Explanatory Memorandum: An Aid To Interpretation

Explanatory Memorandum: An Aid To Interpretation

Explanatory memoranda can be used in order to understand what Parliament intended by a provision.[1]The explanatory notes were referred to in a case before Supreme Court of Western Australia.[2]The history of provision was referred to citing the case of Worthington v The State of Western Australia[3] in which case the history along with the explanatory notes, leading to the passing of the transitional provision which was introduced into the Sentencing Act 1995 by the Sentencing Legislation Amendment and Repeal Act 2003, was looked into by the Court. The explanatory notes to the Sentencing Legislation and Amendment Repeal Bill 2002 said about cl 2 of the transitional provisions:

"As a result of the changes to the Sentencing Act 1995 contained in Division 4 of Part 2 of the Sentencing Legislation amendment and Repeal Bill 2002, offenders will have to serve a greater proportion of their sentence before they are either considered for parole or released from custody. As foreshadowed in the Report of the Review of Remission and parole it is not intended that offenders would serve any longer time in custody than is presently the case.

In order to achieve this it is necessary for court to adjust the sentence they intended to impose to ensure that offenders do not serve any more or any less time in custody. Clause 2(2) gives effect to this intent by requiring courts to adjust their sentences. However, there will be occasions when courts will not have to adjust sentences and these occasions are set out in subclauses (5) and (6)."

"But it may be appropriate to consider the Explanatory Memorandum and the Second Reading Speech for the purpose of identifying the mischief which s 357A [the provision of the Migration Act 1958 (Cth) his Honour had to construe] was intended to address, as part of the general law purposive approach to statutory interpretation, and in the course of doing so to identify the purpose or object underlying the Act for the purposes of s 15AA.[4]”

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[1] Transport Workers' Union of Australia and another re The City of Stirling Enterprise Bargaining Agreement 2003 - Domestic Collections - PR940087 [2003] AIRC 1403 (13 November 2003

[2] YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)per MARTIN CJ

[3] Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

[4] Cf Saraswati v The Queen (1991) 172 CLR 1 at 21 per McHUGH J

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