Text, Context and Purpose: The High Court and Statutory Interpretation

Wednesday 13 August 2014 @ 11.08 a.m. | Legal Research

Yesterday (13 June 2014), the Australian Law Librarians Association (ALLA) presented a talk by Ms Patricia Lane, a NSW barrister and a lecturer from Sydney University who has a strong interest in statutory interpretation.  She gave a frank, practical and interesting talk in which she expressed her beliefs on the fundamental importance of ensuring law students and lawyers alike are able to consider text, context and purpose when they are interpreting legislation.

Text, Context and Purpose

Ms Lane spoke about the way that statutory interpretation is fundamentally based on the rule of law, where the separate branches of government have a basic respect for each other’s roles and duties.  She talked about one of the fundamental principles of statutory interpretation, which is that the Courts assume that the Legislature does not intend to interfere with fundamental rights unless it is explicit within the text.  She also highlighted a quote from Lacey v Attorney-General of Queensland [2011] HCA 10, in which the High Court stated:

"The objective of statutory construction was defined in Project Blue Sky Inc v Australian Broadcasting Authority as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have… The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. [at 43]"

Ms Lane used the cases of AB v Western Australia [2011] HCA 42, and NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11, to illustrate how the High Court has consistently emphasised that considering the text, its context and its purpose is crucial to statutory interpretation.

AB v Western Australia [2011] HCA 42

AB and AH both identified as male and had undergone some gender reassignment procedures, whilst retaining some female characteristics.  They applied to the Western Australian Gender Reassignment Board for recognition certificates.  The Board refused to grant these certificates based on the fact that they retained female reproductive systems.

In a fairly succinct judgment, the High Court highlighted the importance of considering text, context and purpose, saying at [10]:

"In Commissioner for Railways (NSW) v Agalianos, Dixon CJ referred to the importance of the context, general purpose, policy and fairness of a statutory provision, as guides to its meaning. The modern approach to statutory interpretation uses "context" in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed."

The Court went on to say at [24]:

"the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation "the courts have a special responsibility to take account of and give effect to the statutory purpose". It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a "fair, large and liberal" interpretation."

The High Court concluded that the purpose of the legislation was “that the sex of a person is not, and a person's gender characteristics are not, in every case unequivocally male or female” [at 23].  AB and AH had complied with the necessary legislative requirements, including having under gone medical or surgical procedures and adopting the lifestyle of a person of the gender to which they sought reassignment.  There was nothing in the text to suggest that reassignment procedures must be “complete”, and the legislation contained no grounds for considering social consequences (as the Board had in their reasons).  The objective of the Act was beneficial, and the High Court found that was how the statute should be interpreted.

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11

As previously reported on TimeBase, the High Court unanimously held in April this year that the Births, Deaths and Marriages Registration Act 1995 (NSW) does not limit the definition of gender to a binary division.  Norrie, who identifies as neither male nor female, applied to be registered as being of non-specific sex in 2010.  The NSW Registrar of Births, Deaths and Marriages initially provided Norrie with a certificate reflecting this, but this was revoked four months later after the Registry took legal advice.

Again, the High Court went straight to considering the text of the legislation and its purpose.  The Court found noted that the role of the Registrar was to record information, and that:

"there is nothing in the Act that suggests that the Registrar is entitled, much less duty-bound, to register the classification of a person’s sex inaccurately as male or female having regard to the information which the Act requires to be provided by the applicant [at 32]."

However, the High Court also rejected the NSW Court of Appeal’s finding that the Registrar needed to make a determination on Norrie’s gender (e.g. androgynous or intersex), finding that the legislation recognises only male or female as registrable classes, whilst it also recognises that a person may not fall into either category.  They concluded “non-specific” was the correct finding.

Conclusions

Ms Lane pointed out that text, context and purpose is not always straightforward.  In these two cases it was fairly clear what the purpose of the legislation was and how it should be interpreted in line with fundamental rights.  She mentioned other cases where the High Court split on the decision, such as  Al-Kateb v Godwin [2004] HCA 37 and Mabo v Queensland (No 1)  [1988] HCA 69, which are examples of cases where the statutory interpretation is more complex.

In those cases, the 4:3 split reflects the way that the context in which the interpreting is done may also be relevant - and different minds may come to different conclusions.  She concluded that these ambiguities are what makes cases involving textual interpretation some of the hardest to advise on, but also the most interesting to discuss.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

 Ms Patricia Lane, 12 August 2014, 'Text, Context and Purpose: Norrie, the High Court and Statutory Interpretation' (Australian Law Librarians Association)

NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 (2 April 2014)

AB v Western Australia [2011] HCA 42 (6 October 2011)

Lacey v Attorney-General of Queensland [2011] HCA 10 (7 April 2011)

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