Statutory Interpretation: Seeking the Intention of the Law

This essay explores the process of statutory interpretation and the importance of seeking the intention of the law. It discusses the different rules of language used in interpretation and the factors that influence judicial interpretation. The essay argues that the intention of the law cannot always be directly construed from the legislative text and provides recommendations for interpreting legislation.

INTENT 1
STATUTORY INTERPRETATION-LAWS INTENT
Student’s Name
Institution

INTENT 2
Introduction
Despite construing the meaning of the legislation from the text, the intention has to be sought
and, more often than not, through the judicial interpretation of the legislation1. It is well
within the constitutional mandate of the judges during judicial interpretation to clarify the
intendment of legislation2. Several factors influence the judicial interpretation of statutes,
with the main one being the ambiguity of the text. According to Scott Soames using
equivocal language in legal instruments results into vague legal standards3. Giving the
intention of the law does not overrule that the parliament had an intention of the law; it is
merely clarifying and demystifying facts4.This essay will argue that the intention of the law
cannot always be directly construed from the legislative text of the legislation giving some
recommendations of what can be done.
In the judicial interpretation of statutes, there are four main rules of language that aid in the
interpretation; the literal rule, the golden rule, mischief rule, and the purposive approach5.
The literal rule is always the first consideration for the interpretation of legislation, where the
words are given their natural and ordinary meaning without looking into the intention of the
legislators. The golden rule is applied where the application of the literal rule would lead to
an absurd decision. The mischief rule aims at identifying the intention of the statute or
legislation. It seeks to find the wrong for which the statute was created to legislate against, to
give the statute its intendment. The purposive approach of interpretation is derived from the
mischief rule, as is in the Heydon’s Case (1584)6, and it involves the use of legislative
documents like drafts, Hansards, white papers and committee reports, to identify the intention
of the statute.
1 Trevor R. S Allan, The Sovereignty Of Law: Freedom, Constitution And Common Law (Oxford University
Press 2013).
2 Professor D. Neil Maccormick and Robert S. Summers, Interpreting Statutes - A Comparative Study (Taylor &
Francis 2016).
3 Scott Soames, "The Value Of Vagueness" [2011] Philosophical Foundations of Language in the Law. P 3
4 M. Waibel, "Demystifying The Art Of Interpretation" (2011) 22(2) European Journal of International Law.
5 Chris Turner and Jo Boylan-Kemp, Unlocking Legal Learning (3rd edn, Routledge 2013).
6 Heydon (1584) 76 ER 637

INTENT 3
In the law making process the legislators come up with ideas in form of bills which are then
enacted to become laws 7 These ideas then get support in the parliament, followed by some
arguments and propositions before it becomes a law. The motive which the lawmaker had
when pushing the idea forward for legislation is the intention of the law8. The purpose
intended for the proposed law to achieve. In the process, some intentions suffice and become
enacted, and those do not. Those that suffice are regarded as "recognized by law". In the
drafting of the legislative text, the wording could be precise or ambiguous, and in the latter
case, judicial interpretation is required set to light the intendment of the legislation9.
Sometimes, however, the rules of construction may give nebulous effect to a clear-cut term in
a legal instrument10. Legislation is not just any other text; it is text with authority because it is
made by legislators who have bestowed upon them, the constitutional mandate to make
laws11. Therefore, in determining the application and effect of the legislation, judges have to
be guided by the assumption that the legislators had an intention when drafting the law. It is a
common law rule that judges should give effect to the intention of the provision in question
through their interpretation and more often than not, the achievement of the intention requires
more than just meaning of the statutory text12.
There have been numerous theories on statutory interpretation especially in common law
countries, with many scholars and judicial officers of the opinion that the end game of the
interpretation is to unravel the legislative intent13. Currently, the Australian court system
views statutory interpretation as an affirmation of the intendment of the legislation14This
7 "Infosheet 7 - Making Laws – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019)
<https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-
_Infosheets/Infosheet_7_-_Making_laws>.
8 Neil Duxbury, "Judicial Disapproval As A Constitutional Technique" (2017) 15(3) International Journal of
Constitutional Law.
9 Shraddha Agrawal, "The Golden Rule of Interpretation - Academike", Academike (Webpage, 2014)
<https://www.lawctopus.com/academike/golden-rule-interpretation/> Accessed 17th May 2019.
10 Scott Soames, "The Value Of Vagueness" [2011] Philosophical Foundations of Language in the Law. P 3
11 "Infosheet 7 - Making Laws – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019)
<https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-
_Infosheets/Infosheet_7_-_Making_laws>.
12 Stanely Fish, "There Is No Textualist Position 42 (2005): 629." (2005) 42(629) San Diego L.
Rev.<https://www.law.columbia.edu/sites/default/files/microsites/law-theory-workshop/files/Intention
%20Fish2.pdf>.P 6
13 Nye Perram, ‘ The perils of complexity: why more law is bad law’ (2010) 39 Australian Tax Review 179,
180-181
14 The Hon Justice John Middleton, "Statutory Interpretation - Mostly Common
Sense?", Fedcourt.Gov.Au (Webpage, 2016)
<https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-middleton/middleton-j-20160414>.

INTENT 4
affirmation, however, is more than just finding the meaning of the text of the statute as a
whole; it entails much more consideration in the actual practice.
“Construction of an enactment is ascertaining the intention of the legislature from the words
it has used in the circumstances, on the occasion, and in the collocation, it has used them”15
One might argue that there is no intention behind the Act of Parliament if it takes the court’s
intervention to give the legislation its intendment. On the contrary, the court does not give
new intention to the legislation; it only clarifies the intention in ambiguous cases16, 17 .
“The purpose of the statute may require the words of a legislative provision to be read in a
way that does not correspond with the literal or grammatical meaning provided the
construction chosen is reasonably open.18”
Furthermore, the rules of construction, common law and statutory, are accepted not only by
the judges but also by the legislators19. Therefore when drafting the laws and statues, the
legislators are well informed of the rules to apply during statutory interpretation. Sometimes,
the courts are compelled to give the legislation a purposive approach in their interpretation20.
A debate might arise that the role of the judges in giving intention to the law is an act beyond
their powers while in actual fact; the objective is to show the constitutional relationship
between the legislators and the judiciary. It is a check and balance of power seeing as the
parliament cannot make the laws and interpret them as well. The interpretive role is an
affirmation of the legislative intention, whether it conforms to the common law rules of
interpretation, as outlined in the statute.
One of the factors that necessitate the interpretation of the law in light of intention is the
limiting factor of language21. When drafting the legislative texts, it is highly unlikely that the
15 Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180.
16 Stanely Fish, "There Is No Textualist Position 42 (2005): 629." (2005) 42(629) San Diego L.
Rev.<https://www.law.columbia.edu/sites/default/files/microsites/law-theory-workshop/files/Intention
%20Fish2.pdf>.
17 Andrei Marmor, "Can The Law Imply More Than It Says? On Some Pragmatic Aspects Of Strategic Speech"
[2011] Philosophical Foundations of Language in the Law. P. 13
18 CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384; 71 ALJR 312; 141
ALR 618 (Brennan CJ, Dawson, Toohey and Gummow JJ)
19 Robert French, "The Principle Of Legality And Legislative Intention" (2018) 40(1) Statute Law Review.
20 The Hon Justice John Middleton, "Statutory Interpretation - Mostly Common
Sense?", Fedcourt.Gov.Au (Webpage, 2016)
<https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-middleton/middleton-j-20160414>.
21 Michael Freeman, Michael Freeman and Michael Freeman, Law and Language (Oxford University Press,
2013).

INTENT 5
legislators will spell out the course of action to be followed in the event of every foreseeable
circumstance. Some issues arise that had not been foreseen when drafting the legislation and
it requires the application of the already existent laws. In this case, the judges step in to
bridge the gap between the legislation as spelled out and its application in certain
circumstances. The legislation could be drafted for some certain reason by the legislators, but
in the interpretation, it could apply in some other case appropriately.
The Principle of legality makes an assumption that in the process of lawmaking, it is never
the intendment of the legislators to interfere with common law rights, immunities or freedom,
where the language is clear22. This, therefore, implies that, if a law is passed, which seems to
interfere with the rights and freedom of the people, the literal interpretation of such a law
would not suffice. Such a law requires interpretation that will seek to find the intention of
parliament when drafting it, and one that will have the least impact of the statutory incursions
on the people. This is especially because common law and its principles are the constitutional
foundation in Australia, as stated in Wik Peoples v Queensland (1996)23 and judges,
interpreters of the law, have a duty to protect the constitution.
The history or happenings of a place at a given time affect the laws that will be passed,
whether directly or indirectly24. When making laws, the legislators are influenced by history
or a series of events; either past events, present or foreseen. In statutory interpretation, we
cannot turn a blind eye to the happenings or the history that led to the current situation.
Therefore, although the interpretation of legislation starts by giving a literal meaning to the
text, the contexts of the legislation and the legislative history have to be considered as well.
We cannot separate history and law; our laws can give our history, and our history defines us.
However, the intendment of the statutory text should not be overridden by the legislative
history25.
In the common law rules of construction, there is an assumption that in the lawmaking
process, parliament acted with reason and in accordance to its constitutional mandate and
those of the other arms of government and in observance of common law rights freedoms and
22 Bruce Chen, "The Principle Of Legality: Issues On Rationale And Application" (2013) 41(2) Monash
University Law Review http://classic.austlii.edu.au/au/journals/MonashULawRw/2015/13.pdf> Accessed 17th
May 2019
23 Wik Peoples v The State of Queensland (1996) HCA 40, 187 CLR 1, 182
24 Scott Bennett, "Australia's Constitutional Milestones – Parliament Of Australia", Aph.Gov.Au (Webpage,
2004) <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
Publications_Archive/online/Milestones>.
25 Christopher Hutton, Word Meaning And Legal Interpretation (Macmillan International Higher Education,
2014).

INTENT 6
immunities26. This assumption cannot be overlooked and it is probably the reason behind the
literal interpretation and application of legislation. But the literal rule can only be applied in
cases where the text of the legislation is precise and where the context requiring the
application is straightforward. In cases where the context requires a deeper look into the
legislation, the intention of the legislation has to be dived into.
In statutory interpretation, the judge should be guided on assumptions about coherence,
consistency and reasonable action27. There are instances where it is highly likely that the
legislation is not consistent especially where the legislation has been amended several times.
When presented with an interpretation issue of such, the question of intention arises. The
motive behind the amendments and the mischief that was desired to be addressed by the
legislation could be guiding blocks in interpretation. In such a case, literalism would not
answer the questions at hand regarding the purpose of the legislation.
In giving the interpretation of the law and its intendment, the legislation and legislative
process ought to be respected. The aim of giving intention to the law is not to create other
laws but to simply apply the provisions of the legislation to the context and give its meaning.
“The judges complete the law promulgated by Parliament by applying it.” Sir Philip Sales of
the English High Court”28
There are also restrictions to the process of trying to get the intention of parliament when
making laws. As stated in French CJ and Hayne J IN Certain Lloyd’s Underwriters v Cross:
“Determination of a statutory purpose neither permits nor requires some search for those who
promoted or passed the legislation may have had in mind when it was enacted. It is important
in this respect, a sin others, to recognize that to use legislative intention is a metaphor. The
search for legal meaning involves the application of the processes of statutory construction.
The identification of statutory purpose and legislative intention is the product of those
processes, not the discovery of some subjective purpose or intention. The purpose of
legislation must be derived from what the legislation says, and not from any assumption
about the desired or desirable reach or operation of the relevant provisions”29
26 Trevor R. S Allan, The Sovereignty Of Law: Freedom, Constitution And Common Law (Oxford University
Press 2013).
27 Grant Lamond, "Precedent and Analogy in Legal Reasoning (Stanford Encyclopedia Of
Philosophy)", Plato.Stanford.Edu (Webpage, 2006) <https://plato.stanford.edu/entries/legal-reas-prec/>.
28 Philip Sales, "Judges and Legislature: Values Into Law" (2012) 71(2) The Cambridge Law Journal.
29 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56

INTENT 7
In trying to find the intention, judges should first get the literal meaning of the legislative text
and apply it to the context. If further intention needs to be sought, they should look back
before the legislation was in existence and try to find the mischief for which the legislation
was drafted for as was stated in Wilson v State Rail Authority of New South Wales30. The
parliament drafts, Hansards and committee reports are also very resourceful documents in
finding the intention of parliament. Seeking to ascertain the actual intention of the lawmakers
is insignificant since there is a clearly defined procedure to find the intention of the
legislation.
Conclusion
In conclusion, the only distinction between the statutory purpose and the legislative intention
is that one seeks to achieve the legal meaning while the other seeks to address the mischief
for which the law was drafted31. Therefore, in contrast to Heydon J’s statement in
Momcilovic that: “the common law of statutory interpretation requires that a court...to
search not for the intention of the legislature but for the meaning of the language used.”, the
requirement of merely a literal understanding and meaning to the legislative text is wanting,
if the intention of the law is to be achieved. Statutory interpretation mainly issues arise where
the text of the legislation is ambiguous. To minimize these issues, the legislators should try
and be more precise in the legislative text. Another option could be, the legislators would
give broad ranges of instances where the laws and legislation are to be applied. Until then, the
judiciary will continue, taking up its mandate of interpreting the legislative text and giving
clarity. However, where the text is clear, the role of interpretation is clear cut and the text
should be given a meaning it can bear32. A provision must be interpreted with the view to
yield harmonious results and it must be viewed as a whole as stated by Project Blue Sky. And
this mandate is entrusted to the legislature in the lawmaking the process and affected by the
judiciary in the interpretation.
30 Wilson v State of New South Wales (2003) NSWSC 805
31 FAR Bennion, Statutory Interpretation: A code (Butterworths, 4th ed, 2002)
32 D Neil MacCormick, Robert S Summers, Interpreting statutes: a comparative study (Routledge, 2016)

INTENT 8
Bibliography
Books, Articles & Reports
"Infosheet 7 - Making Laws – Parliament Of Australia", Aph.Gov.Au (Webpage, 2019)
<https://www.aph.gov.au/About_Parliament/House_of_Representatives/
Powers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-_Making_laws>
Agrawal, Shraddha, "The Golden Rule Of Interpretation -
Academike", Academike (Webpage, 2014) <https://www.lawctopus.com/academike/golden-
rule-interpretation/> Accessed 17th May 2019.
Allan, Trevor R. S, The Sovereignty Of Law: Freedom, Constitution And Common
Law (Oxford University Press, 2013)
Bennett, Scott, "Australia's Constitutional Milestones – Parliament Of
Australia", Aph.Gov.Au(Webpage, 2004)
<https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/
Parliamentary_Library/Publications_Archive/online/Milestones>
Chen, Bruce, "The Principle Of Legality: Issues On Rationale And Application" (2013)
41(2) Monash University Law
Reviewhttp://classic.austlii.edu.au/au/journals/MonashULawRw/2015/13.pdf> 329-376
D Neil MacCormick, Robert S Summers, Interpreting statutes: a comparative study
(Routledge, 2016)
Duxbury, Neil, "Judicial Disapproval As A Constitutional Technique" (2017)
15(3) International Journal of Constitutional Law. 649-670
FAR Bennion, Statutory Interpretation: A code (Butterworths, 4th ed, 2002)
Fish, Stanely, "There Is No Textualist Position 42 San Diego L.
Rev. https://www.law.columbia.edu/sites/default/files/microsites/law-theory-workshop/files/
Intention%20Fish2.pdf> 629
Freeman, Michael, Michael Freeman and Michael Freeman, Law And Language (Oxford
University Press, 2013)

INTENT 9
French, Robert, "The Principle Of Legality And Legislative Intention" (2018) 40(1) Statute
Law Review. 40-52
Hutton, Christopher, Word Meaning And Legal Interpretation (Macmillan International
Higher Education, 2014)
Kenny,S. ‘Constitutional Role of the Judge: Statutory Interpretation’, delivered on 15th March
2013, Melbourne Law School, University of Melbourne,<
http://www.austlii.edu.au/au/journals/FedJSchol/2013/39.html> Accessed 17th May 2019.
Lamond, Grant, "Precedent and Analogy in Legal Reasoning (Stanford Encyclopedia Of
Philosophy)", Plato.Stanford.Edu (Webpage, 2006)
<https://plato.stanford.edu/entries/legal-reas-prec/> Accessed 17th May 2019.
Maccormick, Professor D. Neil and Robert S. Summers, Interpreting Statutes - A
Comparative Study (Taylor & Francis, 2016)
Marmor, Andrei, "Can The Law Imply More Than It Says? On Some Pragmatic Aspects Of
Strategic Speech" [2011] Philosophical Foundations of Language in the Law
Nye Perram, ‘the perils of complexity: why more law is bad law’ (2010) 39 Australian Tax
Review 179, 180-181
Sales, Philip, "Judges and Legislature: Values into Law" (2012) 71(2) The Cambridge Law
Journal. 287-296
Soames, Scott, "The Value Of Vagueness" [2011] Philosophical Foundations of Language in
the Law
The Hon Justice John Middleton, "Statutory Interpretation - Mostly Common
Sense?", Fedcourt.Gov.Au (Webpage, 2016) <https://www.fedcourt.gov.au/digital-law-
library/judges-speeches/justice-middleton/middleton-j-20160414>
Turner, Chris and Jo Boylan-Kemp, Unlocking Legal Learning (Routledge, 3rd ed, 2013)
Waibel, M., "Demystifying The Art Of Interpretation" (2011) 22(2) European Journal of
International Law. 571-588

INTENT 10
Cases
Wilson v State of New South Wales (2003) NSWSC 805
Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; [2012] HCA 56
Heydon (1584) 76 ER 637
Isaacs J in Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180.
Wik Peoples v Queensland (1996) 187 CLR 1, 182
CIC Insurance Limited v Bankstown Football Club Limited [1997] HCA 2; 187 CLR 384; 71
ALJR 312; 141 ALR 618 (Brennan CJ, Dawson, Toohey and Gummow JJ)