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The Principle of Legality and Legislative Intention

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Robert French discusses the contests about statutory interpretation that frequently present courts with constructional choices. The process of choice is primarily volitional.

Robert French was appointed Chief Justice of the High Court of Australia on 1 September 2008 and retired from that office on 29 January 2017.

He is a graduate of the University of Western Australia in science and law. He was appointed a Judge of the Federal Court of Australia in November 1986, an office he held until his appointment as Chief Justice on 1 September 2008. From 1994 to 1998 he was the President of the National Native Title Tribunal.

Following his retirement as Chief Justice, Mr French was appointed as a Non-Permanent Justice of the Hong Kong Court of Final Appeal in May 2017 and in January 2018 as an International Judge of the Singapore International Commercial Court.

He is an Adjunct Professor at the Law School at the University of Western Australia, a Distinguished Honorary Professor at the Australian National University and an Adjunct Professor at Monash University Law School. He was elected as Chancellor of the University of Western Australia in December 2017.

Image courtesy of interviewee. March 27, 2024

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This video is a detailed discussion about statutory interpretation and the "Principle of Legality," which revolves around how courts interpret and apply statutes made by legislatures. The speaker reflects on a paper presented in 2018 at a conference in Cambridge, focusing on the fundamental role that the interpretation of laws plays in the functioning of courts, notably in Australia, but also in the United Kingdom and the United States.

Key points include:

1. **Historical Context**: The shift from common law dominance (derived from judge-made law) to statutory law as a primary influence on citizens' rights and obligations.

2. **Judiciary's Role**: The court's central business often involves interpreting statutes and assessing the powers and duties conferred by them. Courts can influence legal rights through their interpretations.

3. **Interpretative Strategies**: The interpretation of laws requires examining the meaning of texts within their context, purpose, and established legal principles. Factors like the ordinary meaning of words and the legislative context are emphasized.

4. **Principle of Legality**: This video principle posits that when interpreting statutes, particularly those that might infringe upon common law rights and freedoms, courts should choose interpretations that minimize adverse effects.

5. **Challenges in Legislative Intention**: The speaker addresses the difficulty in discerning legislative intent due to varied understandings among parliament members. Courts often focus on the literal meaning of legislative wording rather than trying to decode the collective intention of the legislature.

6. **Practical Examples**: The discussion includes concrete legal cases that illustrate the application of the Principle of Legality, such as drug possession laws and migration regulations. These examples illustrate how courts navigate statutory language to protect individual rights while working within constitutional limits.

7. **Debate on Clarity and Authority**: The speaker highlights ongoing debates about how the principle creates uncertainty in interpretation while also encouraging clearer legislative drafting, ultimately aiming to protect individual rights without overstepping constitutional boundaries.

This video argues for the importance of understanding statutory interpretation not only as a legal technicality but as a fundamental aspect of ensuring justice and protecting rights within a legislative framework.

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You are referring to a paper,

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which I gave at a round table in, Cambridge in,

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2018, called The Principle of Legality

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and Legislative Intention.

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And, first motivation was I've been asked to give it.

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Uh, the second motivation is I think

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that it is an important topic.

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Uh, the interpretation of the laws

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that the Parliament makes, is core business for.

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Um, most of our courts, certainly most Australian courts,

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and I suspect most, UK

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and, American courts, it used

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to be that, legal disputes were dominated by,

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the common law, the common law of contract, the common law

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of, property, the common law of tort.

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That is to say the judge made law,

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which had been built up over many, many years.

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But more

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and more the laws made by the parliament, determine,

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to a great extent citizens' rights

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and, obligations, and the privileges

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and powers of officials and so forth.

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Uh, we still, of course, have, many common law problems.

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There are contract problems, there are property problems,

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there are problems of civil wrongs

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or torts as they're called, which derive,

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from principles annunciated by the judge made law,

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the common law, which,

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really began in the United Kingdom.

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But, the heritage of which is, you know, shared

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by places like Canada and Australia and New Zealand

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and the United States.

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But even with, a contract problem today in Australia,

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you'll very often find

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that there is some statutory dimension to it, that the,

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the common law of the contract has been amended in

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some way by the statute.

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Uh, the, common law property is very much, subject

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to, property law statutes, which govern rights

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and entitlements in relation to property.

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So, the interpretation of statutes by courts,

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is core business.

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Uh, people come to court, they say, I have a right,

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or they breached a duty.

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Um, and very often the court has to,

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and they say they've breached a duty, which they were,

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we say, owed under a statute, a law made by the parliament,

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or I have a right

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which derives from a law made by the parliament.

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Sometimes the arguments are about official power.

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So some official has made a decision, exercised a power,

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refuse to grant a license or,

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or, refuse to make, an approval, say

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for a proposed, resource development.

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And the argument might be, well, the official only gets his

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or her power from a statute, or from the constitution.

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We have a written constitution in Australia.

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And so the question is, what does the statute empower

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that official to do?

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And what are the conditions under which

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that official can exercise that power?

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So, statutes play a very important role in both private law

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disputes of the kind I've mentioned earlier,

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and in public law disputes, where you've got arguments

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between, governments and, public authorities

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and, private persons or, or companies.

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And so, very often the court is, first confronted

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with the question, what does the statute mean?

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What is the scope of the power conferred by the statute?

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What is the scope of the duty conferred by the statute?

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So the first question is, what does the statute mean?

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And then you look at the question, well,

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what does the evidence say about the facts

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of this particular case?

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Somebody says, ex ex owed me, an obligation

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to do this or that,

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and the statute has some role to play in that, process.

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You then have to decide what the facts are

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and then apply the statute which you've interpreted

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or construed to the facts to get the answer.

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So there's the rule of law.

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There are the facts to which the rule of law applies.

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What are the facts in this case?

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How does the rule of law work in this case?

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So you can see that the understanding of the correct

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relevant meaning of the rule of law of the statute

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is fundamental to determining the outcome of the case

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where a statute is involved.

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And to return to the point I made at the beginning,

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statutes are involved in very many, if not most cases

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that come before the courts.

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Certainly when I was on the high court

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as Chief Justice in Australia, a lot of our work had

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to do with the interpretation of statutes

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and also the Constitution, which is a,

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a grander form of statutes in a way.

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Um, so the approaches to interpretation,

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the rules which govern interpretation are

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of fundamental importance to the function of the courts.

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And, that's why I think it is important, not only

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that we talk about it, but also

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that it is taught in our universities.

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And, there's been a bit of a struggle over years

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to get statutory interpretation taught

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as a standalone subject.

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But that is now, that is now happening much more.

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I think some law teachers thought statutory interpretation

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was a bit boring at some stage,

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but in fact, you can't go into legal practice these days

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without knowing the basics of statutory interpretation.

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So when I talk about the principle legality

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and leads of intention, I'm talking about approaches

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to statutory interpretation,

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which I'll elaborate on in a minute.

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But the, it, it's, it's, a core business

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and that's why it's important,

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and that's why it's important for us

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To discuss it. First

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of all, we can interpret,

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a word,

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and thus determine

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what its meaning is you find a word in

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a section in a statute.

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So that means that, but

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how does the whole provision hold together?

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So you've got a, what we call a process of construction,

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of the meaning of the provision, a section of an act.

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Um, and, when you,

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when you read any text, you're involved in a sense of,

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in a process of construction, you're reading a book.

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Okay? Uh, forget about the law for a moment.

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You're reading a book. Uh,

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so you are taking a meaning from the book.

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And there may be, things in that book,

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which are illusions

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or references to,

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cultural understandings.

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Uh, for example, a book might make a reference to some term,

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which you would only find in the Bible.

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And, if you'd read the Bible

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or had a religious education, you might, or, or,

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or been exposed to, to some religious literature,

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you might understand that, that,

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illusion.

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So when you read a book, you don't read it in a vacuum.

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You read it in a context that is the context of

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how language is used by, writers in that, in that,

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particular language in which you're reading,

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let's assume it's English.

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Um, and, there are rules of grammar,

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which help you to understand, you know,

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you don't usually end sentences with prepositions,

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although people sometimes do, and they think it's all right.

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Um, you don't split your in inventives.

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But there are a whole lot of other things, subject object,

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predicate, all the stuff that people

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of my generation are taught at school.

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I'm not sure how it's happening now.

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Um, and,

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if the book is embedded in a particular culture,

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there might be, as I said, cultural assumptions

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or common understandings which help you to,

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gather the meaning, which you attribute to the author.

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Of course, it may be

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that different people reading the same book

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take different things out of it.

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They see it in different ways or through different eyes.

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So, when we,

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and so there was a general reference in my paper

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to the process of reading, any text.

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And, the, reference was to,

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a description of the reading of texts,

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not just legal texts generally as a constructive act

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in which meaning emerges from the reader's choice

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in a transactional zone defined

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by common conventions and codes.

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So you read it, you take from it a meaning.

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They call that the reader's choice.

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And, that's in a, in a setting

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or a context, they call it a transactional zone,

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which is defined by common conventions, conventions

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of language, like I said, the rules of grammar

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and so forth, and codes.

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So that's, that's what general reading is.

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When you come to read a statute,

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that's a particular form of text.

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It's a law made by the parliament.

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And, one of our high court judges many years ago,

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justice UE said in a case called Theophanous and her

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and Weekly Times, which was about defamation

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and how you read a newspaper text

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and so forth, he said, the true meaning of a legal text

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almost always depends on a background of concepts,

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principles, practices, facts, rights

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and duties, which the authors of the text took for granted

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or understood without conscious advertent by reason

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of their common language or culture.

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So you can see how I'm taking from the general process

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of reading a book to the special process

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of reading a statute, that it is embedded in,

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a cultural context, which includes, principles,

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practices, facts, rights and duties,

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which legal readers would tend to, tend

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to pick up on and understand.

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And, so, you, you read the text

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and you then may find on a reading of the text

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that it offers different ways of reading it,

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different constructions,

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and they're what I call constructional choices.

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And the question is, what guides you in

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making a constructional choice?

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Now, it may be that the particular text is so plain

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and so clear and so explicit,

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and the words used are so precise

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that there's only one meaning can be attributed.

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There's no real construction or choice,

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but many legal texts, especially those which come

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to court, often come

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with an argument about what they mean.

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And with the parties offering

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different constructional choices,

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which suit their particular agenda or purposes.

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And if they're legitimate constructional choices,

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which are truly open on the text, then

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the court has the problem of deciding which

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of them it should adopt.

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Uh, and, it's not often that you would say

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that this is the only one.

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And true meaning, very often you'll find there are two

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legitimate, maybe more than two legitimate ways

231
00:11:32.535 --> 00:11:34.575
of reading a statutory text.

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Um, and, you, the court chooses one.

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So it's an act, which I call not just an act of

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00:11:42.735 --> 00:11:44.495
recognizing the true and correct answer

235
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for the volitional act.

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00:11:46.085 --> 00:11:49.175
This is the answer which we think is the best answer,

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in the circumstances.

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00:11:51.555 --> 00:11:53.925
Now, of course, that doesn't mean it's a rule free zone.

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00:11:54.745 --> 00:11:57.285
Um, so we start with the basis

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that you've asked the question about ordinary meanings.

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00:12:01.285 --> 00:12:04.365
Ordinary meanings have, a great deal of,

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00:12:05.035 --> 00:12:07.245
primacy in interpretive conventions.

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And as I said in the paper, we give priority

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00:12:10.625 --> 00:12:13.125
to the ordinary meaning of, of words.

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00:12:13.595 --> 00:12:15.925
Another one of our justices in the high court,

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00:12:16.195 --> 00:12:20.685
many years ago, justice, Mary Goran, talked about,

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the way in which we should, if you like, privilege,

248
00:12:23.905 --> 00:12:28.205
the ordinary and grammatical sense of words, she said,

249
00:12:28.205 --> 00:12:31.705
as a starting point for interpretation, she said,

250
00:12:31.705 --> 00:12:34.785
that rule is dictated by elementary considerations

251
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of fairness, or

252
00:12:36.465 --> 00:12:38.985
after all, those who are subject to the law's commands

253
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are entitled to conduct themselves on the basis

254
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that those commands have meaning

255
00:12:44.085 --> 00:12:46.985
and effect according to ordinary grammar and usage.

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Uh, when you, what, having said that,

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however, the meaning of words in the statute, ordinary or

258
00:12:54.685 --> 00:12:57.685
otherwise, is not always easy to nail down,

259
00:12:57.685 --> 00:13:00.525
especially if you take them in isolation from their context.

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00:13:01.625 --> 00:13:05.685
So these are the, these are the sorts of,

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00:13:06.225 --> 00:13:07.845
the terms that I've been using.

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Constructional process, ordinary meanings,

263
00:13:10.865 --> 00:13:13.645
and then constructional, constructional choice.

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The rules by which you make your constructional choices

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are rules which have been defined,

266
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developed through the common law.

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The judge made law. And there are many rules

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00:13:27.685 --> 00:13:30.385
of interpretation, which are actually found in statutes.

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Though there you'll find acts of parliament, which say,

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00:13:32.505 --> 00:13:34.065
this is how you interpret statutes.

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There are general rules, but the basic,

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00:13:38.525 --> 00:13:40.745
and I call 'em constitutional in character,

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because here you have, an unelected,

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institution, which is the judiciary deciding upon

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the meaning or choosing from a, a range of possible meanings

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at the meaning of the law, which has been passed

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by an elected body, the parliament.

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Okay? And we have a, an understanding of separation

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of powers that the judiciary doesn't trespass upon

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the functions of the parliament.

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And that's a, that's a rule about institutions.

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So it's constitutional in character.

283
00:14:15.175 --> 00:14:18.475
Um, and when we talk about, the principles

284
00:14:18.475 --> 00:14:22.155
of interpretation, they're in a sense rules about rules.

285
00:14:22.415 --> 00:14:26.275
So they have what we call a small c constitutional character

286
00:14:26.855 --> 00:14:29.835
may help to define the legitimate boundaries

287
00:14:29.835 --> 00:14:33.315
between the courts and the, and the parliament.

288
00:14:33.775 --> 00:14:37.595
Having said that, of course, if you have three ways

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00:14:37.595 --> 00:14:39.555
of reading an act, and the court chooses, one,

290
00:14:39.775 --> 00:14:42.915
the court's making law in one sense, that it is deciding

291
00:14:42.915 --> 00:14:44.995
that this is the meaning that the law has.

292
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So that becomes the law.

293
00:14:46.855 --> 00:14:49.555
It might have been possible to have another meaning,

294
00:14:50.335 --> 00:14:52.095
and that which might have been slightly different,

295
00:14:52.315 --> 00:14:55.095
and that would, so there's a, a limited sort of

296
00:14:56.015 --> 00:14:58.895
lawmaking role for the court in the interpretation,

297
00:14:58.915 --> 00:15:00.775
but you, it's much constrained.

298
00:15:01.795 --> 00:15:05.775
Um, so that's, really one of the, what I wanted

299
00:15:05.775 --> 00:15:09.055
to say about the constitutional character.

300
00:15:09.055 --> 00:15:11.935
What about the, what, what are, what's the basic rules

301
00:15:11.965 --> 00:15:14.975
that the court follows when the court,

302
00:15:15.425 --> 00:15:19.015
makes a constructional choice decides what a statute means.

303
00:15:20.235 --> 00:15:21.375
It looks at the words.

304
00:15:21.795 --> 00:15:25.635
So we start with text, it looks at context.

305
00:15:26.965 --> 00:15:30.225
So we look at the, we're looking at a section of an act.

306
00:15:30.225 --> 00:15:32.345
We look at the whole act itself,

307
00:15:32.345 --> 00:15:33.585
or the whole scheme of the act.

308
00:15:33.605 --> 00:15:37.385
How does this section fit into other provisions of the act?

309
00:15:38.365 --> 00:15:41.625
And there might be a, a broader context in terms of

310
00:15:41.655 --> 00:15:43.385
what the preexisting law was

311
00:15:43.525 --> 00:15:45.265
and how this changes it and so forth.

312
00:15:45.965 --> 00:15:47.665
And then we look to purpose,

313
00:15:48.405 --> 00:15:50.345
what's the purpose of the provision?

314
00:15:51.225 --> 00:15:53.385
'cause what our acts, interpretation acts say,

315
00:15:53.655 --> 00:15:55.185
what our statutory rule say,

316
00:15:55.185 --> 00:15:57.265
and what our common law rule says, really, is

317
00:15:57.265 --> 00:16:01.665
that if you've got a choice of meanings, in an act,

318
00:16:01.925 --> 00:16:02.945
you try to choose

319
00:16:02.945 --> 00:16:07.265
that which best serves the purpose of the act.

320
00:16:07.765 --> 00:16:09.345
Now, how do you find out the purpose?

321
00:16:09.575 --> 00:16:11.825
Well, sometimes you'll find out the purpose.

322
00:16:12.065 --> 00:16:14.065
'cause the act actually says,

323
00:16:14.315 --> 00:16:15.985
these are the objects of this act.

324
00:16:16.885 --> 00:16:19.015
Okay? And so you say, well, that's a help.

325
00:16:19.515 --> 00:16:21.095
Um, sometimes,

326
00:16:21.095 --> 00:16:24.175
however, you don't quite have as clearer a picture

327
00:16:24.195 --> 00:16:27.135
of the purpose of a particular provision within those

328
00:16:27.135 --> 00:16:29.575
general overarching option, objects.

329
00:16:30.035 --> 00:16:32.935
So you might look to other materials to identify purpose.

330
00:16:33.815 --> 00:16:37.255
A minister who has introduced the act into the parliament

331
00:16:37.385 --> 00:16:39.135
makes what's called a second reading speech,

332
00:16:39.135 --> 00:16:41.975
which is the speech that really lays out

333
00:16:41.975 --> 00:16:43.935
what the act is all about and what it's for.

334
00:16:44.715 --> 00:16:46.455
And the minister might say, the purpose

335
00:16:46.475 --> 00:16:48.535
of this act is X, Y, and Z.

336
00:16:49.555 --> 00:16:52.735
And it may be also that the act is being enacted.

337
00:16:52.735 --> 00:16:55.455
The law is being enacted as a result of, say,

338
00:16:55.555 --> 00:16:58.175
the recommendation of a royal commission in order

339
00:16:58.175 --> 00:17:00.375
to overcome some social problem.

340
00:17:00.955 --> 00:17:02.535
Or it might be the recommendation

341
00:17:02.535 --> 00:17:05.375
of a law reform commission in order to improve the law.

342
00:17:05.755 --> 00:17:08.215
And you might look to what the law Reform Commission said.

343
00:17:08.215 --> 00:17:12.015
You might look to what a royal commission said, to see

344
00:17:12.525 --> 00:17:14.975
what is the, it used to be called the mischief rule.

345
00:17:14.975 --> 00:17:17.495
What's the mischief, which the act is intended to remedy,

346
00:17:17.595 --> 00:17:20.215
but really what it, another way of putting it, a better way

347
00:17:20.215 --> 00:17:23.215
of putting it, is what's the purpose, which it is apparent

348
00:17:23.215 --> 00:17:25.455
that this provision is meant, meant to serve.

349
00:17:26.395 --> 00:17:31.095
So that's the, that's a, a basic,

350
00:17:32.055 --> 00:17:36.815
approach to, interpretation of statutes,

351
00:17:36.815 --> 00:17:39.655
which involves, as I say, potentially choices

352
00:17:39.765 --> 00:17:40.935
between different meanings.

353
00:17:40.935 --> 00:17:42.015
There are lots and lots of rules.

354
00:17:42.015 --> 00:17:45.735
You can buy big, thick books on statutory interpretation,

355
00:17:46.355 --> 00:17:48.215
and some of them make it a bit over complex,

356
00:17:48.455 --> 00:17:49.725
I think hard reading.

357
00:17:50.345 --> 00:17:53.725
Uh, but the basic rules, are not rocket science.

358
00:17:53.945 --> 00:17:57.685
The principle of legality put shortly,

359
00:17:58.045 --> 00:18:01.965
involves this proposition, as

360
00:18:03.005 --> 00:18:07.245
I express it, would express it today, is that,

361
00:18:07.955 --> 00:18:11.845
when, as, as a common law rule, as a judge made rule,

362
00:18:11.845 --> 00:18:14.565
if you like, that when you are confronted

363
00:18:14.565 --> 00:18:19.405
with different choices of meaning in a, in a law, in an act

364
00:18:19.405 --> 00:18:22.645
of the parliament, and one choice,

365
00:18:22.985 --> 00:18:26.525
one constructional choice will impact adversely

366
00:18:27.275 --> 00:18:29.325
upon basic common law rights

367
00:18:29.325 --> 00:18:34.165
and freedoms like speech association, freedom not

368
00:18:34.165 --> 00:18:35.565
to have your property arbitrarily

369
00:18:35.645 --> 00:18:36.925
deprived, that sort of thing.

370
00:18:37.905 --> 00:18:39.445
You try to choose the meaning

371
00:18:40.335 --> 00:18:44.325
which will have the least adverse impact on those basic

372
00:18:44.665 --> 00:18:45.925
rights and freedoms.

373
00:18:46.715 --> 00:18:48.975
And that's really where it, where it starts.

374
00:18:49.155 --> 00:18:53.255
Now, it's often been linked in its origins

375
00:18:53.915 --> 00:18:58.185
to an assumed intention of the parliament not

376
00:18:58.185 --> 00:18:59.425
to interfere with those things.

377
00:19:00.005 --> 00:19:03.745
Now, that's, a bit questionable today

378
00:19:03.745 --> 00:19:06.865
because we see parliament's interfering with rights

379
00:19:06.865 --> 00:19:08.025
and freedoms quite a lot.

380
00:19:08.645 --> 00:19:10.305
Um, and,

381
00:19:10.565 --> 00:19:15.225
and the question is, can you assume that sort

382
00:19:15.225 --> 00:19:16.305
of approach or intention?

383
00:19:16.695 --> 00:19:18.625
I'll give you a little bit of the historical background.

384
00:19:19.285 --> 00:19:21.105
It started out,

385
00:19:21.165 --> 00:19:26.065
really this principle you can trace right back to,

386
00:19:27.445 --> 00:19:31.705
to a decision of an American famous American judge,

387
00:19:32.235 --> 00:19:34.985
chief Justice Marshall, back in 1,805,

388
00:19:35.835 --> 00:19:37.135
and the Supreme Court of the us.

389
00:19:38.075 --> 00:19:41.335
And he said this in a case called Fisher's case,

390
00:19:41.995 --> 00:19:44.095
it was all about bankruptcy issues.

391
00:19:44.135 --> 00:19:45.615
I won't bother you with the technicalities,

392
00:19:45.755 --> 00:19:48.655
but he was said, where rights are infringed,

393
00:19:49.265 --> 00:19:51.615
where fundamental principles are overthrown,

394
00:19:52.275 --> 00:19:55.105
where the general system of laws is departed from

395
00:19:56.125 --> 00:19:58.865
the legislative intention must be expressed

396
00:19:58.865 --> 00:20:02.705
with irresistible clearness to induce a court of justice,

397
00:20:03.205 --> 00:20:06.425
to suppose a design to affect such objects.

398
00:20:06.925 --> 00:20:11.425
It is said that this particular law will impact

399
00:20:12.425 --> 00:20:16.555
upon a fundamental common law principle, including,

400
00:20:16.605 --> 00:20:19.275
let's say, notions of freedom of speech,

401
00:20:19.275 --> 00:20:21.395
which is a common law, proposition.

402
00:20:22.175 --> 00:20:26.005
Uh, you need really clear language in order

403
00:20:26.105 --> 00:20:27.245
to, to do that.

404
00:20:27.305 --> 00:20:30.885
In other words, it has to be,

405
00:20:31.885 --> 00:20:34.825
it has to be expressed with irresistible clearness.

406
00:20:34.825 --> 00:20:37.665
That's what he said. Now, that was back in 1,805.

407
00:20:37.965 --> 00:20:42.505
So then we, we got a, it got that, that passage

408
00:20:43.585 --> 00:20:47.655
was quoted or footnoted, a century later

409
00:20:48.935 --> 00:20:52.675
in a book on statutory interpretation, a famous

410
00:20:53.545 --> 00:20:56.275
text called Maxwell on the Interpretation of Statutes.

411
00:20:57.655 --> 00:21:00.555
And the author of that said, in 1,905,

412
00:21:01.495 --> 00:21:05.675
it is in the last degree, improbable at the legislature,

413
00:21:05.675 --> 00:21:08.475
would overthrow fundamental principles, infringe rights,

414
00:21:08.475 --> 00:21:10.035
or depart from the general system

415
00:21:10.035 --> 00:21:12.515
of law without expressing its intention

416
00:21:12.545 --> 00:21:13.955
with irresistible clearness.

417
00:21:14.455 --> 00:21:17.115
And to give any such effect to general words simply

418
00:21:17.115 --> 00:21:20.595
because they have that meaning in their widest or usual,

419
00:21:20.615 --> 00:21:22.475
or natural sense, would be

420
00:21:22.495 --> 00:21:24.995
to give them a meaning in which they were not really used.

421
00:21:25.215 --> 00:21:28.795
So that was, that was, Maxwell on statutes,

422
00:21:28.795 --> 00:21:32.235
and that was quoted, by a judge in the high court

423
00:21:32.255 --> 00:21:34.075
of Australia in 1,908.

424
00:21:34.215 --> 00:21:38.235
So that's how it came into the Australian, set

425
00:21:38.235 --> 00:21:40.595
of principles in a case called Potter.

426
00:21:41.495 --> 00:21:45.775
And, now,

427
00:21:46.475 --> 00:21:50.175
so that led us to, to the,

428
00:21:50.195 --> 00:21:53.855
and the English have adopted very much a similar principle.

429
00:21:54.395 --> 00:21:56.455
Uh, and they called it the Principle of legality,

430
00:21:56.455 --> 00:21:57.575
which is rather funny name.

431
00:21:57.995 --> 00:22:00.895
Um, I'm not sure it's the best possible name.

432
00:22:01.755 --> 00:22:04.075
But,

433
00:22:06.425 --> 00:22:09.515
Lord Devlin in the United Kingdom in

434
00:22:10.035 --> 00:22:13.555
1,952 said, it's a well established principle

435
00:22:13.555 --> 00:22:16.435
of construction, that a statute is not to be taken

436
00:22:16.575 --> 00:22:19.115
as affecting a fundamental alteration to the general law

437
00:22:19.535 --> 00:22:23.275
unless it uses words which point unmistakably to

438
00:22:23.275 --> 00:22:24.435
that, conclusion.

439
00:22:25.335 --> 00:22:27.295
Now, the problem is

440
00:22:27.295 --> 00:22:30.495
that this depends upon an assumed legislative intention.

441
00:22:32.095 --> 00:22:34.675
And the question you ask yourself is, well, what do we mean

442
00:22:34.695 --> 00:22:35.995
by legislative intention?

443
00:22:36.505 --> 00:22:40.555
When you look at parliamentary processes, you'll find

444
00:22:40.555 --> 00:22:43.275
that, different parliamentarians will vote

445
00:22:43.295 --> 00:22:45.835
for a particular law with different levels of understanding.

446
00:22:46.305 --> 00:22:48.155
They'll have an explanatory memorandum.

447
00:22:48.155 --> 00:22:49.915
They'll have the minister second reading speech,

448
00:22:49.915 --> 00:22:52.795
perhaps they might or might not have read the act.

449
00:22:53.025 --> 00:22:54.475
Most probably wouldn't have time

450
00:22:54.495 --> 00:22:55.915
to read a whole bill through.

451
00:22:56.225 --> 00:22:58.435
They might have advice from experts.

452
00:22:58.495 --> 00:22:59.795
And so expert advisors

453
00:22:59.795 --> 00:23:03.875
and so forth, they might vote, some of them might vote

454
00:23:03.935 --> 00:23:06.435
for a law because the,

455
00:23:06.435 --> 00:23:08.555
the party whip tells 'em they've gotta vote for the law.

456
00:23:09.175 --> 00:23:13.555
Um, so to, to extract from

457
00:23:13.745 --> 00:23:16.875
that rather, co odd process,

458
00:23:17.315 --> 00:23:21.515
a collective legislative intention is really,

459
00:23:21.975 --> 00:23:24.275
really, creating a bit of a fairytale.

460
00:23:25.395 --> 00:23:27.415
Uh, so what do, what do we mean,

461
00:23:27.415 --> 00:23:29.735
what do the courts mean now when they talk about

462
00:23:29.845 --> 00:23:30.935
legislative intention?

463
00:23:31.005 --> 00:23:34.375
Well, really they mean that,

464
00:23:35.015 --> 00:23:39.415
I think a ni it was nicely put that,

465
00:23:39.915 --> 00:23:44.215
by the high court in Australia, the duty of a court

466
00:23:45.315 --> 00:23:49.735
is to give the words of a statutory provision, the meaning

467
00:23:49.765 --> 00:23:54.055
that the legislature is taken to have intended them to have.

468
00:23:55.275 --> 00:23:59.675
In other words, it's, not what guessing

469
00:23:59.675 --> 00:24:01.035
what parliament meant to say,

470
00:24:01.655 --> 00:24:04.475
but what is the meaning of what parliament said.

471
00:24:04.695 --> 00:24:07.955
So you can see how central to that is the function

472
00:24:07.955 --> 00:24:09.635
of the court in determining meaning.

473
00:24:10.215 --> 00:24:12.675
And of course, when it determines a meaning,

474
00:24:13.455 --> 00:24:15.875
it attaches legislative intentions to

475
00:24:15.875 --> 00:24:18.435
that it doesn't do some sort of exploration of

476
00:24:18.435 --> 00:24:21.555
what parliament's collective intention might have been.

477
00:24:21.615 --> 00:24:23.155
Now, there's controversy about this.

478
00:24:23.225 --> 00:24:25.755
Some people say that this approach of kind

479
00:24:25.755 --> 00:24:29.895
of sidelining legislative intention as a, a sort

480
00:24:29.895 --> 00:24:32.815
of empirical reality is somehow anti-democratic.

481
00:24:33.715 --> 00:24:36.265
Um, I disagree with that view,

482
00:24:36.265 --> 00:24:38.625
but there are some very good writers

483
00:24:38.725 --> 00:24:40.145
who take a different approach.

484
00:24:41.005 --> 00:24:45.185
My view is that it is important that the courts make clear

485
00:24:45.815 --> 00:24:48.145
what they are doing and why they are doing it,

486
00:24:48.145 --> 00:24:51.825
and the limits of what they're doing, so that when we,

487
00:24:51.995 --> 00:24:54.905
apply this judge made rule, whether it is a judge made rule

488
00:24:54.905 --> 00:24:55.905
of the principle of legality,

489
00:24:56.405 --> 00:24:59.425
we choose one meaning over another in order

490
00:24:59.645 --> 00:25:02.505
to minimize adverse impact on common law

491
00:25:02.505 --> 00:25:03.665
rights and freedoms.

492
00:25:04.245 --> 00:25:06.265
That's what we are doing. Um,

493
00:25:06.885 --> 00:25:10.465
and, in doing that, of course, we don't seek

494
00:25:10.605 --> 00:25:12.825
to rewrite a statute.

495
00:25:13.525 --> 00:25:18.465
We seek to, choose available meanings from the statute.

496
00:25:18.765 --> 00:25:23.225
If we were to rewrite the statute to suit our view of,

497
00:25:23.445 --> 00:25:26.905
or to minimize its damage on common law rights

498
00:25:26.905 --> 00:25:29.425
and freedoms, or human rights for that matter,

499
00:25:29.725 --> 00:25:32.945
we would be making law in a way that I think is,

500
00:25:33.545 --> 00:25:37.145
trespassing the constitutional boundaries between,

501
00:25:37.525 --> 00:25:39.265
the courts and the parliament.

502
00:25:40.045 --> 00:25:43.865
Now, there is a, there is a, a view,

503
00:25:44.695 --> 00:25:48.705
that you can go further than just choosing from available

504
00:25:48.825 --> 00:25:51.025
meanings in the United Kingdom.

505
00:25:51.885 --> 00:25:53.585
Uh, they have a human rights act,

506
00:25:54.125 --> 00:25:57.745
and they say that you've gotta interpret the human rights

507
00:25:57.745 --> 00:25:59.705
under the European Human Rights Convention.

508
00:26:00.445 --> 00:26:04.865
Um, you've gotta interpret, I'm sorry, any law,

509
00:26:05.605 --> 00:26:09.825
so far as reasonably possible to, be consistent

510
00:26:10.055 --> 00:26:11.945
with the guaranteed human rights under

511
00:26:11.945 --> 00:26:13.105
the human rights legislation.

512
00:26:13.765 --> 00:26:15.105
Now, the question, what does that do?

513
00:26:15.255 --> 00:26:16.705
That that's a statutory rule?

514
00:26:16.765 --> 00:26:17.865
Is it just the principle

515
00:26:17.865 --> 00:26:20.625
of legality choosing from available constructional choices,

516
00:26:20.725 --> 00:26:21.745
or is it something more?

517
00:26:22.095 --> 00:26:24.065
Well, in England, in a case called Guy Dan,

518
00:26:24.495 --> 00:26:26.385
they went a little bit further than just,

519
00:26:26.385 --> 00:26:29.385
they said you could have a remedial interpretation,

520
00:26:29.915 --> 00:26:32.905
which did mean a bit of a, a rewrite.

521
00:26:33.485 --> 00:26:36.875
So let me, let me take, some

522
00:26:37.635 --> 00:26:40.395
concrete examples to sort of flesh this out a little bit.

523
00:26:40.395 --> 00:26:41.955
I've been talking at a theoretical level.

524
00:26:43.385 --> 00:26:48.095
So if a law says,

525
00:26:49.805 --> 00:26:53.665
in a case involving, where a,

526
00:26:54.345 --> 00:26:56.185
a person is found in possession

527
00:26:57.005 --> 00:26:59.385
of more than a certain quantity of drugs, right?

528
00:27:00.745 --> 00:27:03.165
And they must prove that they did not intend

529
00:27:03.165 --> 00:27:05.645
to sell the drugs, okay?

530
00:27:05.985 --> 00:27:10.685
So presumption of trafficking, intention,

531
00:27:10.735 --> 00:27:12.325
where you have more than a certain quantity,

532
00:27:12.425 --> 00:27:14.525
and that's a very common sort of provision.

533
00:27:14.825 --> 00:27:18.005
It matters in places like, well, it matters

534
00:27:18.005 --> 00:27:22.365
because of the serious penalties that apply to trafficking

535
00:27:22.365 --> 00:27:23.645
as distinct from use.

536
00:27:24.925 --> 00:27:27.545
Um, now, can you read,

537
00:27:28.005 --> 00:27:32.345
and what that does is that, impacts on the presumption

538
00:27:32.405 --> 00:27:35.545
of innocence here personally, in possession

539
00:27:35.545 --> 00:27:38.945
of the drugs according to that rule, has to prove

540
00:27:39.575 --> 00:27:41.545
that they didn't intend to sell them,

541
00:27:41.765 --> 00:27:44.145
rather than the prosecution having to prove

542
00:27:44.145 --> 00:27:45.625
that they did intend to sell 'em.

543
00:27:46.165 --> 00:27:49.945
Now, the question is, can you interpret that in a way

544
00:27:49.945 --> 00:27:52.665
that says that, well, we can read that down.

545
00:27:53.405 --> 00:27:57.305
All it really means is that the accused person has

546
00:27:57.305 --> 00:28:01.125
to produce some evidence,

547
00:28:01.625 --> 00:28:04.565
we call an ev an evidential burden,

548
00:28:04.945 --> 00:28:06.525
and that the persuasive burden

549
00:28:06.525 --> 00:28:10.365
of final proof still rests upon the prosecution.

550
00:28:11.415 --> 00:28:14.195
In a case in Australia, we had a case, involving

551
00:28:14.195 --> 00:28:17.875
that sort of interpretive question in Victoria to do

552
00:28:17.905 --> 00:28:20.235
with the Victorian misuse of Drugs Act.

553
00:28:20.255 --> 00:28:23.435
And there there was human rights type legislation applying

554
00:28:23.435 --> 00:28:27.315
under state law, and we decided that it was a step too far

555
00:28:28.225 --> 00:28:31.095
to turn that reversal

556
00:28:31.095 --> 00:28:33.415
of the onus into a mere evidential burden.

557
00:28:33.915 --> 00:28:37.495
Now, others would take a view that said we were a bit timid,

558
00:28:37.995 --> 00:28:39.895
and that you can and should be able to rer.

559
00:28:39.895 --> 00:28:42.455
But that's, that's, so that, that's, that's one example.

560
00:28:43.035 --> 00:28:44.415
Uh, and the principle of legality,

561
00:28:44.615 --> 00:28:47.135
I don't think even without a human rights statute,

562
00:28:47.275 --> 00:28:49.335
if you just took the principle legality by itself,

563
00:28:50.055 --> 00:28:52.615
I don't think it can turn a persuasive reversal

564
00:28:52.615 --> 00:28:54.655
of the persuasive, burden of proof

565
00:28:55.325 --> 00:28:57.055
into evidential burden.

566
00:28:57.755 --> 00:28:59.375
Um, take another case.

567
00:28:59.995 --> 00:29:03.095
Uh, somebody has their, visa canceled.

568
00:29:03.435 --> 00:29:05.415
And this happened in Australia back in the

569
00:29:05.425 --> 00:29:06.575
early two thousands.

570
00:29:07.315 --> 00:29:10.735
Um, they, they have a connection with,

571
00:29:11.615 --> 00:29:12.895
relatives in the United Kingdom

572
00:29:13.075 --> 00:29:16.255
who committed an attempt at a terrorist act, you know,

573
00:29:16.325 --> 00:29:17.935
driving a Range Rover

574
00:29:17.935 --> 00:29:20.775
or something in the front of a, of, of a, shop.

575
00:29:21.375 --> 00:29:23.175
I forget the precise details now.

576
00:29:23.955 --> 00:29:28.415
And the, person's visa, migrant visa in Australia was,

577
00:29:28.515 --> 00:29:32.335
canceled because they was said to fail

578
00:29:32.755 --> 00:29:35.575
for character test, which is a test under our migration act.

579
00:29:35.955 --> 00:29:38.855
And they, they had an association with criminals.

580
00:29:40.325 --> 00:29:44.545
And we said in the end that this was, when I say we,

581
00:29:44.605 --> 00:29:46.105
I'm talking about the federal court,

582
00:29:46.185 --> 00:29:48.425
I was then on the federal court, three judges sitting

583
00:29:48.425 --> 00:29:50.705
as an appeal bench of the federal court.

584
00:29:50.805 --> 00:29:52.345
We said, associated

585
00:29:52.345 --> 00:29:56.465
with criminals cannot mean simply being related to them.

586
00:29:58.115 --> 00:30:00.255
That's a misfortune of birth, okay?

587
00:30:00.795 --> 00:30:05.415
It must involve some notion of, of,

588
00:30:05.595 --> 00:30:08.705
support, encouragement,

589
00:30:09.005 --> 00:30:12.665
or participation in their, their evil deeds.

590
00:30:13.245 --> 00:30:15.345
So that was a way of, I mean,

591
00:30:15.345 --> 00:30:18.665
you could risk the word associated, if you like, as saying,

592
00:30:18.665 --> 00:30:21.465
well, association by, by being related,

593
00:30:22.605 --> 00:30:25.665
but that, that certainly, if you read it

594
00:30:25.665 --> 00:30:28.745
that widely, you then expose this person to loss of liberty.

595
00:30:29.105 --> 00:30:30.225
'cause once their visa is canceled,

596
00:30:30.225 --> 00:30:32.105
they're taken into detention and so on.

597
00:30:32.525 --> 00:30:36.505
So that's one example of an interpretive choice associated

598
00:30:36.525 --> 00:30:37.745
to be given a wide meaning

599
00:30:37.805 --> 00:30:39.265
or can be given a narrower meaning.

600
00:30:40.525 --> 00:30:44.185
And, in another case,

601
00:30:44.365 --> 00:30:46.585
we had the Pope visiting New South Wales,

602
00:30:47.205 --> 00:30:48.825
and it was World Youth Day, right?

603
00:30:49.565 --> 00:30:52.025
And the New South Wales parliament passed a law

604
00:30:52.025 --> 00:30:53.185
called the World Youth Day Act.

605
00:30:53.305 --> 00:30:55.185
'cause it's like the Olympics. All these people come from

606
00:30:55.185 --> 00:30:58.785
all over the world to see the pope, young people.

607
00:30:59.645 --> 00:31:03.705
And, this, this act gave power

608
00:31:03.805 --> 00:31:05.145
to the minister or someone

609
00:31:05.165 --> 00:31:08.785
to make regulations under the act, to make sure

610
00:31:08.785 --> 00:31:10.385
that world youth data was gonna be a big success.

611
00:31:10.385 --> 00:31:11.705
And one of the regulations

612
00:31:11.705 --> 00:31:15.145
that they made was a regulation saying that some official

613
00:31:15.265 --> 00:31:18.585
and inspector could direct people to cease

614
00:31:19.185 --> 00:31:20.185
annoying pilgrims.

615
00:31:20.895 --> 00:31:23.465
Okay? You're not allowed to annoy pilgrims.

616
00:31:23.965 --> 00:31:27.305
Now, there was a group called the No to Pope Coalition

617
00:31:28.115 --> 00:31:30.655
who wanted to protest against the churches,

618
00:31:31.735 --> 00:31:34.295
teachings on sexual reproduction and sexual activity

619
00:31:34.295 --> 00:31:35.295
and so forth, and we're going

620
00:31:35.295 --> 00:31:39.255
to distribute free contraceptive devices to pilgrims.

621
00:31:40.315 --> 00:31:44.735
Um, so the question was, whether, a regulation,

622
00:31:45.275 --> 00:31:49.375
against, annoying pilgrims, would,

623
00:31:49.965 --> 00:31:51.975
pick these people up and was it a valid regulation?

624
00:31:52.955 --> 00:31:56.225
And in the end, what we said was, what we have

625
00:31:56.225 --> 00:31:58.425
to interpret is the regulation making power,

626
00:31:58.425 --> 00:31:59.825
which you find in the act itself.

627
00:32:00.775 --> 00:32:04.395
And it, it's a fairly broad regulation making power,

628
00:32:04.455 --> 00:32:06.155
but applying the principle of legality.

629
00:32:06.615 --> 00:32:09.835
We say that regulation making power does not authorize

630
00:32:10.475 --> 00:32:14.315
a regulation so broad using the term annoying,

631
00:32:14.985 --> 00:32:18.275
that it covers a whole range of, things,

632
00:32:18.335 --> 00:32:20.355
in which impinge on freedom of speech.

633
00:32:21.325 --> 00:32:23.365
I mean, you might make a, a speech saying,

634
00:32:23.485 --> 00:32:24.525
I don't believe in the paper.

635
00:32:24.725 --> 00:32:26.325
I don't, and that might annoy someone.

636
00:32:27.785 --> 00:32:29.805
Uh, so you can see it's a question of

637
00:32:30.225 --> 00:32:34.555
how you interpret the power broadly or narrowly.

638
00:32:34.695 --> 00:32:36.995
And so that's, that's an example

639
00:32:37.535 --> 00:32:39.885
of a concrete application of the principle.

640
00:32:40.355 --> 00:32:44.525
There's an ongoing debate about this principle of legality

641
00:32:44.665 --> 00:32:48.925
and the approach to, the interpretation of statutes.

642
00:32:49.505 --> 00:32:51.405
And one of the issues is to

643
00:32:51.405 --> 00:32:54.765
what extent does it create uncertainty about

644
00:32:54.785 --> 00:32:57.605
how the courts are going to interpret statutes?

645
00:32:57.685 --> 00:33:01.005
Because it does involve evaluative choices.

646
00:33:02.145 --> 00:33:05.605
Um, and there's no doubt that, that there's an element

647
00:33:05.625 --> 00:33:10.245
of truth in that, that concern you can't lay out.

648
00:33:10.705 --> 00:33:12.645
Uh, with crystal clear clarity,

649
00:33:13.105 --> 00:33:16.525
how this principle will apply in all particular cases,

650
00:33:16.985 --> 00:33:18.165
in, in the future.

651
00:33:19.085 --> 00:33:23.825
Uh, what it, a beneficial aspect of the principle may be

652
00:33:24.775 --> 00:33:28.305
that the people who draft legislation for the parliaments

653
00:33:28.975 --> 00:33:31.425
will be careful to express themselves with

654
00:33:31.945 --> 00:33:36.825
sufficient clarity, that, they,

655
00:33:36.925 --> 00:33:40.625
that takes account of the possibility

656
00:33:40.625 --> 00:33:43.385
that the principle legality might be applied,

657
00:33:43.485 --> 00:33:47.385
and that they will perhaps express themselves in such a way

658
00:33:48.055 --> 00:33:51.225
that does not impact adversely on common

659
00:33:51.245 --> 00:33:52.385
law rights and freedoms.

660
00:33:52.405 --> 00:33:54.225
And our Australian Law Reform Commission

661
00:33:54.845 --> 00:33:57.825
has found quite a lot of commonwealth laws,

662
00:33:58.155 --> 00:34:00.305
which impact on rights and freedoms.

663
00:34:00.415 --> 00:34:03.185
It's an ongoing concern for our society.

664
00:34:03.325 --> 00:34:05.985
The courts have a role in protecting us.

665
00:34:05.985 --> 00:34:07.545
We don't have a bill of rights in Australia,

666
00:34:08.205 --> 00:34:11.265
so it's not quite the same as other jurisdictions.

667
00:34:12.005 --> 00:34:15.225
Uh, and the common law is a, an important protection here,

668
00:34:15.605 --> 00:34:19.745
but it's a protection that can only be,

669
00:34:19.975 --> 00:34:23.225
exercised, within the constitutional constraints

670
00:34:23.245 --> 00:34:24.785
of the court's proper functions.

671
00:34:25.125 --> 00:34:27.985
And what ultimately counts far more than any rules

672
00:34:28.005 --> 00:34:30.985
of statute of interpretation is whether there is a

673
00:34:31.095 --> 00:34:34.465
legislative culture that actually respects rights

674
00:34:34.465 --> 00:34:36.745
and freedoms and just doesn't crash in

675
00:34:36.745 --> 00:34:37.945
and tread on them every time.

676
00:34:37.945 --> 00:34:39.665
It's politically convenient to do so.

Principles of Legality and Legislative Intention

00:00:00 - You are referring to a paper, which I gave at a round table in, Cambridge in, 2018, called The Principle of Legality and Legislative Intention. And, first motivation was I've been asked to give it. the second motivation is I think that it is an important topic. the interpretation of the laws that the Parliament makes, is core business for. most of our courts, certainly most Australian courts,
00:00:34 - and, American courts, it used to be that, legal disputes were dominated by, the common law, the common law of contract, the common law of, property, the common law of tort. That is to say the judge made law, which had been built up over many, many years. But more and more the laws made by the parliament, determine,
00:01:05 - and, obligations, and the privileges and powers of officials and so forth. we still, of course, have, many common law problems. There are contract problems, there are property problems, there are problems of civil wrongs or torts as they're called, which derive, from principles annunciated by the judge made law, the common law, which, really began in the United Kingdom.
00:01:36 - by places like Canada and Australia and New Zealand and the United States. But even with, a contract problem today in Australia, you'll very often find that there is some statutory dimension to it, that the, the common law of the contract has been amended in some way by the statute. the, common law property is very much, subject to, property law statutes, which govern rights and entitlements in relation to property.
00:02:11 - is core business. people come to court, they say, I have a right, or they breached a duty. and very often the court has to, and they say they've breached a duty, which they were, we say, owed under a statute, a law made by the parliament, or I have a right which derives from a law made by the parliament.
00:02:40 - So some official has made a decision, exercised a power, refuse to grant a license or, or, refuse to make, an approval, say for a proposed, resource development. And the argument might be, well, the official only gets his or her power from a statute, or from the constitution. We have a written constitution in Australia. And so the question is, what does the statute empower

Understanding Statutory Interpretation and Its Importance

00:03:10 - And what are the conditions under which that official can exercise that power? So, statutes play a very important role in both private law disputes of the kind I've mentioned earlier, and in public law disputes, where you've got arguments between, governments and, public authorities and, private persons or, or companies. And so, very often the court is, first confronted with the question, what does the statute mean?
00:03:43 - What is the scope of the duty conferred by the statute? So the first question is, what does the statute mean? And then you look at the question, well, what does the evidence say about the facts of this particular case? Somebody says, ex ex owed me, an obligation to do this or that, and the statute has some role to play in that, process. You then have to decide what the facts are and then apply the statute which you've interpreted
00:04:15 - So there's the rule of law. There are the facts to which the rule of law applies. What are the facts in this case? How does the rule of law work in this case? So you can see that the understanding of the correct relevant meaning of the rule of law of the statute is fundamental to determining the outcome of the case where a statute is involved. And to return to the point I made at the beginning, statutes are involved in very many, if not most cases
00:04:45 - Certainly when I was on the high court as Chief Justice in Australia, a lot of our work had to do with the interpretation of statutes and also the Constitution, which is a, a grander form of statutes in a way. so the approaches to interpretation, the rules which govern interpretation are of fundamental importance to the function of the courts. And, that's why I think it is important, not only that we talk about it, but also
00:05:18 - And, there's been a bit of a struggle over years to get statutory interpretation taught as a standalone subject. But that is now, that is now happening much more. I think some law teachers thought statutory interpretation was a bit boring at some stage, but in fact, you can't go into legal practice these days without knowing the basics of statutory interpretation. So when I talk about the principle legality and leads of intention, I'm talking about approaches
00:05:47 - which I'll elaborate on in a minute. But the, it, it's, it's, a core business and that's why it's important, and that's why it's important for us To discuss it. First of all, we can interpret, a word, and thus determine what its meaning is you find a word in a section in a statute. So that means that, but how does the whole provision hold together?

Understanding Legal Texts and Contexts

00:06:20 - of the meaning of the provision, a section of an act. and, when you, when you read any text, you're involved in a sense of, in a process of construction, you're reading a book. Okay? forget about the law for a moment. You're reading a book. so you are taking a meaning from the book. And there may be, things in that book,
00:06:49 - or references to, cultural understandings. for example, a book might make a reference to some term, which you would only find in the Bible. And, if you'd read the Bible or had a religious education, you might, or, or, or been exposed to, to some religious literature, you might understand that, that, illusion. So when you read a book, you don't read it in a vacuum.
00:07:23 - how language is used by, writers in that, in that, particular language in which you're reading, let's assume it's English. and, there are rules of grammar, which help you to understand, you know, you don't usually end sentences with prepositions, although people sometimes do, and they think it's all right. you don't split your in inventives. But there are a whole lot of other things, subject object, predicate, all the stuff that people of my generation are taught at school.
00:07:53 - and, if the book is embedded in a particular culture, there might be, as I said, cultural assumptions or common understandings which help you to, gather the meaning, which you attribute to the author. Of course, it may be that different people reading the same book take different things out of it. They see it in different ways or through different eyes. So, when we, and so there was a general reference in my paper
00:08:26 - And, the, reference was to, a description of the reading of texts, not just legal texts generally as a constructive act in which meaning emerges from the reader's choice in a transactional zone defined by common conventions and codes. So you read it, you take from it a meaning. They call that the reader's choice.
00:08:58 - or a context, they call it a transactional zone, which is defined by common conventions, conventions of language, like I said, the rules of grammar and so forth, and codes. So that's, that's what general reading is. When you come to read a statute, that's a particular form of text. It's a law made by the parliament. And, one of our high court judges many years ago,

Cultural Context in Legal Text Interpretation

00:09:28 - and Weekly Times, which was about defamation and how you read a newspaper text and so forth, he said, the true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties, which the authors of the text took for granted or understood without conscious advertent by reason of their common language or culture. So you can see how I'm taking from the general process
00:09:59 - of reading a statute, that it is embedded in, a cultural context, which includes, principles, practices, facts, rights and duties, which legal readers would tend to, tend to pick up on and understand. And, so, you, you read the text and you then may find on a reading of the text
00:10:31 - different constructions, and they're what I call constructional choices. And the question is, what guides you in making a constructional choice? Now, it may be that the particular text is so plain and so clear and so explicit, and the words used are so precise that there's only one meaning can be attributed. There's no real construction or choice, but many legal texts, especially those which come
00:11:00 - with an argument about what they mean. And with the parties offering different constructional choices, which suit their particular agenda or purposes. And if they're legitimate constructional choices, which are truly open on the text, then the court has the problem of deciding which of them it should adopt. and, it's not often that you would say that this is the only one. And true meaning, very often you'll find there are two
00:11:32 - of reading a statutory text. and, you, the court chooses one. So it's an act, which I call not just an act of recognizing the true and correct answer for the volitional act. This is the answer which we think is the best answer, in the circumstances. Now, of course, that doesn't mean it's a rule free zone. so we start with the basis that you've asked the question about ordinary meanings.
00:12:05 - primacy in interpretive conventions. And as I said in the paper, we give priority to the ordinary meaning of, of words. Another one of our justices in the high court, many years ago, justice, Mary Goran, talked about, the way in which we should, if you like, privilege, the ordinary and grammatical sense of words, she said, as a starting point for interpretation, she said,

Understanding Statutory Interpretation and Legislative Meaning

00:12:34 - of fairness, or after all, those who are subject to the law's commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage. when you, what, having said that, however, the meaning of words in the statute, ordinary or otherwise, is not always easy to nail down, especially if you take them in isolation from their context. So these are the, these are the sorts of,
00:13:08 - Constructional process, ordinary meanings, and then constructional, constructional choice. The rules by which you make your constructional choices are rules which have been defined, developed through the common law. The judge made law. And there are many rules of interpretation, which are actually found in statutes. Though there you'll find acts of parliament, which say, this is how you interpret statutes. There are general rules, but the basic,
00:13:40 - because here you have, an unelected, institution, which is the judiciary deciding upon the meaning or choosing from a, a range of possible meanings at the meaning of the law, which has been passed by an elected body, the parliament. Okay? And we have a, an understanding of separation of powers that the judiciary doesn't trespass upon the functions of the parliament.
00:14:11 - So it's constitutional in character. and when we talk about, the principles of interpretation, they're in a sense rules about rules. So they have what we call a small c constitutional character may help to define the legitimate boundaries between the courts and the, and the parliament. Having said that, of course, if you have three ways of reading an act, and the court chooses, one,
00:14:42 - that this is the meaning that the law has. So that becomes the law. It might have been possible to have another meaning, and that which might have been slightly different, and that would, so there's a, a limited sort of lawmaking role for the court in the interpretation, but you, it's much constrained. so that's, really one of the, what I wanted to say about the constitutional character. What about the, what, what are, what's the basic rules
00:15:15 - makes a constructional choice decides what a statute means. It looks at the words. So we start with text, it looks at context. So we look at the, we're looking at a section of an act. We look at the whole act itself, or the whole scheme of the act. How does this section fit into other provisions of the act? And there might be a, a broader context in terms of what the preexisting law was

Understanding Statutory Purpose and Interpretation

00:15:45 - And then we look to purpose, what's the purpose of the provision? 'cause what our acts, interpretation acts say, what our statutory rule say, and what our common law rule says, really, is that if you've got a choice of meanings, in an act, you try to choose that which best serves the purpose of the act. Now, how do you find out the purpose? Well, sometimes you'll find out the purpose. 'cause the act actually says,
00:16:16 - Okay? And so you say, well, that's a help. sometimes, however, you don't quite have as clearer a picture of the purpose of a particular provision within those general overarching option, objects. So you might look to other materials to identify purpose. A minister who has introduced the act into the parliament makes what's called a second reading speech, which is the speech that really lays out what the act is all about and what it's for.
00:16:46 - of this act is X, Y, and Z. And it may be also that the act is being enacted. The law is being enacted as a result of, say, the recommendation of a royal commission in order to overcome some social problem. Or it might be the recommendation of a law reform commission in order to improve the law. And you might look to what the law Reform Commission said. You might look to what a royal commission said, to see what is the, it used to be called the mischief rule.
00:17:17 - but really what it, another way of putting it, a better way of putting it, is what's the purpose, which it is apparent that this provision is meant, meant to serve. So that's the, that's a, a basic, approach to, interpretation of statutes, which involves, as I say, potentially choices between different meanings. There are lots and lots of rules. You can buy big, thick books on statutory interpretation,
00:17:48 - I think hard reading. but the basic rules, are not rocket science. The principle of legality put shortly, involves this proposition, as I express it, would express it today, is that, when, as, as a common law rule, as a judge made rule, if you like, that when you are confronted with different choices of meaning in a, in a law, in an act
00:18:22 - one constructional choice will impact adversely upon basic common law rights and freedoms like speech association, freedom not to have your property arbitrarily deprived, that sort of thing. You try to choose the meaning which will have the least adverse impact on those basic rights and freedoms. And that's really where it, where it starts. Now, it's often been linked in its origins

Legislative Intent and Rights Interference

00:18:58 - to interfere with those things. Now, that's, a bit questionable today because we see parliament's interfering with rights and freedoms quite a lot. and, and the question is, can you assume that sort of approach or intention? I'll give you a little bit of the historical background. It started out, really this principle you can trace right back to,
00:19:32 - chief Justice Marshall, back in 1,805, and the Supreme Court of the us. And he said this in a case called Fisher's case, it was all about bankruptcy issues. I won't bother you with the technicalities, but he was said, where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from the legislative intention must be expressed
00:20:03 - to suppose a design to affect such objects. It is said that this particular law will impact upon a fundamental common law principle, including, let's say, notions of freedom of speech, which is a common law, proposition. you need really clear language in order to, to do that. In other words, it has to be,
00:20:34 - That's what he said. Now, that was back in 1,805. So then we, we got a, it got that, that passage was quoted or footnoted, a century later in a book on statutory interpretation, a famous text called Maxwell on the Interpretation of Statutes. And the author of that said, in 1,905, it is in the last degree, improbable at the legislature,
00:21:08 - or depart from the general system of law without expressing its intention with irresistible clearness. And to give any such effect to general words simply because they have that meaning in their widest or usual, or natural sense, would be to give them a meaning in which they were not really used. So that was, that was, Maxwell on statutes, and that was quoted, by a judge in the high court of Australia in 1,908. So that's how it came into the Australian, set
00:21:41 - And, now, so that led us to, to the, and the English have adopted very much a similar principle. and they called it the Principle of legality, which is rather funny name. I'm not sure it's the best possible name. But, Lord Devlin in the United Kingdom in

Understanding Legislative Intention in Statutory Interpretation

00:22:13 - of construction, that a statute is not to be taken as affecting a fundamental alteration to the general law unless it uses words which point unmistakably to that, conclusion. Now, the problem is that this depends upon an assumed legislative intention. And the question you ask yourself is, well, what do we mean by legislative intention? When you look at parliamentary processes, you'll find
00:22:43 - for a particular law with different levels of understanding. They'll have an explanatory memorandum. They'll have the minister second reading speech, perhaps they might or might not have read the act. Most probably wouldn't have time to read a whole bill through. They might have advice from experts. And so expert advisors and so forth, they might vote, some of them might vote for a law because the, the party whip tells 'em they've gotta vote for the law. so to, to extract from
00:23:17 - a collective legislative intention is really, really, creating a bit of a fairytale. so what do, what do we mean, what do the courts mean now when they talk about legislative intention? Well, really they mean that, I think a ni it was nicely put that, by the high court in Australia, the duty of a court
00:23:49 - that the legislature is taken to have intended them to have. In other words, it's, not what guessing what parliament meant to say, but what is the meaning of what parliament said. So you can see how central to that is the function of the court in determining meaning. And of course, when it determines a meaning, it attaches legislative intentions to
00:24:18 - what parliament's collective intention might have been. Now, there's controversy about this. Some people say that this approach of kind of sidelining legislative intention as a, a sort of empirical reality is somehow anti-democratic. I disagree with that view, but there are some very good writers who take a different approach. My view is that it is important that the courts make clear what they are doing and why they are doing it,
00:24:51 - apply this judge made rule, whether it is a judge made rule of the principle of legality, we choose one meaning over another in order to minimize adverse impact on common law rights and freedoms. That's what we are doing. and, in doing that, of course, we don't seek to rewrite a statute. We seek to, choose available meanings from the statute.

Balancing Law and Human Rights Interpretation

00:25:23 - or to minimize its damage on common law rights and freedoms, or human rights for that matter, we would be making law in a way that I think is, trespassing the constitutional boundaries between, the courts and the parliament. Now, there is a, there is a, a view, that you can go further than just choosing from available
00:25:51 - they have a human rights act, and they say that you've gotta interpret the human rights under the European Human Rights Convention. you've gotta interpret, I'm sorry, any law, so far as reasonably possible to, be consistent with the guaranteed human rights under the human rights legislation. Now, the question, what does that do? That that's a statutory rule? Is it just the principle of legality choosing from available constructional choices,
00:26:22 - Well, in England, in a case called Guy Dan, they went a little bit further than just, they said you could have a remedial interpretation, which did mean a bit of a, a rewrite. So let me, let me take, some concrete examples to sort of flesh this out a little bit. I've been talking at a theoretical level. So if a law says, in a case involving, where a,
00:26:57 - of more than a certain quantity of drugs, right? And they must prove that they did not intend to sell the drugs, okay? So presumption of trafficking, intention, where you have more than a certain quantity, and that's a very common sort of provision. It matters in places like, well, it matters because of the serious penalties that apply to trafficking as distinct from use.
00:27:28 - and what that does is that, impacts on the presumption of innocence here personally, in possession of the drugs according to that rule, has to prove that they didn't intend to sell them, rather than the prosecution having to prove that they did intend to sell 'em. Now, the question is, can you interpret that in a way that says that, well, we can read that down. All it really means is that the accused person has
00:28:01 - we call an ev an evidential burden, and that the persuasive burden of final proof still rests upon the prosecution. In a case in Australia, we had a case, involving that sort of interpretive question in Victoria to do with the Victorian misuse of Drugs Act. And there there was human rights type legislation applying under state law, and we decided that it was a step too far

Legal Interpretations and Burdens of Proof

00:28:31 - of the onus into a mere evidential burden. Now, others would take a view that said we were a bit timid, and that you can and should be able to rer. But that's, that's, so that, that's, that's one example. and the principle of legality, I don't think even without a human rights statute, if you just took the principle legality by itself, I don't think it can turn a persuasive reversal of the persuasive, burden of proof into evidential burden. take another case.
00:29:03 - And this happened in Australia back in the early two thousands. they, they have a connection with, relatives in the United Kingdom who committed an attempt at a terrorist act, you know, driving a Range Rover or something in the front of a, of, of a, shop. I forget the precise details now. And the, person's visa, migrant visa in Australia was, canceled because they was said to fail
00:29:35 - And they, they had an association with criminals. And we said in the end that this was, when I say we, I'm talking about the federal court, I was then on the federal court, three judges sitting as an appeal bench of the federal court. We said, associated with criminals cannot mean simply being related to them. That's a misfortune of birth, okay? It must involve some notion of, of,
00:30:09 - or participation in their, their evil deeds. So that was a way of, I mean, you could risk the word associated, if you like, as saying, well, association by, by being related, but that, that certainly, if you read it that widely, you then expose this person to loss of liberty. 'cause once their visa is canceled, they're taken into detention and so on. So that's one example of an interpretive choice associated
00:30:37 - or can be given a narrower meaning. And, in another case, we had the Pope visiting New South Wales, and it was World Youth Day, right? And the New South Wales parliament passed a law called the World Youth Day Act. 'cause it's like the Olympics. All these people come from all over the world to see the pope, young people. And, this, this act gave power to the minister or someone to make regulations under the act, to make sure
00:31:10 - And one of the regulations that they made was a regulation saying that some official and inspector could direct people to cease annoying pilgrims. Okay? You're not allowed to annoy pilgrims. Now, there was a group called the No to Pope Coalition who wanted to protest against the churches, teachings on sexual reproduction and sexual activity and so forth, and we're going to distribute free contraceptive devices to pilgrims.

Interpreting the Principle of Legality in Regulation

00:31:45 - against, annoying pilgrims, would, pick these people up and was it a valid regulation? And in the end, what we said was, what we have to interpret is the regulation making power, which you find in the act itself. And it, it's a fairly broad regulation making power, but applying the principle of legality. We say that regulation making power does not authorize
00:32:14 - that it covers a whole range of, things, in which impinge on freedom of speech. I mean, you might make a, a speech saying, I don't believe in the paper. I don't, and that might annoy someone. so you can see it's a question of how you interpret the power broadly or narrowly. And so that's, that's an example of a concrete application of the principle. There's an ongoing debate about this principle of legality
00:32:49 - And one of the issues is to what extent does it create uncertainty about how the courts are going to interpret statutes? Because it does involve evaluative choices. and there's no doubt that, that there's an element of truth in that, that concern you can't lay out. with crystal clear clarity, how this principle will apply in all particular cases,
00:33:19 - what it, a beneficial aspect of the principle may be that the people who draft legislation for the parliaments will be careful to express themselves with sufficient clarity, that, they, that takes account of the possibility that the principle legality might be applied, and that they will perhaps express themselves in such a way
00:33:51 - law rights and freedoms. And our Australian Law Reform Commission has found quite a lot of commonwealth laws, which impact on rights and freedoms. It's an ongoing concern for our society. The courts have a role in protecting us. We don't have a bill of rights in Australia, so it's not quite the same as other jurisdictions. and the common law is a, an important protection here, but it's a protection that can only be,
00:34:37 - of the court's proper functions. And what ultimately counts far more than any rules of statute of interpretation is whether there is a legislative culture that actually respects rights and freedoms and just doesn't crash in and tread on them every time. It's politically convenient to do so.

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