The ‘Modern Approach’ to Statutory Interpretation and the Principle of Legality: An Issue of Coherence?
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | 10.1177/0067205X1804600303 |
| Author | Dan Meagher |
| Subject Matter | Article |
THE ‘MODERN APPROACH’ TO STATUTORY
INTERPRETATION AND THE PRINCIPLE OF LEGALITY: AN
ISSUE OF COHERENCE?
Dan Meagher*
ABSTRACT
The ‘modern approach’ to interpretation requires that effect be given to the ordinary
meaning of a statutory text in its wider context and with reference to its purpose. This
article interrogates the interpretive approach used by the High Court in fundamental
rights cases to assess its compatibility with this ‘modern approach’. It asks, specifically,
whether the strict text-based approach used in these cases (which involves the
application of the principle of legality) is sufficient to determine the meaning of
ambiguous statutory texts. The argument made is that the coherent application of the
‘modern approach’ requires that this interpretive approach be justified.
I INTRODUCTION
[The] construction [of a statute] will give effect to the ordinary meaning of its text in the
wider statutory context and with reference to the purpose of the provision. Further, the
principle of legality favours a construction, if one be available, which avoids or
minimizes the statute’s encroachment upon fundamental principles, rights and freedoms
at common law.
1
This passage neatly outlines both the ‘modern approach’
2
to statutory interpretation in
Australian law and the role of the common law principle of legality within it.
Relevantly, the principle comes into play in fundamental rights cases; that is, when the
ordinary meaning of a statutory text in its wider context engages a fundamental
common law right, freedom or principle.
3
The ultimate aim of this article is to
interrogate the interpretive approach used by the High Court in fundamental r ights
cases and to assess its compatibility with the ‘modern approach’ to interpretation.
* School of Law, Deakin University. Thanks to the participants at the Australian Society of
Legal Philosophy Workshop (Melbourne Law School, July 2017) where an earlier version of
the article was presented and to the very helpful comments and suggestions from Matthew
Groves and the anonymous referees.
1
North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, 581
(French CJ, Kiefel and Bell JJ) (‘NAAJA’).
2
Dawson, Toohey and Gummow JJ) (‘CIC Insurance’).
3
Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).
398 Federal Law Review Volume 46
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In order to do so, Part II will outline briefly what the ‘modern approach’ to
statutory interpretation involves and from where it has emerged. It will then be
suggested that its core interpretive principles—which first emerged in the 1980s—are
still those which govern statutory interpretation in contemporary Australian law. And
that is so notwithstanding a series of cases coinciding with the tenure of Justice Hayne
on the High Court that sought to emphasize, if not reassert, the centrality of the
statutory text to the ‘modern approach’ to interpretation.
However, one case decided during this period—Saeed—is more difficult to reconcile
with the ‘modern approach’.
4
It is the focus of Part III. There are statements of
interpretive principle made in Saeed that do not sit comfortably with the modern—
contextual—approach. It was a fundamental rights case. The principle of legality was
applied as part of an approach where the statutory text was the exclusive focus of the
interpretive inquiry not just central to that process. This raises an issue as to its
coherence and compatibility with the modern—contextual—approach to
interpretation. Yet the analysis undertaken, drawing on important recent scholarship,
suggests that the High Court’s post-Saeed jurisprudence has, ultimately, endorsed the
core interpretive principles of the ‘modern approach’. But the actual interpretive
approach used in Saeed is not so easily reconciled.
Part IV examines three fundamental rights cases in order to identify and further
explain the issue of coherence asserted; specifically, that the use of a stricter text-based
approach is insufficient to resolve a fundamental rights case where the statutory text is
ambiguous. And its compatibility with the ‘modern approach’ might be doubted when
the application of the principle of legality necessarily involves the exclusion of an
otherwise important and useful aspect of the wider statutory context (extrinsic
materials including legislative history) to determine the meaning of an ambiguous
statute. This is not to say that such an approach is necessarily incompatible with the
‘modern approach’. But where a strict textual analysis is insufficient to ascertain a
statute’s meaning in a fundamental rights case, how the principle of legality interacts
with the ‘modern approach’ needs to be explained and justified.
Part V t hen provides four possible justifications for the interpretive approach used
by the High Court in fundamental rights cases. This approach, which excludes an
otherwise relevant and useful aspect of the wider statutory context, might be justified:
due to the inutility of the relevant extrinsic mat erials; if required by internal statutory
context and to preserve coherence in the statute book; if fundamental rights are
statutory implications; or if the principle of legality is a quasi-constitutional clear
statement rule for fundamental rights. Whilst each one is compatible with the core
principles of the modern—contextual—approach to interpretation including the
centrality of statutory text to that process, not all are compelling in my view. In
particular, the notion of fundamental rights as statutory implications is difficult to
square with the content and application of the principle of legality. And whilst the
High Court’s contemporary jurisprudence may contain the analytical threads for
treating the principle as a quasi-constitutional clear statement rule for fundamental
rights, such a justification would be controversial and requires clear and reasoned
explanation.
4
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264–5 (‘Saeed’).
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