The interpretation of legal texts such as statutes has presented problems from the earliest times to the present day. Plato urges that laws be interpreted according to their spirit rather than literally. Voltaire expressed the view that to interpret the law is to corrupt it. These two anecdotes simply highlight the historical tension which still exists between the search for the “ true intent ” of a statute and legal certainty. That such tensions should persist to the present day is not surprising when one considers that first, there is the law; then there is interpretation. Then interpretation is the law. This simplified reference to the judicial process emphasises that when courts apply a statute the interpretation which they give it has ultimate authority. Voltaire’s misgivings would not be altogether misplaced in a judicial environment where rules for interpretation of statutes were lax, subjective or even non-existent. Then there would be a real likelihood that in some cases the Courts would usurp the functions of the legislature.
Assuming that a statute is not drafted in haste, which is by no means always the case, and the parliamentary drafter has carefully fashioned and finessed its text, the fact remains that words are often an imprecise tool, however well wielded. Added to this is the impossibility of always foreseeing every situation or combination of circumstances to which a statute may have to be applied[1].With a view to addressing the difficulties inherent in statutory construction the common law in the course of its evolution over a long period of time has identified an extensive range of criteria, usually referred to as canons of construction, referred to above by Bennion, as efficient objective and neutral aids to the interpretation of statutes. The language of statutes must be interpreted in its context and with the purpose or objects of the statute in mind. In Repatriation Commission v Vietnam Veterans' Association.[2] Spigelman CJ said The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after " ambiguity" is identified.[3] Problems of legal interpretation are not solved satisfactory by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.[4]
There are also presumptions concerning the interpretation of statutes such as the presumption of constitutionality, that an act is prospective, the strict construction of penal statutes and presumption against absurdity. They are, as I have mentioned, intended as efficient and neutral aids to the interpretation of statutes and are not some sort of standard formulae automatically shaping the result of an interpretative issue. The use of canons or principles of construction, or any one or combination of them in a given case depends on a variety of factors and their interplay - the complexity or clarity of the text in issue, whether applicable precedents exist, whether there are fundamental principles in issue or constitutional considerations - one could go on. The point of departure for the Court is always the actual text of the statute to be interpreted and it is a matter of judicial appreciation, in the light of submissions from Counsel, which canons or method of interpretation are appropriate to the nature of the problem which presents itself in the particular case.[5]
Among these well established canons and rules of construction stands the well established rule excluding recourse to parliamentary debates as a means of interpreting statutes and which has been part of the common law since prior to 1769. As was said by Willes J ‘[T]he sense and meaning of an act of parliament must be collected from what it says when passed into law, and not from the history of changes it underwent in the house where it took its rise. That history is not known to the other house or to the sovereign.[6]’ ”
[1]See: Crilly v. T. & J. Farrington Ltd. [2001] IESC 60; [2002] 1 ILRM 161 (11 July 2001) [Ireland]
URL: http://www.bailii.org/ie/cases/IESC/2001/60.html
[2] In Repatriation Commission v Vietnam Veterans' Association [2000] NSWCA 65 at [107] - [108]; (2000) 48 NSWLR 548 at [107] - [108]
[3] see R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 244; Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304, 319-320; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315, 321; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335 at 381 [69].
[4] See:. Mt V Director General, Nsw Department Of Education & Training [2004] Nswadt 194 (3 September 2004)[New South Wales Administrative Decisions Tribunal
[5] See: Crilly v. T. & J. Farrington Ltd. [2001] IESC 60; [2002] 1 ILRM 161 (11 July 2001) [Ireland]
URL: http://www.bailii.org/ie/cases/IESC/2001/60.html
[6] in Millar -v- Taylor [1769] 4 BURR. 2303 [Ireland] as quoted in:Crilly v. T. & J. Farrington Ltd. [2001] IESC 60; [2002] 1 ILRM 161 (11 July 2001) [Ireland]
URL: http://www.bailii.org/ie/cases/IESC/2001/60.html
[7] In Herron -v- Rathmines and Rathgar Improvement Commissioners 27 LR
Ir 179 at 257 , as quoted in:Crilly v. T. & J. Farrington Ltd. [2001] IESC 60; [2002] 1 ILRM 161 (11 July 2001) [Ireland]
URL: http://www.bailii.org/ie/cases/IESC/2001/60.html
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