How Judges Read the Statute Laws of Parliament
Role of the Courts
Recall the courts have two main roles
- To resolve disputes, both criminal and civil
- To declare the law by Creating new common law ex post facto and interpreting the meaning of statute law
Declaring the Statute Law
There can be uncertainty and dispute about the meaning of statute laws.Courts have the task of declaring the meaning of statute law when the meaning is unclear
Reasons for Unclear Statutes
Poor drafting: Many bills are hurried through parliament (flood-gated, guillotined etc). Those drafting a bill may lack specialist knowledge. Inconsistencies & contradictions:Parts of the same Act may conflict with each other. The Act may conflict with other Acts. Acts are complex. Wording and definitions:Words may be poorly defined by the Act or may have multiple meanings is common usage. The meaning of words may change over time. Changing circumstances: Old laws may need to be reinterpreted to fit new developments eg. Technology
Judicial Rules of Interpretation
Judicial rules are used to read unclear statutes and declare the law.
- Literal Rule
- Golden Rule
- Mischief (or Purpose) Rule
The Literal Rule
The Act is read by its plain meaning – exactly as the words are written, the assumption being that parliament has said what it means. However, this can lead to absurd outcomes. Pedestrians are not allowed on the freeway. A person whose car has broken down and is walking to the emergency phone is in breach of the law. This is absurd.
The Golden Rule
If the Literal Rule yields an absurd outcome, the judge will apply the Golden Rule. When the usual meaning of a word causes unjust outcomes, judges interpret the offending word to reduce the absurdity. Thus “pedestrian” is interpreted so as not to include people walking to freeway phones in an emergency. Such people are not pedestrians and can’t be charged under the Act.
The Mischief Rule
Also called the Purpose Rule. If the Literal and Golden Rules have failed to achieve a just result, the judge will seek the wrong (or mischief) that parliament was trying to legislate for and interpret the Act in accordance with parliament’s intention. Parliament is clearly aiming to prevent people walking on the freeway as regular pedestrians, not trying to prevent broken down motorist seeking help.
Judges will refer to the specific words of a section of the Act itself for its meaning but sometimes the meaning is still unclear. If this is the case then materials external to the problem section of the Act may be consulted – These are called Extraneous Materials
- Standard English Dictionaries (Oxford Concise)
- Legal Dictionaries (Butterworth’s)
- Other sections of the same Act
- Previous decisions – earlier interpretations of the same Act or established interpretations of words
- Hansard – for Second Reading speeches and debate to clarify parliament’s purpose
Some states have Acts Interpretations Acts (Interpretation Act WA 1984) which are laws instructing judges on how to interpret other Acts. This is done to restrict judicial freedom of interpretation and make sure parliament’s meaning is clear. These Acts may define common terms and they may force judges to apply the policy of the Act before its literal meaning.
Legal maxims are principles of interpretation used by judges to reach consistent decisions.
- Ejusdem generis
- Noscitur a sociis
- Expressio unis est exclusio alterius
Latin: “of the same kind”. Applied to a list of words where a general word appears after a list of specific words of a similar class. Parliament knows that the list of all possible instruments is too long and leaves it to the courts to interpret. “The use of spear guns, spears, knives and other such instruments is prohibited” The words “other such instruments” will be interpreted in line with spear guns, spears, knives – items used in fishing
Noscitur a sociis
Latin: “by the company it keeps – to know a thing by its associates” The meaning of a word may be known from the accompanying words. The word “disability” when alone can mean many things – medical, legal (bankruptcy), less able to perform etc etc. “The insurer will pay the amount of $10 million in the event of the insured’s illness, disability or death” In the above line from a statute the meaning of “disability” is clear – Its is a medical meaning.
Expressio unis estexclusio alterius
Latin: “the express mention of one thing is to exclude all others”. Applied to a list of words where there are no general words at the end of the list. If the word does not appear in the list then parliament did not intend it to be prohibited. “Riding of trail bikes is prohibited in National Parks, ‘A Class’ Nature Reserves and Conservation Areas” Riding trail bikes in ‘B Class’ Nature Reserves is permitted because the express mention of the others excludes ‘B Class’ Nature Reserves.
Interpretations and Precedent
Once a court has declared the statute law – that is said what a statute means that interpretation is a precedent. Lower courts must apply the statute as declared by higher courts. Equivalent or superior courts will regard the interpretation as persuasive.