The Poet's Rich Resource: Issues in Statutory Interpretation
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
TO THE GOVERNMENT LAWYERS' CONVENTION
PARLIAMENT HOUSE, SYDNEY
TUESDAY 7 AUGUST 2001
THE POET'S RICH RESOURCE: ISSUES IN STATUTORY INTERPRETATION
The law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of the law are determined entirely by statute. No area of the law has escaped statutory modification. Statutory interpretation is not merely a collection of maxims. It is a distinct body of law. No group of lawyers are more concerned with questions of statutory interpretation than government lawyers.
I have taken my title for this address - "The Poet's Rich Resource" - from Lord Simon of Glaisdale who once said:
"Words and phrases of the English language have an extraordinary range of meanings. 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)."[1]
The origin of most problems of statutory interpretation is in the wonderful flexibility of our language. As the late poet laureate, Ted Hughes, once observed:
"A word is its own little solar system of meaning."
Lord Simon of Glaisdale has referred to the need for an interpreter to tune in to the linguistic register of the drafter. His Lordship said:
"Statutory language like all language is capable of an almost infinite gradation of 'register' - i.e. will be used at the semantic level appropriate to the subject matter and to the audience addressed (the man in the street, lawyers, merchants, etc). It is the duty of a court of construction to tune in to such register and so to interpret the statutory language as to give to it the primary meaning which is appropriate in that register (unless it is clear that some other meaning must be given in order to carry out the statutory purpose or to avoid injustice, anomaly, absurdity or contradiction). In other words, statutory language must always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances."[2]
Intention
The task of the courts is to interpret the words used by the parliament. It is not to divine the intent of the parliament[3]. In an era where a purposive approach to interpretation is emphasised, and indeed required by statute[4], the distinction between interpretation and divination is not always observed. The courts must determine what parliament meant by the words it used. The courts do not determine what parliament intended to say[5].
The statutory enactment of the "purposive" approach, directs a court to prefer a construction that promotes the purpose or object of an Act, over a construction that does not promote that purpose or object. The choice is rarely of that kind. Usually the issue is whether to adopt a construction that more completely or to a greater degree "promotes" the "purpose or object". That choice calls for a finer judgment than the "purposive" approach required by statute.
In reasoning adopted in a number of Australian decisions[6] the Supreme Court of the United States said:
"... no legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law"[7].
The protection which the common law affords to the preservation of fundamental rights and liberties is secreted within the law of statutory interpretation. Parliament is presumed not to intend to infringe such rights and liberties and general words are often read down to achieve that presumed intention[8].
The concept of attributing an intention to a legislature poses a number of problems[9]. Indeed, there may not have been any actual intention at all. The words of a statute may represent a compromise between contending positions, where the actual working out of the application of the statute is, in practice, left to courts precisely because those responsible for the legislation are not able to agree on what the position should be. In a sense, each group is prepared to take its chances in court[10].
Even an explicit statement of intention by a Minister cannot prevail over the words actually used in the statutory text. The clearest example of this is the High Court decision in Re Bolton; Ex parte Beane. The issue in that case was whether a statutory provision concerned with "visiting forces" applied to deserters from the Armed Forces of the United States. The majority judgment said[11]:
"[The Second Reading Speech by the Minister] quite unambiguously asserts that Part III relates to deserters and absentees whether or not they are from a visiting force. But this of itself, while deserving serious consideration, cannot be determinative; it is available as an aid to interpretation. The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."
The same result has been reached in other cases of apparent mistakes on the part of a drafter in failing to state the obvious purpose of the law, with the result that the object of the law was subverted in some indirect manner[12]. It is not the task of the courts to supply an omission by the drafter, when the intended result cannot be deduced from the words actually used by any recognised technique of interpretation.
Extrinsic Materials
The use of extrinsic materials raises a number of issues. Many of you will have occasion, in the various departments in which you work, to draft such materials, particularly in the form of explanatory memoranda and, no doubt, parts of second reading speeches. I do not propose to canvas the wide range of issues that may arise. One central proposition must always be borne in mind. The content of such documents cannot be used to rewrite the enacted language. Any intended application must be reasonably open from the language actually used.
As a four judge joint judgment of the High Court said:
"... inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which ... is reasonably open and more closely conforms to the legislative intent."[13]
McHugh J has referred to this authority in the context of saying:
"Extrinsic material cannot be used to construe a legislative provision unless the construction of the provision suggested by that material is one that is 'reasonably open'. Even if extrinsic material convincingly indicates the evil at which a section was aimed, it does not follow that the language of the section will always permit a construction that will remedy that evil. If the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances."[14]
The Kisch Case
A great cause c‚lŠbre of the mid 1930s was the attempt by the Commonwealth Government to prevent Egon Kisch, a Czech journalist, from attending a Communist front peace congress. Kisch's celebrity has received a recent, moderate revival at the hands of Justice Hasluck of the Supreme Court of Western Australia[15]. The case affords good illustration of some issues of statutory interpretation
Kisch had acquired a degree of intellectual notoriety for his prolific, investigative, declamatory journalism. The attempt to prevent the Australian public hearing his subversive opinions caused outrage, particularly on the left. A theme of broader appeal was the prospect that such conduct could cause right thinking people overseas to think less of Australian intellectual life. Australians never seem so parochial as when we act in fear of being regarded as parochial. Perhaps it was inevitable that Australia's patron saint of the second rate, Norman Lindsay, proclaimed that he and Kisch were both victims of Australian "suburban complacency"[16].
Kisch, famously, in an obviously futile attempt to evade those who sought to ban his arrival, first landed in Australia by jumping from his ship in Melbourne - he entitled his subsequent memoir "Australian Landfall". The leap broke his leg. This, of course, gave him immediate celebrity status. It also enabled him to energise his audiences, as he pursued the Soviet policy of "peace" in the years immediately preceding the Hitler-Stalin pact, with the rallying cry:
"My leg is broken. My English is broken. But my heart is not broken."[17]
The Immigration Restriction Act 1901 made provision for a dictation test in a European language of the examiner's choice. The phrase was "a European language". Another delegate who sought to address the peace congress came from New Zealand. He was given a dictation test in Dutch, failed it and was excluded[18]. Kisch had a reputation as a linguist. Dutch would not do for him. He was given the test in Scottish Gaelic. The issue for determination in the High Court was whether or not Scottish Gaelic was a "European language". By majority the High Court held that it was not and, accordingly, the dictation test administered to Kisch was invalid.
Starke J had no doubt about the position. He applied the "golden rule": give words their grammatical and ordinary meaning, unless the context indicates otherwise. He found no reason to read the words down. Scottish Gaelic was a language used by a large number of people in Scotland. It was a "European" language. All other members of the Court concluded otherwise.
Rich J noted:
"... the provision ... is dealing with the practical subject of immigration from abroad, particularly from other nations. It ostensibly provides a test against illiteracy and against ignorance of European speech. I think it would be unreasonable to hold that every distinguishable form of speech which has a home in Europe can be resorted to for the purpose of asking the immigrant to write at dictation a passage of fifty words in length in a European language. The expression 'an European language' means a standard form of speech recognized as the received and ordinary means of communication among the inhabitants in an European community for all the purposes of the social body. Scottish Gaelic is not such a language. Census figures show that it is the speech of a rapidly diminishing number of people dwelling in the remote highlands of Scotland, and the western islands. It is not the recognised speech of a community organized politically, socially or on any other basis."[19]
Dixon J said:
"... the substance of the enactment and its subject matter ... show that the language resorted to is to be taken, ostensibly at least, as a test of fitness of the person to whom the dictation test is administered to take his place in an organized British community."[20]
Dixon J concluded:
"I am very much alive to the difficulty of attaching a definite meaning to these words which will be satisfactory and which will accord with the probable intention of the Legislature. No doubt the Legislature did not itself sufficiently advert to the many uncertainties involved in the expression it used.
...
The rules of interpretation require us to take expressions in their context, and to construe them with proper regard to the subject matter with which the instrument deals and the objects it seeks to achieve, so as to arrive at the meaning attached to them by those who use them. To ascertain this meaning the compound expression must be taken and not its disintegrated parts. I am disposed to think that it means here to convey that a test is provided for immigrants depending upon a proper familiarity with some form of speech which in some politically organized European community is regarded as the common means of communication for all purposes ... ."[21]
Evatt J adopted a more international perspective when he concluded:
"It cannot be denied that, in the Immigration Act dictation test, the Australian Parliament represented to the Governments and nationals of all other countries that exclusion from Australia would be the result of an elementary dictation test limited to those languages which the Governments of the world would immediately recognize as an accepted or standard language of modern Europe. Scottish Gaelic is not such a language."[22]
The case of Kisch occurred before the courts decided to have recourse to a wide range of extrinsic materials, including parliamentary debates. Nevertheless it is difficult to believe that the High Court was unaware of the true origins of the dictation tests. The intention of parliament when enacting the original Immigration Restriction Act 1901 was that the dictation test should be applied for the purpose of excluding coloured migrants. It was the core provision of what became known as The White Australia Policy.
The use of a dictation test as a camouflage for a policy of racial exclusion was first introduced in Natal and, at the express suggestion of the British Colonial Secretary, Joseph Chamberlain, was adopted by a number of the Australian colonies[23]. The purpose of this camouflage was to preserve the illusion of an absence of racial discrimination within the British Empire. The sensitivity of the imperial centre to any of the white colonies behaving in this manner, was exacerbated by the fact that Great Britain was at that time cultivating the newly emerging power in the Far East, Japan, which had shown itself to be particularly sensitive to expressions of racial discrimination, including by the Australian colonies.
When Edmund Barton introduced the Immigration Restriction Bill into the first Commonwealth Parliament he implemented this imperial policy[24]. Amendments were unsuccessfully moved by the Labour Party to expressly exclude non-European migrants. The Parliament did not intend to exclude all coloured immigrants. Indeed a handful of non-European applicants were allowed into Australia by means of the selection of a language under the dictation test in which they proved proficient. The degree of administrative discretion conferred by permitting the examiner to select the language invited abuse, which no doubt occurred.
A B Piddington KC, who appeared for Kisch in the High Court, handed up in Court the Australian Encyclopedia (1926) Vol 1, drawing their Honours' attention to pp653 et seq[25]. That text made the racist origins of the Act quite clear. It said:
"The first federal parliament ... set itself to give effect to the popular demand for the exclusion of Asiatics, and after much controversy the language test was agreed upon ... It was understood from the first that European immigrants would not be required to pass the test."[26] (Emphasis added)
This little bit of extrinsic material was handed up, without comment, it appears, from either the bar or the bench. Nonetheless, it was powerful as a guide to the eventual result in Kisch. It is a technique of advocacy that the late Sir Maurice Byers QC, a barristers' barrister, used to describe as: "Putting the ball in the scrum".
Piddington made no submission to the High Court that the Parliament intended the dictation test to be administered only to coloured applicants: He made no submission that the Act was never intended to apply to a white Czech, even if he was a Bolshevik. Piddington, did not submit that, rather than reading down the words "European language", it would better accord with the parliamentary intention to read down the word "person", in the relevant section, to mean "non-white" person. Perhaps, particularly with an aggressive Japan, it was still too hard to be frank.
The first use of the dictation test for a white person, of which I am aware, was in 1914. Miss Ellen Fitzgibbon, a young Irish girl, described as "of rather attractive appearance" was deported after failing a test in Swedish. The only clue we have is that on her voyage the captain of the ship had occasion to have Miss Fitzgibbon examined by a medical officer[27]. Preserving the public morals was still a factor in the mid 30s. A year after the Kisch affair, in 1936, the dictation test was used to exclude an English woman, Mrs M Freer, on the ground that her entry might lead to the dissolution of a "perfectly good Australian marriage"[28]. The power was also frequently used for political purposes.
The history of the abuse of this unreviewable discretion, well beyond its original purpose, is a warning to drafters. It also lends support to the contemporary approach to statutory construction which emphasises purpose.
Context
In the Kisch case reference was made to the importance of context. It was context that proved determinative. The context on which reliance was placed extended beyond the Act itself to encompass the scope and purpose of the legislation. Emphasis was placed on the significance of language, in contrast to dialects, in a world-wide system of polities and societies. This was the context adopted by the Court as pertinent to the interpretation of legislation regulating the migration of persons from one polity/society to another polity/society. That is why the word "language" was identified as having been used with reference to a broader grouping than a distinct minority language or a dialect.
This reflects the contemporary approach to construction, which is well described as "literal in total context"[29].
As Sir Anthony Mason once put it:
"Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize 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."[30]
This approach was confirmed in a four judge joint judgment of the High Court:
"... the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous."[31]
Context is always important. Let me give you one example of the flexibility of our language. How should one construe the sentence "The chicken is ready to eat?". This can refer either to a cooked chicken, or to a hungry chicken. Only the context will identify the meaning. I accept that when Lord Simon of Glaisdale spoke of the richness of the English language as a resource for poets, he may not have had this example in mind.
I give another example of the significance of context. Parents leave their children in the care of a childminder. They suggest that to keep the children amused the childminder should teach them a game of cards. After the parents leave, the childminder teaches the children to play strip poker. The natural and ordinary meaning of the words "game of cards" encompasses strip poker. It is the context which requires those words to be read down[32].
Sometimes identifying the level of generality at which a drafter has used words is described as resolving an "ambiguity". The irony with the word "ambiguity" is that it itself may be used in different senses. The word "ambiguity" is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason doubtful[33].
The issue for an interpreter, faced with broad and general words, of determining at what level of generality the drafter employed those words is an issue which I prefer to describe as one of "inexplicitness", rather than of "ambiguity"[34].
I prefer this distinction to another, once proposed but happily not taken up, between "ambiguity" and "obscurity". In Ellerman Lines Ltd v Murray[35] the House of Lords was unanimous that s1 of the Merchant Shipping (International Labour Conventions) Act 1925 was completely unambiguous. It was just that three Lords said the meaning was X and two said the meaning was Y.[36] One of their Lordships put it this way:
"... I do not suggest this Act of 1925 is clear. I do not suggest that s1 bears its meaning, as I have interpreted it, upon its sleeve. It yields up its secret only to the patient inquirer; its truth lies at the bottom of the well. It is obscure, it remains oblique, but it is not in the result ambiguous. The truth from the well is found, at the end of the search for it, to have been leaking from the section itself all the time just as the truth, in the words of a learned judge we all have in remembrance, may leak out sometimes even from an affidavit."[37]
Reading Down General Words
The Kisch case turned on the reading down of the words "European language". This process of reading down general words is one of the most frequently recurring tasks in statutory interpretation. This has always been so. 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."[38]
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."[39]
This is a well recognised technique of construction. General words are frequently read down. However, I know of no example in which a court has done the opposite, i.e. "read up" words. That is to say it is possible by a recognised technique of construction to reduce the scope and ambit of a statutory provision. I do not believe it is possible by any recognised technique of statutory construction to expand the sphere of operation of a statutory provision to circumstances not reasonably covered by the words actually used by the parliament[40].
Reading Words into an Act
Some authorities and texts refer to a process of "reading words into an Act of Parliament". This terminology appears to me to offend a fundamental principle of our constitutional law. It is not the function of the judiciary to do anything like this[41].
The most frequently cited passage of this kind is from Lord Diplock, who sets out a number of restrictive conditions before anything of this character can occur. His Lordship said:
"My lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it."[42]
It is important to reconcile the two, apparently contradictory, elements in this passage. How is it possible to "read words into" an Act, whilst engaging in a task of "construction"?. From my reading of the authorities, and I acknowledge this is not the only possible reading of those authorities, the court may not supply words omitted by the legislature, per se. Rather, what a court may do, is to construe the words actually used by the legislature as if certain words appeared in the statute. The words are "included" to reflect in express, and therefore more readily observable form, the true construction of the words actually used.
Putting aside the question of typographical errors, the task as I have said is to interpret the words of the legislature, not to divine the intent of the legislature.
I re-emphasise the words from Lord Diplock that I have quoted: the task of the Court "remains one of construction". In order to be able to characterise the process as one of construction, which remains a constitutional restriction on the role of the judiciary, it is best to avoid describing the process as one of "introducing words into the Act". It remains a process of construction if what the Court is doing is to interpret the words actually used by the Parliament, by giving them an effect as if they contained additional words or as if some words were deleted for a specific application. That is not however to introduce words into the Act. It involves the interpretation of the words actually used.
Interpretation must always be text based. The issue of "text" versus "purpose" has been traced back to Aristotle.43 The reformulation of a statutory provision with additional or fewer words should be understood as a means of expressing the Court's conclusion with clarity, rather than as a description of the actual reasoning process which the Court has conducted.
In Australia, the basic authority on legislative inadvertence is Cooper Brookes v Commissioner of Taxation44. This case has been described by the text writers as, in effect, reading words into the statute45. As I have indicated, I would not so describe it. What the Court concluded was that in a particular paragraph, the word "company" should not be given the extended meaning, which one sub-section said that all such references should be given. In the full context of all of the relevant provisions, and of the legislative history, the sub-section which made provision for the extended meaning was read down so as not to apply to the specific reference in one paragraph[46].
To similar effect is a recent judgment of the House of Lords which, notwithstanding references to reading words into the Act, took words of general application, namely "any decision of the court under that Part" and concluded that that particular composite phrase had to be read down, so that the phrase "under that Part" applied only to some sections in that Part of the Act.[47]
There are a number of permissible techniques of construction which can sometimes be exemplified by reformulating the actual statutory words, with the addition or deletion of words. The reading down of general words is a frequently occurring example. Similarly, the process of giving a word an ambulatory construction may often be more clearly stated in this manner. However, it is of great significance to emphasise the central proposition that what is involved is interpretation, and abjure the phrase that is sometimes used: "reading words into the Act".
Conclusion
You will permit a touch of nostalgia in conclusion. In the 1930's when the Kisch case was decided, respect for the courts was unalloyed. No Commonwealth Minister denounced the High Court for letting this rabble rouser pollute the minds of Australian youth or lead Australian women from the path of virtue. There was no electronic lynch mob on talk-back radio.
The Attorney General, Robert Menzies, of Scottish heritage himself and no doubt sensitive to the status of Scottish Gaelic, quietly paid Kisch's costs and let him go home. When the Sydney Morning Herald published articles and letters denouncing the judgment for its failure to recognise Scottish Gaelic as the glorious language it was, the newspaper was prosecuted for contempt.
Perhaps Egon Kisch left Australia ruminating about the application to his recent experience of the insights into bureaucratic conduct recently published by his old classmate at the Altstadter Gymnasium in Prague - Franz Kafka. We will never know.
1 Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 236.
2 Maunsell v Olins [1975] AC 373 at 391. See also Farrell v Alexander [1977] AC 59 at 84; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 645; Spigelman "Statutory Interpretation: Identifying the Linguistic Register" (1999) 4 The Newcastle Law Review 1 also accessible at www.lawlink.nsw.gov.au/sc.
3 State v Zuma (1995) 4 BCLR 401 at 402; Matadeen v Pointu [1999] 1 AC 98 at 108.
4 Interpretation Act 1987 (NSW) s33; Acts Interpretation Act 1901 (Cth) s15AA.
5 Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 459; Stock v Frank Jones supra at 236G; Black-Clawson International supra at 613G and 645C-D.
6 Brennan v Comcare (1994) 50 FCR 555 at 574; Byrne v Australian Airlines supra at 459; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 248; Morrison v Peacock (2000) 50 NSWLR 178 at [33].
7 Rodriguez v United States 480 US 522 (1987) at 525-526 original emphasis.
8 See Bropho v Western Australia (1991) 171 CLR 1 at 17-18; Spigelman "Statutory Interpretation: Identifying the Linguistic Register" supra at 11-17.
9 See for example Bennion Statutory Interpretation (3rd ed) London, 1997 at Ch VIII.
10 See e.g. Brennan v Comcare supra at 573 per Gummow J.
11 Re Bolton; Ex parte Beane supra at 518.
12 See e.g. R v Young (1999) 46 NSWLR 681 esp at [33]-[37].
13 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
14 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113.
15 See Nicholas Hasluck Our Man K Penguin, Melbourne, 1999; Hasluck "Waiting for Ulrich; The Kisch and Clinton Cases" 33 Quadrant (April 1999) 28; Hasluck "Reinventing the Kisch Case" (2000) 2 UNDALR 67.
16 C M H Clarke "A History of Australian VI: The Old Dead Tree and the Young Tree Green (1916-1935)" Melbourne, 1987 at 474.
17 Id at 471.
18 Id at 463.
19 R v Wilson; Ex parte Kisch (1934) 52 CLR 234 at 241.
20 Id at 243.
21 Id at 244.
22 Id at 247.
23 See Quick and Garran The Annotated Constitution of the Australian Commonwealth 1901 at 626-627.
24 See G Bolton Edmund Barton: The One Man for the Job Sydney, 2000 at 243-245.
25 52 CLR at 237.
26 The Illustrated Australian Encyclopedia Vol 1, Sydney, 1925 at 653-654.
27 See Gavin Souter Lion & Kangaroo Australia: 1901-1919 The Rise of the Nation 1976 at 90.
28 F K Crowley (ed) A New History of Australia Melbourne 1974 at 448.
29 See E Driedger Construction of Statutes (2nd ed) at 2; The author of the 3rd edition Driedger on the Construction of Statutes (3rd ed) 1994 substitutes a more convoluted phrase at 3: "Today in every case, the meaning that emerges from reading the words in their immediate context must be considered in light of a larger context and tested against other sources of legislative meaning".
30 K & S Lakes City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315. His Honour was in dissent but not with respect to this issue. Indeed his Honour's judgment has frequently been referred to.
31 CIC Insurance Ltd v Bankstown Football Club Ltd supra at 408. See also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
32 See Zander The Lawmaking Process London, 1980 at 57.
33 See Bowtell v Goldsbrough Mort & Co Ltd (1905) 3 CLR 444 at 456-477; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288; R Cross Statutory Interpretation (3rd ed) 1995 at 83-84; Spigelman "Statutory Interpretation: Identifying the Linguistic Register" supra at 2-3.
34 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc (2000) 48 NSWLR 548 at 116.
35 [1931] AC 126.
36 This is not classified as an "ambiguity" by Megarry. See A Second Miscellany-at-Law 1973 at 179-180.
37 [1931] AC at 144 per Lord Blanesburgh.
38 Stradling v Morgan (1560) 75 ER 305 at 312.
39 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.
40 This was the issue in R v Young supra. See also R v PLV [2001] NSWCCA 282 esp at [88]-[89].
41 See the discussion in R v Young supra esp at [5]-[32].
42 Wentworth Securities v Jones [1980] AC 74 at 105. This passage has been adopted and applied in a number of authorities, see Young supra at [10].
43 Manning "Textualism and the Equity of the Statute" (2001) 101 Columbia Law Review 1 at 4.
44 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297.
45 Pearce and Geddes, Statutory Interpretation in Australia, (4th ed) Sydney, 1996 at par 2.16.
46 R v Young supra at [17]-[22].
47 See Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 esp at 592 noting the references to how a provision should be "read" in the context of "adding or omitting words" as part of an "interpretative function".
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