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Text is surest guide to intention

Fundamentally, the process of statutory interpretation may be summarized as construing the text, in context, where context includes the general purpose and policy of a provision and the mischief it is seeking to remedy.1

As the High Court has repeatedly emphasized, “the task of statutory construction must begin with a consideration of the text itself”. “The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.2

As to context, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”.3 Moreover, context must be considered in the first instance, not at a later stage when ambiguity is thought to arise.4 “The process of construction must always begin by examining the context of the provision that is being construed”.5

Of course, recourse to statutory purpose is now compelled by section 14A of the Acts Interpretation Act 1954 (Qld) and its State and Commonwealth analogues. The importance of the statutory enactments was to make clear the purpose of the statute is to be taken into account “not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open”.6

Statements of purpose may be found in objects clauses or purpose clauses, although many statutes do not contain them. Moreover, statements of general purpose in an Act need to be treated with caution, and a general statement of purpose may be qualified by a particular provision in an Act.7 Ordinarily, the purposes of an Act or provision can be ascertained by reading the scheme of the Act as a whole.8 “The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole.”9

That having been said, how far can a purposive approach to the interpretation of an Act or statutory instrument be utilized to depart from the literal meaning of the words?

In Disorganized Developments Pty Ltd v South Australia [2023] HCA 22, the High Court revisited that question.

It concluded the Court may consider “the purposes of the relevant legislation in determining whether there is more than one possible construction but may not rewrite legislation in the light of its purposes. Any meaning must be consistent with the language in fact used in the relevant legislation.” (at [15]], per Kiefel CJ, Gageler, Gleeson, Jagot JJ). “The principle that an interpretation of a legislative instrument that best achieves the purpose of the instrument is to be preferred to any other interpretation does not assist if there is no available interpretation of the …Regulations” (to that effect): (at [23]).10

Note the importance of purpose at the outset – statutory purpose may be relevant to determining whether there is ambiguity. But reference to purpose cannot go so far as to be inconsistent with the statutory language, or to provide an interpretation not available on the language of the provision.

If Disorganized Developments described what cannot be done using purposive approach, what can be done? The legislative intent, which may be evident from the objects of the act or more often by a consideration of its provisions, may permit departure from the natural and ordinary meaning of the words in their legislative context.11 A purposive approach may justify “a strained construction”.12 Departure from the ordinary grammatical sense of the words used is not restricted at cases of absurdity or inconsistency.13

In rare cases, the purpose of the provision may justify a construction which treats the provision as having additional words.14 Whether the proper interpretation of the provision involves treating it as having additional words or omitted words involves a judgment of degree. Where grammatical drafting errors are involved which, if left uncorrected, would defeat the object of the provision, the step may readily be taken. But additional words should not be regarded as appropriate to fill a gap in the legislation or where the change is too much at variance with the language in fact used.15 Where one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.16

Finally, a word of caution. As McHugh J said in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85:

Nevertheless, …in applying a purposive construction, “the function of the court remains one of construction and not legislation.” When the express words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction, a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.

Where does that leave us?

Commence with the text, in context. Context includes the statutory purpose. The statutory purpose cannot be used to depart from the text in context if it is inconsistent with the language of the statute, or if there is no available interpretation of the provision if such purpose be used. If there is an interpretation available on the language which is consistent with the purpose, then the purpose may be used to depart from the literal meaning from the provision, to strain the language and even, if the indications be sufficiently strong, to treat the provision as containing additional words.

But questions of degree will be involved. If, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended. If the choice be between two strongly competing interpretations, then the advantage will more likely lie with the interpretation consistent with the statutory purpose.

Footnotes
1 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41 at [47]; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ
2 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41 at [47]; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ
3 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ
4 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1995-1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ
5 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]
6 Mills v Meking [1990] HCA 6; (1990) 169 CLR 214 at 235 per Dawson J; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1995-1997) 187 CLR 384 at 408; Disorganized Developments Pty Ltd v South Australia [2023] HCA 22 at [15] per Kiefel CJ, Gageler, Gleeson and Jagot JJ
7 Victims Compensation v Brown [2002] NSWCA 155 per Spigelman CJ, in dissent, reasoning accepted by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54
8 Australian Education Union v Department of Education and Children’s Services [2012] HCA 3; (2012) 248 CLR 1 at [28] per French CJ, Hayne, Kiefel and Bell JJ; and see for example the approach in Pileggi v Australian Sports Drug Agency [2004] FCA 955
9 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1980-1981) 147 CLR 297 at 320 per Mason, Wilson JJ
10 Disorganized Developments concerned the interpretation of a statutory instrument, but the same principles of interpretation apply
11 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320 per Mason, Wilson JJ
12 Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85 per McHugh J
13 Ibid at [22]
14 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 at [37]; (2014) 253 CLR 531 at [37]
15 Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9 at [38]; (2014) 253 CLR 531 at [38]
16 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321 per Mason, Wilson JJ

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