By Gad Coffie
It is no secret that despite the best efforts of legislative drafters, the statutory text can be challengingly effortful to comprehend. Fascinatingly, statute can sometimes even be difficult to read, never mind comprehend. It is little wonder that many texts have been authored over the years in an attempt to help address this issue.
In Modern Statutory Interpretation: Framework, Principles and Practice (Modern Statutory Interpretation), the authors, Jeffrey Barnes, Jacinta Dharmananda and Eamonn Moran, using a whole-of-subject approach, provide the tools readers need to decode the statutory interpretation dogma.
In my opinion, this approach is as novel as it is effective. With a foreword authored by the Honourable Kiefel AC KC, immediate past chief justice of the High Court, there is no doubt this book is an extraordinary piece of literary work.
Framework and language
The authors begin with the foundational framework of statutory expression.
Part I provides an overarching background, notably the constitutional bedrock on which statute, and indeed our legal system, is established. The historical background to the enactment of the oft-cited s 15AA of the Interpretation Act 1901 (Cth) is also dealt with in this Part.
Part II deals with other basic principles such as legislative intent, text-based interpretation and the vital twin interpretative devices of context and purpose. I find the analysis on context in particular to be very balanced as it is detailed. Afterall context is everything (CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384, 408).
Parts III and IV canvass the broader skills required to engage with the statutory text effectively. At the risk of revealing my professional bias as a legislative drafter, Part III, particularly chapter 11 (which deals with enactment procedure) is my favourite chapter of the book.
Part IV focuses on drafting styles, linguistic canons and statutory language broadly. The relevance of drafting styles is a particularly critical interpretative tool especially in a federal democracy such as Australia. This is because, with two sets of legislative regimes, the Commonwealth and state or territory, it is important to have the understanding that when reading legislation from either source, similar concepts could be expressed differently. The authors did an excellent job in succinctly elucidating this point.
History, the bigger picture and all the issues
Part V delves into legislative history. Here the authors discuss the relevance of legislative antecedents and the influence of the common law on statutory development as pertains to various Australian jurisdictions. The last chapter of this part is dedicated to the vexed topic of the use of extrinsic materials in interpretation; at what stage, and to what extent.
Part VI examines the use of the Interpretation Acts and other Acts of general application. From the premise that legislation is drafted based on an assumption that the reader is familiar with the relevant Interpretation Act of the jurisdiction, the book explained some of the commonplace interpretative terms in these Acts. I find this useful for developers of policy and legislative drafters – at least for comparative purposes.
Part VII deals with the wider established legal principles that guide, and in some instances challenge, interpretative outcomes. Here, the principle of legality, the usefulness of jurisdictional comparisons, precedence (in an interpretative sense) and the relevance of international treaties are discussed. To complete their analysis, the authors in the last chapter of this part explored the subject of inadmissible considerations.
Part VIII – aptly labelled special interpretative issues – deals with the controversial issues, namely remedial constructions, dealing with provisions in apparent conflict and critical presumptions relevant in statutory interpretation. There is a chapter each on the presumptions against: retrospective operation, application to government and other Crown entities, and extraterritorial operation.
The last chapter of the book is dedicated to delegated (subsidiary or subordinate) legislation. Although this is arguably the most confined chapter in the book, like all the rest, the relevant principles are laid bare without any compromises.
Conclusion
Modern Statutory Interpretation is not an overly technically weighted text. The authors use just the right amount of technical language sufficient for the reader to understand the saliant concepts of statutory interpretation. The layout and the language used is clear as it is engaging; the analyses are comprehensive; and the cases cited are directly relevant.
Key concepts such as the focus on the text, legislative intent and the primacy of purpose in interpretation are given detailed treatment. More nuanced concepts such as linguistic canons, inadmissible considerations, extrinsic materials and judicial notice are handled exactly as delicately as one would expect. No complaints from me, although the book is 726 pages.
I recommend Modern Statutory Interpretation to jurists, practitioners, academics, legislative drafters and students. Please do not leave it till as late as I did in picking up a personal copy. It is definitely a worthy addition to any library.
