Headings An aid To Interpretation

Headings in a Statute and Regulation

"The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision.[1] 'But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment[2].'

The Court is entitled to have regard to headings in statutory provisions. Section 19(1)(b) of the Acts Interpretation Act 1915 (SA) provides:

The following form part of an Act, subject to any express provision to the contrary:

(a) preambles, schedules, dictionaries and appendices (including their headings);
(b) chapter headings, part headings, division headings and subdivision headings;
(c) examples, qualifications, exceptions, tables, diagrams, maps and other illustrations (including their headings), except where they form part of a note that does not form part of the Act;
(d) punctuation.

In Silk Bros Pty Ltd v State Electricity Commission of Victoria, LATHAM CJ observed:[3]

The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision.

Headings of parts and subdivision

The Acts Interpretation Act by sec. 13 declares "the Headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act." The controlling effect of a heading of this nature is shown by Inglis v. Robertson[4].

Heading of Sections and provisions

Similarly, heading to s 222AKA itself, to which reference may be made as an aid to interpretation.[5]The setion headings are not part of an Act.[6]’ Assistance may also be obtained by looking at the headings of parts, divisions and subdivisions of an Act as they are deemed to be part of the Act. (s 13, Acts Interpretation Act 1901). However, the heading to a section of an Act does not form part of the Act and cannot be used to assist in its interpretation.[7] ‘The heading to the section (formerly the side-note) gives an indication as to its general purpose. It suggests that the section is concerned with "Injury to witness". Although the heading is not part of the Act..[8]

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[1] see In re Commercial Bank of Australia Ltd. (1893) 19 VLR 333, at p 375 as stated by LATHAM CJ in Silk Bros Pty. Ltd. v. State Electricity Commission (Vict.) [1943] HCA 2; (1943) 67 CLR 1,see also Tran v The Commonwealth [2009] FCA 474 (15 May 2009)

[2] Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50; (1908) 7 CLR 372, at p 383, per ISAACS J

[3] Silk Bros Pty Ltd v State Electricity Commission of Victoria [1943] HCA 2; (1943) 67 CLR 1 at 16 per LATHAM CJ[the entire paragraph is reproduced here fro reference and the context in which it was stated:” The plaintiff endeavours to meet the difficulty created by the apparent repeal of the Fair Rents Regulations in two ways. In the first place, it is said that the regulation appears only as part of the Landlord and Tenant Regulations, and reference is made to the heading of the Regulations, which shows that they are intended to constitute an amendment of the Landlord and Tenant Regulations. It is then argued that, if the Landlord and Tenant Regulations are completely invalid, Statutory Rules 1943 No. 12, which amends those Regulations in certain particulars, is also invalid. In my opinion there are two answers to this contention. In the first place, I have already expressed my opinion that the Landlord and Tenant Regulations are not completely invalid, and there is no reason why the amendments made by Statutory Rules 1943 No. 12 in relation to regs. 3, 4, 5, 9 and 13, should not be completely effective, even if the amendment made by the only other regulation in the statutory rule (namely, reg. 7, amending reg. 15 of the Landlord and Tenant Regulations) should fail, together with reg. 15. In the next place, there is no reason why the operation of reg. 1 repealing the Fair Rents Regulations should be limited by the heading which describes the statutory rule as consisting of amendments of the Landlord and Tenant Regulations. The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision (see In re Commercial Bank of Australia Ltd(1893) 19 V.L.R. 333, at p. 375.). "But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment" (Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50; (1908) 7 C.L.R. 372, at p. 383., per ISAAC J

[4]Inglis v. Robertson( 1898) A.C. 616.)

[5] Acts Interpretation Act 1901 (Cth) s 15AB. See Pearce and Geddes, op cit at [4.49].

[6]WORSLEY TIMBER 2000 PTY LTD (in liq) -v- COMMISSIONER OF STATE REVENUE [2007] WASC 155 (24 July 2007

[7] XTWK and Australian Securities and Investments Commission [2008] AATA 703 (8 August 2008) Administrative Appeals Tribunal of Australia

[8] Acts Interpretation Act 1901 (Cth), s 13(3).

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Next Interpretaing a provsion

Chapter-1 Distinction between Substance and Procedures

Statutes altering matters of pure procedure

Distinction between Substance and procedures is slippery

The distinction between substance and procedure is a slippery one, in Fayed v United Kingdom [1], the court remarked:

"It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy." In similar vein to the Strasbourg court in Fayed, the editors of Dicey and Morris on the Conflict of Laws[2],: "The distinction is by no means clear-cut. In drawing it, regard should be had in each case to the purpose for which the distinction is being used and to the consequences of the decision in the instant context."

As the European Court itself has recognised, it is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law.[3]. It is of course in the nature of exercises of this kind that cases which lie at either extreme are easy to place into the appropriate category. In Powell and Rayner v United Kingdom [4]section 76(1) of the Civil Aviation Act 1982 was held to exclude liability for trespass or nuisance as a matter of substantive law, with the result that the applicants had no substantive civil right to relief for which they could claim protection under article 6(1). In Z v United Kingdom [5] it was held that the decision of the House of Lords in X v Bedfordshire County Council [6] did not remove the arguability of the claims retrospectively but that it was concerned instead with a novel category or area of negligence into which the law was not to be extended. On the other side of the line are Tinnelly & Sons Ltd v United Kingdom[7], in which the Secretary of State's certificate was held not to define the scope of the substantive right to protection against unlawful discrimination but to provide him with a defence to the complaint. and Fogarty v United Kingdom [8] where the grant of state immunity in answer to the applicant's victimisation claim was held to be a procedural bar to a claim for damages for a cause of action well known to English law.

”The distinction between limits to the substantive content of the law and procedural bars to a judicial remedy is not an easy one to draw. It cannot be made to depend upon the drafting technique employed in the domestic legislation of the state concerned without opening the door to evasion of the Convention rights. Nor can the problem be resolved by invoking the word "immunity", for the question is whether the national law creates immunity from liability or merely immunity from suit. It is best to avoid a formalistic approach and inquire whether the rule which bars the claim is of general application and is independent of the facts which found the claim. Often the answer can be found by tracing the history of the domestic rule and examining the underlying policy to which it gives effect. It is, perhaps illogically, easier to treat restrictions on a newly created legal right as limitations of substantive law than to accord the same treatment to the withdrawal of existing legal rights. On the other hand the European Commission has had no problem with the substitution of a no-fault pension entitlement for a fault-based right to compensation for tort.[9]”

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[1] Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67

[2] Dicey and Morris on the Conflict of Laws, 13th ed (2000), say, at pp 157-158, para 7-004

[3] Fayed v United Kingdom (1994) 18 EHRR 393, 430, para 67

[4] Powell and Rayner v United Kingdom (1990) 12 EHRR 355

[5] Z v United Kingdom (2001) 34 EHRR 97

[6] X v Bedfordshire County Council [1995] 2 AC 633

[7] Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249

[8] Fogarty v United Kingdom (2001) 34 EHRR 302

[9] see Pinder v United Kingdom (1984) 7 EHRR 464

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