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[2.1] Contemporary statutory interpretation law involves, broadly, consideration of the statutory text, taking account of its full context and having regard to its purpose. These three concepts have loosely existed in statutory interpretation law for centuries, providing the basis for determining the legislative intent of a statute to varying degrees. This chapter considers the relatively recent history of these key concepts, starting at the beginning of the 20th century. Having some basic knowledge and understanding of this recent history enhances understanding of contemporary concepts and provides historical context to the current law and older cases. Following federation in 1901, Australia continued to be bound, and influenced, by English law. The English approach to interpretation placed considerable emphasis on the grammatical meaning of text, with limited regard to context and purpose.
[25.1] Each Australian jurisdiction has an Act dealing with the interpretation of the Acts of that jurisdiction.1 Such Acts are referred to in this book, including in this chapter, as ‘Interpretation Acts’, irrespective of their actual title.
This chapter examines the common assumption that, whereas Elizabeth I’s reign was at the zenith of the age of common law, we have now moved into an age of statute. The Elizabethans themselves thought this was already happening: there were so many matters, such as poor relief and economic regulation, which the common law was powerless to tackle. The volume of legislation has continued to increase dramatically, and yet the sphere of the common law is still large and the interpretation of statutes is governed by common-law principles. The fiction of legislative intent, the concept of equity, and the mischief rule were all much the same as today’s interpretative techniques. The largest jurisprudential change has been the common law’s loss of immortality. A statute can, in an instant, extinguish an immemorial principle of law. The extinction survives the repeal of the statute, so that much of the current law is contained in repealed statutes. In this connection, the effects of the Interpretation Acts are considered. Legislation has come to dominate the law in terms of abrogative power as well as bulk, but the common law is superior in terms of clarity, flexibility and self-correction.
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