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Lecture 5

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LWB145 Week Five Lecture Notes Statutory Interpretation Part 2 Lecture Outline  Preliminary  Parliamentary intention as manifest in text  Rationale: Separation of powers  Permissible use of extrinsic material  Extrinsic material NOT decisive  Commencement 1. Preliminary  Today we will primarily be looking at the use of ‘extrinsic material’ in the interpretation of provisions of legislation.  See Chapter 8 of Statutory Interpretation (Textbook).  Recall the basic problem introduced in last week’s lecture: provisions can often be ambiguous or unclear in the sense that more than one reading may be reasonably open.  Last week we looked at the use of intrinsic material (that is, material that is considered part of the Act itself).  This week we will be looking at the rules which apply to the use of extrinsic material.  Extrinsic material is material which is not considered part of an Act. This may include Hansard, explanatory notes or Law Reform commission reports which serve as the background for the making of the legislation.  All of these sources contain commentary on the provisions and therefore can give some idea of what parliament intended when enacting the legislation. o For example, when a Bill is presented to parliament, associated with the presentation of the bill are the explanatory notes (at QLD level) or explanatory memoranda (at Commonwealth level) which explain in a narrative what the Act is about. 2. Parliamentary intention as manifest in text  However, as we will see, extrinsic materials are rarely ever decisive because the courts are looking for the parliament’s intention as evident from the actual provisions of the statute, not as evident from other pieces of material.  Parliament’s intention is the meaning which is intended by the person drafting the statutes and then approved by the parliament when the Bill is put to vote.  In other words, the intention of the draftsperson who drafts the provision becomes the intention of parliament if it is accepted as drafted and becomes enacted into law.  There are several instances in courts where this view has been supported: o ...the final task of construction is still, as always, to ascertain the meaning of what the draftsman has said.... (Lord Simon of Glaisdale, Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231. o Lord Diplock, in a famous passage from Wentworth Securities Ltd v Jones [1980] AC 74 at 105-6, refers to:  “words that would have been inserted by the draftsman and approved by Parliament” o In Saeed v Minister for Immigration and Citizenship (2010) 267 ALR 204 the court said we are looking for the intention as manifested in the text.  This means that if there is nothing in the text to show that parliament intended X instead of Y, then even if a second reading speech says that parliament intended X and not Y, that will be considered irrelevant. o In Cooper-Brooks (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297, at 320 the High Court stated:  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. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction. o This means that the court may take extrinsic material into account, but there must be something in the legislation itself which the extrinsic materials can confirm as the intended meaning. 3. Rationale: Separation of Powers  The rationale is simple: the separation of powers. Parliament and the executive are different arms of the government.  A minister’s second reading speech is a statement by the executive, not by the parliament. Although an MP, the minister is a member of the executive.  This explains why the courts take a cautious approach to using extrinsic materials to interpret and decipher the intentions behind what the draftsperson wrote and what parliament approved.  In common law, extrinsic material could traditionally not be used at all or when it was, only for limited purposes.  Today the use of extrinsic material is governed by s 14B AIA (Qld) and s 15AB AIA (Cth) (see Sanson, 136 and 141 for the Cth provision).  Although the two Acts are different in their wording, their meaning and effect is identical.  These sections have three main purposes: o To give a non-exhaustive list of the material that can be used. o To specify how the materials may be used. o To specify the weight that can be given to the materials when they are used.  Note that both sections say ‘consideration may be given’ – this means that it is at the court’s discretion. Section 14B of the Acts Interpretation Act (Qld) provides: 4. Permissible use of extrinsic materials 14B Use of extrinsic material in interpretation (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation— (a) if the provision is ambiguous or obscure—to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable—to provide an interpretation that avoids such a result; or (c) in any other case—to confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to— (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters. (3) In this section— extrinsic material means relevant material not forming part of the Act concerned
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