Week 7: Intrinsic Materials (The Text)

The focus of this weeks reading was again on the intrinsic material contained within the statue itself. However, this time, the focus was on the words themselves, rather than on the structure of the statute. We considered how when looking at word in a statue, unless it has been redefined in the statute, it will have the ordinary meaning that a common person would attribute it. Courts will strive to give meaning to every word in provision, as while they cannot always give the full and active meaning to each word, they are not at liberty to ignore any word or consider them insignificant. To aid in this, they will always consider the context within which the word is used. The purpose and intent of the statute will govern how the words will be interpreted, and which construction of the meaning of the words is more satisfactory.

When the word has been re-defined in an act, the new legal meaning is preferred for the purposes of the act, unless other intention stated.. The same is the case where words with trade or commercial meaning are used – the technical definition or meaning of the words will be used in preference to their common meaning. There can be composite statements what use words that have technical meanings and other words with ordinary meaning. When undefined words are encountered in a statute, a dictionary can be used to determine what the common meaning is. The current meaning of the words is used – so dictionaries published at the time the statute was drafted are not needed. The edition or origin of the dictionary is usually not important… and several dictionaries may be consulted to ensure a well-rounded definition is formed. Specialist dictionaries will be used when a specialised or uncommon word is encountered.

Consistency is important. In a statute, the assumed meaning of a word is the same throughout the act unless it is otherwise redefined in a section. If a different word would normally have been used in a specific provision, the usage of a different word implies that a different meaning is intended. Variants of words are also given corresponding meaning when a definition is provided. Then there are limiting words such as solely, primarily, exclusively and only. These words limit the operation of the provision, and courts have a little authority to deviate from these limitations, but they cannot disregard them.

When considering composite phrases (hendiadys) such as cease and desist, good and ready or sick and tired, the issue courts need to determine is whether Parliament intended conjunctive (and) or disjunctive (or) interpretation of the words. Another interpretive issue is temporal expressions such as ‘will, could’, ‘did, was’ and ‘is’. These past, future and present tense words can drastically change the effects of a provision. For instance, does the use of ‘will’ in a provision about financial assistance for hardship preclude the provision of assistance for present hardship?

There are several words and phrases which require interpretation. Some like ‘used’ and ‘import’ are said to have a ‘protean quality’,  meaning they have many meanings depending on context, and can be construed in a narrow or broad manner depending on context. Another contentious word is ‘publish’… when relating to communication on a website… who is the publisher… the owner of the platform that hosts the content… or the individual who wrote the material? Phrases like ‘having regard to’ and ‘take into consideration’ exist to draw the interpreters attention to certain points without being deterministic to the outcome or final decision.

It is easy to identify cases where the text has been the reason for it having gone to court. Just look for reference by the judge to the meaning of a particular word having been the key question that the court needed to address. Cases such as Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCAFC 103 have hinged on the interpretation of the word limousine… Dreamtech’s attempt to classify their larger than normal ‘Hummer’ as not being a luxury vehicle considerably larger than a standard road vehicle was unsuccessful. There are other cases such as Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19 where the temporal tense was the focus… and in considering the purpose of the legislation, the court’s verdict was that the stated purpose of ‘prevention and reduction of damage before it was caused’ was sufficient to outweigh the reference to ‘damage that has occurred’, rather than ‘damage that would have occurred’.

All this really means is that before having to consider any material outside the statute, there is plenty of areas which can be considered within the statute itself. The structural framework of the statute tells you a lot about it. Long titles, object clauses, dictionary sections and headings provide lots of clues. But the text of the statute itself can also tell you a lot about what it was meant to achieve, and how it was meant to be interpreted. It that isn’t enough, you move onto to extensic material, which is the focus of next weeks material.


Posted on 4th January, 2015, in LAW and tagged . Bookmark the permalink. Leave a comment.

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