LETASA

Legal Education Teachers Association of South Australia

Information Paper 36

LETASA

Statutory Interpretation
Judicial mode of lawmaking (Geof Bailey)
December 2013

Case Law
Law made by judicial officers (primarily justices or judges) in courts to the extent necessary to resolve a
matter brought before a court for adjudication. Case law is can be made in two ways:
creation of legal principles (often called legal rules) in the absence of a statutory rule
creation of legal principles that give legal meaning to codified law, commonly called statutory
interpretation.
This Paper concentrates on the latter method.

Statutory interpretation
The judicial process of giving meanings to words and sections of codified law (ie statutes and regulations) in
order to resolve a case brought before the courts for adjudication. Often referred to as construction by the
legal profession.
Why Statutes Need to be Interpreted
Courts must interpret statutes so that the law can be applied justly to bring about a finality to a legal dispute.
The specific reasons could include:
parliament intentionally gives courts discretionary powers to address unique situations.
the intention of parliament may not be clear
words and phrases may have different meanings, in different contexts
conflicts between different Acts
to meet international expectations, such as interpretations being consistent with Australias international
obligations
How Statutes are Interpreted
Judges must interpret statutes to construct their precise meaning so they can be applied consistently and
uniformly by courts when resolving legal disputes. To achieve this goal courts are guided in their
construction of statutes from two sources, parliament and superior courts.

Judicial guidance
Rules of Statutory Interpretation
Courts have developed three common law rules of statutory interpretation to assist them give meaning to
words and phrases in statutes and regulations.
Literal rule
The literal (or plain-meaning) rule allows judges to give words their ordinary and natural English meaning.
Golden rule
Used to escape any absurdity created by the application of the literal rule.
Mischief rule
Statutes are interpreted to give effect to the mischief parliament intended to address in its statute.
Canons of Construction
These are rules establishing norms or presumptions that guide judges when no other rules exist. For
example, the presumption that statutes do not oust the jurisdiction of a court to interpret a statute to settle a
dispute brought before it.
Doctrines of Precedent and Judicial Review
Once the meaning of words in a statute have been constructed by a superior court, that interpretation must
be applied in all lower courts in the same hierarchy, in accordance with the doctrine of precedent.
Any construction of an Act is subject to scrutiny in appellate courts per the doctrine of judicial review. This
means the superior courts act as a source of guidance to the lower courts so that the interpretations of
statutes are consistently and uniformly applied.

Statutory guidance

Parliaments have devised a number of rules and procedures to guide courts in the interpretation of their
legislation. This is achieved in two fundamental ways:
Internal Guidance
This guidance is provided in the principal Act being interpreted. Every statute has a "definition" and/or an
"object" section to assist judges to interpret the most important and commonly used words in the Act. For
example, the terms "driver" and "vehicle" are defined in the Road Traffic Act 1961 (SA).
External Guidance
This guidance is provided in Acts, other than the principal Act. All Australian parliaments have passed an
Acts (or Statutory) Interpretation Act to give general guidance to courts regarding the interpretation of
statutes passed within their jurisdiction.
The federal and South Australian Acts Interpretation Acts compel courts to apply the purposive rule if the
literal rule causes uncertainty.
Example
Acts Interpretation Act 1901 (Cth)
Section 15AA
In the interpretation of a provision of an Act, a construction that would promote the purpose or object
underlying the Act (whether that purpose or object is expressly state in the Act or not) shall be preferred to a
construction that would not promote that purpose or object.

Miscellaneous Information
Canon of construction
Ejusdem generis rule
Where words of particular meaning are followed by words of general meaning, the general words are
limited to the same kind of particular words. For example, if a statute said, house, room or other place, a
garage could be interpreted as an other place.
Example
R v Brislan; Ex parte Williams (1935)
Brislans Case
Mrs Dulcie Williams owned a radio and did not acquire a radio licence as prescribed by Commonwealth
law. Section 51(v) of the Australian Constitution gave the Commonwealth power to legislate on "Postal,
telegraphic, telephonic, and other like services'.
Pursuant to this power the Commonwealth Parliament passed the Wireless Telegraphy Act 1905 (Cth)
which required all radio (called a wireless then) owners to hold a licence. Mrs Williams was prosecuted by
Brislan, a wireless inspector, for not holding the relevant licence. She challenged the validity of the
legislation claiming that the Commonwealth had no power over radios to impose a licence fee.
The High Court held that the Commonwealth acted within its power under s.51(v) to legislate with respect
to wireless sets by applying the ejusdem generis rule, because a wireless was within the class of other
like services'.

There are also two kinds of definitions in a statute:

Closed definitions
The word means is commonly used in Acts. Courts consider these definitions as being exhaustive.
Open definitions
The word includes is also commonly used. This gives courts greater discretionary power to adopt the
purposive approach. Parliament uses includes because it acknowledges that it cannot foresee every
possibility that may arise.