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[31.1] Australia’s international obligations are not enforceable through legal action by a person in Australia unless those obligations are incorporated into domestic legislation. If a statute does incorporate all or part of an international agreement, then, subject to a contrary intention in the statute, it is a principle of interpretation that the words in the statute are presumed to bear the same meaning as they do in the international agreement. However, even where a statute does not incorporate text from an international agreement, Australia’s international obligations may still influence the interpretation of domestic legislation. A long-established common law principle provides that, in cases of ambiguity, a construction of a statute that is consistent with Australia’s international obligations should be preferred to a construction that is not. This refers to Australia’s obligations at the time of enactment of the domestic legislation.
[24.1] The legislative history of a statute includes the extrinsic materials relating to that history. Pre-parliamentary materials and parliamentary materials are a significant category of those extrinsic materials. There is a common law principle that permits access to extrinsic materials. As well, each state and territory has provisions in their respective Interpretation Acts governing consideration of extrinsic materials. These statutory and common law gateways to extrinsic materials coexist, although their requirements vary.
[36.1] Statutory powers confer authority that enables a person or body to do what would otherwise be illegal or ineffective. They do so in two broad ways: by conferring discretions and imposing duties. This chapter focuses on the meanings of ‘may’, ‘shall’ and ‘must’ and on a question of characterisation that often arises in relation to them: namely, should the words be characterised as conferring a discretion or as imposing a duty, at least in certain circumstances?1
[20.1] Chapter 13 explained how Acts are structured, identified their various components (such as preambles, titles, headings and examples) and explained whether each component is treated as part of the Act. This chapter deals with the role that those components play for interpretative purposes, whether treated as part of the Act or not. Collectively the components help explain the scheme of the Act.
[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.
Parts IV–VIII explore the so-called rules of interpretation, better known as the interpretative criteria of the law. When the criteria are manifested in a particular statutory context they provide indications of meaning and are known as interpretative factors. Part IV begins with the criteria that may be manifested in the text or provision, and in the remainder of the Act concerned.
[40.1] There is a common law presumption that general words in a statute do not apply to the Crown in any capacity. The term ‘the Crown’ has a broad meaning for this purpose. It covers executive governments, government agencies and staff as well as the Sovereign and the Sovereign’s direct representatives in Australia.
Part II concerns those aspects of statutory interpretation that underlie all interpretative practices. Broadly, they divide into fundamental interpretative principles (chapters 4–8) and practical interpretative techniques (chapter 9).
Previous Parts have dealt with general principles of statutory interpretation. These principles potentially apply to all problems that may be solved by interpretation. Part VIII deals with special interpretative issues. These are issues arising in the case of particular interpretative problems.
[4.1] The fundamental object of statutory interpretation is to ascertain the ‘intention’ of Parliament, or the ‘legislative intent’, in relation to the statute being construed. Legislative intent is an objective notion, representative of the constitutional relationship between the arms of government. The phrase can be misleading as the word ‘intent’ suggests something subjective. But it is clear that legislative intent is not the collective, or individual, subjective mental states of individuals involved in the making of legislation. The so-called intent of Parliament is to be ascertained from applying the principles of statutory interpretation to a piece of legislation.
[15.1] An earlier chapter (chapter 6) established the importance of the text in statutory interpretation. The present chapter examines how particular presumptive meanings may be derived from the particular words in doubt. The primary meanings are the ‘literal’, ‘grammatical’, ‘natural’ and ‘ordinary’ meanings. Often combined, the presumptive meaning that reading a provision generates may be described, for instance, as the ‘ordinary and grammatical meaning’ and the ‘natural and ordinary meaning’.
[16.1] This chapter builds on chapter 10 where the nature of legislative drafting is discussed. It addresses the main styles of legislative drafting and their impact on interpretation. In common law jurisdictions there are three main recognised styles of drafting: traditional, plain language and general principles. Since the 1980s, Australian parliamentary counsel have largely adopted the plain language style of drafting, though other styles, notably general principles, are also used whenever appropriate.
[17.1] In interpreting legislation, courts can take into account whether the provision in question comes within a ‘special category’ of legislation1 – in other words, its particular ‘character’.2 The categories most frequently mentioned are remedial, penal and taxing.
[23.1] The legislative history of a statute includes its legislative antecedents (chapter 21), the pre-existing common law (chapter 22) and pre-parliamentary and parliamentary materials (chapter 24). These tend to be readily identifiable aspects of a statute’s historical context. But the ‘wider context’ of a statute is more than just these matters and documents. It extends to the background of facts and circumstances that led up to and surrounded the enactment of a statute, such as the social, political, economic and commercial facts of that time. These facts and circumstances might be characterised as a residual category of a statute’s legislative history.
[5.1] Judges are required to be independent in statutory interpretation in two main senses. First, they are independent in the sense of sovereign. In Australian law, judges are the sole authoritative arbiters of the meaning of legislation.