Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law — Part One
| Author | Jeffrey W Barnes |
| DOI | 10.1177/0067205X9402200105 |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| Subject Matter | Article |
STATUTORY INTERPRETATION, LAW REFORM
AND
SAMPFORD'S THEORY OF THE DISORDER OF
LAW-
PART ONE
Jeffrey W Barnes•
[I]n
order
to begin to understand public law
we
must
first
try
to make
it
strange.1
INTRODUCI'ION
Main
themes
The
law
of
statutory interpretation is often wrongly thought
of
as a "quiet backwater".2
The
myth
that
it
is a dry, formal subject3 containing simple rules persists despite high-
level seminars devoted to it,4
law
reform reports,s sweeping statutory reforms,6
mammoth
texts,7 sophisticated judicial descriptions,8 and,
in
the last decade,
numerous
scholarly articles
and
works emanating particularly from
North
America.9
..
1
2
3
4
5
6
7
8
9
B Juris
LLB
(NSW) M Pub Law (ANU); Lecturer
in
Law
and
Legal Studies,
La
Trobe
University. I
am
very grateful to the following persons for their comments
and
suggestions
on
drafts
of
this paper: Francis Bennion, Enid Campbell, Bruce Dyer, Andrew Goldsmith,
Justice Michael Kirby
and
William Twining. I
would
also like to acknowledge
the
assistance of the Faculty of Law, Monash University,
in
the preparation of this paper.
M Loughlin,
Public
lAw
and
Political
Theory
(1992)
at
39.
Mr
Justice Bryson, "Statutory Interpretation"
(1992)
8 Aust
Bar
Rev 185.
D N MacCormick
and
R S Summers, "Interpretation
and
Justification"
in
D N MacCormick
and
R S Summers (eds},
Interpreting
Statutes:
A
Comparative
Study
(1991)
511
at 538.
Another
Look
at
Statutory
Interpretation
(1982).
An
edited record of the Symposium
on
Statutory Interpretation conducted
by
the Attorney-General's Department in Canberra
in
March 1981.
The Law Commission and the Scottish Law Commission,
The
Interpretation
of Statutes
(1969) (hereafter, Law Commissions); Northern Territory Law Reform Committee,
Report
on
Statutory
Interpretation
(1987);
Law Commission
(NZ},
A
New
Interpretation
Act
to
Avoid
"Prolixity
and
Tautology"
(1990).
Eg, ss 15AA
and
15AB
of the Acts Interpretation Act
1901
(Cth).
F A R Bennion, Statutory
Interpretation:
A
Code
(2nd
ed
1992), is almost a thousand pages.
Black-Clawson
International
Ltd
v
Papierwerke
Waldhof-Aschaffenburg
AG
[1975]
AC
591
at
629-630
per
Lord Wilberforce.
In
the
United States
of
America discussions have "erupted both
on
the bench
and
in
the
academy": F H Easterbrook, "What Does Legislative History Tell
Us?"
(1990)
66
Chi-Kent
L
Rev
441. See also
on
this point W D Popkin
(ed},
"Symposium
on
Statutory Interpretation"
(1990)
66(2}
Chi-Kent
L
Rev;
P P Frickey, "From the Big Sleep to the Big Heat: The Revival of
Theory
in
Statutory Interpretation"
(1992)
77 Minn L
Rev
241.
For
an
English perspective,
r
:~
1994 Statutory Interpretation, Law
Reform
and
Sampford's
Theory
117
This
two-part
article
focuses
on
the
sweeping
reform
found
in
s
15AA
of
the
Acts
Interpretation
Act
1901
(Cth)
and
in
other
State
and
Territory
legislation,
called
here
"the
purpose
rule".lO
This
rule
was
applied
to
Commonwealth
legislation
in
the
early
1980s
and
is
now
found
in
most
jurisdictions
in
Australia,
but
is
not
replicated
in
the
same
form
elsewhere.
The
Commonwealth
rule
is
as
follows:
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.
With
respect
to
the
purpose
rule
(as
with
statutory
interpretation
generally),
text
writers
have
understandably
looked
for
an
inherent
structure
or
system
in
the
principles
of
statutory
interpretation.
For
instance,
Bennion
begins
his
general
work
by
stating
that
"[t]he
search
is
for
order
...
It
is
the
self-imposed
task
of
the
commentator
to
reconcile
[the
principles].''
11
Moreover,
several
claim
to
have
found
a
form
of
order.
Bennion
presents
the
law
as
a
system
(a code).
Gifford's
overall
view
emphasises
the
way
lawyers
are
constrained
by
the
community
within
which
they
work:
10
11
[T]he existence of the basic rules of statutory interpretation allows
lawyers,
in
advising
their clients or in preparing arguments to
put
before a court, to firmly
ground
themselves
see J
Bell
and G Engle,
Cross
on
Statutory
Interpretation
(2nd
ed
1987) at 194-195;
and
J
Bell,
"Studying Statute Law"
(1993)
13
OJLS
130.
For
an
Australian perspective, see J Gava,
"Review: Statutory Interpretation in Australia"
(1993)
9 Aust J of L &
Soc
118.
A
comprehensive critical overview appears
in
W N Eskridge
and
P P Frickey, "Statutory
Interpretation as Practical Reasoning"
(1990)
42
Stan
L
Rev
321
at 324-345. Interdisciplinary
works include K S Abraham, "Statutory Interpretation
and
Literary Theory: Some
Concerns of an Unlikely Pair"
(1979)
32
Rutgers L
Rev
676;
P Goodrich,
Reading
the
Law:
A
Critical
Introduction
to
Legal
Method
and
Techniques
(1986);
R A Posner,
Law
and
Literature:
A
Misunderstood
Relation
(1988)
at
ch
5;
J Evans, Statutory
Interpretation:
Problems
of
Communication
(1988);
S Fish,
Doing
What
Comes
Naturally:
Change,
Rhetoric,
and
the
Practice
of
Theory
in
Literary
and
Legal
Studies
(1989);
G Airo-Farulla, "'Dirty Deeds Done Dirt
Cheap': Deconstruction, Derrida, Discrimination and Difference/ance in (the High) Court"
(1991)
9(2)
L
in
Con
102; A Glass, "Interpretive Practices in Law and Literary Criticism"
(1991)
7 Aust J of L &
Soc
16;
PC
Schanck, "Understanding Postmodem Thought and its
Implications for Statutory Interpretation"
(1992)
65
S CalL
Rev
2505;
J A Ferejohn and B R
Weingast,
"A
Positive Theory of Statutory Interpretation"
(1992)
12
International
Review
of
Law
and
Economics
263;
J P Stevens, "The Shakespeare Canon of Statutory Construction"
(1992)
140 U PaL
Rev
1373; and P Campos, "That Obscure Object of Desire: Hermeneutics
and
the Autonomous Legal Text"
(1993)
77
Minn L
Rev
1065.
See generally
DC
Pearce
and
R S Geddes, Statutory Interpretation
in
Australia (3rd
ed
1988)
at paras 2.22-2.25; G Morris
et
al,
Laying
Down
the
Law
(3rd
ed
1992) at 157-161; C Enright,
Legal
Research
and
Interpretation
(1988)
at
229-231;
C Corns, "Purposive Construction of
Legislation
and
Judicial Autonomy"
(1984)
58
LIJ
391;
I Cameron, "'Now Yoq See Me, Now
You-'
Section
SA
and
the Interpretation of the Legislation to which it Relates"
(1985)
3
C&SLJ
46;
R East, "The Lawmaking Role of the Appellate Judiciary: Some Lessons from
Australia"
(1990)
11
Stat
LR
48;
Mr Justice Bryson, above n
2;
D Gifford, Statutory
Interpretation
(1990)
at
ch
4.
FAR
Bennion, above n 7 at 1
and
2.
To
be fair, Bennion does qualify this statement
by
saying
that
criticism is also essential (at
3);
a fask he carries out at length.
118
Federal
Law
Review
Volume22
upon
shared
principle and a
common
heritage.
To
abandon these rules would be
to
replace
statutory interpretation
as
we know it with the arbitrary whim of individual judges.12
Writing extra-curially,
the
Chief Justice of
the
High
Court
of Australia
appears
to
assume
an
order
preserved
by
social consensus:
It
is
unrealistic
to
interpret any instrument, whether it be a constitution, a statute, or a
contract, by reference
to
words alone, without any regard
to
fundamental values.
By
values I mean those that are accepted by the community rather than those personal
to
the
judge.l3
The
various
studies
of
statutory
interpretation
have
been
undertaken
despite
obvious
and
acknowledged
difficulties. Bennion writes that, "[w]hen dealing
with
statutory
interpretation, the jurist of
today
writes
about
a vital subject
in
disarray."14
Cross
has
noted
the "paucity of rules
and
confusion of principles".
15
Many
commentators
writing
in
academic journals
have
been
even
less circumspect
in
their
criticism
of
statutory
interpretation.
Here
are three examples:
The result
is
chaos.
It
is
impossible
to
predict what approach any Court will make to any
case. The field of statutory interpretation has become a judicial jungle.l6
[It
is
a]
morass of contradictory rules, presumptions, and practices [and] the loss of faith
in our ability to ascertain the "true" meaning
of
statutory language
[is]
deep
...
17
The judicial interpretation of statutes has traditionally been characterised by a high
degree of tolerated indeterminacy
as
to what amounts
to
acceptable practice. IS
Rather
than
search for
order
in
the time-honoured way, the
aim
of this article is to
study
the
disarray
in
statutory
interpretation
caused
by
the
purpose
rule. The analytical
tool principally
em~loyed
is Charles Sampford's theory
of
the
disorder
of
law
(introduced below).1 Three aspects of the
disarray
caused
by
the
purpose
rule
need
to
be
studied: its origins,
nature,
and
effects. The
origins
lie
in
the disordering qualities
of
the
common
law
and
in
the process of
making
the
purpose
rule. The
nature
of
the
disarray
in
the
purpose
rule,
and
purposive
interpretation generally, is reflected
in
the
large
number
of
additional
interpretive issues
and
problems
which the
rule
has
generated. The
effects
of the
disarray
have
added
to the pre-existing
disorder
in
statutory
interpretation. I will
argue
further
that
the rule
has
been
instrumental
in
producing
certain tendencies
in
the general
approaches
to statutory interpretation as
they
are
applied
in
the courts
and
quasi-judicial tribunals. These tendencies include:
added
conflict, decanonisation, fragmentation, pluralism, a greater level of
indeterminacy
and
a
deeper
contingency
in
the relations
between
the rule
and
its
premises.
12
13
14
15
16
17
18
19
D Gifford, above n 10 at 56. Emphasis added. On "interpretive communities", see below
n 172.
Sir Anthony Mason, "Future Directions in Australian
Law"
(1987) 13
Man
U L
Rev
149 at
158-159.
F A R Bennion, above n 7 at 3.
J
Bell
and G Engle, above n 9 at 36.
D A SWard,
"A
Criticism
of
the Interpretation of Statutes in the New Zealand Courts"
[1963] NZLJ 293 at 296.
E Tucker,
"The
Gospel of Statutory Rules Requiring Liberal Interpretation According
to
St
Peter's"
(1985) 35
UTLJ
113.
D Miers, "Legal Theory and the Interpretation
of
Statutes" in W Twining (ed),
Legal
Theory
and
the
Common
Law
(1986) 115 at 117.
C Sampford,
The
Disorder
of
Law:
A
Critique
of
Legal
Theory
(1989): see below at 120.
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