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Last Updated: 22 May 2019
Is the High Court Mistaken about the Aim of Statutory
Interpretation?
Dale
Smith[∗]
In recent years, the High Court has expressed scepticism about legislative
intent. It has denied that the aim of statutory interpretation
is to discover
the intentions Parliament conveyed through its use of the words contained in the
statute, at least if we understand
those intentions as some sort of
‘objective collective mental
state’.[1] Legislative intent in
this sense, says the Court, is fictitious or metaphorical; the phrase
‘legislative intent’ should
be understood as merely a label attached
to a meaning that is identified (or perhaps constructed) by applying widely
accepted principles
of statutory interpretation.
The High Court’s
scepticism about legislative intent has attracted a great deal of attention,
from both supporters and critics.[2]
However, the High Court has a more fundamental commitment with regard to
statutory interpretation, one that has received far less
scrutiny. This
commitment arises out of the Court’s claim that the ultimate aim when
interpreting a statutory provision is
to ascertain the meaning of the words
contained in the provision. One way of viewing the controversy about legislative
intent is
that it is about what determines the meaning of those words. Is their
meaning constituted by Parliament’s intentions (to convey
certain
information via the use of those words), or is it instead fixed by the
application of widely accepted principles of statutory
interpretation? Viewed in
this way, the debate about legislative intent takes place within a framework
that has already been structured
by a commitment to ascertaining the meaning of
the words contained in the
statute.[3]
My goal in this
article is to challenge the High Court’s claim that the ultimate aim of
statutory interpretation is to ascertain
the meaning of the words contained in
the provision being interpreted. I shall call this claim ‘the meaning
thesis’,
and I shall argue that it cannot account for important features
of the practice of statutory interpretation. In particular, it can
account for
only some of the ways in which statutory provisions interact with other legal
norms (including other statutory provisions).
I shall contend that this provides
a powerful reason to reject the meaning
thesis.[4]
Of course,
ascertaining the meaning of the words contained in the provision being
interpreted is an important step in the interpretive
process. However, I shall
argue, the High Court is wrong to claim that it represents the ultimate aim of
statutory interpretation.
This gives rise to an obvious objection, even before I
give my reasons for rejecting the meaning thesis – namely, that it is
not
possible for the High Court to be mistaken about such a fundamental aspect of
Australian law. In Section 1, I seek to show that
this objection is misguided
and, in doing so, to clarify the argumentative strategy I shall employ in the
article.
In Section 2, I show that the High Court does indeed endorse the
meaning thesis, and I suggest some reasons why that thesis may appear
attractive. Then, in Section 3, I present an initial objection to the
Court’s position. I argue that, given its scepticism
about legislative
intent, the High Court cannot account for some uncontroversial features of
statutory interpretation – such
as the presumption of mens rea that is
employed when interpreting criminal offence provisions – consistently with
the meaning
thesis. Moreover, even if the Court were to abandon its scepticism
about legislative intent, its acceptance of the meaning thesis
would still leave
it struggling to account for the presumption of mens rea.
In Section 4, I
suggest that there are other aspects of the practice of statutory interpretation
that it is even more difficult for
the High Court to explain, given its
acceptance of the meaning thesis. Here, I focus particularly on principles of
statutory interpretation
– such as s 15AA of the Acts Interpretation
Act 1901 (Cth) – that apply to statutes that were enacted before those
principles were introduced into the law. In Section 5, I consider
three ways in
which the High Court might seek to show that the operation of these principles
is consistent with the meaning thesis.
I argue that none of these is promising.
I conclude, in Section 6, by briefly suggesting how we might begin developing a
more satisfactory account of the aim of statutory interpretation.
1. Can the High Court Be Mistaken about the Aim of
Statutory Interpretation?
Before I seek to show that the High Court is mistaken about the ultimate aim
of statutory interpretation, I must address a preliminary
objection –
namely, that it is not possible for the High Court to be mistaken about such a
fundamental aspect of Australian
law. There is both a crude and a more subtle
version of this objection. The crude version asserts that the law in Australia
is whatever
the High Court says it is, since the Court has the final say on what
the law is. On this view, if the High Court says that the ultimate
aim of
statutory interpretation is to identify the meaning of the words contained in
the statute, then that is the ultimate aim of statutory interpretation.
One might contend that the Court should have adopted a different approach, but
one
cannot plausibly claim that the Court is mistaken about what the legal
position is.
Hopefully, the claim that the High Court cannot be
mistaken about what the law is in Australia strikes the reader as implausible.
As HLA Hart pointed out more than fifty years ago, claims of this sort confuse
finality with
infallibility.[5] That the High
Court has the final say on what the law is means that any errors of law made by
the Court cannot easily be corrected.
However, it does not mean that the Court
is infallible about what the law is – it may still get the law wrong, even
if there
is no legal avenue to appeal its
mistakes.[6] And to claim that the law
is whatever the High Court says it is leaves one unable to explain what the
Court is doing when it seeks to ascertain what the law is, since it
follows from that claim that whatever the Court decides will be (legally)
correct.[7]
There is, however,
a more subtle version of the objection. On this view, while the High Court can
be mistaken about what the law
is, the doctrine of precedent means that those
mistakes may play a role in determining what the law is subsequent to the
Court’s
decision. What role those mistakes play varies depending on
the circumstances. In particular, the law may not always immediately alter to
fit the
Court’s decision (eg if that decision conflicts with other High
Court decisions). Nevertheless, those mistakes may play a role, raising
the possibility that, even if the Court was mistaken when it first stated that
the aim of statutory interpretation is
to identify the meaning of the words
contained in the statute, this misunderstanding subsequently shaped the law in
Australia, so
that it now reflects the correct legal
position.
This is a genuine possibility, and one I will not be in a
position to reject until I explain why the meaning thesis is mistaken.
However,
I should indicate what my argumentative strategy will be. I shall seek to show
that the High Court’s characterisation
of the aim of statutory
interpretation (as seeking to identify the meaning of the words contained in the
statute) conflicts with
numerous, more concrete aspects of the practice of
statutory interpretation. Put bluntly, what the High Court says it is
doing when it interprets statutes conflicts with what it actually does.
Moreover, we should privilege what the Court does over what it says it is doing,
not least because its statements about the ultimate
aim of statutory
interpretation are attempts to identify the role that the more specific
principles play in the interpretive process.
If, as I shall argue, those
statements fail in this attempt, then we have reason to call them into question.
(It might be objected
that the High Court’s statements about the ultimate
aim of statutory interpretation trump any inconsistent principles of statutory
interpretation because they reflect a constitutional imperative – namely,
that, when interpreting statutes, judicial power
is limited to ascertaining the
meaning of the words contained in the statute. I consider this objection in
Section 5A.)
2. The Meaning Thesis
The previous Section sought to establish only that it is possible that
the High Court is mistaken about the aim of statutory interpretation. Before I
seek to show that the meaning thesis is mistaken, we should examine that
thesis in more detail.
A. High Court jurisprudence
In
Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ stated that:
[T]he duty of a court is to give the words of a statutory provision the
meaning that the legislature is taken to have intended them to have.
Ordinarily, that meaning (the legal meaning) will correspond with the
grammatical meaning of the provision.
But not always. The context of the words,
the consequences of a literal or grammatical construction, the purpose of the
statute or
the canons of construction may require the words of a legislative
provision to be read in a way that does not correspond with the
literal or
grammatical meaning.[8]
There
is much to be gleaned from this passage, but the most important point is that,
according to the joint judgment, the aim when
interpreting a statutory provision
is to identify the ‘legal meaning’ of the words in the provision
– that is,
the meaning that Parliament is taken to have intended the words
to have.
The joint judgment distinguished between the ‘legal
meaning’ of the words and their literal or grammatical meaning. Whilst
indicating that the two will commonly correspond, their Honours identified
several factors (context, purpose, etc) that might cause
the legal meaning of
the words to depart from their literal or grammatical meaning. In doing so,
their Honours recognised that there
is more than one type of meaning that words
can be said to bear, both in ordinary conversation and in legal contexts.
Consider a
doctor who says to her patient, ‘You are not going to
die.’[9] The literal meaning
of the statement is, arguably, that the patient is immortal. However, the doctor
most likely means to communicate,
not that the patient will never die, but
rather that he will not die from the particular illness or complaint that led
him to see
her on this occasion.
Philosophers of language distinguish
between semantics and pragmatics. Semantics involves the study of the properties
of types of
expression (eg the properties that a sentence has independent of any
particular context in which it is uttered), whereas pragmatics
involves the
study of properties specific to the utterance of a particular type of expression
on a particular occasion (eg the distinctive
properties that a sentence has when
uttered in a certain context).[10]
So the conclusion that the doctor in our example is not asserting that her
patient is immortal is based on pragmatic considerations
(in particular, the
contextual factor that she is responding to an inquiry about a particular
illness or complaint), considerations
that go beyond the semantic properties of
the sentence ‘You are not going to die.’
It is tempting to
think of semantics as providing what the High Court calls the literal or
grammatical meaning of a statutory provision,
while what it calls the
‘legal meaning’ incorporates pragmatic considerations generated by
the context in which the words
in the provision are
used.[11] If so, we can interpret
the High Court as saying that, while the legal meaning of a statutory provision
will often correspond to
its semantic content, we also need to take into account
pragmatic considerations (context, purpose, etc) that may cause the
provision’s
legal meaning to depart from its semantic
content.[12]
The distinction
between semantic and pragmatic content will play an important role in the
argument later in this article. However,
for the moment, the crucial point is
not that the High Court distinguishes between legal meaning and literal or
grammatical meaning,
or that this can plausibly be regarded as mapping onto the
distinction between semantic and pragmatic content. Rather, the crucial
point is
that, according to the High Court, the role of a judge when interpreting a
statutory provision is to ascertain the meaning
– or, as I shall refer to
it from now on, the ‘linguistic content’ – of that
provision.[13] (As I use the phrase,
‘linguistic content’ may encompass both semantic and pragmatic
content.)
It is not only Project Blue Sky that supports my claim
that the High Court accepts the meaning thesis. Recently, in a unanimous
judgment, the Court stated that ‘[s]tatutory
construction involves
attribution of meaning to statutory
text.’[14]
Admittedly, references to ‘meaning’ can be ambiguous – they
may be references either to linguistic content or to the
significance of a particular event or state of affairs (as when we
inquire as to the meaning of a recent political
development).[15] However, it is
tolerably clear that the Court has in mind meaning in the former sense. The
Court goes on to emphasise that ‘“[u]nderstanding
context has
utility if, and in so far as, it assists in fixing the meaning of the statutory
text.”’[16] An
appreciation of the context is obviously crucial to understanding the
significance of an event or state of affairs; emphasising
the limits of the use
of context makes more sense if one’s goal is to ascertain the linguistic
content of certain
words.[17]
Thus, the High
Court views the role of a judge, when interpreting a statutory provision, as
being to ascertain the linguistic content
of that provision. Presumably, the
Court also regards the role of a judge as being to identify the
provision’s legal effect – that is, the contribution that the
provision makes to the content of the
law.[18] Thus, we can ascribe to the
Court the view that a provision’s legal effect is equivalent to its
linguistic content.[19] According to
the Court, judges should ascertain the provision’s legal effect by
ascertaining its linguistic content. Moreover,
it is unlikely that the Court
thinks that this is so because the legal effect of statutory provisions just
happens to fortuitously
coincide with their linguistic
content.[20] Rather, the more
plausible reading is that the Court believes that a provision’s linguistic
content determines its legal effect, in the sense that the contribution
that the provision makes to the content of the law is a function of the meaning
of the words contained in the provision. This explains why the Court claims that
the ultimate aim of statutory interpretation is
to ascertain the meaning of
those words.
It is worth pausing to note that the High Court fails to
draw clearly the distinction between legal effect and linguistic
content.[21] As a result, much of
what the Court says about statutory interpretation might be thought to be
ambiguous, on the basis that it is
unclear whether the Court is talking about
linguistic content, legal effect or both. However, the Court’s failure to
draw the
distinction is further evidence that it embraces the meaning thesis. If
one believes that a provision’s legal effect is equivalent
to its
linguistic content, then one may not be particularly concerned to distinguish
between them.
There is, however, an important objection to my
interpretation of the High Court’s
position.[22] I have ascribed to the
Court the view that the aim of statutory interpretation is to ascertain the
linguistic content of the provision
being interpreted. On this view, linguistic
content is something to be found, not constructed. However, the Court often
talks in
terms of ‘giving’ or ‘attributing’ meaning to a
provision.[23] This might be taken
to suggest that the Court does not believe that the aim of statutory
interpretation is to ascertain the provision’s
linguistic content, but
rather to construct a meaning which is then attributed to the
provision.
When the Court speaks of ‘giving’ or
‘attributing’ meaning to a provision, it has in mind the application
of principles of statutory interpretation. However, I doubt that the Court
believes that the application of these principles constitutes – as
opposed to helping to identify – the meaning of the words in the
provision. This would suggest that the words have
no meaning until the
principles are applied. Not only would this result in a sharp distinction
between legal discourse and ordinary
conversation (where the meaning of
utterances is not constructed in this way), it would also mean that the statute
could not guide
people’s behaviour until its meaning was constructed by a
court.[24] (To the extent that they
were concerned with acting lawfully, people would have to base their behaviour
on guesses as to what meaning would be constructed by the court.) Thus,
it is more plausible to ascribe to the High Court the view that the
aim of
statutory interpretation is to ascertain the linguistic content of the provision
being interpreted, rather than the view that
statutory interpretation involves
constructing a meaning that did not previously
exist.[25]
A further reason
to interpret the Court in this way derives from the statement in Project Blue
Sky that a provision’s legal meaning will usually correspond to its
literal or grammatical meaning. If legal meaning is ‘constructed’,
why think that it will generally correspond to the literal or grammatical
meaning of the words in the provision, unless this process
of
‘construction’ is really a process of ascertaining what the
linguistic content of the words is?
An alternative objection to my
interpretation of the High Court’s position is that the meaning thesis can
be ascribed to particular
judges, but not to the Court as a whole. Just as there
is debate about what, if any, intentions can be ascribed to the legislature
as a
whole, there is room for debate about how (or whether) we should ascribe views
about statutory interpretation to the High Court
as a
whole.[26] Nevertheless, the core
tenets of the meaning thesis are set out in Project Blue Sky, which is
the leading High Court decision on statutory interpretation. Those tenets have
since been endorsed in unanimous High Court
decisions, such as Thiess.
Given this, we are warranted in ascribing the meaning thesis, not just to
particular judges, but to the High Court as a whole.
B. The appeal of
the meaning thesis
Why is the High Court attracted to the meaning
thesis? My answer to this question will be somewhat speculative, since the Court
has
said relatively little about why it regards the aim of statutory
interpretation as being to ascertain the linguistic content of the provision
being interpreted. Nevertheless,
there are hints in the case law, and in the
academic literature, as to why the meaning thesis might be thought to be
attractive,
and it is worth pursuing those hints to obtain a better appreciation
of the strengths of that thesis.
Firstly, the meaning of the words
contained in a statute obviously plays an important role in fixing the
statute’s legal effect.
As a general rule, if the statute contained
different words, it would have a different legal effect. There might be thought
to be
an obvious reason for this: a statute consists of words on a page, and so
its legal effect must match the meaning of those words.
Alternatively, the
enactment of a statute might be thought to involve an act of communication by
the legislature to the law’s
subjects (or some sub-set thereof), and this
might be thought to entail that the statute’s legal effect is equivalent
to what
is communicated (ie its linguistic
content).[27] Either way, the
meaning thesis may appear to be vindicated.
Secondly, the meaning thesis
appears to place principled restraints on judicial power. According to that
thesis, a judge’s role
when interpreting a statute is to ascertain the
meaning of the words contained in the statute, as opposed to drawing on her own
moral
beliefs or her speculations about the political motives behind the words.
This attributes to judges a circumscribed role, one that
does not require them
to engage in controversial moral or political reasoning when interpreting
statutes. Limiting the role of judges
in this way might be thought to promote
both democracy and the rule of law.
Thirdly, and relatedly, the meaning
thesis appears to respect the separation of judicial and legislative power under
the Commonwealth
Constitution, since it allows for clearly defined roles to be
assigned to both the legislature and the
judiciary.[28] Put crudely, the role
of the legislature is to enact legislation; the role of the judiciary is to
ascertain the meaning of the words
contained in that legislation. (The High
Court may believe that the meaning thesis is correct, not because it allows for
clearly
defined roles to be assigned to the legislature and judiciary, but
because it identifies the roles that have in fact been assigned to these
branches of government by the Constitution. I consider whether that belief is
sound in Section 5A.)
Admittedly, this picture of the judicial role
needs to be qualified, since the meaning of the words in a statute will not
supply
an answer to every legal question pertaining to that statute. It follows
from the meaning thesis that, where the statute’s
linguistic content does
not provide an answer, the law has run out, and so the court needs to make
new law to fill the gap in the law. In making new law, judges may need to
appeal to their own moral or political views, or to their views
about the moral
and political judgments that Parliament would have made had it considered the
issue in question.[29] Nevertheless,
the meaning thesis remains attractive, because it suggests that – in those
cases where the statute does provide an answer – the role of the
judge is both circumscribed and clearly demarcated from that of the
legislature.
3. The Presumption of Mens Rea
In Section 2, I argued that the High Court accepts the meaning thesis, and
considered some of the reasons why that thesis may appear to be attractive.
Nevertheless, the meaning thesis should be rejected. For one thing, it struggles
to account for some uncontroversial features of
statutory interpretation. To
show this, I begin with one of several counter-examples that Mark Greenberg has
offered to views like
the meaning
thesis.[30]
In common law
jurisdictions in Australia, there is a presumption that a criminal offence
created by statute has a subjective fault
element, even if there is no reference
in the statute to a fault
element.[31] It seems, therefore,
that the legal effect of a statutory provision that creates a criminal offence
often differs from its linguistic
content. Where the presumption is not
rebutted, the legal effect of the provision is (among other things) to require
that the prosecution
establish a subjective fault element on the part of the
defendant. (I shall refer to this as ‘a mens rea requirement’.)
However, if there is no reference in the provision to a mens rea requirement,
that requirement may not be part of the provision’s
linguistic content. If
so, we cannot say that the aim when interpreting this provision is simply to
ascertain its linguistic content,
since this would be to overlook the role
played by the presumption of mens rea.
The meaning thesis is not so
easily defeated, however. If we equate the provision’s linguistic content
with its literal or
grammatical meaning, then the presumption of mens rea
represents a clear counter-example to the meaning thesis. Where a provision
makes no reference to a mens rea requirement, that requirement cannot form part
of its literal meaning. However, we have seen that
the High Court denies that a
provision’s linguistic content always corresponds to its literal meaning.
Once we allow that a
provision’s linguistic content extends to its
pragmatic content, it may be possible to account for the presumption of mens
rea
consistently with the meaning thesis.
This depends, however, on which
account of linguistic content one accepts. Understandably, the High Court does
not offer a well-developed
account of linguistic content. It claims that a
provision’s linguistic content may depart from the literal meaning of the
words
in question, because of the context, statutory purpose or – of
particular relevance here – canons of construction. However,
it does not
explain how a canon of construction such as the presumption of mens rea
may contribute to a provision’s linguistic content.
Nevertheless,
there are accounts which appear to support the view that canons of construction
such as the presumption of mens rea
may contribute to the linguistic
content of statutory provisions. Consider, for example, the account offered by
Richard Ekins and Jeff
Goldsworthy (which, following Greenberg, I shall refer to
as ‘the objective communication
theory’).[32] According to
Ekins and Goldsworthy, a provision’s linguistic content consists of the
information that we have reasonable grounds,
based on the publicly available
evidence, to regard Parliament as intending to convey via its use of the words
in the provision.[33] The
presumption of mens rea, it could be argued, gives us reason to believe that
Parliament intends to convey that a criminal offence
created by statute contains
a mens rea requirement, even though the provision does not expressly refer to
that requirement.[34] If so, then it
follows from the objective communication theory that the mens rea requirement
forms part of the linguistic content
of the provision, and so the
provision’s legal effect is equivalent to its linguistic
content.[35]
However, this
way of accounting for the mens rea example requires us to ascribe intentions to
Parliament – intentions which
fix the linguistic content (and hence,
according to the meaning thesis, the legal effect) of statutory provisions. As
already mentioned,
in cases such as
Lacey,[36] the High Court has
denied that legislative intentions of this sort exist. This means that the Court
cannot appeal to the objective
communication theory to account for the mens rea
example.[37]
The objective
communication theory is not the only account of linguistic content. However,
other mainstream theories also generate
pragmatic content out of the mental
states (usually intentions) of the
speaker.[38] In the statutory
context, this appears to require that one accept some account of legislative
intent. If so, the High Court’s
scepticism about legislative intent
precludes it from using any of these theories to account for the mens rea
example.[39]
Philosophers of
language sometimes talk of pragmatic content as being generated from a common
background shared by the speaker and
audience. Typically, this is intended to be
complementary, rather than an alternative, to a focus on the speaker’s
intentions.[40] In any case, this
common background consists of certain assumptions, beliefs or knowledge shared
by the parties, which – in
the case of legislation – requires that
mental states be ascribed to the legislature (or to a certain subset – eg
a majority
– of the legislators). Since the High Court’s qualms
about legislative intent concern the idea of Parliamentary intentions
as some
sort of ‘objective collective mental
state’,[41] it seems that
those qualms would apply equally to attempts to ascribe other mental states (eg
beliefs) to Parliament. Moreover, because
these approaches require the audience
to share the relevant assumptions, beliefs or knowledge, they raise a further
problem for the
High Court in accounting for the presumption of mens rea, since
they require not only the legislature but also its audience to be
aware of that
presumption.
One might try to avoid these problems by focusing, not on
the legislators (or the legislature as a whole), but rather on the Parliamentary
drafter. However, this is unlikely to assist the High Court. The Court’s
scepticism about legislative intent is based, at least
in part, on concerns
about ascribing intentions to a group in circumstances where members of the
group have differing agendas.[42]
Yet drafters typically work in teams (raising questions about group intentions),
and sometimes receive instructions from multiple
parties with conflicting
agendas. It seems likely, then, that the High Court’s reasons for being
sceptical about legislative
intent also apply to any attempt to ascribe
intentions to drafters.
Thus, the High Court’s scepticism about
legislative intent deprives it of the resources it needs to account for the mens
rea
example consistently with the meaning thesis. (More generally, it deprives
the Court of a plausible account of pragmatic content,
of the sort needed to
explain how a provision’s linguistic content can extend beyond its literal
or grammatical meaning.) This
means that, if the High Court is to have any hope
of holding onto the meaning thesis, it must abandon its scepticism about
legislative
intent.
In the Introduction, I suggested that the meaning
thesis represents a more fundamental commitment on the part of the High Court
than
does scepticism about legislative intent. Thus, if persuaded that these two
views cannot be held together, the Court might abandon
its scepticism about
legislative intent in order to hold onto the meaning thesis. However, the
challenge posed by the mens rea example
goes deeper than showing that the
meaning thesis cannot be combined with scepticism about legislative intent. Even
if the Court were
to abandon its scepticism about legislative intent, it is
doubtful whether it could account for the mens rea example consistently
with the
meaning thesis.[43]
I
suggested above that, if not for its scepticism about legislative intent, the
High Court could seek to account for the mens rea
example on the basis that we
have (presumptively) good grounds for attributing to Parliament an intention,
when enacting a statutory
provision creating a criminal offence, to convey that
the provision contains a mens rea requirement. However, Greenberg argues that
it
is very unlikely that legislators always have the intentions they would need to
have for this strategy to work. He contends that
it is implausible to claim that
legislators are always aware of the presumption of mens rea, let alone that they
always intend that
criminal statutes be interpreted in accordance with that
presumption. After all, he points out, many legislators are not lawyers,
and
even those who are lawyers do not necessarily have expertise in criminal
law. He concludes:
It can't seriously be maintained ... that legislators are aware of common law
practices concerning when mens rea requirements are
presumed and, in light of
that awareness, use statutory language without mens rea terms with the intention
of imposing mens rea
requirements.[44]
In
presenting this argument, Greenberg focuses on legislators’ actual
intentions. By contrast, we have seen that the objective
communication theory
embraced by Ekins and Goldsworthy treats as relevant, not legislators’
actual intentions, but rather the
intentions that can reasonably be attributed
to them.[45] However, an intention
cannot reasonably be attributed to legislators where there is good reason to
believe that they lack that intention.
Thus, where legislators are unaware of
the presumption of mens rea, the objective communication theory cannot warrant
ascribing to
them intentions with regard to that presumption.
This
objection to the meaning thesis does not depend on any general scepticism about
legislative intent.[46] One can
grant that legislators (as a group) are capable of having intentions, and yet
deny that they have the specific intentions
the High Court needs them to have in
order to be able to account for the mens rea example consistently with the
meaning thesis.
One might seek to avoid this objection by focusing on the
intentions of the drafters, not the legislators. If the High Court was to
abandon its scepticism about legislative intent, it could accept that drafters
(as a group) have intentions. Moreover, unlike many legislators, drafters
are (presumably) aware of the presumption of mens rea. However, an explanation
is needed as to why it is appropriate to focus on the drafters’
intentions. One possible explanation is suggested by Ekins
and Goldsworthy, who
argue that the drafters’ intentions can be ascribed to Parliament because
the drafters are Parliament’s
‘faithful agents, acting like
ghostwriters or
speechwriters[.]’[47] Yet this
does not justify attributing the drafters’ intentions to Parliament in
circumstances where the drafters possess knowledge
(about the presumption of
mens rea) that Parliament lacks. We would not ascribe knowledge possessed by a
speechwriter to the actual
speaker in circumstances where we have reason to
doubt that the speaker possesses that knowledge.
Thus, it seems that the
High Court could not account for the mens rea example consistently with the
meaning thesis, even if it were
to abandon its scepticism about legislative
intent. However, I do not wish to place too much weight on this example. When
discussing
the presumption of mens rea, Greenberg assumes that what is relevant
is the intentions of individual legislators. He points out that
many legislators
are not lawyers, or in any case lack expertise in criminal law, and infers that
they are therefore unlikely to intend
that criminal statutes be read in light of
the presumption of mens rea. However, there are accounts of legislative intent
(‘non-aggregative
accounts’) that deny that it is a
(straightforward) function of the intentions of individual
legislators.[48] There are, I think,
serious difficulties with at least some existing accounts of this
sort.[49] Nevertheless, that some
account of this sort is correct seems plausible, given the difficulties both
with scepticism about legislative
intent and with aggregative accounts that
treat legislative intent as a function of the intentions of some or all
individual legislators.[50] And it
is possible that the correct account supports attributing the necessary
intention – ie that statutory provisions creating
criminal offences be
read in light of the presumption of mens rea – to the legislature as a
whole, even though some or all
legislators lack that intention.
4. Further Counter-Examples
I have argued that the High Court cannot hold on to both the meaning thesis
and its scepticism about legislative intent, since this
combination of views is
unable to account for the role that the presumption of mens rea plays in
statutory interpretation. I have
also argued that the problems with the meaning
thesis are not limited to the fact that it cannot be combined with scepticism
about
legislative intent. Even if the High Court were to abandon its scepticism
about legislative intent, it would still struggle to account
for the presumption
of mens rea consistently with the meaning thesis.
Nevertheless, I
finished Section 3 by conceding that, were the High Court to abandon its
scepticism about legislative intent, it might be able to account for the mens
rea example by appealing to a non-aggregative account of legislative intent. I
should emphasise that this is only a possibility.
It would need to be shown that
a non-aggregative account is correct, despite the problems that have been
identified with some existing
accounts. It would also need to be shown that the
correct account supports attributing the necessary intention to the legislature
(that statutory provisions creating criminal offences be read in light of the
presumption of mens rea). However, we do not need to
inquire here as to whether
this can be shown. Even if the High Court could, by abandoning its
scepticism about legislative intent, account for the mens rea example
consistently
with the meaning thesis, there are other counter-examples to the
meaning thesis that cannot be dealt with by appealing to a non-aggregative
account of legislative intent.
Consider, again, how the High Court might
seek to account for the mens rea example. It might argue that the presumption of
mens rea
contributes to the linguistic content of the provision being
interpreted because we can reasonably attribute to Parliament an intention
to
convey that the provision must be read in light of the presumption. If this is
plausible, it is only because the presumption of
mens rea pre-dates the
statutory provisions it affects. Parliament could not intend, when enacting a
provision, to convey that it
must be read in light of the presumption of mens
rea if that presumption did not exist at the time, but rather was introduced
into
the law after the provision was
enacted.[51]
This may not be
a significant problem with regard to the presumption of mens rea. There may be
few, if any, provisions defining a
criminal offence which are still in force
today but which were enacted before the presumption of mens rea became part of
the law.
However, there are other examples where this is a problem. In
this Section, I offer three examples of this sort.
In 1981, s 15AA was
inserted into the Acts Interpretation Act 1901
(Cth).[52] In its original form, it
read:
In the interpretation of a provision of an Act, a construction that would
promote the purpose or object underlying the Act (whether
that purpose or object
is expressly stated in the Act or not) shall be preferred to a construction that
would not promote that purpose
or object.
Section 15AA was enacted
against a background of public criticism of the High Court for interpreting
taxation statutes in a way that was consistent
with their literal meaning, but
which facilitated tax minimisation in a way that was contrary to the purpose of
those statutes.[53] The new section
meant that, where there was another available interpretation of a provision that
did promote the statutory purpose,
courts were required to prefer that
interpretation to a literal construction that did not promote the statutory
purpose. Thus, the
motivation behind the introduction of s 15AA was to change
the way in which statutory interpretation was practised by the
courts.
The change was, however, a limited one. It did not require the
court to adopt whichever interpretation would best promote the purpose
of the
statute being interpreted. Rather, it mandated a certain interpretive choice
only where the court was confronted with two
open interpretations, one of which
would promote the statutory purpose and the other of which would
not.[54] In 2011, s 15AA was amended
to remove this limitation. It now reads:
In interpreting a provision of an Act, the interpretation that would best
achieve the purpose or object of the Act (whether or not
that purpose or object
is expressly stated in the Act) is to be preferred to each other
interpretation.
Thus, where there are two (or more) interpretations, each
of which would promote the statutory purpose, courts are now required to
choose
the interpretation that would best promote that purpose.
Crucially
for our purposes, s 15AA applies not only to statutory provisions enacted after
1981, but also to provisions enacted before s 15AA came into
force.[55] Thus, its introduction in
1981 changed the way in which certain pre-existing provisions should be
interpreted, and hence changed
their legal effect. Similarly, the amendment in
2011 changed the way in which certain pre-2011 provisions should be interpreted
–
namely, provisions for which there were multiple open interpretations,
each of which would, to varying degrees, promote the statutory
purpose.
However, the introduction of s 15AA in 1981 (and its amendment
in 2011) did not change the linguistic content of the pre-existing
provisions whose legal effect it altered. It could not alter their semantic
content. Nor can the operation of
s 15AA be explained in the way that the
presumption of mens rea can (perhaps) be accounted
for.[56] It is difficult to argue
that, when enacting the earlier provision that is now subject to s 15AA,
Parliament intended to convey that it should be read in light of s 15AA, given
that s 15AA did not yet exist (or did not yet exist in its current form). Thus,
it seems that s 15AA produces a divergence between the legal effect of certain
pre-existing provisions and their linguistic content, contrary to the meaning
thesis.[57]
It might be
objected that s 15AA was designed to correct a judicial misconception about how
to interpret statutes, rather than changing the legal effect of any statutory
provision. To the extent that judges were placing too much emphasis on literal
meaning, and were overlooking the importance of statutory
purpose, they were
mistaken in law. The role of s 15AA, on this story, was to correct that mistake.
In doing so, it reflected what the law has always been, and so did not change
the legal
effect of any provision so as to produce a divergence between the
provision’s legal effect and its linguistic content.
However, this
objection overlooks the fact that there have been two versions of s 15AA. The
amended, 2011 version is wider in scope than the original, 1981 version, and so
it cannot be the case that neither changed the legal effect of
pre-existing provisions. In fact, we shall see in Section 5A that there is
reason to think that both versions of s 15AA went beyond simply restating
the old common law position concerning the importance of statutory purpose. If
so, both versions changed
the legal effect of provisions subject to s 15AA,
rather than simply correcting an erroneous practice on the part of
judges.
Having presented s 15AA in some detail, let me offer two further
examples. Reasons of space preclude me from discussing these examples in as much
detail,
but I hope to show that it is plausible to treat them as further
counter-examples to the meaning thesis.
Section 15AA is not the only
statutory provision that seeks to govern the proper interpretation of other
provisions. A more controversial example
is s 32(1) of the Charter of Human
Rights and Responsibilities Act 2006 (Vic), which
states:[58]
So far as it is possible to do so consistently with their purpose, all
statutory provisions must be interpreted in a way that is compatible
with human
rights.
Section 3(1) defines ‘human rights’ as those rights
set out in Part 2 of the Charter. Thus, on its face, s 32(1) requires
every statutory provision in Victoria to be interpreted in a way that is
compatible with the rights set out in the Charter, so far as it is
possible to do so consistently with the purpose of the provision being
interpreted. Moreover, s 49(1) makes it clear that s 32(1) applies not only to
statutes passed after the commencement of the Charter, but also to
statutes passed before the Charter commenced.
Thus, s 32(1)
altered the legal effect of certain pre-existing provisions – namely,
those that were not rights-compliant before the introduction
of the
Charter, but which can now be given a rights-compliant interpretation
consistently with their purpose. However, s 32(1) did not contribute to the
linguistic content of those provisions. Parliament’s communicative
intentions with regard to these
provisions were formed before s 32(1) was
enacted, and so cannot take account of the way in which s 32(1) subsequently
altered the legal effect of those provisions. (This is most obviously true with
regard to statutes enacted before the
introduction of the Charter was
even contemplated. However, even with regard to statutes enacted shortly before
the Charter, it is unlikely that Parliament intended, when enacting those
statutes, to convey that their legal effect would be subject to a proposed
Act
that was not yet part of Victorian law.)
Hence, s 32(1) produces a
divergence between the legal effect and linguistic content of certain
pre-existing provisions, contrary to the meaning
thesis. Admittedly, there is
some overlap between s 32(1) and the principle of legality, especially if that
principle is understood as requiring that statutes be interpreted in a way that
is compatible with fundamental common law rights and freedoms, unless Parliament
clearly expresses a contrary
intention.[59] This may mean that
some provisions that pre-date the Charter, and that can be given a
rights-compliant interpretation under the Charter, already had
such an interpretation due to the principle of legality. If so, s 32(1) did not
alter their legal effect. However, the overlap between s 32(1) and the principle
of legality is only partial. At the very least, s 32(1) protects a broader range
of rights than the principle of
legality.[60] Thus, the introduction
of s 32(1) changed the legal effect of some pre-existing provisions –
namely, those that were not previously compatible with the Charter
rights, even taking the principle of legality into account, but which can
be interpreted in a rights-compliant way consistently with their purpose.
However, s 32(1) cannot affect the linguistic content of those provisions, for
the reasons given above.
For a different type of example, consider the
practice of consulting statutes in pari materia to help ascertain the
legal effect of the statute being interpreted (‘the primary
statute’).[61] Where the
statutes in pari materia were enacted before the primary statute, they
may (perhaps) form part of the background which helped shape Parliament’s
communicative
intentions when it enacted the primary statute. However, where the
statutes in pari materia were enacted after the primary statute,
it cannot be the case that they helped shape Parliament’s communicative
intentions when enacting the primary
statute, and yet they may help determine
the legal effect of that statute. In such cases, it seems, we have a further
counter-example
to the meaning
thesis.[62]
It might be
objected that, where the statutes in pari materia were enacted after the
primary statute, they are relevant only in so far as they provide evidence of
what Parliament intended when
it enacted the primary statute. On this view, just
as we can look to a speaker’s subsequent statements to obtain a better
understanding
of what she intended to communicate by an earlier utterance, we
can look to later enactments by Parliament to better understand its
communicative intentions when it enacted an earlier statute. Consideration of
those statutes for this purpose is consistent with
the meaning
thesis.
However, it does not seem very promising to try to explain
courts’ reliance on later statutes in pari materia on the basis
that they shed light on Parliament’s intentions when enacting the earlier
statute. There will often be reason
to think that Parliament’s intentions
have changed in the meantime, and yet there may be good reasons to consider the
later
statutes (based, for example, on the need for consistency in the
law).
5. Can the Meaning Thesis Account for These Counter-Examples?
A. The reading down strategy
In this Section, I consider
three ways in which one might try to save the meaning thesis from the
counter-examples presented in Section 4. The first is the ‘reading down
strategy’, which seeks to show that provisions like s 15AA of the Acts
Interpretation Act have a narrower scope of operation than might first
appear. In this way, it seeks to show that the operation of those provisions
is
consistent with the meaning thesis, since they do not change the legal effect of
other provisions in a way that results in a divergence
between those
provisions’ legal effect and their linguistic content. Importantly, the
strategy appears to derive support from
the way in which the High Court has
interpreted both s 15AA of the Acts Interpretation Act and s 32(1) of the
Charter.[63]
Let us
begin by considering s 15AA. There are several suggestions in the case law as to
how s 15AA can be read down so that it is consistent with the meaning thesis,
and I cannot discuss all of them
here.[64] Instead, I will focus on a
recent suggestion contained in the unanimous judgment of the High Court in
Thiess. The Court stated that:
Objective discernment of statutory purpose is integral
to contextual construction. The requirement of s 15AA of the Acts
Interpretation Act 1901 (Cth) that ‘the interpretation that would best
achieve the purpose or object of [an] Act (whether or not that purpose or object
is expressly stated) is to be preferred to each other interpretation’ is
in that respect a particular statutory reflection
of a general systemic
principle. For ‘it is one of the surest indexes of a
mature and developed jurisprudence not to make a fortress out of the dictionary;
but
to remember that statutes always have some purpose or object to accomplish,
whose sympathetic and imaginative discovery is the surest
guide to their
meaning.’[65]
One
possible reading of this passage is that s 15AA reflects a general principle
that would be part of the law even in s 15AA’s absence – namely,
that a careful consideration of the statutory purpose provides a reliable guide
to the linguistic
content of the provision being interpreted. If so, s 15AA does
not change the legal effect of the provisions to which it applies, including
provisions that pre-date it, and so cannot result
in the legal effect of those
provisions diverging from their linguistic
content.[66]
However, the
meaning thesis is meant to apply, not only to the provisions that are subject to
s 15AA, but also to s 15AA itself. Section 15AA is, after all, a statutory
provision that – according to the meaning thesis – has a legal
effect that is equivalent to
its linguistic content. However, on the
interpretation suggested in the previous paragraph, Thiess attributes to
s 15AA a legal effect that departs from its linguistic content. On that view, s
15AA does not change the law; rather, it reflects a general (pre-existing)
principle that a careful consideration of statutory purpose
provides a reliable
guide to identifying a provision’s linguistic content. Yet, at first
glance, this is not what s 15AA says. Rather, it says that we must
interpret statutes in the way that would best achieve their purpose. Moreover,
given what we know about
the motivation behind its introduction, we cannot
reasonably ascribe to Parliament an intention to communicate that s 15AA does
not change the way in which statutes are to be interpreted, but simply reminds
us of the usefulness of considering purpose when
ascertaining the meaning of
statutory provisions. Thus, the reading down of s 15AA in Thiess results
in that section being given a legal effect that departs from its linguistic
content.
In any case, the High Court’s interpretation of s 15AA in
Thiess is questionable. The Court claimed that s 15AA reflects a general
principle that would be part of the law even in s 15AA’s absence. However,
this overlooks the fact that there have been two versions of s 15AA. We saw in
Section 4 that the amended, 2011 version is broader than the original, 1981
version, and so they cannot both reflect the same principle –
namely, that
a careful consideration of purpose provides a reliable guide to identifying
linguistic content.
Indeed, while there was a common law principle that
existed before s 15AA and that permitted consideration of statutory purpose,
arguably that principle differed from either version of s 15AA. On one
view, the common law principle permitted a consideration of purpose only where
there was some ambiguity on the face of the
provision being interpreted, whereas
s 15AA permits consideration of purpose in deciding whether there is ambiguity
in the first place.[67] Even if one
allows that the position at common law was
uncertain,[68] it might still be
said that s 15AA eliminates that uncertainty. Either way, s 15AA changed the
legal effect of at least some pre-existing provisions – namely, those that
would have been interpreted differently,
or whose proper interpretation would
have been uncertain, under the common law principle.
However, the High
Court may ascribe a more complex role to s 15AA than a superficial reading of
the passage in Thiess suggests. On this alternative reading, we begin by
considering the text, context and (as reflected in s 15AA) the purpose of a
statutory provision. Sometimes, an examination of these factors – in
particular, purpose – reveals that
the provision’s linguistic
content is unambiguous. These are the cases that the Court had in mind in the
passage from Thiess quoted earlier. However, on other occasions, an
examination of these factors reveals that the provision’s linguistic
content
is ambiguous. In these cases, the amended version of s 15AA, with which
the High Court was concerned in Thiess, requires a court to adopt the
interpretation that best promotes the purpose of the provision being
interpreted. Here, s 15AA is more than just a guide to the linguistic content of
that provision; it results in the provision having a determinate legal effect,
despite the ambiguity in the provision’s linguistic content.
This
interpretation of s 15AA may reduce the gap between the section’s legal
effect and its linguistic content, but does not eliminate that gap. It ascribes
to s 15AA a dual role: sometimes, the section serves to remind us that a
consideration of purpose may reveal that an ambiguity is only apparent;
at other
times, it provides a way of resolving a genuine ambiguity. The latter role may
match s 15AA’s linguistic content, but – on this interpretation
– that is only part of s 15AA’s legal effect, and so it
cannot be said that s 15AA’s overall legal effect matches its linguistic
content. The wording of s 15AA does not distinguish between two types of case to
which the section applies. Nor does it refer to treating purpose as a reliable
guide to identifying linguistic content in cases where this reveals that any
ambiguity is only apparent. And we have been offered
no reason to think that
Parliament intended to convey that s 15AA would play this dual
role.
Moreover, this interpretation of s 15AA gives rise to a further
problem for the meaning thesis, because it entails that the legal effect of some
of the provisions that are
subject to s 15AA differs from their linguistic
content. Where there is genuine ambiguity in an earlier provision, s 15AA
changes that provision’s legal effect. Prior to the enactment of s 15AA,
the provision has an indeterminate legal effect, matching its ambiguous
linguistic content. (Or so the meaning thesis requires us
to assume. If a
provision’s linguistic content is ambiguous, the meaning thesis entails
that its legal effect must be similarly
indeterminate.) After the enactment of
(the amended version of) s 15AA, the provision has whatever legal effect best
promotes its purpose. However, s 15AA does not change the provision’s
linguistic content, which remains ambiguous. Thus, the operation of s 15AA
results in a divergence between the provision’s (ambiguous) linguistic
content and its (now determinate) legal effect, contrary
to the meaning
thesis.
The reading down strategy has also been applied to s 32(1) of
the Charter. Having considered the application of the strategy to s 15AA
of the Acts Interpretation Act in some detail, I shall confine myself to
a few brief remarks about its application to s 32(1), focusing particularly on
the High
Court’s treatment of that section in
Momcilovic.[69] The majority
judges sought to read down s 32(1), but disagreed about how to do so. Gummow J
treated it as another example of a canon
of construction that, in accordance
with Project Blue Sky, may warrant attributing to a provision a
linguistic content that differs from its literal or grammatical
meaning.[70] On this view, s 32(1)
contributes to the provision’s linguistic content, and so cannot produce a
divergence between the provision’s
legal effect and linguistic content.
However, Gummow J does not explain how s 32(1) could contribute to the
linguistic content of
a provision that was enacted before s 32(1) was. Nor is it
enough to say that the introduction of s 32(1) changed the context in
which the
earlier provision is to be interpreted. To save the meaning thesis, one needs to
explain how that change in context bears on the linguistic content of the
earlier provision, given that the change occurred after the provision
was
enacted.
French CJ, Crennan and Kiefel JJ read down s 32(1) in a
different way. While their Honours insisted that s 32(1) cannot require that
a
provision with determinate linguistic content be given a legal effect that
departs from that linguistic
content,[71] they also acknowledged
that not all statutory provisions have determinate linguistic content. Some are
ambiguous or vague. Section
32(1), they suggested, provides a reason to
interpret an ambiguous or vague provision as having a determinate legal effect,
one that
is compatible with the Charter
rights.[72]
This
interpretation of s 32(1) raises the same problems for the meaning thesis as the
more sophisticated understanding of the High
Court’s treatment of s 15AA
in Thiess. First, it entails that the legal effect of ambiguous,
pre-Charter provisions differs from their linguistic content. Section
32(1) results in such provisions having determinate (rights-compliant) legal
effect, even though their linguistic content remains
ambiguous.[73]
Second, to
hold that s 32(1) only alters the legal effect of ambiguous provisions is
to attribute to s 32(1) a legal effect that conflicts with its linguistic
content. Prima facie, the words used in s 32(1) express a requirement
that all Victorian provisions be given a rights-compliant interpretation.
By contrast, the reading down strategy endorsed by French CJ, Crennan
and Kiefel
JJ effectively treats s 32(1) as applying only to ambiguous
provisions.
Of course, the requirement in s 32(1) is qualified.
Statutory provisions must be given a rights-compliant interpretation so far
as it is possible to do so consistently with their purpose. However, it is
not obvious that this justifies interpreting s 32(1) as applying only to
ambiguous provisions. The majority in Momcilovic, in effect, takes
the qualifying clause in s 32(1) to mean ‘so far as it is possible to do
so consistently with orthodox principles
of statutory
interpretation’,[74] which
– as we have seen – are understood by the High Court to require that
provisions be given a legal effect that corresponds
to their linguistic content.
Perhaps this supports reading s 32(1) as applying only to ambiguous provisions.
However, the majority’s
interpretation is contrary to the linguistic
content of s 32(1), which refers to purpose, not to orthodox principles of
statutory
interpretation.[75] Recall
that, on the approach in Project Blue Sky, consideration of purpose is
only one factor that can cause a provision’s legal meaning to
depart from its literal or grammatical meaning. It follows that a reference
to
purpose cannot be taken to be a reference to orthodox principles of statutory
interpretation more generally.[76]
This suggests that the reading down strategy endorsed by French CJ, Crennan and
Kiefel JJ gives a legal effect to s 32(1) that conflicts
with its linguistic
content.
Finally, let us consider a variation on the reading down
strategy. I have suggested that there are problems with confining the
application
of s 32(1) to ambiguous provisions. However, one might object that,
if s 32(1) requires judges to give (some) determinate provisions
a legal effect
that does not match their linguistic content, then s 32(1) is unconstitutional,
because it requires judges to exercise
legislative
power.[77] Similar concerns might be
expressed about s 15AA of the Acts Interpretation Act. However, this
appears to presuppose, rather than support, the meaning thesis. Why would we
think that to require judges to give
certain provisions a legal effect that does
not match their linguistic content is to require judges to exercise legislative
power,
unless we already accept the meaning thesis? Conversely, are not the
reasons I have given for rejecting the meaning thesis also reasons
for rejecting
the claim that, when interpreting statutory provisions, judicial power is
limited to giving those provisions a legal
effect that corresponds to their
linguistic content?
These questions are all the more pressing because one
must pay a steep price to hold onto the dogma that the court’s role is
simply to ascertain the meaning of the words contained in the
statute.[78] On this view,
Parliament lacks the power to direct courts to interpret statutory provisions in
a way that conflicts with orthodox
principles of statutory interpretation
(principles that are largely judge-made). Arguably, if Parliament lacks control
over how the
statutes it enacts are to be interpreted, then this undermines the
point of conferring legislative power on Parliament in the first
place. At the
very least, it represents a significant limitation on Parliament’s
law-making power, and so sits uneasily with
one of the main attractions of the
meaning thesis – namely, that it purports to respect, not abridge,
Parliamentary supremacy.
B. The repeal and replacement
strategy
Rather than reading down s 15AA of the Acts
Interpretation Act in an attempt to show that it does not alter the legal
effect of the provisions to which it applies, one might look for another way
of
defending the meaning thesis. Consider the application of the original version
of s 15AA to a pre-1981 provision that had previously been given a construction
by a court that did not promote the statutory purpose. (For
the sake of the
example, assume that the court was right to do so, given the state of the law
before s 15AA was introduced.) One might argue that s 15AA implicitly repealed
the pre-1981 provision and replaced it with a new provision that does promote
the statutory purpose.[79] I shall
refer to this as the ‘repeal and replacement’
strategy.[80] Because the pre-1981
provision has been repealed, the meaning thesis does not apply to it. (The
meaning thesis provides an account
of the legal effect of valid statutory
provisions.) Thus, it does not matter that the provision’s linguistic
content fails to take account of the operation
of s 15AA. By contrast, the
linguistic content of the new provision (‘the replacement
provision’) can take account of s 15AA, because the replacement
provision was introduced into the law at the same time as s 15AA. Thus, the
linguistic content of the replacement provision may match its legal
effect.
Section 15AA does not state what the replacement provision is. It
states that statutory provisions must be given an interpretation that promotes
the statutory purpose, but does not specify what that interpretation is.
However, perhaps the replacement provision exists as an
implicature of s 15AA:
it is not part of what s 15AA says, but is implied by what that section
says.[81] The implicature arises,
one might argue, because s 15AA says that the pre-1981 provision must be read in
a way that promotes the statutory purpose, but does not say what that reading
is,
in circumstances where we expect the legislature to give detailed guidance.
We therefore take Parliament to have communicated the
content of the replacement
provision by implication.
However, what determines the linguistic
content (and hence, according to the meaning thesis, the legal effect) of the
replacement
provision? According to the objective communication theory,
implicatures – like what was said – are fixed by reference
to the
communicative intentions we can reasonably attribute to the speaker (though, in
the case of implicatures, the relevant intention
is to communicate something by
implication).[82] However, the
linguistic content of the replacement provision cannot be determined by
reference to the communicative intentions that
Parliament could reasonably be
regarded as having when it enacted the pre-1981 provision, since (we are
assuming) this provision
has been repealed. In any event, those intentions would
not take account of the subsequent introduction of s 15AA.
It is more
plausible to claim that the linguistic content of the replacement provision is
determined by reference to the communicative
intentions that Parliament could
reasonably be regarded as having when it enacted s 15AA. Parliament did not
state what the replacement provision is, but perhaps it intended to
communicate, by implication, the content of that provision. However,
this
suggestion, too, is problematic. Parliament could reasonably be taken to have
desired that an interpretation of the pre-1981
provision that promotes the
statutory purpose be found, but it is highly unlikely that it had communicative
intentions that specify
what that interpretation is. There is no evidence that
Parliament identified, in a systematic way, which of the vast number of pre-1981
provisions would have their legal effect altered by s 15AA, let alone that it
decided what interpretation each of those provisions should be given to promote
the relevant statutory purpose.
And recall that, on the objective communication
theory, we cannot reasonably attribute to Parliament intentions that it clearly
did
not have. Since Parliament clearly did not intend to convey what
interpretation each of these pre-1981 provisions should be given,
such an
intention cannot reasonably be attributed to Parliament.
One might think
that it is enough that, for each of these provisions (whatever they may be),
there is an interpretation that promotes
the relevant statutory purpose.
Parliament can, one might think, be taken to have intended to communicate that
this interpretation
(whatever it may be) should be
upheld.[83] However, even if we can
reasonably attribute that intention to Parliament, it will not suffice for
present purposes. On the view
under consideration, the content of the
replacement provision is specified by the communicative intentions that can
reasonably be
attributed to Parliament when enacting s 15AA. Yet those
intentions do not specify the content of the replacement provision if they
amount only to an intention that the interpretation
that promotes the relevant
statutory purpose – whatever that interpretation may be – should be
upheld. In such a case,
Parliament cannot be taken to have intended to
communicate what that interpretation is.
Moreover, we cannot infer from
the fact that Parliament intended that the interpretation (whatever it may be)
that promotes the relevant
statutory purpose be upheld that it intended that the
particular interpretation that promotes that purpose be upheld. It may
have been mistaken about which interpretation promotes that purpose or,
more
likely, may have failed to consider the matter at all.
The problems with
the repeal and replacement strategy arise, not because it claims that s 15AA
implicitly repealed certain pre-1981 provisions, but because it claims that
those provisions were replaced by new provisions which
take into account the
operation of s 15AA but which are not expressly stated. The crucial problem is
the lack of any plausible account of how the linguistic content of these
implicit replacement provisions is generated. Thus, a similar problem does not
arise in standard cases of implicit repeal (eg lex posteriori), where
either there is no replacement provision or the replacement provision is
expressly stated. (In the case of lex posteriori, it is stated in the
later, explicitly enacted, statute that prevails over the earlier, implicitly
repealed, statute.)
C. The concession and avoidance
strategy
Another strategy open to the High Court, in defending the
meaning thesis, is to concede that provisions such as s 15AA of the Acts
Interpretation Act produce a divergence between the legal effect and
linguistic content of certain statutory provisions, but to insist that this is
merely the exception that proves the rule. On this view, the claim that a
provision’s legal effect is equivalent to its linguistic
content was only
ever meant to be a generalisation. Of course, there are exceptions to that
claim, and the operation of s 15AA on certain pre-existing provisions represents
one such exception. I shall call this the ‘concession and avoidance’
strategy.
Certainly, the High Court recognises exceptions to the meaning
thesis. We have seen that some High Court judges concede that a
provision’s
legal effect may depart from its linguistic content if its
linguistic content is ambiguous. Further, in Momcilovic, Crennan and
Kiefel JJ allude to the possibility that, even if a provision’s linguistic
content is determinate, a court should
not uphold that linguistic content if
doing so would defeat the statutory
purpose.[84]
However, it is
not sufficient simply to assert that the operation of provisions like s 15AA
represents a further exception to the meaning thesis. We need a principled
explanation of why this exception should be recognised,
in order for this
strategy to amount to more than merely an ad hoc response to the
counter-examples presented in Section 4.
Perhaps the most promising way
of showing that the operation of provisions like s 15AA represents a principled
exception to the meaning thesis involves appeal to the doctrine of parliamentary
supremacy.[85] Recall that this
doctrine helps explain why the meaning thesis appears attractive. One might
argue that it also entails that, while
legislation generally has the legal
effect that Parliament intended to convey that it would have, Parliament has the
power subsequently
to modify that legal effect. Section 15AA of the Acts
Interpretation Act and s 32(1) of the Charter should be viewed as
exercises of that power by the legislature. Thus, they count as principled
exceptions to the meaning thesis,
because their role is explained by reference
to the same doctrine that supports that thesis.
This is an interesting
argument. However, it is less plausible when applied to the in pari
materia principle. Whereas, arguably, s 15AA and s 32(1) represent a
deliberate choice by Parliament to give certain pre-existing provisions a legal
effect that differs from
their linguistic content, the enactment of a later
statute in pari materia may alter the legal effect of an earlier statute
without Parliament being aware of this consequence.
Even if we focus on
s 15AA and s 32(1), I doubt that the appeal to parliamentary supremacy succeeds
in showing that these sections are exceptions, rather than
counter-examples, to
the meaning thesis. If Parliament has the power to give a legal effect to
statutory provisions that departs
from their linguistic content, then whether
the meaning thesis is true even as a generalisation depends on the extent to
which Parliament
has exercised that power. Section 15AA and s 32(1) provide
reason to think that at least some Australian legislatures have exercised that
power to such an extent that the
meaning thesis is not true even as a
generalisation. The scope of these sections is very broad. For example, s 32(1)
applies to all
Victorian provisions, and so changes the legal effect of every
pre-Charter provision that was not previously rights-compliant but which
can be given a rights-compliant interpretation consistently with its
purpose.
Similarly, s 15AA alters the legal effect of a broad range of Commonwealth
provisions enacted before 1981 or 2011 (depending on whether we focus on
the
original or amended version of s
15AA).[86]
Moreover, s 15AA
and s 32(1) are far from unique. Any law – whether contained in a statute
or not – that alters the contribution to the
law made by pre-existing
statutory provisions will produce a divergence between the legal effect of those
provisions and their linguistic
content, and hence represent a counter-example
to the meaning thesis. It seems likely that the number of such laws in force
today,
and the range of provisions they affect, is such that we cannot plausibly
regard them as exceptional.
In Section 4, I suggested that such laws
include, not only s 15AA and s 32(1), but also later statutes in pari
materia. I shall not seek to provide a longer list here, since each item on
the list would require separate explanation and defence. However,
I shall finish
by mentioning a particularly interesting candidate for inclusion on the list
– namely, the principle of legality.
Where the principle of legality
applies to provisions that were enacted after the principle became part
of Australian law, this raises the same sorts of issues as the mens rea example
discussed in Section 3.[87] However,
there may be some provisions, the proper interpretation of which is affected by
the principle of legality, but which were
enacted prior to the existence
of that principle. If so, the application of the principle of legality to those
provisions represents a counter-example
to the meaning thesis of the same sort
as the counter-examples discussed in Section 4.
Whether this is so is
complicated by the fact that there is room for disagreement about when the
principle of legality became part
of Australian law. Was this when it began to
be regularly invoked by the High Court in the late 1980s and early
1990s,[88] when it was first relied
on by the High Court in 1908,[89] or
earlier still?[90] On the first of
these three options, there may be a significant number of statutory provisions
whose legal effect has been altered
by the principle of legality in a way that
the meaning thesis cannot account for. Even on the second of these three
options, there
are statutes of contemporary importance that pre-date the
principle of legality.[91] By
contrast, on the third option, the principle of legality may not represent a
counter-example to the meaning thesis of the sort
discussed in Section
4.
6. Conclusion
I have argued that the High Court accepts the meaning thesis – that
is, the claim that the ultimate aim of statutory interpretation
is to ascertain
the meaning of the words contained in the provision being interpreted. I have
further argued that, given its scepticism
about legislative intent, the High
Court cannot account for relatively uncontroversial features of the practice of
statutory interpretation,
such as the presumption of mens rea, consistently with
the meaning thesis. However, even if the Court were to abandon its scepticism
about legislative intent, it would find it difficult to account for the
presumption of mens rea consistently with the meaning thesis,
and would be
unable to account for the operation of provisions like s 15AA of the Acts
Interpretation Act and s 32(1) of the Charter.
Nor are the
arguments in favour of the meaning thesis presented in Section 2B as strong as
they may first appear. One can recognise that the words contained in a provision
contribute to its legal effect without
regarding the two as equivalent.
Similarly, even if the enactment of a statute amounts to an act of communication
by the legislature,
it does not follow that the statute’s legal effect
depends only on what is communicated. We have seen that it may also depend
on
other features of the legal system that are not reflected in the statute’s
linguistic content.
Furthermore, attempts to explain away
counter-examples to the meaning thesis require compromising on other attractive
features of
that thesis. For example, the meaning thesis promises to place
principled restraints on judicial power. However, we have seen that
attempts to
save the meaning thesis from counter-examples involve qualifying the thesis in
various ways. (This is obviously true
of the concession and avoidance strategy,
but we have also seen that the reading down strategy renders the meaning thesis
inapplicable
to s 15AA and s 32(1) themselves.) Where the meaning thesis is
qualified, so is the restraint it places on judicial power. The need for these
qualifications also means that the meaning thesis does not provide the clear
demarcation between the judicial and legislative roles
that it may initially be
thought to provide. (Consider, for example, the difficulties involved in
specifying what exceptions there
are to the meaning thesis under the concession
and avoidance strategy.) Similarly, while the meaning thesis may appear to
derive
support from the doctrine of parliamentary supremacy, we have seen that
some strategies for saving that thesis require us to recognise
significant
limits on legislative power. (Consider the suggestion that s 15AA and s 32(1)
should be regarded as unconstitutional if this is necessary to save the meaning
thesis.)
This is not to deny that a provision’s linguistic content
plays an important role in its interpretation. What words are used
in the
provision obviously matters. Nor do I deny that there are some provisions whose
legal effect is equivalent to their linguistic
content. Principles of statutory
interpretation, such as those contained in s 15AA and s 32(1), do not result in
every provision having a legal effect that differs from its linguistic
content. What I am denying is: 1) that a provision’s linguistic
content is the only factor that determines its legal effect, and 2) that
a provision’s legal effect is typically equivalent to its
linguistic content.
Admittedly, more could be said on behalf of the
meaning thesis. In Section 5, I considered only some of the ways in which one
might
try to account for the operation of provisions like s 15AA and s 32(1)
consistently with that thesis. However, enough has been said to suggest that
– rather than trying to find ever
more baroque strategies for saving the
meaning thesis – we would be well-advised to consider other ways of
thinking about statutory
interpretation.
What might an alternative to the
meaning thesis look like? One possibility is that a provision’s legal
effect depends not only
on its linguistic content but also on moral
considerations. Embracing this possibility might lead us in the direction of
what legal
philosophers call ‘anti-positivism’ (roughly, the view
that the content of the law ultimately depends, in part, on moral
considerations), and leading anti-positivists such as Dworkin and Greenberg each
offer important versions of this view of statute
law.[92]
However, there are
other options. We might think that factors other than linguistic content
contribute to the legal effect of statutory
provisions, without regarding those
other factors as consisting of moral considerations. I shall finish by briefly
indicating how
we might begin to develop an account of this sort.
One
thing that all my examples have in common is that they involve interaction
between statutory provisions and other legal norms.
These other norms may be
found in other statutes (as is the case with s 15AA of the Acts
Interpretation Act and s 32(1) of the Charter), in the common law (as
is the case with the presumption of mens rea and the principle of legality) or
even in the Constitution. This should serve to remind us that statutory
provisions form part of a legal system. They often interact with other
laws, and the meaning thesis has only limited resources to explain that
interaction. Sometimes, the
interaction affects the linguistic content of the
provision being interpreted, in a way that is compatible with the meaning
thesis.
For example, sometimes Parliament’s communicative intentions
really are shaped by the realisation that the provision is enacted
against a
backdrop that includes certain other laws. However, as the examples in Section 4
illustrate, on other occasions the interaction alters a provision’s legal
effect without affecting its linguistic content.
That a provision’s
legal effect is not only a function of its linguistic content, but also of the
way in which it interacts
with other legal norms, is an important feature of
complex legal systems such as ours. It is also one that the meaning thesis tends
to obscure rather than illuminate, even if that thesis is treated only as a
generalisation.
This suggests that, in looking for an alternative to the
meaning thesis, we should seek a better understanding of the systemic nature
of
statute law (and, perhaps, of law in general). There are various ways in which
we might do so. One option is to treat the correct
interpretation of a provision
as determined, at least in part, by how well the competing interpretations
cohere with other relevant
legal norms. Such a proposal appears particularly
well-suited to taking seriously the interaction between a statutory provision
and
other legal norms. Of course, the relevant notion of coherence, and the
precise role it plays in statutory interpretation, would
need to be elaborated.
There are also well-known objections to coherence theories of law that would
need to be addressed.[93] But
whether we develop this proposal or pursue some other option, we need a better
understanding of the way in which statutory provisions
interact with other legal
norms than is offered by the meaning thesis.
[∗] Melbourne Law School,
University of Melbourne. I am grateful to participants at a seminar at Melbourne
Law School at which an earlier
version of this article was presented. I am also
grateful to Hrafn Asgeirsson, Patrick Emerton, Jeff Goldsworthy, Larry Solum and
David Tan for very helpful comments on an earlier draft, and to an anonymous
referee for their helpful suggestions. This research
was supported under the
Australian Research Council's Discovery Projects funding scheme (project
number DP140102670).
[1] Lacey v
Attorney-General (Qld) [2011] HCA 10; (2011) 242 CLR 573 (‘Lacey’), 592
(French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Some would deny that
the Court's scepticism about legislative intent
is all that recent, pointing
(for example) to the wording of the famous passage from Project Blue Sky:
'the duty of a court is to give the words of a statutory provision the meaning
that the legislature is taken to have intended them to have.' (Project
Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355
('Project Blue Sky'), 384 (McHugh, Gummow, Kirby and Hayne JJ) (emphasis
added).)
[2] See, eg, Richard Ekins
and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative
Intentions’ [2014] SydLawRw 2; (2014) 36 Sydney Law Review 39 (who are highly critical
of the High Court's scepticism) and Joseph Campbell and Richard Campbell,
‘Why Statutory Interpretation
is Done as it is Done’ (2014) 39
Australian Bar Review 1 (who are broadly sympathetic to the High Court's
position).
[3] I do not mean to
imply that someone who is not sceptical about legislative intent must
regard it as contributing to the meaning of the words in the statute. This is,
perhaps, the standard approach (see, eg, Ekins and
Goldsworthy, above n 2), but
one might believe that legislative intent is relevant independent of any
contribution it makes to the
meaning of the words in the
statute.
[4] I believe that many
academic commentators also accept the meaning thesis, though I shall not seek to
substantiate that claim in this
article. If I am right, the difficulties for the
meaning thesis that I identify pose problems, not only for the High Court, but
for
much academic writing about statutory interpretation as
well.
[5] HLA Hart, The Concept
of Law (Clarendon Press, 3rd ed, 2012)
141-6.
[6] Though, where the
mistake occurs in the course of interpreting a statute, it is open to Parliament
to amend the statute.
[7] Hart,
above n 5, 146-7.
[8] Project
Blue Sky [1998] HCA 35; (1998) 194 CLR 355, 384 (footnote
omitted).
[9] This example comes
from Scott Soames, ‘Interpreting Legal Texts: What Is, and What Is Not,
Special about the Law' in Philosophical Essays, Volume 1: Natural Language -
What It Means and How We Use It (Princeton University Press, 2010) 410. It
is a variation on an example offered by Kent Bach: Kent Bach,
‘Conversational Impliciture’
(1994) 9 Mind and Language 124,
134.
[10] Kepa Korta and John
Perry, ‘Pragmatics’ in Edward N Zalta (ed), The Stanford
Encyclopedia of Philosophy (Winter 2012 Edition)
<http://plato.stanford.edu/archives/win2012/entries/pragmatics/>
. This way
of distinguishing between semantics and pragmatics is controversial, but we need
not be too concerned with this controversy.
Whatever the precise nature of the
distinction, it appears closely related to the distinction that the High Court
draws between legal
meaning and literal or grammatical
meaning.
[11] The joint judgment
in Project Blue Sky explicitly referred to context as one factor that may
cause legal meaning to diverge from literal or grammatical meaning, and the
High
Court has recently reiterated that context is relevant only in so far as it
helps identify the meaning of the text (Federal Commissioner of Taxation v
Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, 519
(‘Consolidated Media’)). Other factors mentioned in
Project Blue Sky, such as purpose, can plausibly be regarded as part of
the context: see, eg, Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664,
672 (‘Thiess’) (treating the identification of statutory
purpose as part of ‘contextual
construction’).
[12] I
point out below that standard accounts of pragmatics point to the
speaker’s intentions to explain how pragmatic content is
generated. Since
the High Court is sceptical about legislative intent (in any sense that could
generate pragmatic content), it might
seem mistaken to ascribe to the Court the
view that we must take into account pragmatic considerations when ascertaining
the legal
meaning of a statute. However, it is not clear how else we are to
understand the Court’s distinction between legal meaning
and literal or
grammatical meaning. In what other way could legal meaning extend beyond literal
or grammatical meaning, consistent
with the Court’s clear indication that
legal meaning is concerned with the meaning of the words in the
statute?
[13] I use the phrase
‘linguistic content’, rather than the word ‘meaning’,
because – as we shall see –
the latter is
ambiguous.
[14] Thiess
[2014] HCA 12; (2014) 250 CLR 664, 671. I take it that the Court uses the terms
‘construction’ and ‘interpretation’ interchangeably, and
I
shall follow it in this regard. Cf Lawrence B Solum, ‘The
Interpretation-Construction Distinction’ (2010) 27 Constitutional
Commentary 95.
[15] Mark
Greenberg, ‘The Standard Picture and Its Discontents’ in Leslie
Green and Brian Leiter (eds), Oxford Studies in Philosophy of Law: Vol. 1
(Oxford University Press, 2011)
48.
[16] Thiess [2014] HCA 12; (2014) 250
CLR 664, 671 (quoting from Consolidated Media [2012] HCA 55; (2012) 250 CLR 503,
519).
[17] We have also seen that
the joint judgment in Project Blue Sky stated that a provision’s
legal meaning often corresponds to its literal or grammatical meaning. This is
plausible if ‘legal
meaning’ refers to linguistic content,
but it is far more contentious to suggest that the significance of a
statutory provision often corresponds to its literal or grammatical
meaning.
[18] Greenberg claims
that we should understand this contribution in terms of the relevant difference
that the provision makes to people’s
legal rights, obligations, powers,
etc: Mark Greenberg, ‘Legislation as Communication? Legal Interpretation
and the Study of
Linguistic Communication’ in Andrei Marmor and Scott
Soames (eds), Philosophical Foundations of Language in the Law (Oxford
University Press, 2011) 222.
[19]
This is a thesis about the legal effect of valid provisions, and so it is
no objection to the thesis that the legal effect of a repealed or
constitutionally invalid provision departs
from its linguistic content (because
the provision has no legal effect, despite having linguistic
content).
[20] Indeed, the Court
may believe that the correspondence between legal effect and linguistic content
is constitutionally mandated: see
below n
71.
[21] The same is true of many
academic commentators. Notable exceptions include Greenberg, above n 15, 47-9;
Lawrence B Solum, ‘Communicative
Content and Legal Content’ (2013)
89 Notre Dame Law Review 479,
479.
[22] I am grateful to Jeff
Goldsworthy for drawing my attention to this
objection.
[23] See, eg, the text
for above nn 8 and 14.
[24] Jeff
Goldsworthy makes a similar point in critiquing what he calls extreme
‘realist’ theories of legal interpretation:
Jeffrey Goldsworthy,
Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press,
2010) 230. Indeed, he suggests that, if such a theory were correct, a statute
would not be law until its meaning was constructed by a
court.
[25] This is not to deny
that courts sometimes have to make new law to fill gaps in a statute (see
Section 2B), but it is to ascribe to
the High Court the view that such cases are
the exception, not the rule.
[26]
Especially as not every remark by a High Court judge fits easily with the
meaning thesis: see below n
43.
[27] It is unclear whether
this line of thought has influenced the High Court, but it has clearly
influenced some academic commentators:
see, eg, Goldsworthy, above n 24,
263-4.
[28] The conjecture that
the High Court's approach to statutory interpretation is influenced by such
considerations finds support in the
Court's repeated references to the
constitutional dimension of statutory interpretation: see, eg, Zheng v Cai
[2009] HCA 52; (2009) 239 CLR 446, 455-6. (While there is not a strict separation of
judicial and legislative power at the State level, the Kable doctrine
requires that relatively discrete roles be assigned to the legislature and the
courts: Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR
51.)
[29] For discussion of how
judges should fill gaps in the law, see, eg, Hart, above n 5, 273; Peter Cane,
‘Taking Disagreement Seriously:
Courts, Legislatures and the Reform of
Tort Law’ (2005) 25 Oxford Journal of Legal Studies 393,
409-10.
[30] Greenberg, above n
15, 76. I have adapted this example to the Australian context. It should also be
noted that Greenberg’s
target is what he calls ‘the Standard
Picture’; he regards what I am calling the meaning thesis as a corollary
of the
Standard Picture (at
47-9).
[31] He Kaw Teh v R
[1985] HCA 43; (1985) 157 CLR 523.
[32]
Greenberg, above n 18, 231. A similar account is offered by philosophers of
language such as Scott Soames (Scott Soames, ‘What
Vagueness and
Inconsistency Tell Us about Interpretation’, in Marmor and Soames, above n
18) and legal philosophers such as
Andrei Marmor (Andrei Marmor, The Language
of Law (Oxford University Press, 2014)
19).
[33] Ekins and Goldsworthy,
above n 2, 51.
[34] Though this
reason is defeasible (ie the presumption is rebuttable), depending on the
wording of the provision, the utility of imposing
strict liability, etc: He
Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523, 529-30 (Gibbs
CJ).
[35] This is, very roughly,
how Ekins and Goldsworthy seek to account for the presumption of mens rea. They
suggest that a mens rea requirement
is presupposed by Parliament when it
enacts criminal statutes, in a way that contributes to the linguistic content of
those statutes, and they seek
to account for presuppositions of this sort in
terms of the speaker’s (in this case, Parliament’s) intentions:
Ekins
and Goldsworthy, above n 2,
56-7.
[36] [2011] HCA 10; (2011) 242 CLR
573.
[37] Ekins and Goldsworthy
make a similar point: Ekins and Goldsworthy, above n 2, 56-57. They also point
out that – while they
are concerned with the intentions that we have
reasonable grounds for attributing to Parliament, which may differ from the
intentions
Parliament actually had – the exercise of attributing
intentions to Parliament presupposes that Parliament is capable of having
intentions (at 48).
[38] For a
very different account of linguistic content that nevertheless ascribes a
crucial role to the speaker’s (publicly accessible)
intentions, see
Patrick Emerton, ‘Political Freedoms and Entitlements in the Australian
Constitution – An Example of Referential Intentions Yielding
Unintended Legal Consequences’ (2010) 38 Federal Law Review 169,
especially 176-7.
[39] See
Campbell and Campbell, above n 2, for an attempt to show that the meaning of
statutory provisions can be identified without appeal
to legislative intent (and
hence to show that the High Court’s scepticism about legislative intent is
tenable). However, Campbell
and Campbell do not seek to show that the meaning
thesis can account for the presumption of mens rea, and it is far from clear
that
they would be able to do so. While they list several factors that they
regard as relevant to identifying a statute’s linguistic
content, they
provide little indication of how those factors are relevant or of how to
balance those factors when they
conflict.
[40] For example,
common knowledge is important for Paul Grice, because he regards the relevant
intention of the speaker as being (roughly)
to convey certain information to the
audience via the audience’s recognition of that intention: Paul
Grice, Studies in the Way of Words (Harvard University Press, 1989) 92.
See also Jeffrey Goldsworthy, ‘Implications in Language, Law and the
Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian
Constitutional Law: Essays in Honour of Professor Leslie Zines (Federation
Press, 1994) 150, 160-1 regarding the connection between speakers’
intentions and background
assumptions.
[41] Lacey
[2011] HCA 10; (2011) 242 CLR 573, 592 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell
JJ).
[42] See, eg, Mills v
Meeking [1990] HCA 6; (1990) 169 CLR 214, 234 (Dawson J); Wik Peoples v Queensland
(1996) 187 CLR 1, 168–9 (Gummow
J).
[43] There are further
reasons to investigate whether the mens rea example poses problems for the
meaning thesis independent of scepticism
about legislative intent. At least one
of the newer members of the High Court appears uncomfortable with the view
expressed in Lacey: Stephen Gageler, ‘Legislative Intention’
[2015] MonashULawRw 1; (2015) 41 Monash University Law Review 1, 12-3. Nevertheless, for most of
this article, Gageler J appears to presuppose the meaning thesis (though there
are some remarks
towards the end (at 16) that are not easily reconcilable with
that thesis). Moreover, I suggested (above n 4) that many academic
commentators
also accept the meaning thesis. Some of those commentators reject scepticism
about legislative intent, and so are not
vulnerable to the objections presented
so far. They are, however, vulnerable to the objections that follow, which raise
problems
for the meaning thesis that are independent of scepticism about
legislative intent.
[44]
Greenberg, above n 15, 78.
[45]
In fact, Ekins and Goldsworthy focus on the intentions that can reasonably be
attributed to Parliament as a whole. I discuss the
significance of this
below.
[46] Greenberg also
objects to views like the meaning thesis by appealing to general scepticism
about legislative intent (Greenberg, above
n 15, 78), but that objection is
distinct from the one considered in the
text.
[47] Ekins and Goldsworthy,
above n 2, 54.
[48] See, eg,
Richard Ekins, The Nature of Legislative Intent (Oxford University Press,
2012). Ekins claims that all legislators must share a ‘standing’
intention to enact legislation
in accordance with accepted procedures. However,
he claims that the ‘particular’ intentions that Parliament has with
regard to a specific statute need not be shared by all (or, perhaps, any)
individual legislators.
[49] For
a critique of Ekins' theory, see Jeffrey Goldsworthy, ‘Legislative
Intention Vindicated?’ (2013) 33 Oxford Journal of Legal Studies
821, 826-31. Goldsworthy suggests a way of overcoming what he sees as the
central problem with Ekins’ theory – namely, the
absence of a
tenable account of how the content of the particular legislative intentions is
constituted. Goldsworthy’s suggested
solution focuses on the intentions of
the sub-set of legislators who sponsor the bill, contribute to debate on the
bill, etc (at
831-5). However, this would appear to turn Ekins’
purportedly non-aggregative theory into an aggregative one. More importantly
for
our purposes, at this point Greenberg’s concerns re-emerge. It is doubtful
whether the relevant legislators will always
be aware of the presumption of mens
rea. Even if the bill’s sponsor is, the same may not be true of other
legislators who debate
the bill, propose amendments,
etc.
[50] On the former, see
above (and, more generally, Ekins and Goldsworthy, above n 2); on the latter,
see, eg, Ronald Dworkin, A Matter of Principle (Harvard University Press,
1985) 38-50.
[51] That it is
harder for orthodox approaches to account for the application of principles of
statutory interpretation to provisions
that pre-date those principles has not, I
think, been widely noted. One exception is Aileen Kavanagh, in her discussion of
s 3(1)
of the UK Human Rights Act: Aileen Kavanagh, Constitutional
Review under the UK Human Rights Act (Cambridge University Press, 2009)
99-100.
[52] Equivalent
provisions now exist in each State and Territory: Legislation Act 2001
(ACT) s 139; Interpretation Act 1987 (NSW) s 33; Interpretation Act
1987 (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts
Interpretation Act 1915 (SA) s 22; Acts Interpretation Act 1931 (Tas)
s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a);
Interpretation Act 1984 (WA) s
18.
[53] See DC Pearce and RS
Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths,
8th ed, 2014) 41.
[54]
See the discussion of the Victorian equivalent of s 15AA in Chugg v Pacific
Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 262 (Dawson, Toohey and Gaudron
JJ).
[55] GTK Trading Pty Ltd
v Export Development Grants Board [1981] FCA 226; (1981) 56 FLR
292.
[56] I am concerned in the
text with the effect of s 15AA on pre-existing provisions. The meaning
thesis may (perhaps) be able to account for the effect of s 15AA on provisions
enacted after the introduction of s 15AA, in the same the way that it may
(perhaps) be able to account for the mens rea
example.
[57] Perhaps Parliament
intended that the earlier provision be read in light of any future changes to
the law. (I am grateful to Jeremy
Gans for suggesting this possibility.) Let us
leave to one side the question of whether Parliament had any such intention, and
communicated
it in the way necessary for it to form part of the linguistic
content of the earlier provision. The fundamental problem with this
suggestion
is that such an intention is too general to generate the necessary linguistic
content. For the effect of s 15AA on the
earlier provision to be reflected in
that provision’s linguistic content, Parliament must (at the time of
enacting the earlier
provision) have had communicative intentions about
how future changes to the law would affect the provision. If Parliament
did not anticipate the particular changes that occurred, and
simply intended
that the earlier provision be read in light of future changes to the law,
whatever they may be, then this condition
is not
met.
[58] Similar provisions
exist in other jurisdictions, both in Australia (Human Rights Act 2004
(ACT) s 30) and overseas (eg Human Rights Act 1998 (UK) s 3; New
Zealand Bill of Rights Act 1990 s 6). How similar these provisions
are to s 32(1) of the Charter is the subject of debate, which I will not
enter into here.
[59] X7 v
Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92, 153 (Kiefel J). There are
other ways of understanding the principle of legality which may reduce the
overlap with s 32(1).
[60]
Momcilovic (2011) 245 CLR 1, 50 (French CJ), 203 (Crennan and Kiefel JJ).
That s 32(1) goes further than the principle of legality is also central to
Heydon
J’s dissent in Momcilovic (see, especially, at 181-2), and
is supported by the Explanatory Memorandum (Explanatory Memorandum, Charter of
Human Rights and Responsibilities Bill 2006 (Vic), 23) and the Second Reading
Speech (Victoria, Parliamentary Debates, Legislative Assembly, 4
May 2006, 1290 (Rob Hulls)).
[61]
See Pearce and Geddes, above n 53, 128-9 for a discussion of this
practice.
[62] Cf Antonin Scalia
and Bryan A Garner, Reading Law: The Interpretation of Legal Texts
(Thomson/West, 2012) 252, who argue that the in pari materia principle
cannot reflect legislative intent, irrespective of whether the statute in
pari materia was enacted before or after the primary statute. This is, they
claim, because it is implausible to say that the legislature knew
of all the
related legislation that existed when it enacted the primary statute, and
because it is impossible to say that it knew
of related legislation that is only
subsequently enacted.
[63] It is
hard to see how the reading down strategy could apply to the third example
presented in Section 4 – namely, the in pari materia principle. I
shall not pursue this concern here,
however.
[64] One possibility is
that s 15AA does not itself alter the legal effect of pre-existing provisions,
but rather directs the court to
make new law by adopting whichever
interpretation would best promote the statutory purpose. I discuss whether the
meaning thesis
can be saved by interpreting provisions like s 15AA in this way
in Dale Smith, ‘The Meaning of a Statute and the Content of
the Law’
(unpublished manuscript). Here, it is enough to note that many of the
considerations that make the meaning thesis
seem appealing in the first place
(see Section 2B) militate against interpreting s 15AA as conferring on courts a
broad power to
make new law to promote the purpose of the provisions they
interpret.
[65] [2014] HCA 12; (2014) 250 CLR
664, 672 (quoting from Cabell v Markham (1945) 148 F 2d 737,
739).
[66] This interpretation of
s 15AA bears obvious similarities to the one rejected in Section 4, and I
suggest below that it is vulnerable
to a similar
objection.
[67] This was the view
of Dawson J in Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235, with regard to
the Victorian equivalent of s
15AA.
[68] See Pearce and Geddes,
above n 53, 43-5.
[69] It is
worth noting, though, that English courts have largely eschewed the reading down
strategy with regard to the UK equivalent
of s 32(1): see, especially,
Ghaidan v Godin-Mendoza [2004] UKHL
30.
[70] Momcilovic (2011)
245 CLR 1, 92. Hayne J expressed agreement with Gummow J on this point (at
123).
[71] Indeed, it was common
ground among the judges in Momcilovic that, if s 32(1) required a court
to depart from the determinate linguistic content of the provision it was
interpreting, in order
to give that provision a rights-compliant interpretation,
then s 32(1) would be unconstitutional (since it would require judges to
exercise legislative power). Heydon J, in dissent, was particularly clear on
this point (Momcilovic (2011) 245 CLR 1, 158, 181-4), but see also at 92
(Gummow J, with Hayne J concurring on this point), 208, 211, 221 (Crennan and
Kiefel JJ).
[72]
Momcilovic (2011) 245 CLR 1, 50 (French CJ), 221 (Crennan and Kiefel JJ).
Bell J is less clear on this point, but I think that her Honour also holds this
view
(at 250).
[73] One might
seek to avoid this conclusion by denying that s 32(1) changes the legal effect
of ambiguous pre-Charter provisions, instead interpreting it as a
direction to the court to make new law to resolve the ambiguity in a way that is
right-compliant.
See above n 64 regarding the problems with that
suggestion.
[74]
Momcilovic (2011) 245 CLR 1, 50 (French CJ), 92 (Gummow J), 123 (Hayne
J), 210 (Crennan and Kiefel JJ), 250 (Bell J). Crennan and Kiefel JJ base their
interpretation
of s 32(1), not only on the qualifying clause, but also on the
fact that s 32(1) is expressed as a directive as to how statutory
provisions are
to be ‘interpreted’, which they take to be a reference to the
ordinary process of statutory interpretation
(at 210). However, it is unclear
what role the qualifying clause is meant to play if one takes the reference to
‘interpretation’
in s 32(1) as bringing into play all the factors
mentioned in Project Blue
Sky.
[75] Heydon J makes a
similar point in dissent: Momcilovic (2011) 245 CLR 1, 178-9,
181.
[76] It might be argued that
the word 'purpose' is used differently in s 32(1) than in Project Blue
Sky. However, there is evidence that Parliament intended that s 32(1) would
change how statutory provisions are interpreted (see the
references to the
Explanatory Memorandum and Second Reading Speech in above n 60). Reading the
qualifying clause in s 32(1) as requiring
conformity to orthodox principles of
statutory interpretation flies in the face of that
intention.
[77] This was Heydon
J’s view in Momcilovic. The majority judges might also be tempted
by this objection: see above n
71.
[78] Especially since this
dogma needs to be qualified anyway. A statute’s linguistic content will
not supply an answer to every
legal question pertaining to that statute, and so
judges sometimes need to make new law to fill a gap in the
statute.
[79] One cannot claim,
consistently with the meaning thesis, that s 15AA amended the pre-1981
provision, unless one can show that it altered the provision’s linguistic
content. For the reasons already given,
this is
unlikely.
[80] I am grateful to
Farrah Ahmed, Patrick Emerton and Jeremy Gans for pressing me to address this
strategy.
[81] Concerning
implicatures and how they differ from what was said, see Grice, above n 40, ch
2; Goldsworthy, above n 40,
152-61.
[82] Ekins and
Goldsworthy, above n 2, 56.
[83]
Alternatively, one might claim that s 15AA directs the court to supply
the replacement provision. However, this reading of s 15AA is problematic for
the reasons given at above n 64. In addition,
it would mean that, until the
court makes its decision, there is no relevant law, because (according to
the repeal and replacement strategy) the pre-1981 provision was repealed by s
15AA.
[84] Momcilovic
(2011) 245 CLR 1, 221.
[85] This
line of thought was suggested in conversation by Jeff
Goldsworthy.
[86] As we have
seen, the introduction of s 15AA in 1981 altered the legal effect of all those
provisions that had previously been given
a literal construction that did not
promote the statutory purpose, where there was another available interpretation
that did promote that purpose. Arguably, this included a broad range of
taxation (and other) provisions. The 2011 amendment altered the legal
effect of
a further set of provisions – namely, those for which there were multiple
open interpretations, each of which would,
to varying degrees, promote the
statutory purpose.
[87] Though
note that the modern trend may be towards viewing the principle of legality, not
as shedding light on Parliament’s intentions,
but rather as justified on
normative grounds (to ensure that Parliament considers the impact of legislation
on certain rights and
freedoms): Brendan Lim, ‘The Normativity of the
Principle of Legality’ [2013] MelbULawRw 17; (2013) 37 Melbourne University Law Review
372. This makes it hard to view the principle of legality as contributing to the
linguistic content of statutory provisions. One possibility
is that the
application of the principle to any statute should be regarded as an
exception to the meaning thesis, but this would only reinforce the point in the
text that the exceptions
to that thesis appear to be multiplying
rapidly.
[88] See, eg, Re
Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514; Bropho v Western Australia
[1990] HCA 24; (1990) 171 CLR 1; Coco v R (1994) 179 CLR
427.
[89] Potter v Minahan
[1908] HCA 63; (1908) 7 CLR 277.
[90] See
Dan Meagher's suggestion that the origins of the principle may be traceable back
to Somerset v Stewart [1772] EngR 57; (1772) 98 ER 499: Dan Meagher, ‘The Common
Law Principle of Legality in the Age of Rights’ [2011] MelbULawRw 16; (2011) 35 Melbourne
University Law Review 449,
452-3.
[91] See, eg, the
unamended provisions in the Customs Act 1901 (Cth) and the Defence Act
1903 (Cth).
[92] Ronald
Dworkin, Law's Empire (1986) ch 9; Mark Greenberg, ‘The Moral
Impact Theory of Law’ (2014) 123 Yale Law Journal
1288.
[93] See, eg, Joseph
Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics
(Clarendon Press, revised edition, 1994) ch 13. For a recent attempt to
develop a coherence theory that overcomes these objections,
see Amalia Amaya,
The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in
Legal Argument (Hart Publishing, 2015).
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