[35.1] In a society in which it is often said that the quantity, variety and sources of law made by or under the authority of parliaments is expanding at a significant rate, resolving apparent conflict is a staple activity of the courts. Interpretative resources are drawn on to resolve such conflict.

[22.1] This chapter addresses the common law where it is part of the history of an Act and so forms part of its wider context. This is distinct from using common law as a precedent, or as part of the wider contextual surrounding law.

[32.1] The task of an interpreter is to determine the intention of Parliament ‘assisted by such aids to construction as can properly be utilised’.1 This chapter considers residual common law presumptions and aids that are potentially available.

Previous Parts have examined contextual aids beyond the Act that are supplied by the legislative history (Part V) and Interpretation Acts and other Acts of general application (Part VI). Part VII continues in the same vein and examines other interpretative criteria beyond the Act concerned.

[26.1] This chapter builds on chapter 25, which examines the role played by Interpretation Acts. Unless expressly or impliedly disapplied, an Interpretation Act applies to all Acts passed by the same legislature. But an Interpretation Act is not the only Act that applies to other individual Acts. Across the statute book of a jurisdiction there is a range of Acts that support the operation of individual Acts. Some have a broad application, such as a Human Rights Act. The application of others depends on the subject matter of the individual Act.

[1.1] Statutory interpretation is a many-faceted thing. It is a substantive body of law and a process involving a set of skills. It is distinct from (but overlapping with) the application of the law. It is not wholly different from the interpretation of ordinary speech. But it is dissimilar in major respects from formulating the ratio decidendi or the rule of a case. Functionally, statutory interpretation resolves a question of law between parties to a dispute. It also contributes to law-making in the sense that the text of the statute, read with the interpretation, constitutes a new understanding of the law.

[25.1] Each Australian jurisdiction has an Act dealing with the interpretation of the Acts of that jurisdiction.1 Such Acts are referred to in this book, including in this chapter, as ‘Interpretation Acts’, irrespective of their actual title.

[41.1] A statute has extraterritorial operation if it operates on, or purports to regulate, occurrences or conduct that occur either wholly outside the territory of the enacting legislature (whether federal or state), or partly within and partly outside the territory.

[21.1] Legislative antecedents are the enactments that constitute the historical legislative development of the statute or statutory provision being interpreted, such as repealed statutes and successive amendments to the statute made by the same Parliament. Antecedents may also include statutes made by other parliaments where it can be inferred that the statute being interpreted is derived from that other statute.

[39.1] Statute law is considered to be ‘retrospective’ if it has one of two general operations: it is retroactive, or it impairs an existing right or obligation.

[43.1] Most Acts include a section empowering the making of other instruments under the Act. Such instruments, when of a legislative character, are known as delegated legislation. A wide variety of terms is used across Australian jurisdictions to describe delegated legislation.

[8.1] The law of statutory interpretation directs us to ascertain the ‘purpose’ of an Act when construing a provision of that Act. This is one of the few general principles of statutory interpretation law that is the subject of a legislative mandate, though the common law has developed an equivalent principle. The mandate is that we must have regard to the purpose of an Act and choose the construction that promotes or best achieves that purpose. This does not warrant neglect of the statutory text or context, but instead requires the interpreter to have regard to the purpose in the context of the broader analysis of text and context required by the rules of statutory interpretation. Sometimes the purpose will be critical to the task of attributing meaning and sometimes it will be of little value. The value that purpose can provide to the task may depend on the degree of specificity with which it can be expressed. Many Acts embody multiple purposes or the purpose of the Act may be general. For these reasons, the purpose of the provision being construed can be more helpful for the interpretative task than the purpose of the Act as a whole.

[18.1] Linguistic canons recognise and put into effect general language conventions – that is, conventions relating to the use of language generally. Chapter 15 has dealt with the canon that the ‘ordinary and grammatical meaning’ and the ‘natural and ordinary meaning’ of the words in question are the presumptive legal meaning and are to be applied unless good reason is shown to depart from it.

[28.1] The principle of legality is a rule of construction under which it is presumed that Parliament does not intend by legislation to abrogate or curtail fundamental common law rights (including privileges and immunities) or principles or to depart to a marked degree from the general system of law.

Part V examined the role played by legislative history as part of the extrinsic context of legislation. Part VI deals with the extrinsic context provided by Acts of general application, and how they impact the interpretation and operation of an individual Act.