From Foreign Circumstances to First Instance Considerations: Extrinsic Material and the Law of Statutory Interpretation

Date01 March 2006
DOI10.22145/FLR.34.1.4
Published date01 March 2006
subjectMatterArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION FROM FOREIGN CIRCUMSTANCES TO FIRST INSTANCE
CONSIDERATIONS: EXTRINSIC MATERIAL AND THE LAW
OF STATUTORY INTERPRETATION
Matthew T Stubbs
INTRODUCTION
[T]he sages of the law heretofore have construed statutes … upon the intent of the
Legislature, which they have collected sometimes by considering the cause and necessity
of making the Act, sometimes by comparing one part of the Act with another, and
sometimes by foreign circumstances.1
That conclusion was reached in the 1560 case of Stradling v Morgan,2 and may be
taken to correctly state the law at that time. In its context, it is clear that the phrase
'foreign circumstances' was intended to refer not to the state of international relations,
but rather to the use of extrinsic material in statutory interpretation.
Despite this early acceptance by the English courts of the use of extrinsic material in
statutory interpretation, strident restrictions on the use of extrinsic material were later
to be introduced into the common law.3 In discussing the principle that, 'Parliament
speaks only through an Act of Parliament,' Dicey stressed the point that, 'the English
Bench have always refused, in principle at least, to interpret an Act of Parliament
otherwise than by reference to the words of the enactment.'4
The classic expression of the English approach is that of Viscount Haldane, who
proclaimed that in the process of interpreting a statute, a court must, 'exclude
consideration of everything excepting the state of the law as it was when the statute
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∗ BFin, BEc, HonsLLB, GDLP, Barrister and Solicitor of the Supreme Court of South Australia
and High Court of Australia, Joyner Scholar and PhD Candidate, Law School, University of
Adelaide. The author wishes to thank Mark Jackson for his comments on a draft of this
article.
1
Stradling v Morgan (1560) 75 ER 305, 315.
2
Ibid.
3 The leading ancient authority is Millar v Taylor (1769) 98 ER 201; a modern reaffirmation
appears in Viscountess Rhondda's Claim [1922] 2 AC 339, 383 (Viscount Haldane). For a
discussion of this strict English position see, Justice Felix Frankfurter, 'Some Reflections on
the Reading of Statutes' (1947) 47 Columbia Law Review 527, 540–2. The position in England
has, however, changed in more recent times, as to which see, Pepper v Hart [1993] AC 593.
Cf Lord Steyn, 'Pepper v Hart: A Re-examination' (2001) 21 Oxford Journal of Legal Studies
59; Lord Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' (2003) 25
Sydney Law Review 5.
4
A V Dicey, Introduction to the Study of the Law of the Constitution (6th ed, 1902) 351.

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Federal Law Review Volume
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was passed, and the light to be got by reading it as a whole'.5 This expression was
quoted with approval by the High Court in Amalgamated Society of Engineers v Adelaide
Steamship Co Ltd.6
Today, the use of extrinsic material is once again an important aspect of statutory
interpretation under Australian law, following the introduction of statutory
permission to do so in 1984 when s 15AB was inserted into the Acts Interpretation Act
1901 (Cth).7 In the context of the restrictive common law approach prevailing at the
time, the introduction of s 15AB represented a substantial change to methods of
statutory interpretation, even arousing concerned opposition.8 It will be argued that
these concerns have not been realised. Instead, it is suggested that a modern species of
statutory interpretation has evolved which permits the use of a wide range of extrinsic
material while respecting the text of the relevant enactment as the fundamental basis of
statutory interpretation.
This article begins by considering the rationale in principle for allowing reference to
extrinsic material in statutory interpretation. The provisions of s 15AB are then
examined, first on the basis of the text of the enactment and then with reference to
relevant extrinsic material. The development of the relationship between s 15AB and
the common law of statutory interpretation is then considered. It is argued that while
the statutory provision played an important role in adjusting the judicial approach to
statutory interpretation, thereby spurring developments in the common law of
statutory interpretation, the reforming statute is now itself in need of reform in order
to remain relevant and to fully secure the objectives it was designed to secure.
In the process, the passage of the common law of statutory interpretation in
Australia from a strict conservative approach through to the evolution of the modern
common law of statutory interpretation is shown, a process through which extrinsic
materials have changed from foreign circumstances to first instance considerations.
THE RELEVANCE OF EXTRINSIC MATERIAL
In an address on a recent visit to Australia, Lord Steyn observed that '[i]t will be rare
for a statute to have one obvious meaning which can be determined without taking
into account the context of the legislation. … While the text of the statute is of pre-
eminent importance, it cannot be understood in a vacuum.'9
Indeed, it has long been accepted that the meaning of a statutory provision may not
be immediately obvious from words alone. In some instances, it may truly be observed
of a statutory provision that it, 'yields up its secret only to the patient inquirer; its truth
lies at the bottom of the well.'10 One reason for this difficulty is that the use of written
language does not permit absolute precision in every circumstance, so no written law
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5
Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, 113.
6
(1920) 28 CLR 129, 148–9 (Knox CJ, Isaacs, Rich and Starke JJ).
7
Acts Interpretation Amendment Act 1984 (Cth) s 7.
8 Patrick Brazil, 'Reform of Statutory Interpretation – the Australian Experience of the Use of
Extrinsic Materials' (1988) 62 Australian Law Journal 503, 512.
9
Steyn, 'The Intractable Problem of the Interpretation of Legal Texts' above n 3, 12.
10 Ellerman Lines Ltd v Murray [1931] AC 126, 144 (Lord Blanesburgh).

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can ever exclude the possibility of ambiguity.11 Recently, Kirby J has gone so far as to
suggest that, in the search for meaning, '[c]ontext is as important as text.'12
Another reason is that a written law is not an end in itself, but is a tool used by the
representatives chosen by the people to achieve the aspirations of the community.
Whatever the aspirations to which the law is designed to give effect, and irrespective
of the skill used by legislative drafters, no complex conception representing part of a
social blueprint or grand societal design can be reduced to mere words with absolute
precision: while a picture may paint a thousand words, a complex idea is not
necessarily capable of unambiguous replication no matter how many words are
allowed.13
Recognition of the inherent inability of statutory language to capture completely or
permanently the aspirations of the community that lie behind the words of a statute is
not a justification for abandoning the endeavour to interpret it, but rather provides the
key to resolving the difficulty and finding the correct interpretation. Justice Felix
Frankfurter observed that, 'laws are not abstract propositions. They are expressions of
policy arising out of specific situations and addressed to the attainment of particular
ends.'14
Acceptance of the proposition that a statute, 'has an aim,' that, 'it seeks to obviate
some mischief, to supply an inadequacy, to effect a change of policy, to formulate a
plan of government,'15 drives the purposive approach that lies at the heart of modern
statutory interpretation. The inevitably sparse and stark words of a statute can be
illuminated by consideration of the purpose that the statute was designed to fulfil in
order that the courts in interpreting statutes may genuinely contribute to the
attainment of the societal aspirations the statute is intended to achieve.16
The difficulty arises in determining that purpose, and it is here that extrinsic
materials become important. As McHugh J has observed:
in the case of legislative purpose … the tribunal of fact must attribute a purpose to an
artificial or notional mind that is deemed responsible for some act or omission … the
tribunal of fact deduces the purpose of the artificial or notional person from the
background of the act or omission including relevant statements and what was done or
not done.17
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11 On the difficulties inherent in interpreting written words, see: Frankfurter, above n 3, 528–
29.
12 Chief Executive Officer of Customs v El Hajje (2005) 218 ALR 457, 477.
13 In a recent case which turned on a question of statutory interpretation, Kirby J (in dissent)
specifically noted the, 'basic nature of television broadcasting in which minutes or seconds,
visually captured, especially with sound and images, may tell a thousand stories which the
print media or other forms of human...

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