Outside the Text: Inside the use of Extrinsic Materials in Statutory Interpretation

Date01 June 2014
Published date01 June 2014
DOI10.22145/flr.42.2.5
OUTSIDE THE TEXT: INSIDE THE USE OF EXTRINSIC
MATERIALS IN STATUTORY INTERPRETATION
Jacinta Dharmananda*
ABSTRACT
When s 15AB of the Acts Interpretation Act 1901 (Cth) was enacted over 30 years ago, its
purpose was to establish clear and particular rules about when extrinsic materials
could be used in the interpretation of Commonwea lth legislation. Accordingly, s 15AB
stipulates three threshold tests, at least one of which must be satisfied before extrinsic
materials can be considered as an aid to interpretation. However, developments in the
common law since that enactment have largely overtaken the utility and effect of s
15AB (and its State equivalents). In particular, the development of the ‘contextual’
approach to statutory inte rpretation has meant that the common law now permits
recourse to extrinsic materials, including parliamentary ones, without the need to pass
any gateway test. Consequently, the importa nt emerging issue is, not when such
materials can be considered, but how they may be used. This article, using recent High
Court cases, examines some of the key threads that have emerged about the
‘appropriate use’ of parliamentary materials, particularly with respect to identifying
the purpose of the statute and as against the weight of the statut ory text.
I INTRODUCTION
It was submitted on behalf of the res pondents that ... it was permissible ... to look at ... the
report of the debates in both chambers ... when the Bill was being debated. It is
established by many decis ions of the highest authority that material of that kind may not
be used as an aid to the construction of a statute. This rule is neither irrational nor
outmoded. It is based upon sound practical reasons ... The debates in Parliament would
often introduce a new source of argument and confusion, rather than provide a guide to
the construction of a statute. 1
There is nostalgic knowi ng humour in reflecting upon the state of affairs over 30
years ago, when the use of extr insic materials, especially parliamenta ry materials, was
largely regarded with caution and distrus t. In present times, the use of extrinsic
materials as a tool in statutory construction is readily accepted. Extrinsic materials are
nowroutinely examined’ 2 in an attempt to attribute meaning in accorda nce with
* Assistant Professor, Faculty of Law, University of Western Australia. Thank you to the
anonymous referees for their valuable comments.
1 Commissioner for Prices & Consumer Affairs (SA) v Charles Moore (1977) 139 CLR 449, 461
(Gibbs J). Barwick CJ and Stephen J agreed on this point.
2 Byrnes v Kendle (2011) 243 CLR 253, 284 [97] (Heydon and Crennan JJ).
334 Federal Law Review Volume 42
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legislative objective. A quick search 3 of High Court cases in 2012 and 2013 reveals that,
in each year, approximately a third referred at one point to parliamentary materials.4
The ability to use parliamentary materials began to receive more attention in the
1980s. In 1981 and then again in 1983, the Commonwealth Attorney-Ge neral’s
Department, with bi-partisan support, arranged a gathering of distinguished members
of the legal profession 5 in Canberra to discuss statutory interpretative approaches,
including the use of parliamentary materials. There were two important consequences
of these symposiums. The first was the enactment of s 15AA of the Acts Interpretation
Act 1901 (Cth) (‘Acts Interpretation Act), which manda ted a purposive approach to
interpretation.6 The second was the a mendment of the Acts Interpretation Act in 1984 to
include s 15AB,7 the first statutory pr ovision in Australia to provide auth ority for the
use of extrinsic materials in the interpre tation of statutory provisions. All States, except
South Australia, soon fol lowed by enacting a provision allowing access to extrinsic
materials, in many cases in substantially ide ntical terms to s 15AB.8
Section 15AB, however, did not contemplate an open door for recourse to extrinsic
materials. While it was generally accepted that the type of materials that could be
considered should not be limited, the symposiums and the subsequent parliamentary
debates focussed much dis cussion on when resort should be permitted.9 Concern over
maintaining the importance of the text, a s well as issues such as accessibility and the
increased wor kload that would result from allowing such consideration10 ultimately
3 The search used the key words of parliamentary debates, second reading speeches and
explanatory memorandum. The search engine used was
http://www.austlii.edu.au/databases.html>.
4 In 2012, of 61 High Court decisions, 24 referred to at least one of these materials. In 2013, of
60 decisions, 19 referred to at least one of these materials.
5 Attendees included the High Court Chief Justice and Justices, other judiciary members
(including from the UK), members of Parliament, senior counsel, parliamentary drafts
people and academic scholars.
6 A direct consequence of the first symposium Attorney-General’s Department, Another
Look at Statutory Interpretation, Canberra, 1981 (Australian Government Publishing Service,
1982). Note that s 15AA was amended by the Acts Interpretation Amendment Act 2011 (Cth)
but still refers to a purposive approach.
7 It was the second of the two symposiums that concentrated on the use of extrinsic
materials. See Attorney-General’s Department, Symposium on Statutory Interpretation,
Canberra, 5 February 1983 (Australian Government Publishing Service). The first
symposium focussed on the purposive approach but also provided some commentary on
the use of extrinsic materials.
8 States with legislation substantially similar to s 15AB are Interpretation Act 1987 (NSW) s 34;
Interpretation Act 1987 (NT) s 62B; Acts Interpretation Act 1 954 (Qld) s 14B; Acts Interpretation
Act 1931 (Tas) s 8B and Interpretation Act 1984 (WA) s 19. Section 35 of the Interpretation of
Legislation Act 1984 (Vic) and s 141 of the Legislation Act 2001 (ACT) have broader wording
with no limitation on the circumstances in which material can be considered. South
Australia has no equivalent provision and relies solely on the common law for recourse to
parliamentary materials.
9 See, eg, Symposium on Statutory Interpretation 1983, above n 7, 29, 778; Commonwealth,
Parliamentary Debates, Senate, 8 March 1984, 583 (Senator Gareth Evans) and
Commonwealth, Parliamentary Debates, Senate, 30 March 1984, 955 (Senator Peter Durack).
10 Symposium on Statutory Interpretation 1983, above n 7, 824.

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