Shift in trends Contd..

 Approaches to statutory interpretation

Generally, there are two schools of thought in relation to the interpretation of any statute – the literal and the purposive. The practice of statutory interpretation over the last few decades has shifted from literal to purposive, however the exact origins of each is difficult to determine.[ Theodore FT Plucknett in Statutes and their Interpretation in the First Half of the Fourteenth Century (1986) ]comments that research indicates that during medieval England the first interpretations looked at the intention of the law and the mischief they were designed to penalise. Then, during the reigns of Edward II and Edward III, there was an evident shift towards a stricter more literal approach. Despite this, the origins of each approach is not clearly stated. 

The literal approach (sometimes called a rule) was defined and explained by Higgins J in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd.[ (1920) 28 CLR 129, 161-2.]. It seeks the intention of the legislature through an examination of the language in its ‘ordinary and natural sense … even if we think the result to be inconvenient or impolitic or improbable’. This method was also preferred, even if it produces ‘anomalies or inconveniences’[. Hepples v FCT (1991-1992) 173 CLR 492, 535-6; 91 ATC 4808, 4833 per McHugh ]. 

Judges have explained that the ‘courts can not depart from the literal meaning of words merely because the result may … seem unjust’[CPH Property Pty Ltd & Ors v FC of T 98 ATC 4983, 4996 per Hill J.]  or even ‘lead to a manifest absurdity’.[ Per Lord Esher in R v The Judge of the City of London Court [1892] 1 QB 273, 290.]

A middle approach between the literal and purposive approaches placed a limitation on the use of the literal rule – this became known as the ‘golden rule’. It prohibited the use of the literal approach if it ‘lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid absurdity and inconsistency, but no farther. A further limitation to literal interpretation is the ‘mischief rule’. Established in Heydons Case, it was applied by determining the purpose of the Act, or the particular provision in question (the ‘mischief’ with which it was intended to deal), and by adopting an interpretation of the words which was consistent with that purpose. While it is probable that the mischief rule was established long before the literal approach, it was generally accepted in recent times that this approach applies only when an attempt to apply the literal approach produced an ambiguity or an inconsistency.10 The mischief rule is considered by some judges and academics to be   the purposive approach. However, more recent cases involving statutory  interpretation suggest that the purposive approach merely had its origins in the mischief rule, and is much wider in its application, as seen in Cooper Brookes (Woollongong) Pty Ltd v FC of T. [ 81 ATC 4292. Here Mason and Wilson JJ stated:

‘when the judge labels the operation of the statute as absurd, extraordinary, capricious, irrational or obscure he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions’. (Emphasis added).]

The principles of statutory interpretation outlined above prescribe the outer  boundaries of interpretation and leave considerable flexibility for the judge to ‘dip into’ these so called rules, as it suits their immediate needs. Despite this suggestion, it is evident that some judges have adopted consistent policies of interpretation. [For example Murphy J of the High Court (from 1975-1986) favoured the purposive approach and Barwick CJ (from 1964-1981) favoured the literal approach.]


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