Transcript 4.4 – Tools used to interpret legislation

4.4 – Tools used to interpret
legislation
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Methods used by Judges to
interpret statutes
Intrinsic sources (1st port of call)

These are contained within the legislation
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Words of the Act
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The long title

Preamble (intro section)
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Headings
When these are read with the Act they help with making
the Act clearer
http://www.legislation.vic.gov.au/
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Extrinsic sources
Examine other material not found within the Act

Found outside the Act
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Hansard
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Dictionaries
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The Acts Interpretation Act 1901 (Cwlth)
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Interpretation of Legislation Act 1948 (Vic) Committee
reports
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Reports from law reform bodies
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Purpose v Literal Approach
Purpose Approach

The ‘purpose approach’ means to interpret the Act so it
is consistent with its original purpose
Literal Rule

Definition within the Act

A judge will apply a dictionary meaning of the word. If
it does not achieve the meaning they will use the
‘purpose approach’

Could cause conflict with the purpose approach

Past decisions
on how the same word has been interpreted
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Literal approach
Engineers case (Amalgamated Society of Engineers v
Adelaide Steamship (1920) 28 CLR 129 at 161-2
Higgins J:
“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 consider the result to be inconvenient or
impolitic or improbable.”
Golden rule
A
modification of the literal
rule
 To fix drafting errors
 Adler v George [1964] 2 QB 7
 “in the vicinity of any
prohibited place”
 to mean “in or in the vicinity
of any prohibited place.”
Golden rule
Lord Wensleydale in Grey v Pearson (1857) 6HL Cas 61 at
106:
“I have been long and deeply impressed with
the wisdom of the rule, now I believe
universally adopted, at least in the Courts of
Law in Westminster Hall, that in construing
wills and indeed statutes, and all written
instruments, the grammatical and ordinary
sense of the words is to be adhered to,
unless that would lead to some absurdity, or
some repugnance or inconsistency with the
rest of the instrument, in which case the
grammatical and ordinary sense of the words
may be modified, so as to avoid that
absurdity and inconsistency, but no farther.”
Mischief rule v Purposive
approach…
The mischief rule:
The mischief rule looks for the gap
between previous legislation and
aim to find the mischief the
legislation being considered, aimed
to fix.
The purposive approach:
The purposive approach to
statutory interpretation seeks to
look for the purpose of the
legislation before interpreting the
words
Intent of the Mischief rule
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Mischief Rule
(Purpose Approach)


The mischief rule of statutory
interpretation is the oldest of
the rules. When it is not clear
whether an act falls within
what is prohibited by a
particular piece of
legislation, the judges can
apply the mischief rule. This
means that the courts can
take into account the reasons
why the legislation was
passed; what ‘mischief’ the
legislation was designed to
cure, and whether the act in
question fell within the
‘mischief’.
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Case examples of the
mischief rule:

Smith v Hughes [1960] 1 WLR
830;

Royal College of Nursing v
DHSS [1981] 2 WLR 279

Elliot v Grey [1960] 1 QB
367
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Corkery v Carpenter [1951] 1
KB 102 Case summary
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DPP v Bull [1995] QB 88
The mischief rule was
established in Heydon's Case
[1584]
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Heydon’s Case
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Example
Smith v Hughes [1960] 1 WLR 830
The defendants were prostitutes who had been charged under the Street Offences
Act 1959 which made it an offence to solicit in a public place. The prostitutes
were soliciting from private premises in windows or on balconies so could be seen
by the public.
Held:
The court applied the mischief rule holding that the activities of the defendants
were within the mischief the Act was aimed at even though under a literal
interpretation they would be in a private place.

An Act prevented soliciting by prostitutes ‘in the street’ was in force
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The court was asked to decide whether this extended to soliciting from
balconies or windows overlooking a street.
What would be the difference between the literal and purpose approaches?
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Answer

Literal approach – would mean it applied only from the
street

The purpose approach – looking at the aim of the Act
which was to clean up the streets and prevent people
being solicited by prostitutes
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Common Law Principles/Legal
Maxims
Ejusdem generis (or the class rule)

meaning ‘of the same kind’

‘diamonds, sapphires & other stones’ other stones
would narrowly be interpreted to mean precious stones
Expression unius exclusio alterius

Meaning ‘the express mention of one term excludes all
others’
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If the term is not on the list it is not included

Not ejusdem generis
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Example
Apply the class rule to the following;
‘bottles, tins, papers, cartons and other rubbish’
1.
Would food scraps be included?
2.
Would plastic bags be included?
3.
Would boxes be included?
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Other maxims
Lex non cogit ad impossibilia

The law does not expect a person to do that which is
impossible (not merely difficult or inconvenient)
Ut res magis valeat quam pereat

It is preferable to preserve a piece of legislation than to
destroy it
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The studded belt case

Deing v. Tarola [1993] 2
VR 163
Read the case study
provided. (P.165)
Complete the questions on
page 166 (Q 3 & 5)
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Your Turn
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Questions 1 – 8
Page 163 of Text
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