Student ID : 1021869

Subject : Fundamentals of the Common Law

Subject ID : LAWS70217

Word Count : [PLEASE INSERT] Words

Statutory Interpretation: Should it be a mere technical task or must it be

influenced by normative and/or subjective values?

STATUTORY INTERPRETATION: GO BEYOND THE TEXT

A INTRODUCTION

When there is a dispute related to the implications of a statue, the judges have to

interpret the statute in an effort to establish a profound answer to the problem. However,

legislation is often intentionally 'vague' and allows judges to give meaning to legislation. 1

Since about the middle of the twentieth century the vast increase in the rate of

production of new legislation over that time has generated a corresponding increase in

the number of disputes concerning the meaning of those statutes.2 On that note, the

approach to statutory interpretation in the judiciary duty has undergone immense debate

over the past couple of decades.

1
Mark L Humphèry-Jenner, ‘Should Common Law Doctrines Dynamically Guide The Interpretation of
Statutes?’ (2009) 3(2) Legisprudence 171, 171.
2
Joseph Campbell and Richard Campbell, ‘Why Statutory Interpretation Is Done as It Is Done’ (2014)
39(1) Australian Bar Review 1.
There are two major approaches to the interpretation of legislation in the Australian

common law tradition; the literal approach and the purposive approach. 3 The former is

an approach in which the courts are required to interpret the words of a statue

according to the literal and plain meaning of its term. 4 On the other hand, the latter is an

approach to statutory interpretation by which a construction would adopt the purpose of

parliament in passing the legislation or the particular provision. 5

However, some scholars criticise the adherents of the literal approach, Kirby J is one of

them. Kirby J suggested that this approach makes judges become a mere mechanics

as they only carry out technical tasks on the ground that the judge only plays a passive

part in interpreting the meaning.6 Dworkin, a prominent scholar in this context, stated

that judges require subjective values and normative evaluations in carrying out their

duties.7 This theory may be in line with the purposive approach that requires judges not

to rely on the textual context of a statute, but also take into account the purpose and

objective values.

Although literal rule certainly has its merits, such as certainty and in conformity with

democratic principle, the central issue now lies whether statutory interpretation's

process only requires judges to carry a basic technical task - a plain meaning

interpretation without considering the purpose of the statute or even contextual values.

3
DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) 35.
4
Encyclopaedic Australian Legal Dictionary (online at 19 June 2020) ‘contextualism’.
5
Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to
Duty’ (2006) 30 Melbourne University Law Review 576, 585.
6
Ibid 584.
7
James Donato, ‘Dworkin and Subjectivity in Legal Interpretation’ (1998) 40(6) Stanford Law Review
1517, 1518.
This article will try to examine this issue by providing a comparison and contradiction of

the existing methods developed in Australia. In part A, this article will look at the shifting

trends in the application of statutory interpretation methods in Australia from textualism

towards a more purposive direction. In Part B, this article will focus on the role of

normative and subjective values in statutory interpretation which encourages judges to

go beyond attributing meaning to the text. Finally, In Part C, this article will consider

finding a perfect balance by unifying the existing theories which ultimately results in an

approach not only focused on text but also prioritizes normative values and context to

become a modern theory of the statute of interpretation.

B SHIFTING TRENDS

The methods of statutory interpretation in jurisprudence have undergone many twists

and turn over the centuries. Firstly, it began when the literal approach is considered as

the best approach in statutory interpretation. The literal approach or textualism was

defined by the famous commentary from Higgins J in the Engineers' Case.8 The

essence of Higgins J's comment is that the rule of interpretation must focus on what

does the language mean in its ordinary and natural sense as well as the duty to follow

that meaning even if the outcome would be improbable. 9 In this respect, the literal rule

would require to substantially consider the original meaning of the text and exclude the

potential of applying any other approach, albeit unsatisfactory the result. 10

8
Robin Creyke et al, Laying Down the Law (LexisNexis Butterworths, 10th ed, 2017) 344.
9
Ibid.
10
Ibid.
Nevertheless, amid the simplistic literal approach which is attractive, many identified

that to assume a word or phrase in its textual context always has just one meaning, is a

fatal weakness.11 In practice, the language of a statutory provision might have multiple

meanings and ambiguous rather than plain meaning. 12

Aside from legislations wording are often vague, a growing understanding of the

function of context and purpose in all human communication drive the approaches of

statutory interpretation to develop even further.13

In recent decades courts have underlined a shifting away from a literal or semantic

approach to statutory construction and towards a contextual and purposive approach. 14

From Australian's historical perspective, this development was marked by some

Australian courts being subjected to public criticism during the 1970s and early 1980s. 15

During this period, the literal approach was deemed inappropriate for statutory

interpretation.16 In 1981, progress towards a purposive approach was finally apparent

after the Commonwealth government enacted s 15AA of the Acts Interpretation Act

1901.17 This section, which was amended in 2011, clearly states that the best approach

in statutory interpretation is an approach that promotes the purpose or object underlying

an statute (whether or not that purpose or object is expressly stated in the statue) is to

11
Ibid.
12
Ibid.
13
Campbell and Campbell (n 2) 249.
14
Ibid.
15
Creyke et al (n 8) 352.
16
Ibid.
17
Tobias Lonnquist, ‘The Trend Towards Purposive Statutory Intepretation: Human Rights At Stake’
(2003) 13 Revenue Law Journal 18, 21.
be preferred to an interpretation that would not promote those values. 18 This section

makes the purposive approach become widely known in Australia’s Common law. 19

Lord Griffiths In Pepper (Inspector of Taxes) v Hart expressed that a strict

constructionist view of interpretation (literalism) days has long passed and ‘The courts

now adopt a purposive approach which seeks to give effect to the true purpose of the

legislation and are prepared to look at much extraneous material that bears upon the

background against which the legislation was enacted’. 20 Kirby J even, in the case of

Federal Commissioner of Taxation v Ryan, 21 gave a strong commentary to his fellow

judges to be ‘on guard against any temptation to return to the dark days of literalism.’ 22

C ROLE OF NORMATIVE AND SUBJECTIVE VALUES IN JURISPRUDENCE

Profound reasons why textualism is abandoned is primarily because accepting a word

or phrase in the original meaning even if the result is unsatisfactory and preventing

other approaches even though there are multiple meanings in a word is something that

is unacceptable.23 As a result, textualism is said to be merely technical tasks without

regard to other values that should be taken into consideration. 24 In fact, Kirby J

explained that considering the purpose of the language and the differences between the

core meaning and peripheral implications that can change (due to changes in the

English language) over time is the actual task of the judge in statutory interpretation. 25

18
Acts Interpretation Amendment Act (CTH) 15AA.
19
Lonnquist (n 17) 21.
20
Ibid 22.
21
Federal Commissioner of Taxation v Ryan [2000] HCA 4.
22
Ibid 33.
23
Creyke et al (n 8) 344.
24
Kirby (n 5) 584.
25
Ibid 584–5.
Thus, judges should go beyond the text and pay more attention to the normative aspect,

which turns out to be in accordance with the objectives of the purposive approach.

In practice, engaging in normative values will allow judges to identify the statues with

consideration of policy questions that might arise. In this regard, the subjectivity of

judges will arise because they have to consider something further than just textual

context. This condition is in line with Dworkin's thinking which indicates that the

subjective value is a necessary condition of interpretation in order to evaluate the

community's legal and political practices in the sense of an interpreter's sense of justice

and fairness.26

Proponents of textualism are proven to only rely on very technical reasons. Firstly, the

notion of textualism promotes certainty. 27 The court is believed to act only as a guardian

of the law, not a new lawmaker by only interpreting the statue by textual mindlock. 28

However, there is a weakness in this concept; the rule's promise of certainty is rooted in

and depends entirely on the fixed meaning assumption. 29 If the meaning is not fixed by

the text, the certainty promised by the plain meaning rule turns out to be an illusion as

the meaning can be varied for everyone. 30 This is why subjective and normative values

are decisive when the language is complex.

26
Donato (n 7) 1535.
27
Ruth Sullivan, ‘The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation’ 1, 3.
28
John Middleton, ‘Statutory Interpretation: Mostly Common Sense?’ (2016) 40(2) Melbourne University
Law Review 626, 628 (‘Statutory Interpretation’).
29
Sullivan (n 27) 12.
30
Ibid.
Then certainty is also associated with the suitability of which with the theory of

democratic representation. In a democratic representation system, the statue made by

the parliament is a product of a long process of democracy that stems from the

aspirations of the people. Bryson J stated that Interpretation outside the intention of the

parliament would contravene the separations of power theory as it is disrespectful to the

power of the legislative branch. 31 This perspective creates the view that the court is

merely a subordinate of the parliament as the judge is only fixated on the text without

questioning subjective and normative values. Whereas in the concept of separation of

powers, the interpretive approach of the judicial branch aims to create checks and

balances.32 Normative and subjective values play an essential role in making judges

have the function of evaluating statues made by parliament. Allowing a literal approach

may form a centralized power in one branch, which is parliament - contradicting the

concept of democracy in the sense of creating a balanced separation of power. 33

D UNIFYING THEORY: COTEXTUALISM AS AN ART

With a statutory interpretation approach that highly values subjective and normative

aspects, judges these days do not adhere to one concept of approach. Subjective and

normative values eventually lead to the development of a more advanced approach

beyond the text or even just the purpose of the legislation. Dworkin indicated that

subjective and objective aspects are a combination that creates a dialogue between the

interpreter and the tradition of the principles. 34 This never-ending process generates an

31
‘Separation of Powers’, Australian Constitution Centre
<https://www.australianconstitutioncentre.org.au/separation-of-powers.html>.
32
Ibid.
33
Ibid.
34
Donato (n 7) 1535.
evaluation and contribution process. 35 This suggests that the development of the

complexity of words and phrases that cannot be avoided these days would make judges

find difficulty to rely on only one approach.

Scholars, such as Chief Justice Spiegelman emphasize that statutory interpretation is

developing towards a more contextual approach. 36 The contextual approach can be

seen as a resolution to the modern times’ development with its high complexity of

legislation as judges are given the power to exercise discretion based on contextual

concepts.37 In this respect, according to CIC Insurance v Bankstown Football Club Ltd 38,

judges put context as the primary consideration in statutory interpretation, not as an

optional.39

The meaning of the ‘context’, as the Victorian Court of Appeal expressed, may include

time, place, and any other circumstance that could rationally assist understanding of

meaning.40 With context-based, it can be concluded that contextualism is a proper

response to never-ending debates as judges may combine all approaches, from the

literal rule to the purposive approach without even leaving subjective and normative

values as a priority of consideration.

Kirby J explained this concept by stating that statutory interpretation is more of an art

rather than a scientific or technical task because judicial decisions should not be
35
Ibid.
36
Creyke et al (n 8) 342.
37
Trischa Mann, Oxford Reference (online at 19 June 2020) ‘contextualism’.
38
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384.
39
Ibid 408.
40
Creyke et al (n 8) 358.
depended on a rigid analysis of statutory interpretation. 41 Therefore, the judge should be

given the discretion in choosing between combining or even using one approach yet still

in reliance on the contextual values that develop in the circumstances.

F CONCLUSION

The development of statutory interpretation approaches in the Australian Common Law

is certainly moving in a favourable direction. Departing from the most fundamental thing,

the text, until finally, it arrives in a positive point of focusing on context and objective

values as a basis of leading principle. This growth cannot be separated from the

significant role of subjectivity and creativity of judges coupled with consideration of

normative values in an effort to answer the challenge of the high complexity of cases

and also the language of legislation that never stops evolving. Therefore, in this never-

ending challenge of interpreting statutes, the judge is demanded to go beyond merely

being a mechanic or carrying out scientific activities and answering it by prioritizing the

context within the rational framework of subjectivity and normative values.

Campbell, Joseph and Richard Campbell, ‘Why Statutory Interpretation Is Done as It Is Done’
(2014) 39(1) Australian Bar Review 1

Creyke, Robin et al, Laying Down the Law (LexisNexis Butterworths, 10th ed, 2017)

Donato, James, ‘Dworkin and Subjectivity in Legal Interpretation’ (1998) 40(6) Stanford Law
Review 1517
41
Michael Kirby, ‘Statutory Interpretation: The Meaning of Meaning’ [2011] Melbourne University Law
Review 113, 114.
Humphèry-Jenner, Mark L, ‘Should Common Law Doctrines Dynamically Guide The
Interpretation of Statutes?’ (2009) 3(2) Legisprudence 171

Kirby, Michael, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism
Conforming to Duty’ (2006) 30 Melbourne University Law Review 576

Kirby, Michael, ‘Statutory Interpretation: The Meaning of Meaning’ [2011] Melbourne University
Law Review 113

Lonnquist, Tobias, ‘The Trend Towards Purposive Statutory Intepretation: Human Rights At
Stake’ (2003) 13 Revenue Law Journal 18

Middleton, John, ‘Statutory Interpretation: Mostly Common Sense?’ (2016) 40(2) Melbourne
University Law Review 626

Pearce, DC and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014)

Sullivan, Ruth, ‘The Plain Meaning Rule and Other Ways to Cheat at Statutory Interpretation’ 1

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Federal Commissioner of Taxation v Ryan [2000] HCA 4

Acts Interpretation Amendment Act (CTH)

Encyclopaedic Australian Legal Dictionary (online at 19 June 2020) ‘contextualism’

Mann, Trischa, Oxford Reference (online at 19 June 2020) ‘contextualism’

‘Separation of Powers’, Australian Constitution Centre

<https://www.australianconstitutioncentre.org.au/separation-of-powers.html>