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The meaning of legislation: context, purpose and respect for fundamental rights

Feature Articles

Cite as: (2008) 82(9) LIJ, p. 52

One month before his retirement High Court Chief Justice Murray Gleeson presented a Victoria Law Foundation Oration on “Statutory Interpretation” at the Victorian Supreme Court’s Banco Court.

By High Court Chief Justice Murray Gleeson

The 31 July speech, organised by the Victoria Law Foundation and the Victorian Bar, was one of the Chief Justice’s last public engagements before his retirement on 29 August. His successor, Chief Justice Robert French, took up his role on 1 September. [For more on Chief Justice French, see “New High Court Chief Justice takes up role” on page 15 of this edition of the LIJ.]

Chief Justice Gleeson delivered his address to a full Banco Court. Guests included High Court Justice Susan Crennan, Family Court Chief Justice Diana Bryant, Victorian Supreme Court Chief Justice Marilyn Warren, Children’s Court president Paul Grant and Chief Magistrate Ian Gray. The following is an edited version of Justice Gleeson’s speech.

Chief Justice Murray Gleeson considered three of the principles that guide judges in interpreting legislative texts – context, purpose and respect for fundamental rights.

Context

The meaning of a text is always influenced, and sometimes controlled, by context.1
The immediate context of a statutory provision may include surrounding provisions or, perhaps, the entire Act. The wider context may include historical circumstances at the time of its enactment, a background of other legislation or judge-made law, the Constitution, and any other matter that could rationally assist understanding of meaning.2

In the case of some texts, the indispensability of regard to context is obvious. How would it be possible to explain the meaning of the first three of the Ten Commandments to someone who knows nothing of the religious beliefs and practices of the Israelites at the time of Moses? There are some words and concepts that have no meaning, or no single meaning, apart from their context. Resort to a dictionary may disclose a range of possible meanings, but the choice between those possibilities may depend entirely on context. Especially is this so when what is in question is the meaning of a phrase, or a compound expression, made up of words which, taken separately, may have a misleading signification.

Reference to context, however, is not confined to circumstances where the text would otherwise be unintelligible or at least ambiguous.3 Utility, not necessity, is the reason for reference to context. The question is whether it can rationally assist understanding, not whether, without regard to context, understanding is impossible.

As to historical context, there are
many examples of reliance by the High Court on the circumstances in which the Australian Constitution was written as an aid to its interpretation.4 The Constitution itself is a paradigm case of an instrument in which particular parts of the text must be understood in the light of the general nature and purpose of the whole document: an instrument of government, expressed in broad and general terms, designed to provide for a future which the framers knew they could not in all respects foresee.5

That the history of a legal text, and the circumstances in which it was written, may usefully inform an understanding of the meaning of the text is undeniable. Use of such information is a routine part of legal reasoning. It is a consideration that informs a number of more specific and well-established rules, such as the rule in Heydon’s case, according to which, to discover “the true intent of the makers of an Act”6 a court will consider the state of the law before the making of the Act , and the mischief to be remedied. Intention is a concept that is sometimes resisted, because of its association, especially in the field of constitutional law, with the concept of original intent.

Intention is a slippery concept, but, properly employed, it is valid, and expresses the constitutional place of courts in giving effect to legislative will.7

The Acts Interpretation Act 1901 (Cth) itself makes repeated reference to “intention” in the course of laying down rules of interpretation. How, in the face of the statute, a court could declare intention to be an inadmissible concept is impossible to understand. Fears that the dynamism of the Constitution, essential to its role as an instrument of government, may be stultified and that courts may be tied to the subjective, and often different, understandings of the framers of the Constitution, may account for an occasional lapse into a different error, which is to treat history either as irrelevant to constitutional interpretation, or as a rhetorical weapon, to be employed when it is a support and ignored when it is an embarrassment.

Although the Constitution is not to be treated as an ordinary statute, because of its age and enduring quality it provides some good examples both of the importance of context in interpretation, and of some conceptual problems that need to be faced.

One of the most difficult problems thrown up by the Constitution relates to s122, dealing with territories, to the general scheme of the instrument. In 1901, and for most of the 20th century, s72, in Ch III, provided that the judges of federal courts held office for life. In the exercise of its power over territories, the federal government appointed judges and magistrates. The territories varied in nature, political development, size and remoteness. Were courts that were established under the power to make laws about territories covered by Ch III? The question was answered in the negative.8 If it had been otherwise, the surprising consequence would have been that territory magistrates (who in those days were typically public servants) had to be appointed for life.9 In 1977, s72 of the Constitution was amended so that, thereafter, federal judges did not have life tenure. In that respect, the context altered.

It is one thing to say that a statute, and especially a Constitution, is “always speaking”. The question is: what is it saying?

The answer may turn on the meaning of meaning.

I will seek to illustrate this by another constitutional example, this time using context in the wider sense, and again adding the rider that the Constitution is in some respects different from an ordinary Act.

Section 80 refers to trial, on indictment, of federal offences “by jury”. In such cases, must jury verdicts be unanimous, or may majority verdicts be permitted by statute?
In Cheatle v The Queen,10 the High Court held that such verdicts must be unanimous. One of the reasons given for that conclusion was that, in 1901, throughout Australia, unanimity was required for jury verdicts in criminal trials.

The expression “trial by jury” had, in 1901, a meaning that excluded majority verdicts. However, at the time of Cheatle, change was in the air, and, more recently, has gathered pace. Now, in most parts of Australia, majority verdicts in criminal trials are possible. Again, the effect of precedent cannot be overlooked, but if the issue in Cheatle arose afresh (that is, without the benefit of existing authority) tomorrow, what would be the legal significance of the recent changes to which I have referred? Was there, relevantly, a change in context? Did s80 change its meaning in the concluding years of the 20th century, when trial by jury at criminal trials in the Australian states came to allow for majority verdicts? There is a question of what is meant by meaning. If, at the time the Constitution was enacted, the meaning of trial by jury was sufficiently flexible to accommodate the change in practice that later occurred, one result would follow. But if the idea communicated by the words “trial by jury” was, at least in respect of unanimity, fixed and limited by reference to practice in 1901, there would be a different result. Put another way, there would be an anterior question of construction: how much flexibility do the words “trial by jury”, in s80, allow?

One thing, I suggest, is clear. Judges may not answer that question according to whether they approve, or disapprove, of majority verdicts. I have chosen Cheatle as an example because the contextual change to which I referred is one that some lawyers regard, not as progressive, but as regressive. The case presents them with a nice dilemma. If the Constitution is a living instrument, always speaking, and if the modern understanding of trial by jury encompasses majority verdicts, did s80 take on a different meaning in the years following Cheatle? A negative answer to that question would not depend on a theory of original intent. It would depend on the proposition that, having regard to the historical context in which the Constitution was written and enacted, the signification of the words “trial by jury” excluded majority verdicts, and that the words were insufficiently flexible to accommodate later changes in state practice. It could not turn on a judicial disapproval of majority verdicts, because such disapproval could not form a part of any process of reasoning that would be accepted as legitimate.

Purpose

It is unnecessary to justify purposive construction of legislation. It is mandated by statute. In the case of federal Acts, s15AA of the Acts Interpretation Act 1901 directs that a construction that would promote the purpose or object underlying the Act should be preferred to a construction that would not promote that purpose. State legislation is to similar effect. Section 35(a) of the Interpretation of Legislation Act 1984 (Vic) is in the same terms as s15AA of the federal Act. Section 35 goes on to provide that consideration may be given to any matter or document that is relevant, and then identifies various extrinsic materials in contemplation. They include reports of proceedings in any House of Parliament. Section 15AB of the federal Act permits the use of such extrinsic materials to confirm that the meaning of a provision is the ordinary meaning, taking account of context and purpose, or to determine meaning in a case of ambiguity or obscurity, or where the ordinary meaning is absurd or unreasonable.

The reference, in the interpretation Acts, to “the purpose or object underlying the Act”, in its application to some problems of construction, is deceptively simple. The general purpose or object underlying the Income Tax Assessment Act of the Commonwealth is to raise revenue for the government. Nobody (I trust) would suggest that, in consequence of s15AA of the Acts Interpretation Act, whenever there is ambiguity in the Act it is to be resolved in favour of the revenue. In truth, the Act is one of the most complex collections of sometimes disparate purposes and objects devised by human ingenuity. To say that its general purpose is to raise revenue is of no rational assistance in solving a problem of interpretation of one of its provisions. Furthermore, the statement is a half-truth. The purpose is not to raise as much revenue as possible, regardless of the consequences. The purpose is to raise revenue according to an intricate pattern of fiscal policy, which is almost constantly changing, and some of whose elements may be inconsistent. The task is to identify the purpose or object of a particular provision, or group of provisions. That may be very difficult. To carry it out may require extensive knowledge of the theory and practice of revenue law, and of many other matters as well.

There was a time, now gone, when courts gave taxing Acts, not a purposive, but a strict and narrow, interpretation. This is a matter to which I will return in dealing with rights-based statutory interpretation, for that approach to taxation law reflected an emphasis on certain rights, now less fashionable. At all events, s15AA applies to all federal Acts, including taxing Acts. Such Acts provide a clear example of a wider problem.

In considering “the purpose or object” of a provision, it is important to remember that much legislation is the result of compromise. It has often been pointed out by some judges, and sometimes forgotten by others, that few Acts of Parliament pursue only a single purpose, or do so at all costs. Parliament is constantly striking a balance between competing considerations of policy. Issues of statutory construction often take the form of disputes as to the balance that has been struck. The question is not so much one of identifying the legislative purpose as of working out how far Parliament has gone in pursuit of that purpose. Where such a doubt exists, it would be illegitimate for a court to act on the basis that Parliament has gone as far as it possibly can, and on that ground to prefer the construction that most advances the general purpose. That may be contrary to an evident parliamentary purpose of compromise.

An example of the problem may be found in a series of recent High Court cases about state legislation regulating the conduct of police in questioning people suspected of crime.11

Typically, such legislation is the outcome of a parliamentary compromise. If there is a legislative purpose to be identified, it must be identified at a level of particularity that points to the resolution of the specific doubt about meaning that has arisen. It may be of no rational assistance to the resolution of that uncertainty to say that the Act reflects an intention to preserve police powers of questioning while giving a fair measure of protection to the rights of suspected persons. The whole argument is about the extent of the powers, and of the protection given. Acts of Parliament sometimes have mixed, and even inconsistent, purposes, and even where they have a single or dominant purpose there may be uncertainty about the extent to which it has been pursued. Attribution of legislative purpose may involve judicial over-reach if it ignores such considerations.

A further source of difficulty is that there may be some matters about which Parliament has deliberately refrained from forming or expressing a purpose. Indeed, it may be that which has made possible the compromise achieved by the legislation. Gaps in a legislative scheme may be deliberate. Parliament might have found it expedient to leave it to the courts to fill them in. Or the gaps might be unintentional, because a potential problem has been overlooked – in which case, there may be no discernable purpose that is an aid to construction.

It should be added that, where courts have mistaken legislative purpose, or given a construction that defeats the purpose, it is of course within the power of Parliament to amend the legislation. There may be political realities in the way of that, but the existence of the residual power of Parliament to declare and enact its own purpose, if necessary by way of amendment, reinforces the legitimacy of the judicial process.

Respecting fundamental rights

There is nothing revolutionary about the principle of legality, according to which courts decline to impute to Parliament an intention to abrogate or curtail fundamental human rights or freedoms unless such an intention is clearly manifested by unambiguous language, which indicates that Parliament has directed its attention to the rights and freedoms in question, and has consciously decided on abrogation or curtailment.

This, however, like all other grounds of judicial action, is subject to considerations of legitimacy. The judiciary should not forget its own history. A century ago, judges enthusiastically construed Acts of Parliament so as to protect and preserve rights. However, they had a rather different set of rights in mind. In 1976, writing extra-judicially, Lord Devlin spoke of judicial opposition to legislative will. He said:12 “In the past, judges have been obstructive. But the source of the obstruction, it is very important to note, has been the refusal of judges to act on the ordinary meaning of words. They looked for the philosophy behind the Act and what they found was a Victorian Bill of Rights, favouring (subject to the observance of the accepted standards of morality) the liberty of the individual, the freedom of contract and the sacredness of property, and which was highly suspicious of taxation. If the Act interfered with these notions, the judges tended either to assume that it could not mean what it said or to minimise the interference by giving the intrusive words the narrowest possible construction, even to the point of pedantry”.

Lord Devlin was describing a 19th-century form of judicial protection of rights and freedoms: rights of property, and freedom of contract. The history of judicial support for those causes has surely not been eradicated from the folk memory of parliamentarians.

One manifestation of this judicial attitude, which survived until relatively recent times, was the approach taken to the interpretation of taxing Acts.

In 1980, in Federal Commissioner of Taxation v Westraders Pty Ltd,13 the High Court affirmed a decision of the Federal Court in favour of a taxpayer who used what was described as ingenious use of certain provisions of the Income Tax Assessment Act 1936 (Cth) to produce (or manufacture) allowable deductions. Barwick CJ said:14 “It is for the Parliament to specify, and to do so, in my opinion, as far as language will permit, with unambiguous clarity, the circumstances which will attract an obligation on the part of the citizen to pay tax”.

In its application to taxing Acts, that proposition is no longer accepted and, indeed, would be contrary to s15AA of the Acts Interpretation Act. Only a year later,15 two other members of the High Court said that, in revenue statutes as in other cases, the courts are concerned “to ascertain the legislative intention from the terms of the instrument viewed as a whole”. Barwick CJ explained his approach in terms of principles that he said were “basic to the maintenance of a free society”.16 Judges who remember their history will understand why their past defences of rights of property and freedom of contract against what they saw as legislative encroachment may have left a legacy of reluctance, in some quarters, to widen their powers.

The legitimacy of judicial interpretation of legislation cannot depend on enthusiasm, judicial or popular, for a cause. Undoubtedly, the reaction against the past judicial approach to taxing Acts was fuelled by a change in public attitudes towards the social role of taxation, but the battleground was the area of legal principle. Judges were accused of overstepping the bounds of interpretation. When, to use Lord Devlin’s expression, they were obstructive, the result was political, and public, questioning of the legitimacy of what they were doing. Effective judicial support for human rights is strengthened by insistence on such legitimacy, and weakened by disregard for it.

Exploring the boundary between interpretation and legislation, in a manner that respects the constitutional and political imperative of judicial legitimacy, is part of the work of modern judges. They may expect that the standard that will be applied to their performance will be one of strict scrutiny.

A webcast of the speech is available from http://scv2.webcentral.com.au/other on the Victorian Supreme Court website or a text version is available from http://www.victorialaw.org.au.


1. Singh v The Commonwealth (2004) 222 CLR 322, at 332.

2. Bennion, Bennion Statutory Interpretation (2008), LexisNexus, at 588-590, 919; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.

3. CIC Insurance Ltd v Bankstown Football Club Ltd,
note 2 above.

4. Note 1 above, at 333.

5. Note 1 above, at 334-339.

6. (1584) 3 Co Rep 7a; Bennion, note 2 above, at 471.

7. Wilson v Anderson (2002) 213 CLR 401 at 418 [8]. See R v Secretary of State for the Environment, Transport and the Regions; ex parte Spath Holme [2001] 2 AC 349 at 396 per Lord Nicholls of Birkenhead.

8. R v Bernasconi (1915) 19 CLR 629.

9. Spratt v Hermes (1965) 114 CLR 226.

10. (1993) 177 CLR 541.

11. E.g. Kelly v The Queen (2004) 218 CLR 216; Nicholls v The Queen (2005) 219 CLR 196; Carr v Western Australia (2007) 82 ALJR 1 at 4 [5].

12. Devlin, “Judges and lawmakers” (1976) 39 Modern Law Review 1 at 13-14.

13. (1979) 144 CLR 55.

14. Note 13 above, at 59.

15. Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 323 per Mason and Wilson JJ.

16. (1979) 144 CLR 55 at 61.

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