Doctrine of Contemporary exposition
The notion that Acts of Parliament in Australia are read in accordance with the subjective intentions of the legislators who voted on them is increasingly seen as doubtful. It involves an approach to statutory construction encapsulated in the maxim: contemporanea expositio est optima et fortissima in lege[248][1]. The essential flaw in that maxim derives from the fact that laws, once enacted, operate thenceforth, as from time to time applicable. The words of a statute should normally be interpreted "in accordance with their ordinary and current meaning"[2]. Statutes must be read, understood, obeyed and applied by people who are subject to their requirements. The contemporanea maxim is not normally the way the courts of the United Kingdom now approach problems of statutory interpretation[3]. Neither should we[4]. The suggestion that the meaning of the Act in question here is forever governed by the "intention" of the legislators who sat in the Queensland Parliament in 1931[5] is not one that I would accept. Nor do I believe that it constitutes the approach of other courts with functions similar to our own[6]. It does not represent the purposive approach to legislation now followed by this Court. The purpose postulated in that meaning is an objective one, derived from the living language of the law as read today. It is not derived from the subjective intentions of parliamentarians held decades earlier, assuming that such intentions could ever be accurately ascertained.[7] In interpreting in 1978 a statute that was enacted in 1944, Scarman LJ stated in Ahmad v Inner London Education Authority[8]: "Today, therefore, we have to construe and apply section 30 [of the Education Act 1944 (UK)] not against the background of the law and society of 1944 but in a ... society which has accepted international obligations".
This is the approach that I favour, certainly in the case of an Act such as the present[9].
The interpretation of broad statutory terms in particular factual situations is a perennial problem of statutory interpretation. Sometimes it is regarded as beneficial to the present needs of society that long-standing statutory language be cast more generally, resulting in “new” situations being caught by “old” broad language. This is particularly so in areas like intellectual property, where new technology constantly races ahead of statutory language but still has to be accommodated because legislatures are routinely “off the pace” of change. In other situations, courts find it necessary to confine the application of the statutory language in accordance with the purpose they discern Parliament had at the time of enactment, so far as they can do so. An oddity in this case is that this Court is being asked to consider what the proper ambit of legislation was intended to be at a point of time when the “old” solution to claims has ceased to be relevant, except for the present proceedings. For a discussion of the vexing impact of the passage of time on statutory interpretation.[10]’ Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem LORD THRING, the great Victorian draftsman of the second half of the last century, exhorted draftsmen to draft so that "An Act of Parliament should be deemed to be always speaking[11]"
In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety…[12]”
“…,statutes are generally always speaking, and ought therefore to be interpreted in light of the contemporary social and scientific world. This is not a rule of law but a principle of construction, which may be displaced by a contrary intent revealed by a particular statutory context.[13]”
Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem LORD THRING, the great Victorian draftsman of the second half of the last century, exhorted draftsmen to draft so that "An Act of Parliament should be deemed to be always speaking[14]"
In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of LORD THRING and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety…[15]” It is unhelpful to inquire into the history of subjective views held by individual legislators or even a plurality of legislators from time to time. Secondly, the 1956 Act is an "always speaking statute[16]. It must be interpreted in the world as it exists today, and in the light of the legal system as it exists today[17]. "It has been recognised for many centuries that putting a person in fear may amount to an assault. The early cases predate the invention of the telephone. We must apply the law to conditions as they are in the 20th century.[18]"’ ….broad, realistic and contemporary construction should be given to paragraph 9, relying on the development of our common and statute law, the European Convention, the Human Rights Act 1998 and the recognition by courts, here and abroad, of the crucial role of the press in contributing to the proper functioning of a modern democratic society. While the right of freedom of expression could never be absolute, and the need to protect personal reputations against unjustified attack called for a measure of legal protection, such protection was given by section 7 and paragraph 9 on the construction contended for. A meeting was to be regarded as public if those who arranged it showed an intention that it should be so, whether by inviting members of the public or some of them to attend or by inviting the press with a view to securing wider publicity for the proceedings. On the facts here it was plain that the meeting was intended to be public. The closing words of paragraph 9 ("whether the admission . . . is general or restricted") were to be read as words of extension, not limitation: if a meeting was otherwise public it mattered not whether the public at large or only some of the public were invited or free to attend. The judge and the Court of Appeal had put too narrow a construction on those words also[19].’The principal issue in Turkington was whether the press conference was a "public meeting" within the meaning of section 7 of the 1955 Act and para. 9 of the schedule thereto.‘Unless they reveal a contrary intention all statutes are to be interpreted as "always speaking statutes". This principle was stated and explained in Reg. v. Ireland[20]. There are at least two strands covered by this principle. The first is that courts must interpret and apply a statute to the world as it exists today. That is the basis of the decision in Ireland where "bodily harm" in a Victorian statute was held to cover psychiatric injury. Equally important is the second strand, namely that the statute must be interpreted in the light of the legal system as it exists today. In the classic work of Sir Rupert Cross (Statutory Interpretation, 3rd ed. (1995), pp. 51-52) the position is explained as follows:
"The somewhat quaint statement that a statute is 'always speaking' appears to have originated in LORD THRING's exhortations to drafters concerning the use of the word 'shall': 'An Act of Parliament should be deemed to be always speaking and therefore the present or past tense should be adopted, and "shall" should be used as an imperative only, not as a future'. But the proposition that an Act is always speaking is often taken to mean that a statutory provision has to be considered first and foremost as a norm of the current legal system, whence it takes its force, rather than just as a product of an historically defined Parliamentary assembly. It has a legal existence independently of the historical contingencies of its promulgation, and accordingly should be interpreted in the light of its place within the system of legal norms currently in force. Such an approach takes account of the viewpoint of the ordinary legal interpreter of today, who expects to apply ordinary current meanings to legal texts, rather than to embark on research into linguistic, cultural and political history, unless he is specifically put on notice that the latter approach is required". (My emphasis)[21]’
‘In other words, it is generally permissible and indeed necessary to take into account the place of the statutory provision in controversy in the broad context of the basic principles of the legal system as it has evolved. If this proposition is right, as I believe it to be, it follows that on ordinary principles of construction the question before the House must be considered in the light of the law of freedom of expression as it exists today.[22]’’ My Lords, it is not appropriate to apply the Human Rights Act 1998 directly, as we have been invited to do in this case. That is not to say, however, that the Act is irrelevant. Normal methods of construction can solve the question of construction before us. The question of interpretation before us must, as it is put in Cross, be considered in the light of the legal norms of the contemporary legal system. And freedom of expression is a basic norm of our constitution. where the organisers had invited to it a group of persons with a particular nexus, rather than throwing it open to the public in general. This is an interpretation which will needlessly complicate a branch of the law where legal certainty is of prime importance. In any event, given the extensive statutory safeguards attached to the privilege, as well as the importance of the press acting as the "eyes and ears" of the public, I regard this interpretation as unnecessarily narrow.[23] ‘Given that there is but one common law in Australia and that it cannot be inconsistent with the constitutional text and structure, but adapts and moulds itself to that text and structure in circumstances to which the Constitution is applicable, it is impossible, at least after Lange and its companion decisions, to accept that any rule of the Australian common law as to qualified privilege stated before the significance of the Constitution in these matters was appreciated, can survive into contemporary expositions of the common law if it does not respect the constitutional norm whenever that norm is applicable to a matter complained of.[24]’ In other words, it is generally permissible and indeed necessary to take into account the place of the statutory provision in controversy in the broad context of the basic principles of the legal system as it has evolved. If this proposition is right, as I believe it to be, it follows that on ordinary principles of construction the question before the House must be considered in the light of the law of freedom of expression as it exists today. The appeal to the original meaning of the words of the statute must be rejected.[25]’
In 1882 Pollock described the approach of English judges to statutes as follows: ‘Parliament generally changes law for the worse, and ... the business of the judges is to keep the mischief of its interference within the narrowest bounds.[26]’ This was an accurate description of the judicial mindset in Victorian times. This approach led to restrictive interpretation by literalist methods which sometimes blocked social progress. It remained the approach of English judges until some time after the Second World War. But the legal world has changed. Like Australian judges, English judges now apply purposive methods of construction of statutes.
Except in the rare case where a statute reveals a contrary intention, it is now settled that every statute must be interpreted as an ‘always speaking statute ’. There are at least two strands to this principle. The first is that courts must interpret and apply a statute of any vintage to the world as it exists today. That is the basis of the decision of the House of Lords in R v Ireland case where ‘bodily harm’ in a Victorian statute governing assaults was held to cover psychiatric injury.[27] Equally important is the second strand, namely that a statute must be interpreted in the light of the legal system as it exists today.[28] Thus the importance the law nowadays attaches to free speech is a relevant background to the interpretation of earlier statutes. The rationale of this principle is that a statute is usually intended to endure for a long time in a changing world. This principle does not apply to contracts. Arguably, however, there could be a similar development in respect of international standard form contracts with an intended long life[29].
[1]Broom's Legal Maxims, 10th ed (1939) at 463. (The best and surest mode of construing an instrument is to read it in the sense which would have been applied when it was drawn up). See Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322-323 per Brennan J.
[2] Joyce v Grimshaw [2001] FCA 52; (2001) 105 FCR 232 at 244 [66] (emphasis added); Australian Competition and Consumer Commission v The Daniels Corporation International Pty Ltd [2001] FCA 244; (2001) 108 FCR 123 at 143-144 [76]; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at 570-571 [71].
[3] See, for example, Fitzpatrick v Sterling Housing Association Ltd [1997] EWCA Civ 2169; [2001] 1 AC 27. See also Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 3 WLR 113; Bennion, Statutory Interpretation: A Code, 4th ed (2002) at 779.
[4] In Pearce and Geddes, Statutory Interpretation in Australia, 5th ed (2001) at 94 [4.7], the authors say that the operation of the contemporanea rule has largely been abandoned. A possible exception is where a statute expressly provides that the law is that existing at a specified date: Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 560-561
[5] See reasons of Gleeson CJ at [18]-[19].
[6] See Fitzpatrick [1997] EWCA Civ 2169; [2001] 1 AC 27; Baker v Canada (Minister for Citizenship and Immigration) [1999] 2 SCR 817 at 860-862 [69]-[71].
[7] Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166 (1 September 2004) per KIRBY J who also observed that:” It is true that, subject to the Constitution, the duty of this Court is to give effect to the Queensland law in question according to its true meaning and to achieve its ascertained purpose. However, that is not a mechanical task. It is a task that involves reading the law with today's eyes, with the interpretive tools available to the contemporary judiciary. That means analysing the Act with more than a pre-1931 dictionary and the 1931 Hansard debates on the Bill at hand. Interpretive principles are part of the common law. They inform the way judges give meaning to contested statutory language.”
[8]Ahmad v Inner London Education Authority [1978] QB 36 at 48
[9] Different considerations may apply to constitutional texts and to the elaboration of very old statutory language. See Pearce and Geddes, Statutory Interpretation in Australia, 5th ed (2001) at 94-95 [4.7]-[4.8].
[10] see Burrows Interpretation of Statutes and Contracts (NZLS Seminar June 2008) at 39-42
[11] Practical Legislation (1902), p. 83; see also Cross, Statutory Interpretation, 3rd ed. (1995), p. 51; Pearce and Geddes, Statutory Interpretation in Australia, 4th ed. (1996), pp. 90-93.
[12] See Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800 for an example of an "always speaking" construction in the House of Lords.
[13]R v Ireland, [1998] AC 147 158D-G
[14] Practical Legislation (1902), p. 83; see also Cross, Statutory Interpretation, 3rd ed. (1995), p. 51; Pearce and Geddes, Statutory Interpretation in Australia, 4th ed. (1996), pp. 90-93.
[15] See Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [1981] A.C. 800 for an example of an "always speaking" construction in the House of Lords.
[16]R v Ireland [1998] AC 147, 158D-G
[17] Cross, Statutory Interpretation, 3rd ed (1995), pp 51-52; McCartan Turkington Breen v Times Newspapers Ltd [2000] 3 WLR 1670, 1684F-1685C
[18]It was observed by court in Ireland's[Reg. v. Ireland [1997] Q.B. 114] per LORD SWINTON THOMAS L.J.
[19]Turkington and Others v. Times Newspapers Limited (Northern Ireland) [2000] UKHL 57 (2nd November, 2000)
URL: http://www.bailii.org/uk/cases/UKHL/2000/57.html
Cite as: 9 BHRC 497, [2001] 2 AC 277, [2000] 3 WLR 1670, [2000] NI 410, [2001] UKHRR 184, [2001] EMLR 1, [2000] 4 All ER 913, [2000] UKHL 57 as contained in the speech of LORD BINGHAM OF CORNHILL
[20] Reg. v. Ireland: [1998] A.C. 147, at 158 D-G.
[21] Turkington [supra] per LORD STEYN
[22] Turkington [supra] per LORD STEYN
[23] Turkington [supra] per LORD STEYN
[24] Roberts v Bass [2002] HCA 57; 212 CLR 1; 194 ALR 161; 77 ALJR 292 (12 December 2002)
[25] Vide Footnote 318 :Crown Health [supra]
[26]Sir Frederick Pollock, Essays on Jurisprudence and Ethics (1882) 85.
[27] R v Ireland; R v Burstow [1997] UKHL 34; [1998] AC 147 at 158D–G.
[28] Sir Rupert Cross, Statutory Interpretation (3rd ed, 1995) 51–52; McCartan Turkington Breen (a firm) v Times Newspapers Ltd [2000] UKHL 57; [2001] 2 AC 277 at 296A–F.
[29] The Intractable Problem of The Interpretation of Legal Texts, JOHAN STEYN, Sydney Law Review[2003] SydLRev 1,
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