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

Words of the Act

The long title

Preamble (intro section)

Headings
When these are read with the Act they help with
making the Act clearer
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Extrinsic sources
Examine other material not found within the Act

Found outside the Act

Hansard

Dictionaries

The Acts Interpretation Act 1901 (Cwlth)

Interpretation of Legislation Act 1948 (Vic)
Committee reports

Reports from law reform bodies
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Other Approaches Used
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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Mischief Rule
(Purpose Approach)

The mischief rule of statutory interpretation is the oldest of
the rules. The mischief rule was established in Heydon's
Case [1584] EWHC Exch J36 Case summary. In Re Sussex
Peerage, it was held that the mischief rule should only be
applied where there is ambiguity in the statute. Under the
mischief rule the court's role is to suppress the mischief the
Act is aimed at and advance the remedy.

Case examples of the mischief rule:

Smith v Hughes [1960] 1 WLR 830;

Royal College of Nursing v DHSS [1981] 2 WLR 279
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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
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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

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
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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’
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‘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
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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.
Complete the questions
on page 182 (Q 1 – 4)
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Your Turn

Questions 1 – 8
Page 163 of Text
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