Week 8: Extrinsic Materials

In this week’s material we considered the types of intrinsic material that can be referred to when conceding the meaning of a provision or in determining the purpose and context of the Act. Provision for this has been made in the statutory interpretation legislation, and the use of some material has also been specifically excluded. There are also conditions for the use of extrinsic material, which are similar to the common law approach anyway.

The common law approach is elegantly simple. If the meaning of the text is clear, then extrinsic material cannot change the meaning (and nor should it). If there is ambiguity, then extrinsic material is used to resolve the ambiguity.

I could understand why materials such as the Explanatory Memoranda and Second Reading Speeches are considered, as they are directly related to the creation of the legislation. The former describes why the act is written the way it is and clarifies the intent of the provisions, whilst the latter is the justification by the Minister as to why the legislation is needed, and what it is intended to achieve.

In a similar vein, referring to Law Reform Commission reports and Parliamentary Committee reports also makes sense as these are a formal review of the legislation, and will also result in the identification of what was intended by the legislation. The legislative history is also important as it allows the identification of oversight or inconsistency by Parliament when a word or phrase is changed or not changed. And the use other materials such as dictionaries and case law goes without saying.

What did surprise me in the first instance was the importance of treaties. I was unaware that Australia had become a signatory to such a number of treaties (764 in force since 1990). And when interpreting treaties, you do not use the normal interpretation instruments. Instead, you use the Vienna Convention on the Law of Treaties (1974). It brings with it its own set of rules, with probably the most important one being that it is the domestic provision that brings the international treaty that is applied to a case, not the treaty itself. If I am interpreting that aspect of the convention correctly, this means that that treaty cannot overrule local domestic law.

It is also important to mention that although courts maintain that context should always be considered, even in the absence of ambiguity, that the courts are not in agreement as to the value of extrinsic material. Some courts have stated that this is ‘one of the blights of modern litigation’[1] and ‘it is a rare day when explanatory memorandum provides much assistance in the construction of a statute’[2].

It is probably for reasons such as these as well as the massive proliferation in the use of extrinsic material in court cases (partly due to the ease-of-access via the Internet) that there are now limiting provisions present in most statutory interpretation legislation that encourages a preference of the ordinary meaning, and avoiding prolonged legal proceedings.

[1] Lacey v Attorney-General of Queensland [2011] HCA 10 at [86].

[2] Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 at 216-217.

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Posted on 26th January, 2015, in LAW and tagged . Bookmark the permalink. Leave a comment.

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