By Geordie Wilson, Government Lawyer
Statutory interpretation is an essential component of legal process to understand for any government lawyer. One way to understand the role of the government lawyer when engaging in the skills of statutory interpretation, is to see it as the methodology by which a lawyer can figure out how a court would interpret and apply legislation in a given context.
Due to the complexity of issues in society, the inherent ambiguity of language, and the compromises that need to be made in the political process; statutes can’t always be plainly worded. Nevertheless, it is an important skill to understand how statutes would be applied even in the face of such difficulties. Whilst the below might serve as an introduction to the basic principles of statutory interpretation in Australia, for the motivated practitioner; books such as Statutory Interpretation in Australia by Dennis Pearce, or Ordinary Meaning by Brian Slocum might prove useful in the most difficult of situations.
In Australia, the modern and predominant approach for a Commonwealth lawyer is the ‘purposive approach’. This approach was imposed by parliament through a reform of the Acts Interpretation Act 1901 (AI Act) and was a deliberate and explicit step away from textualist approaches to interpretation.
The purposive approach is a useful paradigm at times where an act’s purpose is obvious or easily understood. However, it can at times be difficult for a lawyer to identify the purpose of a relevant section to a dispute in a defensible way.
Sections within acts articulating a ‘purpose’ can at times be unclear. Additionally, the degree to which extrinsic materials can be relied upon to identify a ‘purpose’ relevant to the AI Act can also be difficult. A close reading of some recent High Court judgements where statutory interpretation is a decisive issue, shows that there are sometimes nuances in a particular member of the court’s preferred approach. Academics have found it difficult to identify singular, simple theories of how statutory interpretation is supposed to operate in practice.
Nevertheless, generally speaking, the general practice in Australia is to assume that certain types of extraneous materials are relevant for discerning an act’s purpose. Explanatory memoranda, second-reading speeches, and other related pieces of legislation are frequently referred to as part of the task of identifying an act’s purpose. Other types of extraneous materials, such as the Hansard of question time, prominent news coverage relevant to a legislative effort, or broad social or political issues are less-accepted as relevant to discerning an Act’s purpose.
Aside from the purposive approach, other issues are important to keep in mind as a government lawyer. It is important that people with responsibilities toward certain legislative matters are kept aware of any statutory interpretation issues that might affect their ability to fulfil their duties. To that end, when a legal dispute involves an important issue of statutory interpretation, it is important for Commonwealth lawyers to consult with leadership and have a process to ensure stakeholders who need to know about a legal dispute are made aware. Depending on your department’s guidance, it may be necessary to inform leadership, your legal team, other departments, or other escalation bodies within the Commonwealth relevant to legal matters.
One more issue to keep in mind as a practitioner is the application of various legal presumptions that will affect the way statutes may operate. The ‘principle of legality’ as articulated by the High Court is one such type of presumption that is an important concept for lawyers operating in particularly contentious areas to understand. This is especially the case for Commonwealth lawyers that operate in fields that are necessarily contentious or involve issues relevant to the field of human rights, or in areas associated with the traditional common-law rights.
Statutory interpretation is a very broad topic that is as complex as it is fundamental. Much of this complexity is inherent to the relationship between statutes and the concepts of language and politics. If ever in doubt over an issue in your practice as a Commonwealth lawyer, it is always quite useful to check Statutory Interpretation in Australia by Dennis Pearce.