Statutory interpretation shapes how laws are applied in practice. How has the approach evolved? How do interpretation Acts help? What challenges arise? Ahead of his presentation at the Statutory Interpretation Intensive on Wednesday 12 March, Nidal Sayegh joined us to break down key principles, case applications, and common pitfalls to enhance your legal reasoning.
1. How does the contemporary Australian approach to statutory interpretation differ from previous methods and what are its key benefits?
The starting point of any statutory interpretation must always be the text of the provision. This is because the language which has actually been used in the text of the legislation is the surest guide to legislative intention.[1] However, the contemporary approach requires us to simultaneously consider the context and purpose of that text within the provision, as well as the language of the instrument as a whole.[2] Context is considered broadly, by reference to the 'mischief' that statute was designed to overcome.[3]
The practical effect of the contemporary approach is that the words of a particular provision may not necessarily correspond with their ordinary meaning. As the High Court has explained, 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; this will not always correspond with the literal or grammatical meaning.[4]
The contemporary approach arose from the reasoning of the High Court in in CIC Insurance Ltd v Bankstown Football Club Ltd (1997)[5] and Project Blue Sky v ABA (1998),[6] and has consistently been adopted and clarified since. The approach was neatly summarised in SZTAL v Minister for Immigration and Border Protection (2017):[7]
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
This approach is contrasted with the literal approach previously favoured by the High Court. The literal approach required provisions to be construed according to their grammatical and ordinary meaning unless that construction would lead to an absurdity or inconsistency with the rest of the statute. In adopting the literal approach, Justice Dixon described the 'chief rule' of statutory construction as forbidding departure from the ordinary grammatical sense of the words used except for the purpose of avoiding some obscurity or some inconsistency with other parts of the statute.[8] It was applied strictly and courts were required to interpret provisions literally even if such an interpretation was inconvenient, impolitic or improbable.[9] The literal approach also assumed that a word or phrase always had just one meaning.
The problems caused by the literal approach were somewhat tempered by the complementary use of the purposive approach, which allowed a construction that was consistent the purpose of the Act or provision in question. However, this approach was generally only used when the literal approach produced an ambiguity.[10] Conversely, the contemporary, contextual approach allows for a more comprehensive, consistent and holistic analysis. It allows us to consider extrinsic materials and the statute's purpose as guiding principles for the analysis of the text, rather than as a last resort where there is textual ambiguity.
2. Can you provide specific examples of how interpretation Acts have been effectively used in statutory interpretation exercises?
Every jurisdiction in Australia has a statutory scheme that contains definitions and principles of statutory interpretation aimed at helping us interpret statutory provisions consistently and accurately. In Victoria it is Interpretation of Legislation Act 1984 (Vic) (ILA)
The Commonwealth equivalent to the ILA is the Acts Interpretation Act 1901 (Cth) (the Commonwealth Act). Generally, the provisions between the State and Territory Acts and the Commonwealth Act fulfill the same function. However, there are often contain slight differences. For example, s 34AB of the Commonwealth Act contains express provisions that 'on and after an amendment taking effect, [a] delegation is take to include the functions, duties or powers as altered'. Although s 42A of the ILA contains the same general powers of delegations as the Commonwealth Act, there is no such provision that delegations are taken to automatically include any altered functions, duties, or powers.
The table below shows some other examples of provisions found in the ILA which should be used to help guide you in applying the contemporary Australian approach to statutory interpretation. Importantly, these provisions are a guide only,[11] and are generally caveated by the words, 'unless the contrary opinion appears'.
Section 23 of the ILA explains that expressions used in a subordinate instrument made in the exercise of power shall, unless the contrary intention appears, have the same respective power it has in the Act conferring the power as amended and in force for the time being. Emerton JA applied the principles of this section in Tok Holdings Pty Ltd v Minister for Planning[12] by explaining that the term 'expire' in an amendment to the Stonnington Planning Scheme, should be read consistently with the Planning and Environment Act 1987 (Vic) which conferred the power rather than being construed according to the ordinary meaning of 'come to an end' or 'die'.[13]
Section 44 of the ILA sets out how a period of time defined in an Act should be interpreted, particularly taking into account weekends and public holidays. This provision most commonly arises in relation to the deadlines for filing documents.[14] Recently the Supreme Court considered s 44 of the ILA in a matter on appeal from VCAT. In Ibrahim v Greater Bendigo City Council,[15] the Court held that although the Tribunal had properly identified the time to bring an application under s 81(1)(a) of the Planning and Environment Act 1987 (Vic) was 60 days, it did not take into account that this timeframe concluded on a Sunday.[16] Justice Quigley found that time limit calculations need to be undertaken in the context of relevant rules and regulations, including s 44 of the ILA.[17] As there was no contrary intention in the Planning and Environment Act, there was no basis for the Tribunal to have rejected the application.
However, an Act may indicate a contrary intention that negates the operation of the ILA. For example, s 182 of the Electoral Act 2002 (Vic) explicitly states that s 44(3) of the ILA, which extends timeframes that are limited by a holiday, does not apply.
Section 53 of the ILA provides that where a form is prescribed by an Act or subordinate instrument, any form "in or to the like effect" of the prescribed form shall, unless the contrary intention appears, be sufficient in law.
The application of s 53 of the ILA, and its equivalent in the Commonwealth Act, was summarised by Derham AJ in Rowson v McClure.[18]
a) The Commonwealth section does not mean that the prescribed form may not have to be used at all; rather, it would depend upon the intended effect of the section requiring use of the form.[19]
b) In the context of several immigration cases, it has been held that while use of the prescribed form is necessary for an application to be valid, this requirement still permits the section operating to make it sufficient for there to be only substantial compliance with the content of the form.[20]
c) The failure to comply with a requirement in such a way that the purpose behind the requirement is thereby thwarted cannot be excused under the section on the ground that there has been substantial compliance. The section cannot make unessential something that the purpose reveals to be essential.[21]
3. What are some practical challenges that can be encountered when applying statutory interpretation principles, and how can they be overcome?
Drafting errors
On occasion, a drafting error may occur, leading to scenarios where 'remedial constructions' are used to correct a drafting deficiency.[22] In such instances, a remedial construction allows the addition or omission of simple grammatical drafting errors, which, if uncorrected would defeat the purpose of the legislation. The identification of a drafting error must be a result of considering the statutory text in its context and having regard to its purpose.[23] For simple and obvious drafting errors, the courts will readily read legislation as if it is corrected and is largely a matter of impression. If a drafting error is not simple or obvious, Lord Diplock formulated three conditions in the 1980 House of Lords decision Wentworth Securities Ltd v Jones as a useful approach for remedial construction. The third of these conditions was slightly modified by Lord Nicholls in the 2000 House of Lords decision Inco Europe Ltd v First Choice Distribution (A Firm). The modified approach now states the court must be 'abundantly sure' that:
1. it is possible to determine from a consideration of the provisions of the Act read as a whole precisely what the intended purpose of the provision or Act is;
2. it is apparent from that consideration that the drafter and Parliament had by inadvertence overlooked an eventuality that must be dealt with if the purpose of the provision or statute is to be achieved; and
3. it is possible to state the substance of the provision that Parliament would have made, though not necessarily the precise words, if the attention of Parliament had been drawn to the error prior to enactment.
With the Diplock conditions in mind, the majority in Taylor considered that satisfaction of the conditions were not a prerequisite for a remedial construction, and that satisfying the Diplock conditions should be done to the extent that the court is satisfied the new construction satisfies the underlying intent of Parliament. In this instance, the majority of French CJ, Crennan and Kiefel JJ held that that s 12(2) of the Compensation to Relatives Act 1897 (NSW) cannot be read as applying to a deceased person's earnings. The majority noted that whether the court is justified in reading additional legislation or omitting words in a statute is a judgement of matters of degree, subsequently citing the Diplock conditions and concluding that the court should not fill gaps in legislation or make an insertion which is 'too big, or too much at variance with the language in fact used by the legislature'.[24]
Conflicting statutes
Another issue in statutory interpretation emerges due to the presumption that provisions of one statute, or two statutes made by the same Parliament, are intended to work together. On occasion, these provisions can appear to be in conflict, and the challenge for the court is to construe them, as far as possible, in harmony and not in conflict.[25] There are four standard techniques used to resolve apparent conflict between provisions. The first technique relates the generalia specialibus non derogant canon to work out which is the general law and which is the special law of the two conflicting provisions and prefer the special law to prevail to the extent necessary. This approach was reflected in the decision of Heydon J in Commissioner of Police for New South Wales v Eaton.[26] The same logic applies when there are two conflicting provisions in the same statute. The leading provision should be determined and prioritised over the subordinate provision.[27] Once the prioritised provision has been determined, ordinary statutory interpretation principles should be followed to find the most harmonious construction between the provisions.[28] Finally, as a last resort, if a conflict is found to be 'irreconcilable' a court may conclude that an earlier law has been impliedly repealed by the later law.[29]
[1] Alcan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47].
[2] Project Blue Sky v ABA (1998) 194 CLR 355 at [69]
[3] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.
[4] Project Blue Sky v ABA (1998) 194 CLR 355 at [78].
[5] 187 CLR 384.
[6] 194 CLR 355.
[7] 262 CLR 362; Kiefel CJ, Nettle and Gordon JJ at [14].
[8] Broken Hill South Ltd (Public Officer) v Commissioner of Taxation (NSW) (1937) 56 CLR 337, 371.
[9] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) (1920) 28 CLR 129, 161-2.
[10] Mills v Meeking (1990) 169 CLR 214, 235.
[11] See e.g. Thiess v Collector of Customs (2014) 250 CLR 664, 672 [23].
[12] [2021] VSC 470.
[13] Ibid at [150].
[14] See e.g. Towns v Towns [2024] VSCA 300; Commonwealth Bank of Australia v Shrestha [2024] VSC 229.
[15] [2025] VSC 6.
[16] Ibid at [104]-[105].
[17] Ibid at [111].
[18] [2013] VSC 140 at [29].
[19] Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR at [32]-[33].
[20] Fang v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 583 at 617; Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 444.
[21] Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 at [42]
[22] See e.g. Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9.
[23] Australian Unity Property Ltd v City of Busselton [2018] WASCA 38.
[24] Taylor at [38].
[25] Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; Project Blue Sky.
[26] [2013] HCA 2.
[27] Institute of Patent Agents v Lockwood [1894] AC 347.
[28] Eaton.
[29] Ferdinands; Saliba v Aziz (2013) 281 FLR 278; Dosset v TKJ Nominees [2003] HCA 69.
Disclaimer: The statements, analyses, opinions and conclusions in Legalwise Insights are those of the respective authors and not of Legalwise Seminars Pty Ltd which acts only in the capacity as editorial co- ordinator of the content in Legalwise Insights. No part of any article can be regarded as legal or financial advice. Although all care has been taken in the preparation of all articles, readers must not alter their position or refrain from doing so in reliance on any information contained therein. Neither the respective authors nor Legalwise Seminars Pty Ltd accept or undertake any duty of care relating to any part of Legalwise Insights
Liability limited by a scheme approved under the Professional Standards Legislation
