Revision

1. Revision • Four groups: • Literal • Golden • Mischief • Purpose/s15AA

2. A statute states that it is an offence to loiter or solicit in a street for the purposes of prostitution. Crafty Mary, a known prostitute, sits in a large bay window on the first floor of a house overlooking a busy street. She taps the window to attract the attention of men on the pavement. She invites John upstairs by beckoning and pointing to the door. He accepts her invitation. Divine Jane, a known prostitute, who is unable to speak, stands on the street corner and waits for men in cars to stop. She is observed getting into a car and handing Hugh a card that he reads. With a smile on his face, he then drives off immediately without Jane. Have any offences been committed?

3. Have any offences been committed? • Assume that you have intrinsic material that the purpose of the legislation is to eliminate prostitution – have any offences been committed? • Assume that you have extrinsic material that the purpose of the legislation is to eliminate prostitution – have any offences been committed?

4. Use of Extrinsic material Module Four

5. Context and extrinsic material • Modern approach – ‘from text to context’ • Limits on context? • Literal approach – recognised context – rules • Golden rule – recognised context - rules • Mischief approach – recognised context – rules • Modern purposive approach – more emphasis on context – rules? • s15AB/s34 • All context?

6. Context and contextualism • US approach • Frickey article • See also: Ethical Interpretation and Democratic Positivism T Campbell in Interpreting Statues Corcoran S and Bottomley S eds

7. 3 approaches • Literalism • CfLiteral approach • Contextualism • Duty to interpret statutes in accordance with the standard public meaning of the text • Meaning derived from knowledge of context of legislation and social situation to which it is addressed • Whose meaning? Parliament’s meaning? • Intentionalism • Legislation an indication of the subjective intentions of the legislators • What did they subjectively intend • Purpose – subjective or objective

8. Context in Australia? "Meaning is always influenced, and sometimes controlled, by context. The context might include time, place and any other circumstance that could rationally assist understanding of meaning.“ Singh v The Commonwealth (2004) 222CLR 322 per Gleeson CJ at [12]

9. Context in widest sense..... "[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which …one may discern the statute was intended to remedy.“ • CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187CLR 384 at 408 • BUT....

10. Context continuum

11. ‘General context’ - historical Singh v The Commonwealth • Right to speedy trial in NSW in 1988? • Gleeson CJ: “ Both in the Court of Appeal of New South Wales, and in this Court, there was a detailed examination of the meaning of the texts by reference to wider contextual factors, including of course, history. The words of Magna Carta and the Habeas Corpus Act were read through modern eyes, but modern eyes were not blind to their historical context."

12. General context - commercial • Kingston v Keprose • Priestley JA at 418 • The Court was not assisted with any material concerning the way the market in renounceable options operated when s43 was first enacted or operates now...Although the Court has some general knowledge of the commercial background that knowledge is ...not as detailed as that of the draftsman...or of those dealing in ...markets...in options, or of the legal representatives

13. Context as ‘zeitgeist’ – Crennan J • Anti- terror legislation • Resolution 1373 by the United National Security Council on 28 September 2001 • Criminal Code Act 1995 (Cth) • Thomas v Mowbray(2007) 233 CLR 307

14. ‘Usual’ Extrinsic materials • Explanatory memoranda • Second reading speeches • Law Reform reports • Extra –parliamentary materials • Trollope’s Autobiograpy • Commercial context (Kingston v Keprose per Priestley JA)

15. Context continuum

16. Why rules? • ‘The important place which legislative history has assumed this century in the United States seems to me likely to mislead if sought undiscriminatingly to be applied to our own legislation, the product of a legislature operating on the Westminster model’ Per Stephen J in Dugan v Mirror Newspapers Ltd (1979) 142 CLR 583 at 600

17. The UK: Pepper v Hart • Pepper (Inspector of Taxes) v Hart [1993] AC 593 • Interpretation of Finance Act 1976 Section 63: "(1) The cash equivalent of any benefit chargeable to taxunder section 61 above is an amount equal to the cost ofthe benefit, less so much (if any) of it as is made good bythe employee to those providing the benefit. (2) Subject to the following subsections, the cost of abenefit is the amount of any expense incurred in or inconnection with its provision, and (here and in thosesubsections) includes a proper proportion of any expense relating partly to the benefit and partly to other matters.“

18. Pepper v Hart: Issues • ‘Cost’ – average cost or marginal cost? • Use of extrinsic material in interpretation • During Committee stage, Minister responsible (Financial Secretary to the Treasury) remarked that: • “The removal of clause 54(4) will affect the position of a child of one of the teachers at the child's school because now the benefit will be assessed on the cost to the employer, which would be very small indeed in this case"

19. Browne-Wilkinson LJ at 11 • Your Lordships then invited the parties to consider whether they wished to present further argument on the question whether it was appropriate for the House (under Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234) to depart from previous authority of this House which forbids reference to such material in construing statutory provisions and, if so, what guidance such material provided in deciding the present appeal.

20. Pepper v Hart • To what extent may extrinsic material be referred to in the construction of statutes? • Problems of courts referring to extrinsic material in the context of a Westminster system • Separation of powers • Parliamentary privilege

21. Bill of Rights 1689, article 9 • "That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in anycourt or place out of Parlyament."

22. Parliamentary Privileges Act 1987 (Cth) 16(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights, 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.... 16(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of- (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

23. Parliamentary privilege • Letter from Clerk of House of Commons to Attorney-General • Leave of House required – practice discontinued October 1980 • BUT: • “...If a court were minded in particular circumstances topermit the questioning of the proceedings of the House in the way proposed, it would be proper for the leave of the House to be sought first by way of petition so that, if leave were granted, no question would arise of the House regarding its Privileges as having been breached."

24. Browne-Wilkinson at 25: • Article 9 is a provision of the highest constitutionalimportance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discusswhat they will (freedom of debate) and to say what they will(freedom of speech). But even given a generous approach to thisconstruction, I find it impossible to attach the breadth of meaningto the word "question" which the Attorney-General urges. It mustbe remembered that article 9 prohibits questioning not only "in any court" but also in any "place out of Parliament". If the Attorney- General's submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute"questioning" since all Members of Parliament must speak and acttaking into account what political commentators and other willsay. Plainly article 9 cannot have effect so as to stifle thefreedom of all to comment on what is said in Parliament, eventhough such comment may influence Members in what they say.

25. Reasons to relax rule: • ‘The purpose of looking at Hansard will not be to construe the words used by the Minister, but to give effect to the words as long as they are clear.’

26. Browne-Wilkinson LJ: • Your Lordships are motivated by a desire to carry out the intentions of Parliament in enacting legislation and have no intention or desire to question the processes by which such legislation was enacted or of criticising anything said by anyone in Parliament in the course of enacting it. The purpose is to give effect to, not thwart, the intentions of Parliament. [at 35]

27. Extent of extrinsic materials? Browne-Wilkinson LJ: • Legislative history of fringe benefits legislation; • Legislative history of Finance Act 1976; • Ministerial responses to questions in committee stage; • Public opposition; • Government press releases; • Sub-sections not proceeded with.

28. Government press release • "The effect of deleting this subclause will be to continue the present basis of taxation of services, namely the cost to the employer of providing the service."

29. “The very question which is the subject matter of thepresent appeal was also raised. A Member (at column 1091) said: "I should be grateful for the Financial Secretary's guidanceon these two points. . . . The second matter appliesparticularly to private sector, fee-paying schools where, asthe Financial Secretary knows, there is often anarrangement for the children of staff in these schools to betaught at less than the commercial fee at other schools. Itake it that because of the deletion of clause 54(4) that isnot now caught. Perhaps these examples will help to clarifythe extent to which the Government amendment goes." The Financial Secretary responded to this question asfollows: "He mentioned the children of teachers. The removal ofclause 54(4) will affect the position of a child of one of theteachers at the child's school, because now the benefit willbe assessed on the cost to the employer, which would bevery small indeed in this case (column 1095)."” [at 18]

30. Exclusionary rule • Lord Browne-Wilkinson at 18,19. • Argument for change: • Not total • Where statute ambiguous, obscure, or words would lead to an absurd conclusion • Purpose to identify Parliament’s intention • Cf s15AB

31. Arguments against change In Beswick v. Beswick[1968] A.C. 58, 74A Lord Reid said: • "For purely practical reasons we do not permit debates in either House to be cited: it would add greatly to the time and expense involved in preparing cases involving the construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel to get access to at least the older reports of debates in Select Committees of the House of Commons; moreover, in a very large proportion of cases such a search, even if practicable, would throw no light on the question before the court."

32. Lord Reid again... • “Questions which give rise to debate are rarelythose which later have to be decided by the courts. Onemight take the views of the promoters of a Bill as anindication of the intention of Parliament but any view thepromoters may have about the questions which later comebefore the court will not often appear in Hansard and oftenthose questions have never occurred to the promoters. Atbest we might get material from which a more or lessdubious inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter, and it would, I think, generally be dangerous to attach weight to what some other members of either House may have said ... in my view, our best course is to adhere to present practice." ...In Black-Clawson International Ltd v. PapierwerkeAldhof-Aschaffenburg A.G. [1973] A.C. 591 at pp. 613-615

33. Constitutional argument: Lord Wilberforce (at 629 F-H): • "The second [reason] is one of constitutional principle. Legislation in England is passed by Parliament and put in the form of written words. This legislation is given legal effect upon subjects by virtue of judicial decision, and it is the function of the courts to say what the application of the words used to particular cases or individuals is to be . . . It would be a degradation of that process if the courts were to be merely a reflecting mirror of what some other interpretation agency might say."

34. Rule of law argument In Fothergill v. Monarch Airlines[1981] A.C. 251, 279per Lord Diplock: • “[the Court] is ...mediator between the state in the exercise of its legislative power and the private citizen ...Elementary justice or ... the need for legal certainty demands that the rules by which the citizen is to be bound should be ascertainable by him (or, more realistically, by a competent lawyer advising him) by reference to identifiable sources that are publically accessible."

35. Different role of executive: In Davis v. Johnson [1979] A.C. 264, 350A per Lord Scarman: • "Such material is an unreliable guide to the meaning of what is enacted, it promotes confusion, not clarity. The cut and thrust of debate and the pressures of executive responsibility, the essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. The volume of parliamentary and ministerial utterances can confuse by its very size."

36. Extrinsic materials allowed • My Lords, I have come to the conclusion that, as a matter of law, there are sound reasons for making a limited modification to the existing rule [that Hansard may not be used] ... reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words. In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.

37. Why change? • It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. One of the reasons for such ambiguity is that the members of the legislature in enacting the statutory provision may have been told what result those words are intended to achieve.... Parliament never intends to enact an ambiguity. [at 24]

38. The court cannot attach a meaning to words which they cannot bear, but if the words are capable of bearing more than one meaning why should not Parliament's true intention be enforced rather than thwarted? [at 24]

39. Reasons supporting change • Logical extension of present ability to refer to certain white papers etc; • Artificial distinction between lookingat reports to identify the mischief aimed at but not to find the intention of Parliament in enacting the legislation – Law Reform Commission example; • Textbooks use extrinsic material to discuss legislation • Judges consider extrinsic material; • Practical difficulties can be exaggerated – no problems in Commonwealth jurisdictions.

40. Browne-Wilkinson LJ: • The courts should not deny themselves the light which Parliamentary materials may shed on the meaning of the words Parliament has used and thereby risk subjecting the individual to a law which Parliament never intended to enact.

41. Separation of powers argument? • Browne – Wilkinson LJ: Courts and Parliament must perform their separate roles. • CONTRA – Blackstone - to allow judicial review of "unreasonable" legislation was to "set the judicial power above that of the legislature, which would be subversive for all government".

42. Extrinsic material and drafting • Streamline drafting process because courts will refer to extrinsic material? • BUT – does this make content of law harder to determine? • Impact on parliamentary process? • Need for parliamentary counsel not just to draft legislation but all ancillary documentation? Even press releases? • Questions without notice?

43. UK re-action • Read down subsequently • Heavily criticised – eg Lord Millett: • Lord Mackay of Clashfern dissented on practical grounds. He has been proved to be entirely right. The decision has added enormously to the costs of civil litigation. Whenever a statute falls to be construed, no counsel can afford to ignore its parliamentary history. The extra research is time consuming and costly, and wholly unproductive. Rather than see his time wasted, Counsel often feels obliged to place the fruits of his research before the court, thus prolonging the hearing at still more expense. Yet in the seven years since the decision, I am aware of no case where the material has been determinative, not even in Pepper v. Hart itself.

44. Australian common law position • Survives statutory intervention • Used as adjunct to mischief or purpose approach • Discover purpose of the Act – not Parliament’s intention with respect to a particular provision • Limited sources available for consideration

45. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 Brennan CJ, Dawson, Toohey and Gummow JJ: It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent [footnotes omitted]

46. Common law broader than s15AB? • Isherwood v Butler Pollnow Pty Ltd [1986] 6 NSWLR 363 at 388 per McHugh JA • Newcastle City Council v GIO (1997) 191 CLR 85 at 112 per McHugh JA • Allsop J (extra- judicially) – NSW Bar Association 2005

47. Allsop J • State of law at time of enactment • Mischief • Historical development of statute • ‘Pedigree’ statutues and rule of law e.g Bankruptcy Act • Historical development of law • Statues in pari materia • International perspective • Problems with travaux preparatoire • Sources of statute

48. Statutory position ACTS INTERPRETATION ACT 1901 - SECT 15AB Use of extrinsic material in the interpretation of an Act (1)  Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:                      (a)  to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or                      (b)  to determine the meaning of the provision when:                               (i)  the provision is ambiguous or obscure; or                              (ii)  the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

49. (2)  Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:                      (a)  all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;                      (b)  any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted;                      (c)  any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted;                      (d)  any treaty or other international agreement that is referred to in the Act;                      (e)  any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;                       (f)  the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;                      (g)  any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and                      (h)  any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament.

50.    (3)  In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:                      (a)  the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and                      (b)  the need to avoid prolonging legal or other proceedings without compensating advantage.