearer Commonwealth Law (1993) at paras 11.50-11.54 and 11.70-11.72; K Cole, “Finding the Law” (1993) 18 Alt LJ 298. But, as D Miers, “Taxing Perks and Interpreting Statutes: Pepper v Hart” (1993) 56 MLR 695 at 705 notes, technological innovations such as the use of CD-ROMs, are likely to offer wider and more ready availability. For instance, the Legislative Instruments Bill 1994 (Cth) provides for a Federal Register of Legislative Instruments (cl 24); for the Register to be kept by computer (cl 25); for public inspection of the Register (cl 26); and for an explanatory statement explaining the purpose and operation of the instrument (cl 32) to be delivered to each House of Parliament and laid before it (cl 46).

81 D Miers, above n 80 at 707.

82 Lisafa Holdings Pty Ltd v Commissioner of Police (1988) 15 NSWLR 1 at 17. In the United States of America, but not as yet in Australia, there is great concern from some senior members of the judiciary and commentators that the method of interpreting statutes has become corrupted. According to J Fagan, above n 3 at 385: “Lawyer-lobbyists understand the system … they will attempt to have evidence placed in the legislative history which can be used as a basis for interpreting the statute contrary to the statute's Plain Meaning, knowing that courts will 'give legislative force to each snippet of analysis' found in legislative history”. This “political science approach to Congress” has led Justice Scalia of the Supreme Court, in a situation where a statute is unambiguous, to reject the use of statements of individual legislators or committees during the enactment process to expand or contract the interpretation: ibid at 383. Contrast D Miers, above n 80 at 706-707, whose concern about the ruling permitting reference to Hansard in English courts is that Ministers may be discouraged from doing any more than repeating the advice they have already given in the brief prepared for them.

83 (1990) 169 CLR 214 at 236. In R v Boucher (1994) 70 A Crim R 577 at 587 the Full Court of the Supreme Court of Victoria observed that the Attorney-General of Victoria was mistaken as to the nature of the amendments proposed in the second reading speech.

84 Humphries v Poljak [1992] 2 VR 129 at 163.

85 G S Reid, “The Changing Political Framework”, Quadrant, January-February 1980, 5; C Howard, The Constitution, Power and Politics (1980) at 29-32; the Honourable Justice Gerard Brennan, “Courts, Democracy and the Law” (1991) 65 ALJ 32; K J Foley and W (Bill) Russell, Strategic Management Review of the Parliament of Victoria (1991) (Vic PP 1988-1992 Vol 27 No 159 at Place 3); R D Lumb, Australian Constitutionalism (1983) at 68; Editorial Opinion, “Protecting our Rights”, Age, 4 April 1995 at 15. Cf PH Lane, An Introduction to the Australian Constitutions (6th ed 1994) at 50-51 (role of “hostile Senate”).

86 C Howard, above n 85 at 32-39.

87 For discussion of compromises in the context of public choice theory, see S Bottomley, N Gunningham and S Parker, Law in Context (1991), ch 8; and R Posner, The Problems of Jurisprudence (1990) at 275-278.

88 Transport Accident Act 1986 (Vic), s 93.

89 [1992] 2 VR 129 at 131.

90 Ibid at 137.

91 Ibid at 163.

92 Ibid.

93 Metal Manufacturers Ltd v Lewis (1988) 13 ACLR 357 at 366-367 per Mahoney JA.

94 D Miers, above n 80 at 705.

95 Ibid at 706.

96 Mills v Meeking (1990) 169 CLR 214 at 235.

97 Re Tween and Australian National Parks and Wildlife Service (1990) 22 ALD 101 at 111 (AAT) Re Carvalho and Secretary, Department of Employment, Education and Training (1990) 22 ALI 379 at 390 (AAT).

98 Re Treacy and Department of Veterans' Affairs (1994) 32 ALD 785 at 788: purpose looked at i terms of the general purpose of the Act only (“to benefit national servicemen”).

99 I Turnbull, “Clear Legislative Drafting: New Approaches in Australia” (1990) 11(3) Stat L 161 at 176-178.

100 See generally, The Preparation of Legislation (Chairman: Sir D Renton) (Crnnd 6053, 197 (Renton Committee) at paras 11.6-11.8; House of Representatives Standing Committee o Legal and Constitutional Affairs, above n 80 at para 8.14.

101 Bushell v Repatriation Commission (1992) 175 CLR 408 at 413 per Mason CJ, Deane and McHughJJ.

102 Ibid; Phillips v Corporate Affairs Commission (SA) (1986) 11 ACLR 182 at 189.

103 La Macchia v Minister for Primary Industry (1986) 72 ALR 23 at 27; Mills v Meeking (1990) 16 CLR 214 at 243 per McHugh J.

104 Re Secretary, Department of Social Security and Underwood (1991) 25 ALD 343 at 347 (AAT); R Secretary, Department of Social Security and Pilgrim (1990) 21 ALD 34 at 342-343; Re Farhat a Australian Postal Commission (1989) 16 ALD 712 at 715; Broken Hill Proprietary Co Ltd v B Resources Ltd (1984) 2 ACLC 157 at 161-162.

105 Enterprise Colorvideo Productions Pty Ltd v Corporate Affairs Commission (1984) 2 ACLC 239 243-244.

106 Re Secretary, Department of Social Security and Greenway (1990) 20 ALD 248 at 250; Re t News Corporation Ltd (1987) 70 ALR 419 at 428.

107 Repatriation Commission v Kohn (1989) 87 ALR 511 at 524.

108 Nomad Films International Pty Ltd v Export Development Grants Board (1986) 66 ALR 427 438.

109 Blunn v Cleaver (1993) 119 ALR 65 at 83 (Full Federal Court).

110 For judicial objections, see F A R Bennion, above n 29 at A56.

111 The Honourable Justice Michael Kirby, “Statutory Interpretation and the Rule of Law – Whose Rule, What Law?” in D St L Kelly (ed), Essays on Legislative Drafting (1988) 84 at 97.

112 FA R Bennion, above n 29 at A56.

113 Trevisan v Federal Commissioner of Taxation (1991) 101 ALR 26. In rare circumstances, courts are permitted to read words into legislation: Mills v Meeking (1990) 169 CLR 214 at 243-244.

114 Humphries v Poljak [1992] 2 VR 129 at 164.

115 In Re Tasmanian Ferry Services Ltd and Secretary, Department of Transport and Communications (1992) 29 ALD 395, a Deputy President of the Administrative Appeals Tribunal considered both the common law and the Federal extrinsic materials legislation. The common law is outside the scope of this article.

116 It has been held that “[t]he use which may be made of these [extrinsic] materials includes the purpose of identifying the purpose or object underlying the Act”: Metropolitan Fire Brigades Board v St Catherine's School [1993] 1 VR 351 at 358.

117 Interpretation Act 1967 (ACT), s llB; Interpretation Act 1987 (NSW), s 34; Acts Interpretation Act 1954 (Qld), s 14B; Interpretation Act 1984 (Vic), s 35(b); and Interpretation Act 1984 (WA), s 19.

118 Section 35(b) of the Interpretation of Legislation Act 1984 (Vic) did not define the uses of the extrinsic material.

119 R v Kean and Mills [1985] VR 255 at 259 (FC) held that a court is permitted, but not obliged, to refer to extrinsic material which counsel sought to place before it. “S 15AB(3) [of the Acts Interpretation Act 1901 (Cth)] creates a nightmare for the lawyer attempting to advise his client as to the meaning of some possibly ambiguous provision, and also for the judge at first instance, because in effect it leaves it up to the individual judge (or appellate court) to decide whether to consider extrinsic material at all, as well as to decide how much weight to give to it if it is to be considered”: D Gifford, above n 34 at 129.

120 Federal Commissioner of Taxation v Bill Wissler (Agencies) Pty Ltd (1985) 85 ATC 4626 at 4629; cf Commissioner of Australian Federal Police v Curran (1984) 3 FCR 240 at 250.

121 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420.

122 Eg, see the refusal by the Administrative Appeals Tribunal (Cth) to consider an argument based on extrinsic purpose in Re Secretary of Department of Social Security and Diepenbroeck (1992) 15 AAR 411 at 414; and also in Re Sellars and Department of Employment, Education and Training (1992) 88 Australian Administrative Law Bulletin at para 3090 (Administrative Appeals Tribunal, 11 June 1992).

123 Re Secretary, Department of Social Security and Akhnoukh (1994) 33 ALO 261 and Re Secretary, Department of Social Security and Williamson (Administrative Appeals Tribunal, 13 August 1993, unreported): (1994) 101 Australian Administrative Law Bulletin at para 3476.

124 Sen Deb 1984, Vol 102 at 583.

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

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

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

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

129 [1992] 2 VR 129 at 159-160.

130 [1993] 1 VR 537 at 540.

131 (1994) 70 A Crim R 577.

132 Ibid at 591.

133 Though the Supreme Court did not expressly state that, in the absence of any doubt on the face of the statute, regard to extrinsic material could not alter the meaning it has on its face, this was essentially the view stated in [1994] ALMD 7423.

134 Is it so unrealistic? Judges in the past have had recourse to extrinsic materials on an informal basis: see D Gifford, above n 34 at 132-134 discussing Lord Denning's controversial use of Hansard; and P Bridgman, “New Ways with Old Acts –Queensland's Innovative Acts Interpretation Act” (1991) 21 Queensland Law Society Journal 333 at 340, who refers to the practice of judges informally consulting extrinsic materials.

135 [1992] 2 VR 505.

136 Ibid at 512.

137 Ibid at 515. The guidelines referred to were laid down by the House of Lords in Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 (emphases in original).

138 Secretary, Department of Social Security v Clear (1991) 23 ALD 22 at 27.

139 Ibid.

140 (1982) 43 ALR 487 at 491.

141 Counsel for the applicant in R v Boucher (1994) 70 A Crim R 577 at 592-593.

142 Ibid at 592-593; Mills v Meeking (1990) 169 CLR 214 at 243 per McHugh J; Re Transphere Pty Ltd (1986) 10 ACLR 776 at 778.

143 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J.

144 Re Guardian Investments Pty Ltd (1984) 2 ACLC 165 at 170.

145 C Corns, “Purposive Construction of Legislation and Judicial Autonomy” (1984) 58 LIJ 391 at 393; Law Council of Australia, cited in J G Starke, “Statutory Guidelines for Interpreting Commonwealth Statutes” (1981) 55 ALJ 711 at 712. D Miers, above n 80 at 708-710 has raised a similar concern with respect to the ruling of the House of Lords in Pepper v Hart ((1993) 1 All ER 42), which has been interpreted as possibly requiring, in the event of absurdity, obscurity or ambiguity, primacy be given to ministerial statements in Parliament over the common law principle that “persons should not be penalised under a doubtful law”.

146 Acts Interpretation Act 1915 (SA), s 22(2): “[The purpose rule] does not operate to create or extend any criminal liability”.

147 Webb v Harris (1983) 47 ACTR 17 at 23; Darvall v North Sydney Brick & Tile Co Ltd (1989) 15 ACLR 230 at 257 per Kirby P (dissenting).

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

149 Rogers v Resi-Statewide Corporation Ltd (1991) 101 ALR 377 at 382 per von Doussa J.

150 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 262 per Dawson, Toohey and Gaudron JJ.

151 Acts Interpretation Act 1954 (Qld), s 14A.

152 See further P Bridgman, above n 134 at 335-336.

153 (1994) 70 A Crim R 577 at 590.

154 Mills v Meeking (1990) 169 CLR 214 at 235. See also Re Wan and Secretary, Department of Social Security (1992) 30 ALD 899 at 904.

155 (1990) 169 CLR 214 at 222.

156 Ibid at 223.

157 Ibid at 242-243.

158 (1991) 172 CLR 1 at 21.

159 Ibid.

160 Ibid.

161 At 134-135.

162 Mr Justice Bryson, “Statutory Interpretation” (1992) 8 Aust Bar Rev 185 at 187 (“practically impossible to resist”); D C Pearce and R S Geddes, above n 24 at para 2.16; P Brazil in Attorney-General's Department, Another Look at Statutory Interpretation (1982) at 4 (“in the appropriate cases”). See also the discussion of S Fish above 88, to which n 63 refers.

163 M Byers in Attorney-General's Department, above n 162 at 20-21.

164 (1990) 169 CLR 214 at 235.

165 This point was made by C Corns, above n 145 at 392.

166 Part One at 161 (Mr Duffy).

167 Ibid at 159-160.

168 (1990) 169 CLR 214 at 223. See also Re Jones and Secretary to the Department of Health (1985) 7 ALD 385 at 393 (AAT).

169 Professor D Pearce in Attorney-General's Department, above n 162 at 7.

170 Described as “an old principle recently expressed ins 15AA”: Webb v Harris (1983) 47 ACTR 17 at 23. See also R v Saraswati (1989) 18 NSWLR 143 at 168. Badgery-Parker J referred to the old mischief rule only: “Resort may be had to the mischief rule only where the statutory provision is ambiguous”.

171 Re Secretary, Department of Social Security and Jessop (1989) 17 ALO 62 at 66 (“Section 15AA did not amend the common law rules of interpretation”); Re Chasty and Repatriation Commission (1993) 30 ALO 528 at 531 at 535; Re Secretary, Department of Social Security and Srpcanski (1993) 31 ALO 559 at 565; Re Treacy and Department of Veterans' Affairs (1994) 32 ALD 785 at 788: “Section 15AA of the Acts Interpretation Act 1901 was available as an aid to construction, only when a choice was to be made. In the face of clear legislative language, its application was not possible when construing [the section under consideration].”

172 R v Boucher (1994) 70 A Crim R 577 at 592.

173 Ibid at 590 (emphasis added).

174 (1991) 101 ALR 26.

175 Ibid at 31 (emphasis added).

176 Ibid.

177 In Re Bolton; ex parte Beane (1987) 162 CLR 514 at 518 Mason CJ, Wilson and Dawson JJ stated that “[t]he words of a Minister must not be substituted for the text of the law” – this assumes textual limits in enacted law. Cf the attitude of the European Court which, according to Twining and Miers, is prepared to prefer a legislation's purpose even over an unambiguous text: above n 20 at 367.

178 Eg, M Zander, above n 58 at 141-142; W Twining and D Miers, above n 20 at 382; S Fish, above n 1 at 512-513.

179 Humphries v Poljak [1992] 2 VR 129 at 164 per McGarvie J. In Re Young and Secretary, Department of Social Security (1991) 22 ALD 649 at 654, it was noted that the legislation was anomalous having regard to the intentions set out in the second reading speech.

180 Re Secretary, Department of Social Security and Chaplin (1990) 20 ALD 516 at 518; Re Jovanovic and Secretary, Department of Social Security (1988) 16 ALD 8 at 10; Re Willia and Secretary, Department of Social Security (1992) 26 ALD 47 at 50-53 (anomaly not enough); Baron v Director-General of Social Security (1983) 48 ALR 345 at 349 (nothing in words to assist).

181 Cf some strands of Critical Legal Studies discussed in D Miers, above n 128 at 116-118.

182 (1983) 48 ALR 345.

183 Ibid at 348.

184 Bropho v State of Western Australia (1990) 171 CLR 1 at 20.

185 Cf the Federal Court of Australia in Bond v Trustee of Property of Bond (A Bankrupt) (1994) 125 ALR 399 at 421 and 425. It should also be noted that such a presumption even applies in the United States of America: R SSummers, above n 55 at 438-440. J Fagan further points out that, in that country, the “plain meaning rule” (if “the language is plain and admits of no more than one meaning, the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion”) is being resurrected: above n 3 at 375- 376 and 381. The presumption applies, unsurprisingly, in England: F A R Bennion, above n 37 at 598.

186 (1990) 169 CLR 214 at 223 (emphasis added).

187 Ibid at 224.

188 Ibid.

189 See Part One at 166.

190 See n 265 below.

191 See Part One at 135.

192 It is true that the cases that reach the High Court probably inherently involve a greater degree of choice as to what is the applicable law. For Miers, such cases are “almost always atypical [for] they are precisely the cases in which the interpretive practices within the community fail to generate a preferred reading”: above n 128 at 128. I tend to agree, but the “atypical” tag should not be pushed too far. First, whether cases reach the higher courts is also a function of litigants' desires and resources, which is a completely different matter from the nature of the case. Secondly, cases that reach the higher courts do tend to involve more rarefied disputes on points of law, but these are not the sole preserve of the higher courts. Mills v Meeking, which I discuss shortly, was in fact representative of many such cases which had been brought to the Magistrates' Court, ie it was a test case. Thirdly, settling the law in this sense is a distinctly political function; as this has only recently been generally accepted (see Sir Anthony Mason, “Future Directions in Australian Law” (1987) 13 Mon U L Rev 149 at 154; The Honourable Mr Justice Michael McHugh, “The Law-making Function of the Judicial Process – Parts I and II” (1988) 62 ALJ 15 and 116), it would be unwise to dismiss it for the reason that it is not the norm in dispute resolution generally.

193 (1990) 169 CLR 214 at 224.

194 Ibid at 232.

195 Ibid at 241.

196 Ibid.

197 Ibid at 226.

198 Ibid at 242 and 243.

199 Ibid at 233.

200 See also Bond v Trustee of Property of Bond (A Bankrupt) (1994) 125 ALR 399 for a conflict among judges of the Federal Court over the purposes under the Bankruptcy Act 1966 (Cth), in particular whether the case should be treated as an “ordinary bankruptcy case” (at 422 per Carr J) or whether emphasis should be placed on the interests of creditors in light of “a public mischief which has allowed some bankrupts to enjoy lifestyles of undiminished splendour” (at 414 per French J).

201 Sen Deb 1981, Vol 90 at 2310-2311 (Sen tor G Evans); W Twining and D Miers, above n 20 at 167.

202 F A R Bennion, above n 37 at 381.

203 D Gifford, above n 34 at 56 makes a similar point. See also D N MacCormick, in relation to the literal approach, in Legal Reasoning and Legal Theory (1978) at 210-211.

204 (1992) 26 ALD 595.

205 Re Davis and Secretary, Department of Social Security (1992) 26 ALD 595 at 605.

206 (1982) 43 ALR 487.

207 Mills v Meeking (1990) 169 CLR 214 at 235 per Dawson J.

208 Trevisan v Federal Commissioner of Taxation (1991) 101 ALR 26 at 31.

209 (1990) 169 CLR 214 at 243-244. Lord Diplock's third requirement is disputed by F A R Bennion, above n 37 at 661.

210 (1990) 169 CLR 214 at 236 and 244.

211 Gifford claims that where the purpose of the Act comes into conflict with the literal rule, “the plain meaning of the statute would be expected to prevail”: D Gifford, above n 34 at 6, but this is in the context of a discussion of the common law. The purpose rule gets short shrift in his “overview”: ibid at 56-57.

212 (1991) 169 CLR 214 at 235.

213 Saraswati v R (1991) 172 CLR 1 at 21; GTK Trading Pty Ltd v Export Devel9pment Grants Board (1981) 40 ALR 375 at 383; Trade Practices Commission v TNT Management Pty Ltd (1985) 58 ALR 423 at 471; Adams v Carr (1987) 81 ALR 151 at 159; and Hilton v Federal Commissioner of Taxation (1992) 110 ALR 167 at 173-174.

214 See above 88 (“Overlaps with other approaches”).

215 Re Davis and Secretary, Department of Social Security (1992) 26 ALD 595 at 604-605 (discussion of “imprisoned”).

216 JG Starke, above n 145 at 711; W Twining and D Miers, above n 20 at 369. FAR Bennion's comment is acute (above n 37 at 662-663): “As always in statutory interpretation, it is necessary, when considering the possibility of applying a purposive construction, to take account of any other applicable criteria as well. The overriding object is to give effect to Parliament's intention, and this is unlikely to be to achieve the immediate purpose at no matter what cost. Contrary purposes of a more general nature may supervene. Parliament is presumed to intend to further the general policy of the law, and to legislate in the knowledge that if it does not expressly provide to the contrary the accepted interpretative criteria will be applied.” Cf the view of the Northern Territory Law Reform Committee: “[T]he literal words of an Act may be disregarded if they are clearly inconsistent with the purpose of the Act”: Report on Statutory Interpretation (1987) at 9; and: “The Committee concludes that the common law requires courts to interpret provisions of an Act in a manner that is consistent with the object of the Act. The common law enables ambiguous provisions to be interpreted in this light and enables courts to reject a literal interpretation if it is inconsistent with that object.”: ibid at 27.

217 Part One at 166.

218 The pragmatic tradition of Anglo-Australian law is elaborated on in F A R Bennion, above n 37 at 16, and in W Twining and D Miers, above n 20 at 368.

219 But see R v Bolton; Ex parte Beane (1987) 162 CLR 514, discussed immediately below, where an interpretation supported by a clear statement of parliamentary intent was not upheld, even though three members of the High Court implied it was a reasonable one.

220 See generally P Bayne, “Who is in Charge? Do We Need a Rationality Test for Questions of Law?” (1991) 66 Canberra Bulletin of Public Administration 77.

221 (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. See also Deane J at 532: the second reading speech “should be seen as no more than an aid to interpretation”.

222 DC Pearce and RS Geddes, above n 24 at para 3.18.

223 (1987) 162 CLR 514 at 532 (emphasis added). Contra Toohey J (dissenting) (ibid at 537): “If there is any doubt about the matter, that doubt is put to rest by reference to the second reading speeches in the Parliament when the 1963 legislation was introduced and when the 1981 amendments were made.”

224 Ibid at 517.

225 I am indebted to P Bayne, above n 220 at 87.

226 (1987) 162 CLR 514 at 517per Mason CJ, Wilson and DawsonJJ.

227 D Miers, above n 80 at 709-710. The quotation is from R v Bolton; ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ.

228 (1987) 162 CLR 514 at 520 per Brennan J.

229 See Part One at 129-130.

230 L Woodward, “Does Administrative Law Expect Too Much of the Administration?” in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? (1994) at 42-43.

231 Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 634; see generally, D Miers, above n 80.

232 [1993] AC 593 at 637.

233 Ibid at 638.

234 Ibid at 642.

235 F A R Bennion, above n 29 at A52; D Oliver, “Pepper v Hart: A Suitable Case for Reference to Hansard?” [1993] PL 5 at 12-13. D Miers, above n 80 at 706 and 709.

236 G Morris et al, Laying Down the Law (3rd ed 1992) at-158-159.

237 Cf Webb v Harris (1983) 47 ACTR 17 at 23 (on s 15AA), and see the discussion of the non-purposive approaches which application of the rule may over-ride in other jurisdictions, above 103-104 (“What is meant by a 'construction that would not promote that purpose or object'?”).

238 Part One at 153.

239 Above n 17 at 20. In view of the several noted differences and tensions between Brazil's own view and the proposed purpose rule, it may be asked why the purpose rule was borrowed rather than being constructed afresh in order to meet his concerns more fully? The public administration literature generally suggests that policy-making is “confined to a series of well-rehearsed options familiar to all the participants”, rather than being a highly rational process in which the consequences of the policy chosen most closely match the goals to be secured: W Twining and D Miers, above n 20 at 325. The purpose rul would have been very familiar,since it had been proposed by the Law Commissions and put before the United Kingdom Parliament, but without more information, we cannot be certain whether the process of choosing the purpose rule reflects the general view in the literature.

240 Because this study has, in respect of the post-enactment phase of the rule, focused on its operation in the courts and tribunals, it is acknowledged that not all the social effects of the purpose rule have been traced. See Part One at 124 where my methodology is set out.

241 Sampford, above n 7 at 252.

242 I Hassan, “Pluralism in Postmodern Perspective” (1986) 12 Critical Inquiry 503. The relationship between postmodernism and Sampford's work was touched on previously: Part One at 121 and 123.

243 Hassan aptly qualifies his analysis by noting that: “I want to offer a catena of postmodern features, a paratactic list, staking out a cultural field. My examples will be selective; traits may overlap, conflict, antecede, or supersede themselves”: above n 242 at 504. See also C Sampford, above n 7 at 262.

244 Eg, the conflict over the effect of a clear statement of intent by a Minister in introducing the relevant Bill into Parliament seen in R v Bolton; ex parte Beane (1987) 162 CLR 514. See generally, DC Pearce, “Executive Versus Judiciary” (1991) 2 PLR 179.

245 See the discussion above 116, to which n 218 refers.

246 This conflict extends to the “calm haven” of statutory interpretation authorship: see D Maclean, book review of “Statutory Interpretation” by D Gifford in (1991) 65 ALJ 302, referring to Gifford's differences with Pearce and Geddes.

247 D Gifford, above n 34 at 6.

248 (1990) 169 CLR 214 at 234.

249 Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 653.

250 The Honourable Justice Michael Kirby, above n 111 at 88-89.

251 The Honourable Justice Michael Kirby has pointed to the limits of the purposive approach: ibid at 94-95.

252 Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 75 ALR 271 at 280; Re the News Corporation Ltd (1987) 70 ALR 419 at 428 per Bowen CJ.

253 See the discussion above 87-88, to which nn 50-58 refer.

254 Note how in R v Bolton; ex parte Beane (1987) 162 CLR 514 “legislative intent” was used to trump a clear statement of intent in a second reading speech.

255 GMorris et al, above n 30 at 153 (“determining the appropriate approach”); A I MacAdam and T M Smith, Statutes: Rules and Examples (2nd ed 1989) at 274-276 (“a modem perspective”); Mr Justice Bryson, above n 162 at 191 (“a new beginning”).

256 Hospital Benefit of WA Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1 at 6-7; R v Hawkins [1988] VR 256; Browne v Smith and Son Pty Ltd (1985) 60 ALR 431 at 435; Commonwealth of Australia v Christoffelsz (1988) 79 ALR 611 at 619; Hunter District Water Board v Tomago Sands Pty Ltd (1988) 66 LGRA 190 at 192; R v Hawkins [1988] VR 256 at 258,259; Repatriation Commission v Kohn (1989) 87 ALR 511 at 523-525; Genex Corporation Pty Ltd v Commonwealth of Australia (1991) 101 ALR 161 at 174.

257 Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 75 ALR 271 at 280.

258 Re the News Corporation Ltd (1987) 70 ALR 419 at 428 (authority omitted).

259 See further n 265 below.

269 Some will be quick to say, “of course!” Bennion, above n 37 at 13 says that the legal meaning of an enactment “normally corresponds to the grammatical or literal meaning. If this were never so, the legislative system would collapse.” I agree, but we need to be aware that the literal meaning is also the product of “interpretation” (in the special sense articulated by Fish): see Part One at 137-139. Also, the fact that obvious cases are settled (by definition) by the literal approach does not tell us about other cases in which the meaning is disputed. As Bennion goes on to say (at 13) : “The cases in which it is not so [settled] are the main object of our enquiry.”

261 Mr Justice Bryson, above n 162 at 185.

262 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315.

263 Part One at 165-166 and 167.

264 R S Summers and M Taruffo, “Interpretation and Comparative Analysis” in D N MacCormick and RS Summers (eds), Interpreting Statutes: A Comparative Study (1991) at 461 and 464-474. They cite the following arguments or bases for arguments: ordinary meaning; technical meaning; contextual-harmonisation arguments; precedents; statutory analogies; implications from general legal concepts; general legal principles within the same field; legislative history; statutory purpose; other substantive reasons; and the intention of the legislature.

265 Observations of the trend as observed by Lord Diplock in the 1970s were referred to in Part One at 141. There is considerable judicial support in more recent times: in 1987 McHugh JA (now of the High Court) adjudged that “[a] purposive and not a literal approach is the method of construction which now prevails”: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423. In 1988 the Honourable Justice Michael Kirby, above n 111 at 92, wrote of a “swing towards favouring the purposive approach”. Six members of the High Court referred in Bropho v State of Western Australia (1990) 171 CLR 1 at 20 to “the contemporary approach to statutory construction, with its added emphasis on legislative purpose”. For a House of Lords endorsement, see Pepper (Inspector of Taxes) v Hart (1993] AC 593 at 617, 633 and 634. Commentators are similarly inclined: D Maclean, above n 246 at 302; FAR Bennion, above n 37 at 599; P Parkinson, Tradition and Change in Australian Law (1994) at 244-245. The House of Representatives Standing Committee on Legal and Constitutional Affairs, above n 80 at para 8.13, has reported that “many people, including a number of drafters, believe that purposive interpretation is well enough established to encourage a less detailed style of drafting”. Against the weight of opinion is D Gifford, above n 34 at 6-7 and 51, who argued (December 1989) that the trend mentioned by Lord Diplock “was reversed in the space of a few years”: at 51. But he cites only two authorities, one English (1978) and one New Zealand (1979), the latter of which relies entirely on the English authority. The English case referred to, Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 [HL], is not, with respect, good authority in any case for the proposition claimed. In the leading judgment, Viscount Dilhorne acknowledged that: “It is now fashionable to talk of a purposive construction of a statute” (at 234). Furthermore, the speeches show that their Lordships did consider the purpose. For example, Lord Scarman, who agreed with Viscount Dilhorne, stated, with reference to the provision in dispute, that “its plain terms are wholly consistent with the Act's intention to prevent victimisation of workers on strike; and it matters not that this purpose could have been fulfilled in other w ys and with different consequences” (at 239).

266 A survey undertaken in 1980 of cases on the interpretation of statutes in the New Zealand Law Reports of 1958 and 1978 revealed a greater increase in the purposive over the liter l: A A Farrar, “Judicial Approaches to Meaning in the Interpretation of Statutes”, LLM thesis, University of Canterbury, NZ (1982) Part C.

267 Mr Justice Bryson, above n 162 at 197.

268 D N MacCormick and R SSummers, above n 21 at 532.

269 The particular values which “ground” the literal and purposive approaches were described I in Part One at 135-137.

270 W Twining and D Miers, above n 20 at 359. See also H Lords Deb 1980, Vol 405 at 276 i (Lord Scarman): it has been “axiomatic … that the interpretation of statutes is a matter for 1 the judges; it is not a matter for legislation”.

271 D C Pearce, above n 244 at 186. This radical change has prompted one commentator to, suggest that the purpose rule may be susceptible to a constitutional challenge on the' ground of breach of the doctrine of separation of powers; but such a challenge has not asr yet eventuated: C Enright, above n 34 at 229.

272 H Rep Deb 1981, Vol 123 at 3439.

273 Contrast the situation in the United States of America, where there is a “battle to resurrect the Plain Meaning Rule” : J Fagan, above n 3 at 381.

274 S Fish, above n 1 at 70-71.

275 T Eagleton, Literary Theory: An Introduction (1983) at 198.

276 S Fish , above n 1 at 432.

277 Eg, Bond v Trustee of Property of Bond (A Bankrupt) (1994) 125 ALR 399.

278 Ibid.

279 See generally C Sampford, above n 7 at 276-278.

280 See Part One at 117-118. For a wider, historical perspective on the common law juristic tradition, see D Sugerman, “Legal Theory, the Common Law Mind and the Making of the Textbook Tradition” in W Twining (ed), Legal Theory and the Common Law (1986) 26.

281 To state the obvious, difficulties are removed or reduced, and the “law” is therefore made more amenable to application to particular facts. But texts which search for order can still be a rich source of material for those with more subversive purposes; the references to F A R Bennion, above nn 29 and 37 in this article are testament to this fact. See also D Sugerman, above n 280, who, while ready to criticise the narrowness of the textbook (expository) tradition (a task he carries out at length), acknowledges the “richness, complexity and achievements of this tradition” (at 28). For instance, he refers to how the classical legal scholars “simultaneously assisted in the construction of a liberal legal science”: at 52-53 (emphasis in original).

282 Eg, Bennion's work, above n 37, is framed as “a Code with comments”. His intention is that the Code should be “self-consistent”. He does this by “reconciling” incons1stent principles of interpretation (at 2). In this sense Bennion would appear to be carrying on the tradition of “classical legal education and scholarship” criticised by D Sugerman, above n 280. The latter's main point is that such a tradition is “shot through with self-contradictions, omissions and absurdities, which generations of judges and jurists have sought to repress”: at 27. He instances how “the quest for underlying principles must involve a selection from the sum of principles available and, therefore, a strong evaluative element”: ibid. Sugerman approves of the view of Montrose that: “More often [jurists' writings] are but the writer's views as to what the law ought to be, expressed in language which speaks of principles of what the law is”: ibid. However, in fairness to Bennion, his work has a dual character since, more than any other text writer on statutory interpretation, he includes a lengthy commentary on the principles.

283 H Lords Deb 1966, Vol 277 at 1294.

284 Part One at 123.

285 For example, the rule that words in the singular presumptively include the plural, and vice versa. See generally, DC Pearce and RS Geddes, above n 24, ch 6.

286 On the nature of evaluation in law, see J Goldring et al, “Evaluating Administrative Tribunals” in S Argument (ed), Administrative Law and Public Administration: Happily Married or Living Apart Under the Same Roof? (1994) 160.

287 P Brazil, above n 17 at 20 (emphasis added).

288 See also A A Farrar, above n 266 at 251.

289 Part One at 126-149.

290 The Law Commission and the Scottish Law Commission, The Interpretation of Statutes (1969) at para 13.

291 R M Unger, above n 20 at 197. He emphasised the damage to the rule of law ideal brought by changes in social life and the law, including the movement to purposivism: Part One at 143-144.

292 See further Sir Anthony Mason, above n 192 at 155-161; SC Requadt, above n 25.

293 D Maclean, above n 246 at 302. See also the references in Part One at 116. I broadly concur with the view of RS Summers, cited in FAR Bennion, above n 37 at 1: “[S]cholars have traditionally underestimated the demands of the subject”. D Sugerman, above n 280 at 27 explains how the common law frame of mind – “the dominant tradition of classical legal education” –has ignored or marginalised other aspects of the law, such as legislation.

294 At least where the work of tribunals and the higher courts is concerned. F A R Bennion cites Lord Hailsham's view that “over nine out of ten cases heard on appeal before the Court of Appeal or the House of Lords either tum on or involve the meaning of words contained in enactments of primary or secondary legislation”: above n 37 at l': The figure is still very high if trial courts are considered. DC Pearce and RS Geddes, above n 24 at para 1.1, record that “[A] rough sample shows that in approximately 50 per cent of recent reported cases the courts were required to rule upon the meaning of some legislative instrument. In a further 25 per cent of cases the courts had to apply an Act, regulation, rule, etc – its meaning this time not being in dispute”.