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Statutory Interpretation And Human Rights, address to the Pacific Judicial Conference Vanuatu

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STATUTORY INTERPRETATION AND HUMAN RIGHTS
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE PACIFIC JUDICIAL CONFERENCE
VANUATU, 26 JULY 2005

This address repeats in part and develops my speech to the New South Wales Bar Association Conference on 18 March 2005, “The Principle of Legality and the Clear Statement Principle” to be published in 79 ALJ, accessible at www.lawlink.nsw.gov.au/sc.

Most of the nations represented at this conference have a constitutionally entrenched Bill of Rights. They vary in scope but have considerable common content. New Zealand has a statutory Bill of Rights. New Caledonia and French Polynesia operate under the French Constitution which contains the “Declarations of the Rights of Man”. As I understand the position, only Australia, except in the Australian Capital Territory, has no Bill of Rights of any character.

Infringements of human rights most often occur through the exercise of powers under statutes. Where there is no Bill of Rights or a Bill of Rights of limited scope, the protection of fundamental rights and liberties is secreted, to a substantial extent, in the law of statutory interpretation. That must also be the case in any jurisdiction where, some or all human rights are not given overriding constitutional protection of a character which may lead to the striking down or modification of a statute. It is likely to be the case, at least to some degree, in all of the jurisdictions represented at this conference that the law of statutory interpretation will have work to do in protecting human rights.

One of the ways that the multi-faceted development, generally referred to as “globalisation”, has manifested itself in world legal systems is through what has been described as the “human rights revolution” of recent decades. Even in those jurisdictions that do not have a Bill of Rights, or have some form of protection of limited scope, the greater salience of human rights concerns has had an influence on the judiciary. That influence is manifest in the development of, or the more rigorous application of, long established principles of statutory interpretation in the case of statutes which impinge on human rights.

The preponderant view in Australia remains that a Bill of Rights, even of a legislative character is inappropriate because it will give the judiciary a legislative role. There remains a widespread concern that the judicialisation of politics will lead to the politicisation of the judiciary. Nevertheless, the burgeoning jurisprudence of those nations who have taken this step is having its effects, particularly on younger lawyers.

The greater salience that is being given to human rights considerations is reflected in the emergence of what has come to be called “the principle of legality”. That principle identifies the higher purpose of a number of principles of the law of statutory interpretation which have, in the past, generally been referred to as canons or presumptions or maxims. The words “the principle of legality” were introduced into contemporary discourse by Lord Steyn, being a phrase he found in the 4th edition of Halsburys Laws of England, where it was employed as equivalent to the traditional phrase “the rule of law”, albeit in a narrower sense than many uses of that concept[2]. It is, however, a concept with a longer history and was developed at some length in the early 1950s by Glanville Williams[3].

The principle of legality has been adopted as a concept by Chief Justice Gleeson of Australia[4], and by Chief Justice Elias of New Zealand[5].
Lord Steyn referred to the principle in the following way:
      “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law. And the courts may approach legislation on this initial assumption. But this assumption only has prima facie force. It can be displaced by a clear and specific provision to the contrary.”[6].
That statutes are not enacted in a vacuum has long been accepted. It is an inevitable concomitant of statutory interpretation that it is necessary to invoke interpretative principles which reflect values and assumptions that are so widely held as to not require express repetition in every text. Often these principles will play the determinative role in determining the meaning of the text. The existence of such background assumptions has been identified in many different circumstances of constitutional and statutory interpretation[7].

In the case which established “the principle of legality” as a unifying principle in English law, Lord Hoffman said, in a passage subsequently quoted with approval by Gleeson CJ[8] and by Kirby J[9], and by Elias CJ and Tipping J[10], and which Lord Steyn has recently characterised as a ‘trenchant statement’[11].
      “The principle of legality means that Parliament must squarely confront what it is doing and accept the political costs. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”[12].

As Lord Simon of Glaisdale once said, the canons of construction “… are … constitutionally salutary in helping to ensure that legislators are not left in doubt as to what they are taking responsibility for”[13]. The idea is the same as that expressed by John Marshall, Chief Justice of the United States, when he said in 1820, with respect to the rule that penal laws are to be construed strictly:
      “It is the legislature, not the Court, which is to define the crime and ordain its punishment.” [14].
The principle of legality is a unifying concept, which can be understood to encompass a range of more specific interpretive principles that have emerged over many centuries of common law development of the law of statutory interpretation. Amongst the rebuttable presumptions, which it may now be convenient to consider as manifestations of the principle of legality, are the presumptions that Parliament did not intend[15]; I give, hereafter, Australian examples, being those with which I am most familiar.
      • To invade fundamental rights, freedoms and immunities[16].
      • To restrict access to the courts[17].
      • To abrogate the protection of legal professional privilege[18].
      • To exclude the right to claims of self-incrimination[19].
      • To permit a court to extend the scope of a penal statute[20].
      • To deny procedural fairness to persons affected by the exercise of public power[21].
      • To give immunities for governmental agencies a wide application[22].
      • To interfere with vested property rights[23].
      • To alienate property without compensation[24].
      • To interfere with equality of religion[25].

These interpretive principles are of longstanding. The debate about their deployment by common law judges goes back at least as far as Blackstone and Bentham. In many ways Blackstone’s account of statutory interpretation in Book 1 of the Commentaries [26] is quite contemporary.

What attracted Bentham’s outrage, in this as in other aspects of the common law method, was the fluidity that is introduced by the use of interpretive principles, particularly those which emphasise the context and purpose of the statutory text and specific principles, e.g. that Parliament did not intend an absurd result. Bentham found all of this inconsistent with a rational legal order, which required express codification of everything. He made no allowance for ambiguities, gaps, generalities or the scope of language. He found the flexibility that the common law judges retained nothing short of outrageous[27].

Many years ago Rupert Cross described Bentham’s approach to Blackstone as “pig headed” and referred to:
      “… The na´ve belief manifested throughout so much of his work that it is possible for the laws of a sophisticated society to be formulated in terms of indisputable comprehensibility.”[28].
Notwithstanding the assumption in many civil law systems, that complete precision and perfect comprehensibility is possible, which appears to retain its force in France but no longer to the same degree in Germany, Bentham’s obsessiveness has never been accepted in the common law world. His view that every aspect of law could be written down as a complete body of law, which he called a Pannomion, has never been achieved, even in the Continental codes.

It is, however, interesting that, over the course of the last century when Parliament has codified, modified and rewritten the common law in so many areas, the law of statutory interpretation has been changed to only a small degree in the respective Interpretation Acts or by provisions of specific scope.

Of particular significance is the fact that, the interpretative principles which are manifestations of the principle of legality have not as far as I am aware, been the subject of statutory modification, unless the introduction of requirements for a purposive interpretation can be so understood. They have not had any such effect in practice. That these principles exist is well known to every parliamentary drafter. They are well established and have been reaffirmed on numerous occasions. The courts are entitled to approach the process of statutory interpretation on the assumption that, if the principles are not to be applied, the Parliament will either say so or otherwise clearly identify the results it wishes to achieve in a way that will ensure that the law of statutory interpretation does not interfere with that occurring.

It is, however, a concomitant of the principle of legality, and a manifestation of what Chief Justice Gleeson has felicitously called judicial legitimacy[29], that the judiciary do not find ambiguity where there is none and recognise clear and unambiguous language when it is presented to them for interpretation.

The task of statutory interpretation is most frequently expressed in terms of identifying the intention of the Parliament. This terminology is not without its difficulties. Indeed, legislative intention is often characterised as a fiction.

At one level the terminology of “intention”, when employed by judges, is an act of constitutional courtesy which the judiciary observes in its collective relationship with the Parliament. Courteous language is a feature of our constitutional arrangements which have, over the course of a long period, involved tensions and, sometimes, conflict between the separate institutions of our mechanisms of governance.

The task of the courts is to interpret the words used by Parliament. It is not to divine the intent of the Parliament[30].

The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say[31].

The language of intention has been criticised on a number of bases and some judges avoid its use, making their attitude clear by putting the word within scare quotes, as Felix Frankfurter and Justice Michael Kirby have done[32]. So, interestingly, has Justice Scalia[33]. Justice Kirby has described legislative intention as “a polite but unacceptable fiction”[34].

On the other hand the constitutional significance of the language of intention has been emphasised by others, including recently by Chief Justice Gleeson[35]:
      “In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of Parliament. Courts commonly refer to the ‘intention of the legislature’. This has been described as a very slippery phrase (Salomon v A Salomon & Co Ltd (1897) AC 22 at 38 per Lord Watson), but it reflects the constitutional relationship between the legislature and the judiciary. Parliament itself uses the word ‘intention’ in the Interpretation Act 1901 (Cth) as a focal point for reference in construing its enactments. Certain words and phrases are said to have a certain meaning unless a contrary intention is manifested in a particular Act. Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

What is involved is the search for an objective intention of Parliament, not the subjective intention of Ministers or Parliamentarians[36]. Indeed, often there is no relevant subjective intention at all. The words used may represent a compromise, without consensus, so that, in substance, the decision has been left to the courts[37]. Even more frequently, indeed almost always in cases of difficulty, the circumstances in which the statute falls to be applied were not actually contemplated by anybody. Even if they were contemplated, a statement of intention in a Ministerial Second Reading speech will not prevail over the words of the statute[38].
So long as the objective nature of the relevant intention is kept firmly in mind, there is a strong case, and not just for reasons of constitutional courtesy, to continue to use the terminology of Parliamentary intention. There is, however, truth in the observation of Oliver Wendell Holmes Jr:
      “ … Intention is a residuary clause intended to gather up whatever other aids there may be to interpretation beside the particular words and the dictionary.”[39].
There are, however, examples in legal history of the judiciary applying interpretive principles as a means of subverting legislative intent. For example, the old rule that penal statutes must be strictly construed – referred to as the rule of lenity in the United States – was developed to mitigate the harshness of the death penalty, then applicable to minor offences, and attempts by Parliament to restrict benefit of clergy[40].

The contemporary controversy about judicial activism - particularly in the context of human rights litigation, most notably in migration cases - raises parallel issues. Subject to an entrenched bill of rights, the judiciary must always remember that the interpretive principles are rebuttable.

The determination that the principle of legality and that a particular interpretive principle applies in a particular case is, regrettably, the easy part of the process. All that we have done at this stage is to identity the two elements - namely the statutory formulation and the interpretive principle – that may give rise to an incompatibility. The difficult part is determining which must prevail in the particular circumstances. It is at this point that judicial reasoning often becomes distinctly fuzzy when identifying a relevant test and, perhaps more significantly, when applying it. The relevant test is, more often than not, expressed in the conclusion rather than in the reasoning.

There are a range of verbal formulations, all basically equivalent, as to how the presumption that Parliament does not intend to interfere with rights has been expressed. I have compiled the following list from the judgments of the High Court of Australia over the years:
      “Clear and unambiguous words”, “unambiguously clear”, “irresistible clearness”, “express words of plain intendment”, “clear words or necessary implication”, “unmistakable and unambiguous”, “expressly stated or necessarily to be implied”, “clearly emerges whether by express words or by necessary implication”, “with a clearness which admits of no doubt” and “something unequivocal must be found, either in the context or the circumstances, to overcome the presumption”[41].
It is often said that a statute which impinges upon the principle of legality, or any of its constituent interpretive principles, must be construed strictly. However, the concept of strict construction does not involve a simple standard. There are degrees of strictness. There is very little discussion in the literature or case law about what is meant by strict construction.

I believe we should stop using the language of “strict construction”. It suggests that courts give a restricted interpretation to the language of Parliament and do so irrespective of the intention of Parliament. That that has been the case, and not only in the distant past, is a good reason for ensuring that the terminology more accurately reflects the true judicial role. In my opinion, this approach is more appropriately called: the clear statement principle. All the formulations I have listed reflect this principle. Whenever rights, liberties and expectations are affected, if Parliament wishes to interfere with them, it must do so with clarity. The clear statement principle is one way that the law of statutory interpretation reflects and implements the principle of legality.

A core difficulty remains. Clarity, like beauty, always involves questions of degree and is affected by the eye of the beholder.

There is a tendency in some of the authorities to give a narrow application to the relevant presumption on the basis that it is first necessary to find an ambiguity in the statutory formulation before the presumption can operate. In both the House of Lords and the New Zealand Court of Appeal, such references appear in judgments which emphasise the restrictive operation of common law presumptions in comparison with statutory provisions for interpretation in the human rights acts of those nations[42]. In my opinion this reflects an unnecessarily restrictive view of the concept of ambiguity in the law of statutory interpretation. When the relevant common law presumption is understood as a specific application of the principle of legality it is not appropriate to take a narrow approach to what is meant by ambiguity.

I have on more than one occasion had reason to draw on the observations of a master of statutory interpretation, Lord Simon of Glaisdale[43] – both an officer of the Simplified Spelling Society and a scrabble tragic - including the following:
      “Words and phrases of the English language have an extraordinary range of meaning. This has been a rich resource in English poetry (which makes fruitful use of the resonances, overtones and ambiguities), but it has a concomitant disadvantage in English law (which seeks unambiguous precision, with the aim that every citizen shall know as exactly as possible, where he stands under the law)”[44].

Perhaps not without irony, the word “ambiguity” is itself ambiguous. It is not necessarily limited to situations of lexical or verbal ambiguity and grammatical or syntactical ambiguity. The word ambiguity is often used in a more general sense of indicating any situation in which the scope and applicability of a particular statute is, for whatever reason, doubtful[45].
    For my own part, save where the word falls to be construed in an Interpretation Act, I would prefer to confine the word “ambiguity” to its more usual meaning of verbal or grammatical ambiguity. The broader issue raises a problem of “inexplicitness” [46]. There are a range of circumstances in which the application of a statutory formula is doubtful: when deciding whether to read down general words; when implications are sought to be drawn from a text; when considering whether to depart from the natural and ordinary meaning of words; when deciding whether or not a statutory definition or interpretation section does not apply on the basis of an intention to the contrary; when giving qualificatory words an ambulatory operation; and, more controversially, whether words and concepts are read into a statute by filling gaps.
      The problem of what I prefer to call “inexplicitness” most frequently arises when a court is asked to determine the true extent of general words adopted in legislation. When should general words used in a statute be read down so as to have a narrower meaning than that of which they are literally capable? It is actually quite rare to find an English word that cannot be applied at different levels of generality or cannot otherwise be circumscribed in its application. The former poet laureate, Ted Hughes, put it well:
          “A word is its own little solar system of meaning.”
      For those who find comfort in the “plain meaning” rule, it is necessary to recognise, in the words of Lord Wilberforce, that general words do not necessarily have a “plain meaning”[47].

      Reading down general words, particularly by the application of presumptions attributed to the legislature, is a well established means of statutory interpretation[48].

      As long ago as 1560, the Barons of the Court of the Exchequer said:
          “And the Judges of the law in all times past have so far pursued the intent of the makers of statutes, that they have expounded Acts which were general in words to be but particular where the intent was particular.”[49].
      A fuller quotation from this judgment of 1560 has a decidedly contemporary ring:
          “… the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter, they have expounded to extend but to some things, and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the Legislature, which they have collected sometimes by considering the cause and necessity of making the Act, sometimes by comparing one part of the Act with another, and sometimes by foreign circumstances. So that they have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion.”[50].
      Some authorities and texts refer to a process of “reading words into an Act”. This terminology appears to me to offend a fundamental principle of constitutional law. In my opinion, the relevant authorities are consistent with a process of interpretation by which the court interprets the words actually used by the Parliament by giving them effect as if they contained additional words or as if some words were deleted for a specific application. This does not, in my opinion, introduce words into the Act. It involves the interpretation of the words actually used, perhaps by means of reading down general words or by giving some words an ambulatory operation[51].

      A significant development in this area is the inclusion in some human rights legislation of a requirement that courts construe other legislation so as to be consistent with the fundamental human rights protected in some manner by that Act[52].

      This overlaps to some degree with one of the fundamental aspects of the principle of legality, i.e. the presumption that Parliament does not intend to interfere with fundamental rights and freedoms. Such a presumption is recognised in all jurisdictions and has long been accepted to be the law in Australia[53].

      Chief Justice Gleeson has recently said:
          “The presumption is not merely a commonsense guide to what a Parliament in a liberal democracy is likely to have intended. It is a working hypothesis, the existence of which is known both to the Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”[54].

      His Honour also said:
          “What courts will look for is a clear indication that the Parliament has directed its attention to the rights and freedoms in question and has consciously decided upon abrogation or curtailment.”[55].

      In the context of this interpretive principle, the level of strictness is high, i.e. a high level of clarity is required by the clear statement principle. In such a case, it will frequently be the case that the test for clarity is not merely what Parliament ‘intended’, but the more stringent test of what it has said expressly or by necessary intention. Indeed, Lord Steyn, no doubt fearful of glib incantation, has advanced the formulation “express words or truly necessary implication”[56].

      It is understandable that the jurisprudence in those jurisdictions which have adopted an express statutory requirement to construe other acts to conform with a list of rights, have emphasised the significance of the new legislative mandate. Nevertheless, the common law principles of statutory interpretation remain robust and of considerable significance, particularly for those of us who have no such legislative scheme. They will also be significant for those whose legislative implementation of Bills of Rights provisions do not cover the full range of rights and liberties recognised at common law.

      There are two models for a provision of this character in the legislation of New Zealand and the United Kingdom, the jurisprudence of which have developed in similar directions but have not converged. For other jurisdictions that have, or are contemplating, the adoption of such a provision, the history of their application is instructive.

      Section 6 of the New Zealand Bill of Rights Act 1990 provides:
          “6 Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.”
      Section 3 of the Human Rights Act 1968 (UK) provides:
          “3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
      British jurisprudence about s3 has revealed two quite distinct approaches to its application: called by others a cautious approach and a radical approach[57]. As Lord Nicholls of Birkenhead put it, the difficulty is the ambiguity inherent in the word “possible”[58].

      Although the range of issues may not be fully resolved, the House of Lords has adopted an approach at the radical end of the spectrum. The Court has emphasised that the test of what is “possible”, found in s3, enables a court to modify the meaning of a statutory interpretation even to reach a result that is contrary to the intention of Parliament when enacting legislation subsequent to the Human Rights Act and which impinges upon rights protected by the European Convention[59].

      In a case involving the interpretation of a ‘rape shield’ law, regulating the admissibility of sexual history evidence, the House of Lords found that it was subject to a proviso that any questioning required to ensure a fair trial was not excluded[60]. No such interpretation could have been reached by the application of common law rules, notwithstanding the strength of the principle of a fair trial at common law.

      The scope of the change effected by s3(1) was affirmed late last year by the House of Lords in Attorney Generals Reference No 4 (2002). The Court made clear that provision for a “declaration of incompatibility”, inserted by Parliament to reconcile the judicial role under the Human Rights Act and the British tradition of parliamentary sovereignty, is a last resort. Lord Bingham indicated[61] that:
          • “The interpretive obligation under s3 is a very strong and far reaching one and may require the court to depart from the legislative intention of Parliament.”
          • “A Convention compliant interpretation under s3 is a primary remedial measure and a declaration of incompatibility under s4 an exceptional course.”
          • “There is a limit beyond which a convention compliant interpretation is not possible” but the basic test is the statutory form “so far as it is possible to do so.”

      As can readily be seen, this suggests a significant change in the traditional relationship between Parliament and the courts. It is similar to what has occurred in Canada with an entrenched Bill of Rights. The change is justified in the United Kingdom on the basis that Parliament has specifically conferred authority on the courts to modify, by means of interpretation, the effect of legislation, even when the result is that the intention of Parliament in other legislation is not implemented. The Human Rights Act has been given a quasi constitutional status. This should come as no surprise.

      The history of the British Constitution, which has never been a written Constitution, is that various Acts of Parliament have, in effect, been given constitutional status, primarily by means of the law of statutory interpretation. The circumstances in which an Act is passed and/or the passage of time often make it clear that it is politically impossible to repeal or amend the Act. Where such a statute affects the distribution of political power or the rights and liberties of citizens, it is appropriate that the constitutional status of the statute should be recognised. As a matter of substance, that statute is as entrenched as a constitutional provision.

      Even in a nation with a written Constitution, like Australia and most nations represented at this conference, statutes can acquire quasi constitutional status when the possibility that they may be amended by Parliament is entirely theoretical[62].

      The recognition that not all statutes are equal – or at least some statutes are more equal than others – is of particular significance in a nation without a written constitution, such as the United Kingdom, Israel or New Zealand. The jurisprudence of each such nation reflects a recognition of the existence of a hierarchy of statutes.

      The New Zealand judiciary has in some respects adopted a robust approach with respect to the Bill of Rights Act 1990. In Baigent’s case, the Court of Appeal created a public law remedy by awarding damages against the Crown for breach of the Bill of Rights[63]. In Moonen the Court of Appeal decided that it would, in an appropriate case, declare that a statute unjustifiably impinges on human rights even though the New Zealand Act, unlike the United Kingdom Act, makes no express provision for any such declaration of incompatibility[64]. Chief Justice Elias has indicated that this approach reflects a recognition that there is a hierarchy of statutes and manifests a process of dialogue between Parliament and the courts[65].

      Notwithstanding this jurisprudence, the New Zealand courts have not adopted the radical approach of the House of Lords to the special statutory interpretation provision in the New Zealand Act[66].

      An example of the difference in approach is found in cases construing statutory provisions which shift the burden of proof. Even at common law, in my opinion, the clear statement principle would apply and such a section would generally be interpreted to shift only an evidential burden, not the burden of proof[67].

      The House of Lords had no difficulty in deploying s3 of the United Kingdom Act to that effect[68]. In contrast, the New Zealand Court of Appeal did not apply s6 of the New Zealand Act in that way[69]. Admittedly, this was in 1991 and the result may be different today.

      There are differences in the wording of the New Zealand and United Kingdom sections, notably the express use of the word “possible” in the UK Act, with the emphatic additions “so far as” and “must be read”, compared to the meek formulation “can be given”. The New Zealand Act also contains in s4 an express preservation of the doctrine of implied repeal[70].

      Some early New Zealand judgments suggested that s6 may not go much further than the common law of statutory interpretation[71]. The drift of authority, albeit cautious, indicates that s6 will be accepted as a new and powerful rule of statutory interpretation[72]. Different approaches are apparent in Court of Appeal judgments[73].

      These differences in approach will no doubt need to be resolved by the New Zealand Supreme Court. It appears likely that, as in the United Kingdom, the express statutory provision will be found to have significantly modified the common law of statutory interpretation.

      For those of us who have no such statutory modification the common law, however robust, will not lead to the same results. Nevertheless, it would be wrong to underestimate the force of the combined effect of the principle of legality and the clear statement principle.

      Statutes now represent the most important area of the law. Contemporary debates about judicial activism emphasise that the judiciary must always remember the proper role of courts in a democratic polity.

      Oliver Wendell Holmes Jnr summarised the law of statutory interpretation with his customary epigrammatic brevity. Speaking of a statute which he described as “a foolish law” - it happened to be the Sherman Act – he said:
          “ … If my fellow citizens want to go to Hell, I will help them. It’s my job.”[74].
        When Chief Justice Gleeson said that the quality that sustains judicial legitimacy is fidelity to the techniques of legal methodology, in part, he probably had something similar in mind[75].

        End Notes
        1. This address repeats in part and develops my speech to the New South Wales Bar Association Conference on 18 March 2005, “The Principle of Legality and the Clear Statement Principle” to be published in 79 ALJ, accessible at www.lawlink.nsw.gov.au/sc.

        2. See Halsburys Laws of England, 4th ed, reissue vol 8(2) (1996) par [6].

        3. See Glanville Williams, Criminal Law, 1st ed, Stevens & Sons Limited (1953) at pp434-465.

        4. See Murray Gleeson AC, The Rule of Law and the Constitution: The Boyler Lectures, ABC Books, (2000), pp 2 and 5; Al-Kateb v Godwin (2004) 208 ALR 124 at [19]; Electrolux Home Products Pty Ltd v Australian Workers Union (2003) 209 ALR 116 at [21] and [23].

        5. R v Pora [2001] 2 NZLR 37 at [53].

        6. R v Secretary of State to the Home Department; Ex parte Pierson (1998) AC 539 at 587.

        7. See e.g. Bell and Engle Cross on Statutory Interpretation, 3rd ed, Butterworths, London, (1995), pp165-166 and also Sunstein “Interpreting Statutes in the Regulatory State” (1989) 103 Harvard LR 405 passim.

        8. Plaintiff S157/2002 The Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb supra at [19] fn 11.

        9. Daniels Corporation v ACCC [2002] 213 CLR 543 at 582.

        10. R v Pora (2001) 2 NZLR 37 at [53].

        11. Roberts (FC) v Parole Board (2005) UKHL 45 at [93], and see at [30] per Lord Bingham.

        12. R v Secretary of State for Home Department; Ex parte Simms (2002) 2 AC 115 at 131. See also B v DPP (20000 2 AC 423 at 470; Ngata Apa Ki Te Waipounama Trust v The Queen (2000) 2 NZLR 659 at [82].

        13. Ealing London Borough Council v Race Relations Board (1972) AC 342 at 361.

        14. United States v Wiltberger 5 Wheat. 76 (1820) at 95.

        15. See Pearce & Geddes, Statutory Interpretation in Australia, 5th ed, Sydney, Butterworths (2001) esp at 515-529; Burrows, Statute Law in New Zealand Lexis Nexis, Wellington (2003) pp219-227; I give, hereafter, Australian examples, being those with which I am most familiar. I have no doubt that similar examples can be found in all common law jurisdictions.

        16. Potter v Minahan (1908) 7 CLR 277 at 304; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 523, 532; Bropho v Western Australia (1990) 171 CLR 1; Plaintiff S157 supra at [32]; Coco v The Queen (1994) 179 CLR 427 at 437; Al-Kateb supra at [19], [150]; Minister v Al Masri (2003) 197 ALR 241 at [82]-[85].].

        17. Magrath v Goldsborough Mort & Co Ltd (1932) 47 CLR 121 at 134; Plaintiff S157 supra esp at 492.

        18. Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 at [11]. Note also R (Morgan Grenfell Ltd) v Special Commissioner [2003] 1 AC 563 at 606-607 ([7]-[8]).

        19. Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Rich v ASIC (2004) 78 ALJR 1354.

        20. Ex parte Fitzgerald Re Gordon (1945) 45 SR(NSW) 182 at 186; Krakouer v The Queen (1998) 194 CLR 202 at [62].

        21. Commissioner of Police v Tanos (1958) 98 CLR 363 at 395-396.

        22. Board of Fire Commissioners v Ardouin (1961) 109 CLR 101 at 116; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 525 at [33]-[37], [59]-[68], [113].

        23. Clissold v Perry (1904) 1 CLR 363 at 373; Clunies Ross v The Commonwealth (1984) 155 CLR 193 at 199-200.

        24. Commonwealth v Haseldell Ltd (1918) 25 CLR 552 at 563; Durham Holdings (2001) 205 CLR 399 at [28]-[31].

        25. Canterbury Municipal Council v Muslim Alawy Society Ltd (1985) 1 NSWLR 525 at 544 per McHugh JA.

        26. Blackstone Commentaries on the Laws of England, London, 1830, Vol 1 at pp87-92.

        27. See the analysis in Sunstein and Vermule “Interpretation and Institutions” (2003) 101 Michigan L Rev 885 esp at 890-897.

        28. Cross “Blackstone v Bentham” (1976) 92 LQR 516 at 521 and 520.

        29. Murray Gleeson AC “Judicial Legitimacy (2000) 12 Judicial Officers Bulletin 41.

        30. See State v Zuma (1995) (4) BCLR 401 at 402; [1995] (2) SA 642; Matadeen v Pointu [1999] 1 AC 98 at 108; R v PLV (2001) 51 NSWLR 736 at [82]; La Compagnie Sucriere de Bel Ombre Ltee v Government of Mauritius (Privy Council, 13 December 1995, unreported; Pinder v The Queen [2003] 1 AC 620.

        31. R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Wik Peoples v Queensland (1996) 187 CLR 1 at 168-169; Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948 at 953d; [11978] 1 WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AC [1975] 1 All ER 810 at 814a, 842; [1975] AC 591 at 613G, 645C-V; R v Young (1999) 46 NSWLR 681 at [5]; Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161 at [10]; Donselear v Donselear (1982) 1 NZLR 97 at 114.

        32. See Felix Frankfurter, “Some Reflections on the Readings of Statutes”, (1947) 47 Columbia L Rev 527 at 538; The Residential Tenancy Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410-497; Byrne v R (1999) 199 CLR at [80]; R v Hughes (2000) 202 CLR 535 at [60]; Commonwealth v Yarmirr (2001) 208 CLR 1 at [262]; Kirby “Interpretation and the Rule of Law” in Kelly (ed) Essays on Legislative Drafting Adelaide, 1988 pp88-90.

        33. Bank One Chicago N.A. v Midwest Bank Trust Co 516 US 264 (1996) at 279.

        34. R v Hughes (2000) 202 CLR 535 at [60].

        35. See Wilson v Anderson (2002) 213 CLR 401 at [8]; Singh v Commonwealth of Australia (2004) 78 ALJR 1383 at [19]. See also Bennion Statutory Interpretation (4th ed) Butterworths, London, 2002, pp405-405 and NAAV v The Minister for Immigration (2002) 123 FCR 298 at [430] and [432].

        36. See, e.g. Eastman v The Queen (2000) 203 CLR 1 at 146-147 per McHugh J.

        37. See Brennan v Comcare (1994) 50 FCR 555 at 572–575; Wik Peoples v Queensland (1996) 187 CLR 1 at 168–169.

        38. Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; R v Young 1999) 46 NSWLR 681 esp at [33]-[37].

        39. Quoted by Felix Frankfurter infra.

        40. Pearce & Geddes (5th ed) supra at [9.8]; Radzinowicz A History of English Criminal Law, Vol 1, Stevens & Sons, London 1948 pp83-88; Solan “Law, Language and Lenity” (1998-1999) 40 Wm & Mary L. Rev 59; Hall “Strict or Liberal Construction of Penal Statutes” (1935) 48 Harvard L. Rev 748; Jeffries “Legality, Vagueness and the Construction of Penal Statutes” (1985) 71 Va L. Rev 245; Newland “The Mercy of Scalia: Statutory Construction and the Rule of Lenity” (1994) 28 Harv. C.R. – C.L. L. Rev 19; Kloopfer “The Status of Strict Construction in Canadian Criminal Law” (1983) 15 Ottawa L. Rev 553.

        41. See Durham Holdings Pty Ltd v NSW (1999) 47 NSWLR 340 at [44]-[45].

        42. See R v Secretary of State to the Home Department: Ex parte Pierson (1998) AC 539 at 587; Quilter v Attorney General (1998) 1 NZLR 523, 526, 541-542, 581.

        43. The titles of two earlier addresses were drawn from Lord Simon’s judgments; Spigelman, “Statutory Interpretation: Identifying the Linguistic Register” (1999) Newcastle L Rev 1; “The Poet’s Rich Resource: Issues in Statutory Interpretation” (2001) 21 Aust Bar Rev 224; See also his Lordship’s series of articles on “English Idioms from the Law” (1967) 76 LQR 283 and 429, (1962) 78 LQR 245 and (1965) 81 LQR 52.

        44. Stock v Frank Jones (Tipton) Limited (1978) 1 WLR 231 at 236.

        45. See the references set out in my earlier addresses in the Newcastle Law Review supra n41 at p2; Australian Bar Review supra at 231-232; Repatriation Commissioner v Vietnam Veterans Association of NSW Branch (2000) 24 NSWLR 548 at 116.

        46. See Repatriation Commission v Vietnam Veterans’ Association (2000) 48 NSWLR 548 at [116].

        47. Maunsell v Olins (1975) AC 373 at 385-386.

        48. I have collected the relevant Australian authorities in R v Young (1999) 46 NSWLR 681 at [25]-[31]; Spigelman “Statutory Interpretation” supra at 528; “The Poet’s Rich Resource” supra at 227-230, 232-233.

        49. Stradling v Morgan (1560) 75 ER 305 at 312.

        50. Ibid at 315. See also Bowtell v Goldsbrough Mort supra at 457-458 Ex parte Walsh; In re Yates (1925) 37 CLR 36 at 91-93; Ex parte Kisch supra at 244; Commercial Union Insurance Co Limited v Colonial Carrying Co of New Zealand Limited [1937] NZLR 1041 at 1047-1049; Church of the Holy Trinity v United States 143 US 457 (1892) at 459; Tokyo Mart Pty Limited v Campbell (1988) 15 NSWLR 275 at 203; Smith v East Elloe Rural District Council [1956] AC 736 at 764-765; Bropho v Western Australia supra at 17-18.

        51. See R v Young supra at [5]-[12]; Spigelman “The Poet’s Rich Resource” supra at 233-2234.

        52. See, e.g. s3 of the Human Rights Act 1998 (UK); s6 of the Bill of Rights Act 1990 (NZ); s13 of the Human Rights Act 2004 (ACT).

        53. See above n15.

        54. Electrolux supra at [21].

        55. Plaintiff S157 supra at [30].

        56. B v DPP supra at 470.

        57. The divergence is reflected in the contrast between Lord Steyn and Lord Hope who, respectively, adopted the radical and cautious approaches in R v A (No 2) (2002) 1 AC 45 at [108] and [44]; See also Greenberg (ed) Craies on Legislation 8th ed London Sweet & Maxwell 2004 Chapt 25; Francesa Klug “United Kingdom Experience” in Christine Debono and Tanya Colwell, (eds) Comparative Perspectives on Human Rights (2004) at 5; David Bonner et al “Judicial Approaches to the Human Rights Act” (2003) 52 Int & Comp LQ 549 at 555-557.

        58. Ghaidan v Goden-Mendoza ibid at [27]-[28].

        59. See Ghaidan v Goden-Mendoza (2004) 2 AC 557 esp at [49] and Appendix at 578-582.

        60. R v A (No 2) supra.

        61. Ibid at [28].

        62. See Egan v Chadwick (1999) 46 NSWLR 563 at [7]; Spigelman, “Seen to be Done: The Principle of Open Justice” (2000) 74 ALJ 290 at 293; Spigelman, “The Truth Can Cost Too Much: The Principle of a Fair Trial” (2004) 78 ALJ 29 AT 32-33.

        63. Simpson v Attorney General (Baigent’s Case) [1994] 3 NZLR 520.

        64. Moonen v Flim and Literature Board of Review (2000) 2 NZLR 9.

        65. See Elias, “Sovereignty in the 21st Century: Another Spin on the merry go round” (2003) 14 PLR 148 at 157-162.

        66. See Burrows (2003) supra esp at 242-252; Spigelman “Blackstone, Burke, Bentham and the Human Rights Act 2004” (2005) 26 Aust Bar Rev at 8-10.

        67. Ibid at 8.

        68. R v Lambert (2002) 2 AC 545 at 563, 574-575, 590, 610.

        69. R v Phillips (1991) 3 NZLR 175 at 176-177.

        70. When the Human Rights Bill was debated in the House of Lords, Lord Simon of Glaisdale suggested an amendment to refer to the doctrine of implied repeal. This was done to ensure that prior inconsistent legislation would in fact be taken as overruled without the need for a declaration of incompatibility. That the Human Rights Act itself should be insulated from subsequent implied repeal was not the focus of attention. See Great Britain, Parliamentary Debates (Hansard), House of Lords, 18 November 1997 at 509–510, 518–529; 19 January 1998 at 1289–1295.

        71. See, e.g. Simpson v Attorney General (1994) 3 NZLR 667 at 217.

        72. See the template set out in Moonen v Film and Literature Board of Review supra at [16]-[20], noting the additional observations in Moonen v Film and Literature Board of Review (2002) 2 NZLR 754 at [14]-[15].

        73. See, e.g. R v Poumako (2002) 2 NZLR 695 cf [37] per Gault J and [79]-[84] per Thomas J and R v Pora supra at [110] per Gault Keith and McGrath JJ, [32]-[35] per Elias CJ and Tipping J and [119]-[128] per Thomas J. Note also the observations of Burrows supra at 243-352.

        74. Howe (ed), Holmes-Laski Letters: The Correspondence of Mr Justice Holmes and Harold J Laski 1916-1935, Harvard Uni P Cambridge, Massachusetts 1953 p249.

        75. Murray Gleeson AC, The Boyer Lectures, supra, pp136-137 and cf 130.

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