3. court operation

3.6 Statutory interpretation

Most of the powers invested in and the duties imposed on judicial officers and registrars in the Children’s Court derive from various statutes, primarily Victorian statutes but also occasionally from Commonwealth statutes. The most frequently cited statutes are:

• 
  Children, Youth and Families Act 2005 (Vic)
  
• 
  Family Violence Protection Act 2008 (Vic)
  
• 
  Personal Safety Intervention Orders Act 2010 (Vic)
  
• 
  Magistrates’ Court Act 1989 (Vic)
  
• 
  Crimes Act 1958 (Vic)
  
• 
  Evidence Act 2008 (Vic)
  
• 
  Criminal Procedure Act 2009 (Vic)
  
• 
  Drugs, Poisons and Controlled Substances Act 1981 (Vic)
  
• 
  Road Safety Act 1986 (Vic)
  
• 
  Summary Offences Act 1986 (Vic)
  
• 
  Crimes Act 1914 (Cth)
  
• 
  Family Law Act 1975 (Cth).
  

Although it is not a frequent occurrence in the Children’s Court, it sometimes happens that the presiding judicial officer is required to engage in the interpretation of a statutory provision in the course of deciding a case. A large number of textbooks have been written on the topic of statutory interpretation and a vast array of case law, generated over centuries in the common law world, has addressed various aspects of the topic. The modern Australian principles of statutory interpretation are conveniently summarized in the judgment of Dodds-Streeton JA (with which Ashley JA & Hansen AJA agreed) in Alinta Asset Management Pty Ltd v Essential Services Commission [2008] VSCA 273 at [70]-[83]:

[70] “The principles which govern modern statutory construction were undisputed. It is well established that a purposive approach must be adopted and that purpose must be determined in the light of the language of the relevant provision and the scope and object of the whole statute: Tasker v Fullwood (1978) 1 NSWLR 20, [24] approved by McHugh ACJ, Gummow, Kirby & Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[71] In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] McHugh ACJ, Gummow, Kirby & Hayne JJ, in their joint judgment, stated:

‘[T]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. (See Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213 per Barwick CJ). The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617 per Lord Scarman, "in the context of the legislation read as a whole".) In Commissioner for Railways (NSW) v Aqalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 per Gibbs CJ, 315 per Mason J, 321 per Deane J).

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. (Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J).’

[72] Their Honours observed at [70] that where provisions of an Act appear, on the basis of their language, to conflict, conflict must be alleviated to the extent possible by adjusting the meaning of the competing provisions to:

‘best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. (See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per Cooper CJ; Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574 per Gummow J; 116 ALR 54 at 63).’

[73] Furthermore they noted at [71] that:

‘a court construing a statutory provision must strive to give meaning to every word of the provision. (The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ, 419 per O'Connor J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13 per Mason CJ).’

[74] In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408, the High Court stated:

‘Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonable open and more closely conforms to the legislative intent.’

[75] A purposive approach is also required by s 35 of the Interpretation of Legislation Act 1984 (Vic)…

[77] In Project Blue Sky at [78] McHugh ACJ, Gummow, Kirby & Hayne JJ stated:

‘However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (for example, the presumption that, in the absence of unmistakeable and unambiguous language, the legislature has intended to interfere with basic rights, freedoms or immunities: Coco v The Queen (1994) 179 CLR 427 at 437) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.’

[78] The above statement was approved by McHugh ACJ, Gummow & Hayne JJ in Network Ten Limited v TCN Channel Nine Pty Ltd (2004) 218 CLR 273.

[79] Their Honours also there reiterated at [11] McHugh J’s observation, in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, 112 that-

‘[A] Court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context.’

[80] In Network Ten, Kirby and Callinan JJ dissented. They considered that the construction approved by the majority involved distorting or ignoring the language of the statute. While Kirby J endorsed the contemporary purposive approach to statutory construction, he considered at [89] ‘that purpose must be found in the command of the Parliament, expressed in the Act’.

[81] While the High Court was divided in Network Ten, the majority did not expressly or implicitly reject Kirby J’s caveat at [105] that ‘the application [of the purposive construction of legislation] is always subject to textual limits’ or his related observation at [87] that ‘[u]ltimately, in every case, statutory construction is a text-based activity. It cannot be otherwise.’

[82] Similarly Callinan J’s caveat at [129] is self-evident and uncontroversial-

‘Although a Court is entitled to have regard to the legal and historical context of legislation, and in particular the mischief that it is enacted to cure, care must always be exercised in using all extrinsic material, including in particular assumed historical facts, to ensure that those facts are accurately and relevantly completely stated.’