Statutory Interpretation Lecture

Supreme Court of Tasmania

STATUTORY INTERPRETATION LECTURE BY CHIEF JUSTICE ALAN BLOW

UNIVERSITY OF TASMANIA

WEDNESDAY, 21 MAY 2014

I decided I would offer to speak about this topic because statutory interpretation is so very important in the day-to-day work of courts and tribunals, and of people who practice in the courts and tribunals. If you look at the cases in the law reports that have been selected as the most significant, these days they are nearly all about statutory interpretation. It is relatively rare that we make incremental changes to the law of torts or any other part of the common law. However there is a constant stream of litigation concerned with statutory interpretation, and there have been a great many high profile decisions.

One that springs to mind is the High Court’s decision in 2011 in the Malaysian Declaration case, Plaintiff M70 v Minister for Immigration and Citizenship[1], where the High Court effectively sank the Gillard Government’s plans for a Malaysian solution to the perceived problem of boat people.

If you reflect on what the High Court has recently considered in the field of statutory interpretation, one case that stands out was a decision given last month in New South Wales Registrar of Births, Deaths and Marriages v Norrie.[2]

That caseconcerned a piece of State legislation, the Births, Deaths and Marriages Registration Act 1995 (NSW). There are some very modern provisions in that legislation, and one of them provides that a person who has undergone what the Act calls a “sex affirmation procedure” can apply to the Registrar of Births, Deaths and Marriages for registration of a change of sex.[3] The respondent in the case, Norrie, applied to the Registrar to have the register changed to record her sex as “non-specific”. I am saying “her” because the High Court referred to Norrie as “her”. There is a footnote in the judgment that says that that is what she wanted. The High Court considered the provisions of the Act and referred to one provision that indicated that the Act recognised that a person’s sex can be indeterminate. The definition of “sex affirmation procedure” included, amongst other things, a surgical procedure to correct or eliminate ambiguities relating to sex of the person.[4] The High Court held that the Registrar had the power to record a person’s sex as “non-specific”, and sent the matter back to an administrative tribunal in New South Wales to consider whether that ought to be done. The Registrar had taken the view that people were either males or females, but the High Court concluded that, for the purposes of that Act, there were no such old-fashioned restrictions. It is an example of a piece of legislation being given a wide interpretation to accord with the apparent intention of Parliament.

To give another example of a statutory interpretation case that might be of interest, I want to refer to a case in the Full Court of the Supreme Court of Western Australian in 1904, In Re Edith Haynes.[5] It is a good example of how times have changed. Edith Haynes had commenced working as an articled clerk in Perth, with a view to becoming a legal practitioner in due course. In those days in Western Australia, articled clerks had to do exams. That was required by the Barristers Board Rules. Edith Haynes sought to make arrangements to sit her first exams, but the Barristers Board refused to allow her to sit because she was a woman. The Board took the view that women were not eligible to become legal practitioners, and that therefore it was just not appropriate to have a woman doing the exams that articled clerks had to do. Edith Haynes was not happy with this, and she instituted proceedings seeking a writ of mandamus. You may not have been told what that is. We do not have them any more, but basically it is a court order in the name of the Queen, or the King in those days, ordering a public authority to perform its duty in a particular way. She sought a writ of mandamus to compel the Barristers Board to allow her to do the articled clerks’ exams. The matter went before the Full Court. At a very early stage in the proceedings, the Full Court unanimously held that they were not going to let the proceedings continue. It was futile to compel the Board to let Ms Haynes sit the exams because they were unanimously of the view that women were not eligible to be legal practitioners. That decision turned on a question of statutory interpretation. According to the judgment of Burnside J, the statute that related to the admission of legal practitioners used the words “every person”.[6] The Full Court had to consider whether those words, “every person”, included women as well as men. There were two arguments that succeeded. One was that there was a well-established common law principle that women did not become legal practitioners. The other, more directly relevant to statutory interpretation, was that those words, “any person”, simply should not be construed as including women in that context. One of the members of the court, Burnside J, said this:

“It appears to me that we must also bear in mind that throughout the civilised world, so far as we know, we have not been able to ascertain any instances under the Common Law of the United States which is based on the Common Law of England, or of any instance in England or any British-speaking Colony where the right of women to be admitted to the Bar has ever been suggested. That being so, it is said here that it should exist, because the words in the Statute are ‘every person.’ That does not appear to me to be very forcible. The counsel representing the applicant said that there were lady doctors, why not lawyers? The Medical Act says, ‘Every person, male and female, may be a doctor.’ Those are different words to what are used in the Legal Practitioners Act. I am unable to find any instances where any right has been conferred. It is not a Common Law right. It is a privilege which has been conferred by the Courts originally, and then been regulated subsequently by Statute from almost time immemorial, and which has been confined to the male sex. I agree with what has been said by my learned brothers, and I am not prepared to start making law. When the Legislature in its wisdom confers the right on women, then we shall be pleased to admit them. But we must leave to the Legislature to decide on the desirability or otherwise of such legislation.”[7]

These days, of course, if we were called upon to interpret a provision like that, we would begin with the proposition that ordinarily words must be given their ordinary, literal meaning, and “person” means “person”. We also have legislation that says that where provisions in statutes refer to “he” or use a masculine word, the feminine should also be included. Every jurisdiction has an interpretation statute. In Tasmania it is the Acts Interpretation Act 1931. In the Commonwealth it is the Acts Interpretation Act 1901. The relevant provision in the Tasmanian Act is now s24A(1). It says:

“(1) A word or expression that indicates one or more particular genders is taken to include every other gender.”

That is a sort of “sensitive new-age” provision that proceeds from the assumption that there are more than two genders in our species. However, for many years before it came along, there was a provision to the effect that words using a masculine form included the feminine, or vice versa.[8]

Today, we also look at the intention underlying the legislation; the purpose or object of the legislation. That is required under the Acts Interpretation Act (Tas), s8A, which provides to the effect that an interpretation that promotes the purpose or object of a piece of legislation is to be preferred to one that does not. We look at extrinsic material under s8B, such as, perhaps, a second reading speech from when the relevant legislation came before Parliament.

There is a principle that legislation is presumed not to alter common law doctrines. In practice, that takes second place if it is clear from the ordinary meaning of the legislation, or from the apparent intention underlying the legislation, that the common law is to be departed from. In those circumstances, the common law will not prevail. There is another principle of interpretation that the words of a statute are not given a literal meaning if an absurdity results. No doubt Burnside J and his brothers would have regarded the admission of women as some sort of absurdity. But that was in 1904.

You will be pleased to know that there was another case about whether women count as persons in which a different view was taken. It was a case about the eligibility of women to be senators in Canada. It is a case that went to the Privy Council in 1929 – Edwards v The Attorney-General of Canada.[9] The constitutional arrangements for Canada were made in an Act of the British Parliament called the British North America Act 1867. That Act made provision for the Governor-General of Canada to appoint the senators. It said:

“The Governor General shall from time to time, in the Queen’s Name, by instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate and a Senator.”[10] [My emphasis].

The Supreme Court of Canada had taken the view, unanimously, that that was not meant to apply to women; that women were not persons for the purposes of that section. Fortunately for the five women who went to the Supreme Court of Canada, the Supreme Court was not then the ultimate court of appeal for Canada. There were appeals to the Privy Council, and the Privy Council took what I think we would all regard as a more civilised view.

Once again, there were two arguments as to the interpretation of the statute. One was that there was a common law principle that women are not eligible to hold public office. There was an exception in relation to monarchs. However, that aside, women  were not eligible to hold public office at common law. There was also the argument relied upon by one of the Canadian judges, Duff J, that “persons” meant males. As I said, there was an appeal to the Privy Council and it was successful. The Privy Council held that the section did empower the Governor-General to summon women to be senators.

The Lord Chancellor, Lord Sankey, was good enough to include an executive summary of Privy Council’s reasons in the final paragraph of the judgment. There were five principles of statutory interpretation that were relied upon. First of all, they looked at the object of the legislation. These days there is statute law saying you have to look at the object of the legislation, but that has been a principle of statutory interpretation since the 16^th century.[11] The Privy Council decided that the object of the Act was to provide a constitution for Canada as a responsible and developing State. They held that that meant that a wide interpretation had to be given so that, in effect, the constitution could move with the times. They took the view that the word “person” was an ambiguous word – that there were plenty of cases in which it had been held that “person” did not include women – but then they looked to the other provisions in the British North America Act to see how words were used. That is something you do in order to interpret legislation. There were sections that showed that, in some cases in the Act, the word “person” had to include females. They also found situations where the words “male persons” were used, indicating that the Act drew a distinction between “persons” and “male persons”. They also relied on the provisions of the British interpretation statute,the Interpretation Act 1899 (UK), to the effect that words importing the masculine were to include females. So, on the same question we see a different result, and an illustration of a handful of the relevant principles of statutory construction.

I want to talk about another case. For the purposes of balance, I will talk about one which has nothing to do with feminism or sensitive new-age approaches to gender. It is a case about motor racing, in which I have no interest at all. However I had to write a judgment in the matter, and it is a convenient case to talk about. It is a case that came before the Full Court in 2005 called Henry v Motor Accidents Insurance Board.[12] It is a low profile case, but it is an example of how everyday events can produce a question of statutory interpretation that has a number of different aspects to it.

Mr Henry had made arrangements to be a driver in Targa Tasmania in 2002. He was going to drive his custom built Alpha Romeo. His other car was a Porsche. In February 2002, Mr Henry set out with his companion, his co-driver/navigator, and went on a reconnaissance expedition looking at the stages of the Targa course on back roads between Perth and Devonport. Towards the end of that expedition he was driving on a back road near Devonport, doing about 80 or 90 km/h on a sweeping bend, when, according to the facts as found, his car slipped off the road and hit a tree and he was injured. He made a claim for scheduled benefits under the Motor Accidents (Liabilities and Compensation) Act 1973. That is the Act that governs the no-fault benefits scheme that we have in Tasmania. There is a body called the Motor Accidents Insurance Board which pays medical expenses for people who get injured in car accidents, regardless of fault. It also pays them money in lieu of income if they are unable to earn their income for a certain period, subject to certain restrictions. Essentially, it hands out money, in one way or another, in the form of what are called scheduled benefits.

Mr Henry, like most people who get injured in car accidents and incur medical expenses, put in a claim for scheduled benefits. It was refused, on the grounds that scheduled benefits are not payable in relation to motor races, including racing practice as well as actual racing. The Motor Accidents Insurance Board said that Mr Henry was practising for the race. He contended that he was not. He was in a different car from his race car. He was not driving at racing speed. He was just having a look at where he was going to go.  Not practising at all. Just having a look. That argument found its way up through various levels of our system of justice until it came to the Full Court.

There was a provision in the relevant Act that said scheduled benefits were not payable:

“Where the personal injury results from a motor accident occurring in a motor vehicle race (not being a motor vehicle race that takes place on a beach) in which that person was taking part.”[13]

So, there can be no entitlement to scheduled benefits if the accident is in a motor vehicle race in which the injured person is taking part, unless it is on a beach. Further, there is a definition that:

“‘motor vehicle race‘ has the same meaning as it has for the purposes of Division III of Part VI of the Police Offences Act 1935.”[14]

There was a definition in that Act which listed a number of situations that amounted to a motor vehicle race, including this:

“The use of any motor-vehicle in any practice at the place where, or over any part of the course on which, any such race, competition, or test is to take place with a view to the participation in that race, competition, or test, of that motor-vehicle or the person so using it.”[15]

The question that the Full Court had to determine was whether Mr Henry’s conduct constituted practice over a part of the course with a view to participation in the race by the person driving the vehicle. One of the things that happens in statutory interpretation cases is that the court looks at dictionary definitions to see what the ordinary dictionary meanings of words are. We looked at the Macquarie Dictionary, which included the following definitions of “practice”: “repeated performance or systematic exercise for the purpose of acquiring skill or proficiency”, and “of or pertaining to an attempt which is undertaken merely to develop skill, refresh one’s memory, etc”. The Shorter Oxford Dictionary definition said, “exercise in any art, handicraft, etc for the purpose of obtaining proficiency”. The Collins English Dictionary and Thesaurus had such synonyms as “go over”, “prepare”, “rehearse”, “train”, “warm up”, and “work out”. So, that was one angle from which the interpretation task was approached.

In accordance with s8A of the Acts Interpretation Act, it was necessary to consider what the purpose or object of the legislation was. That involved analysing the history of the legislation in question. There has been legislation in Tasmania about motor racing on public streets ever since 1927. Since then, the arrangement has been that the Commissioner of Police can permit and regulate motor racing on public roads. He can close roads, and he can issue permits.

In 1958, legislation came in making separate provision for compulsory insurance for people who were going to be participating in motor races. The idea seems to have been that insurance of that nature ought to be kept separate from the insurance that every motorist has to carry in every other situation, because of greater risk and higher premiums – that higher premiums should not be passed on to the general motoring public. Since 1958, through various incarnations of the motor accidents insurance legislation, there has been a separate system of compulsory insurance for races. Also in 1958, the permit provisions relating to motor races were extended, to cover practising and not just racing.

The conclusion that I reached as to the purposes and objects of the relevant legislative provisions was that they were intended to permit motor racing and similarly dangerous activities on public roads, at appropriate times, and under appropriate conditions; to promote road safety by permitting the Commissioner of Police to regulate those activities; to ensure insurance cover for participants in those activities in respect of their death or bodily injury; and to relieve the general motoring public from the financial burden of such insurance cover. Then, having established the purposes or objects, I reached the conclusion that what Mr Henry had been doing did not amount to practice. I concluded that practice would not include driving that did not involve any greater risk or danger than ordinary driving.

There were a couple of other principles of statutory interpretation that were relevant, and which supported the conclusion that Mr Henry’s expedition was not a practice. One was the principle I mentioned earlier that legislation should not be interpreted in such a way as to lead to an absurd result. As to that, I looked at what Mr Henry would have had to do if his expedition had amounted to a practice. He would have had to check with the organisers of Targa as to whether they had a permit for Targa and, if so, whether it extended to the sort or reconnaissance trip that he was proposing. Next, he would have had to check whether they had insurance cover in place to cover the sort of trip he was proposing. If those things were not in place, then it would have been necessary for him to have obtained a permit from the Commissioner of Police, first paying him a statutory fee of $10, and then for him to arrange special insurance cover. All rather absurd if he was going to drive just like anybody else was driving.

Another relevant principle was the principle that a statute with penal consequences ought to be given a restricted interpretation – an interpretation that is favourable to the subject, the citizen, rather than the Crown or the State. That was just something that happened to coincide with the result in this case. It is a principle that does not often become critical. But here, driving without the required permit, or without the required insurance, would have been an offence punishable by conviction and fine. That was another reason to regard the sort of driving that Mr Henry was undertaking as not amounting to a practice. So, there is an example of how someone undertaking an everyday activity can suddenly end up in a situation where there is a statutory interpretation question with more points than a porcupine.

That is perhaps an example of where the law has gone to today. There are now an enormous number of statutes, and statutes are getting longer. One of the first things that the Commonwealth Parliament did in 1901 was to enact the Immigration Restriction Act1901 (Cth) – basically in order to keep out people who were not white. It ran to five pages. The Migration Act 1958 (Cth) today has hundreds and hundreds of sections. It is practically unmanageable. Without computer technology I do not think anybody would ever be able to manage a statute like it. The situation is similar with respect to social security law. The Social Security Act was rewritten in 1991. The previous Act, the 1947 Act, was maybe 60 or 80 pages long. Since 1991, it has come in about four volumes. The idea in 1991 was to rewrite the Act in plain English, but that idea was corrupted by political correctness and a government taste for jargon. “Spouse” became “member of a couple”; “inmate of an institution” became “client of an approved care organisation”; “unemployment benefits” became “Job Search Allowance” and “Newstart Allowance”. In those days I was a part-time senior member of the Administrative Appeals Tribunal, and the Tribunal flew me to Melbourne for a half-day seminar on how to understand the Social Security Act now that it was in plain English.

There are exceptions. There are situations in which a very succinct provision in legislation has had enormous consequences. Section 52 of the Trade Practices Act, which these days is s29(1) of the Australian Consumer Law provided:

“A corporation must not in trade or commerce engage in conduct that is misleading or deceptive, or is likely to mislead or deceive.”

From the time that provision was enacted, now well over 30 years ago, there has been the development of an enormous amount of case law as to the meaning and implications of that provision. What is trade and commerce, and was is not? What about predictions? Are they conduct that is misleading or deceptive? What about silence? Is that conduct? And so, issue by issue, the courts have developed an enormous body of case law in relation to the words of that provision.

One way or another, the result is that questions of statutory interpretation arise in all sorts of situations, and it is the role of the courts to interpret the words of the Parliament and to determine, in situations of ambiguity or possible uncertainty, what the words should be regarded as meaning.

Judges are sometimes criticised by members of the public for putting forward their own interpretations, for adopting interpretations of the words used by Parliament. But, of course, that is what we have to do. Nearly every day there are cases involving statutory interpretation. I have heard three this week, and it is only Wednesday afternoon. It is something that just has to happen. Of course it is the role of Parliament, if they are not happy with the interpretation that has been given, to change the statute. There is a good example of that to be found in s66(2A) of the Evidence Act 2001 – the uniform evidence legislation. Section 66 permits evidence to be given of a statement made by someone who is available as a witness in a criminal proceeding. So, evidence can be given, for example, in a sexual case, of what the complainant said when the events complained of were fresh in his or her memory. The prosecution is not confined to leading oral evidence from the complainant, but can introduce evidence of a representation or statement made back when the events were fresh in that person’s memory. The High Court held in Graham v R[16] that “fresh” meant “recent or immediate”, so that if a complainant had a recollection of events six years previously, however clear and vivid, they could not be regarded as fresh in her memory. Parliament has fixed that. Section 66(2A) now lists matters that are relevant to the question of whether an asserted fact was fresh in the person’s memory so as to get around what the High Court decided in Graham.

In my view, we are fortunate to have this sort of arrangement. It is a fundamental aspect of our constitutional arrangements that Parliament creates the statutes and judges interpret the statutes. In Vietnam, for example, it is different. In Vietnam, if a question of interpretation of a written law arises, the judges do not decide it. They refer it to a committee of the Parliament, and the committee determines what the appropriate interpretation is to be. Parliament keeps control of what the law is there, and the courts are subordinate to Parliament. Here we have a different idea of the separation of powers, notwithstanding the Queensland Premier’s recent comment that the separation of powers is “more an American thing”.

Against that background, the starting point, of course, in any question of statutory interpretation, is that one has to look to the words of the statute. There are three High Court cases that I normally trot out when I need to say that. In 1920, in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd Higgins J said:

“The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.”[17]

In 1998, in Project Blue Sky v Australian Broadcasting Authority, four judges of the High Court said this:

“… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”[18]

In 2009, in Alcan (NT) Alumina v Commissioner of Territory Revenue, four judges of the High Court said this:

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[19]

And it is with that starting point that one then goes on to consider the purpose or object, absurdity, and statutory presumptions.

This is an important topic. It is important in the work of practising lawyers in all sorts of areas of the profession. Law graduates need to have a sound understanding of the principles applicable to statutory interpretation. I hope I may have succeeded in shedding a little light on some of them this afternoon.