Interpretation legislationActs Interpretation Act 1901 (Cth)Interpretation Act 1987 (NSW)‘Contrary interpretation’ principle

Acts Interpretation Act:is a measure providing for the simplification of

the language of Acts of Parliament and the shortening of their terminology. It constitutes in a sense a legal dictionary, particular meanings being assigned by it to particular phrases, which must be used over and over again in almost every Act of Parliament.

Alfred Deakin, Australia’s first Attorney-General, on the second reading of the Acts Interpretation Bill on 6 June 1901.

Acts Interpretation ActPart 1—Preliminary Part 2—Definitions Part 3—Commencement of Acts Part 4—Amendment, repeal and expiry of

Acts Part 5—General interpretation rules Part 6—Service of documents Part 7—Powers, functions and duties Part 8—Distance, time and age Part 9—Citation of Acts Part 10—Non-legislative instruments and

resolutions Part 11—Regulations

Recent amendmentsActs Interpretation Amendment Act 2011DENMAN CHAMBERS STATUTORY

INTERPRETATION SEMINARSThe Commonwealth Acts Interpretation

Act, 1901Kylie Nomchong (18 August 2011)http://www.denmanchambers.com.au/dev/wp-

content/uploads/2011/09/Acts-Interpretation-Act-New-Amendments.pdf

CommencementCommencement: s3A

28 day ruleCalculation of time of day of commencement:

s3Calculation of period of 28 days – clear on

face of section, but if required – s36http://www.comlaw.gov.au/Details/C2012C00

001/Html/Text#_Toc311805118

ACTS INTERPRETATION ACT 1901 - SECT 3 Meaning of commencement              (1)  In every Act, commencement , in relation to an Act or a provision of an Act, means the time at which the Act or provision comes into operation.

             (2)  Where an Act, or any instrument (including any rules regulations or by‑laws) made granted or issued under a power conferred by an Act, is expressed to come into operation on a particular day (whether the expression "come into operation" or "commence" is used), it shall come into operation immediately on the expiration of the last preceding day.

3A Commencement of Acts(1) This section does not apply to an Act so far as it

provides for its commencement.(2) An Act (other than an Act to alter the

Constitution) commences on the 28th day after the day on which that Act receives the Royal Assent.

(3) An Act to alter the Constitution commences on the day on which that Act receives the Royal Assent.

Re Flavel [1916] SALR 47

Prior to commencement?Delegated legislation, appointments etcS4 AIAS26 IA

4 Exercise of powers between enactment and commencement of Act

Application of section(1) This section applies if an Act is enacted and at a time

(the start time) after its enactment the Act will confer power to make an appointment, or to make an instrument of a legislative or administrative character (including rules, regulations or by‑laws), because:

(a) the Act will commence at the start time; or(b) the Act will be amended at the start time by an Act

that has been enacted and that commences at that time.

Exercise of power before start time(2) The power may be exercised before the start time as

if the relevant commencement had occurred.(3) Anything may be done before the start time for the

purpose of enabling the exercise of the power, or of bringing the appointment or instrument into effect, as if the relevant commencement had occurred.

Repeal provisionsRepeal of an Act will not mean repeal of any rights or liabilities which have accrued under that Act unless clear words have been used.

Part 4—Amendment, repeal and expiry of Acts

e.g.s7 Effect of repeal or amendment of ActNo revival of other Act or part(1)The repeal of an Act, or of a part of an

Act, that repealed an Act (the old Act) or part (the old part) of an Act does not revive the old Act or old part, unless express provision is made for the revival.

No effect on previous operation of Act or part(2) If an Act, or an instrument under an Act, repeals or amends an

Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

(a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation(3) A reference in subsection (1) or (2) to the repeal or

amendment of an Act or of a part of an Act includes a reference to:

(a) a repeal or amendment effected by implication; and

(b) the expiry, lapsing or cessation of effect of the Act or part; and

(c) the abrogation or limitation of the effect of the Act or part; and

(d) the exclusion of the application of the Act or part to any person, subject‑matter or circumstance.

(4) A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

References to other Acts10 References to amended or re‑enacted ActsWhere an Act contains a reference to a short title that is or

was provided by law for the citation of another Act as originally enacted, or of another Act as amended, then:

(a) the reference shall be construed as a reference to that other Act as originally enacted and as amended from time to time; and

(b) where that other Act has been repealed and re‑enacted, with or without modifications, the reference shall be construed as including a reference to the re‑enacted Act as originally enacted and as amended from time to time; and

(c) if a provision of the other Act is repealed and re‑enacted (including where the other Act is repealed and re‑enacted), with or without modifications, a reference to the repealed provision extends to any corresponding re‑enacted provision.

Geographical connection21 Office etc. means office etc. of the

Commonwealth(1) In any Act:(a) references to any officer or office shall be

construed as references to such officer or office in and for the Commonwealth; and

(b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.

(2) In this section:office includes a position occupied by an APS

employee.officer includes an APS employee.

Gender/number23 Rules as to gender and numberIn any Act:(a) words importing a gender include every

other gender; and(b) words in the singular number include the

plural and words in the plural number include the singular

18B Titles of Chairs and Deputy ChairsChair titles(1) For the purposes of this section, each of the

following is a chair title:(a) Chair;(b) Chairperson;(c) Chairman;(d) Chairwoman.

Parts of speech18A Parts of speech and grammatical forms

In any Act where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

ACTS INTERPRETATION ACT 1901 - s 35Measurement of distance    

   In the measurement of any distance for the purposes of any Act, that distance shall be measured in a straight line on a horizontal plane.

Time and Age37 Expressions of time

Where in an Act any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the legal time in that State or part of the Commonwealth.

37A Attainment of particular ageFor the purposes of any Act, the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of the birth of that person.

s15AA

Original -s15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

ElementsInterpretationConstruction promoting purposeWhether purpose express or notPreferred To construction which does not

promote purpose

Bryson J:These have not signalled any large new turn in the construction of statutes. The approach to these provisions thus far appears to be appropriate to treating them as declaratory, and in my suggestion that is what they are.

Mills v Meeking (1990) 169 CLR 214, Dawson J at 235:

“The literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. [The s15AA equivalent]* must I think, mean that the purposes stated in Pt 5 of the Road Safety Act are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open.

The requirement that a court look to the purpose or object of the Act is thus more than an instruction to adopt the traditional mischief or purpose rule in preference to the literal rule of construction. The mischief or purpose rule required an ambiguity or inconsistency before a court could have regard to purpose…The approach required by [s15AA equivalent] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done. However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. [Section 15AA] requires a court to construe an Act, not to rewrite it, in the light of its purposes.”

R v L (1994) 49FCR 543, Burchett, Miles and Ryan JJ at 548

“the requirement of s15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”

New s15AA27th December 201115AA Interpretation best achieving Act’s

purpose or objectIn interpreting a provision of an Act, the

interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

Why?99. Section 15AA, which deals with interpretation

of Acts, is currently expressed in absolute terms, ie. a construction that will promote the purpose of an Act is to be preferred to one that will not. Section 15AA does not address the situation where there is a choice between two or more constructions that will promote Parliament's purpose.

100. The limited nature of section 15AA was confirmed by three High Court judges in a case on the equivalent Victorian provision (see Chugg v Pacific Dunlop Pty Ltd (1990) 95 ALR 481 at 489, Dawson, Toohey and Gaudron JJ). 101. Therefore section 15AA is being amended to provide that a court is to prefer the construction of an Act that will `best achieve' the purpose or object of the Act.

Construction of purpose clausesIW v City of Perth (1997) 191 CLR 1Victims Compensation Fund v Brown (2002)

54 NSWLR 668NSWCAHigh Court

Spigelman CJ quoting US Supreme Court…No legislation pursues its purpose at all

costs. Deciding what competing values will or will not be sacrifice to the achievement of a particular objective is the very essence of legislative choice – and it frustrates rather than effectuated legislative intent simplistically to assume that whatever furthers the state’s primary objective must be law

No purpose clause?Recall purposive approach at

common lawIntrinsic materialsExtrinsic materials

Common LawStatute

s15AA and the golden ruleBermingham v Corrective Services Commission

of New South Wales (1988) 15NSWLR 292 McHugh JA at 302:

“To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.”

Bermingham’s case“[1]First, the court must know the mischief with which the Act was dealing.[2]Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved.[3]Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

*numbers added

R v Young (1999) 46 NSWLR 681at 687 per Spigelman CJ:

“Construction must be text based.”

Purpose?Structuring Purposive Statutory

Interpretation – An American Perspective (2006) 80 Australian Law Journal 849

US approachPlain meaningIntentionalismPurposivism