Statutory Interpretation in Australian Administrative Law

In an effort to protect parliamentary sovereignty, the Australian legislature has increasingly made new laws in areas that were once covered by the common law. Indeed, almost all aspects of law are now regulated by legislation.[1] Statutory interpretation has thus become an essential role of the courts in every aspect of the law. As Chief Justice Gleeson noted, applying legislation is now the largest part of the work of modern judges:

One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now found in Acts of Parliament rather than judge-made principles of common law (in which I include equity).[2]

Administrative law has not escaped this increase towards legislation. Indeed, much of the powers that governments and decision makers rely on come from statute, rather than the common law. As such, the ‘single most important thing in any administrative law issue is the statue under which the decision was taken, and the nature and extent of the authority the statute confers on the decision-maker.’[3] Such a transition towards statute removes much of the power to make laws from the courts to the parliament in an effort to preserve parliamentary sovereignty. However, this increase in the use of legislation in administrative laws issues means that judges now have to rely on the rules of statutory interpretation in order to ensure a just outcome for complainants.

This essay argues that the role and importance of statutory interpretation in administrative law is to ensure, where possible, the protections of fundamental human rights. This is especially important in areas of administrative law, where government bodies and decision makers wield a great deal of power. This move towards statutory frameworks of authority and power means that judges are less flexible in their application of human rights when interpreting administrative law issues, and thus have to rely on ‘soft logic’ in order to ensure natural justice, the rule of law and respect for fundamental human rights. This essay will highlight the use of statutory interpretation in administrative law and provide an analysis of how the courts have interpreted legislation in order to protect human rights. It will be shown that statutory interpretation allows for a broad reading of legislation in order to ensure the protection of rights and compliance with international human rights law.

I     Principles of Statutory Interpretation

Statutory interpretation refers to the ‘methods used by the courts to determine the meaning to be given to legislation.’[4] As Justice Gleeson notes, ‘unless the meaning of a legal text of any kind, whether it be a will, a contract, or an Act of Parliament, is self-evident, then the text requires interpretation.’[5] Such a process first identifies the ambiguous language in question, and then proceeds to interpret such language, in line with a number of difference interpretative approaches.[6] However, as discussed below, while most courts have emphasised the requirement of ambiguity in statutory interpretation, a number of Judges have argued for a broad view ambiguity, in order to allow an interpretation that protects human rights.

Historically, the courts adopted a strict ‘literal approach’ to interpretation that focused on the ‘ordinary and natural meaning’ of the words in the legislation.[7] The approach meant that if the text of the legislation is clear, the court were bound to apply that meaning – regardless of the result.[8] Such an approach is outlined in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd:

The question is, what does the language mean, and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.[9]

Such an approach ensures parliamentary supremacy, but does not provide the courts with flexibility in order to apply the law consistently with fundamental human rights. The modern approach to statutory interpretation, however, involves what is known as the ‘purposive approach’, in which the purpose of the legislation takes primary concern, even over the focus of the ‘ordinary meaning of the words’.[10] Such an approach is highlighted in the section 15AA of the Acts Interpretation Act, which provides that:

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.[11]

This modern approach allows the courts to modify the literal meaning of the words in cases where it causes and absurd result or was inconsistent with the rest of the legislation.[12]

Finally, the common law principles of statutory legislation ensure ‘protection for the civil liberties of the individual against invasion by the state’.[13] These protections include personal liberty, freedom of speech, the rule of law, freedom of movement and natural justice, among others.[14] As discussed below, such principles are vital in administrative law, which seeks to protect the citizens from abuse by the powerful state.

However, such common law presumptions can be replaced by legislation, but only in cases of ‘unmistakable and unambiguous language’.[15] Such an exceptions to these common law presumptions protect the important principle of parliamentary sovereignty and the separation of powers. However, as parliament continues to enact laws that are contrary to human rights,[16] the use of administrative law is essential in restraining such power.

II     Increase Rise of Statutory Interpretation in Administrative Law

The history of administrative law in Australia begins in section 75(v) of the Constitution,[17] which ‘defines the entrenched judicial review jurisdiction of the High Court in terms of remedies — mandamus, prohibition and injunction.’[18] Such an approach was used for over 70 years, however, dissatisfaction with a complex and technical system of judicial review led to the 1971 report of the Kerr Committee.[19] This report led to the introduction of the ADJR Act[20], which significantly altered administrative law in Australia. The ADJR Act essentially directed the courts away from common law approaches of administrative law towards a more statutory approach. As Cane argues:

Although the transformation wrought by the ADJR Act paralleled similar developments in England (for instance), it also discouraged Australian judges from taking an open-textured, common-law approach to administrative law and encouraged a more technical style of reasoning focused on statutory interpretation.[21]

However, others argue that the ADJR Act does not necessarily require such stark transition away from the common law. Indeed, the courts have found that the Act is essentially ‘a procedural measure designed to make it easier to apply for judicial review rather than to change the substantive law’,[22] essentially arguing the Act is a declaration of the common law.[23] Such a distinction ensures that common law protections and principles of interpretation are used in administrative law.

III     The Importance of Statutory Interpretation in Administrative Law

Administrative law is concerned with the control of government power. Such power is often derived through the Constitution and subsequently through legislation delegating this power. Such laws entrench a significant amount of power to both the executive and delegated officers.[24] As such, there is a substantial risk that these powers may be misused, thus infringing on the fundamental rights of the public.

Administrative law, and in particular judicial review, ensures this power is appropriately restrained through the use of statutory interpretation. The courts limit this power through a number of common law presumptions, as discussed above. These presumptions give courts a wide use of power in which to interpret legislations so as to be consistent with fundamental rights. The use of such statutory interpretation principles is seen in the case of Coco v R:

The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by the unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.[25]

As such, unless explicitly clear to the contrary, the courts will ensure, through statutory interpretation principles, the protection of fundamental rights. Fundamental rights are not only found within the common law, but also through international treaties.

Such statutory interpretation principles also ensure compliance with international human rights law, as outlined in the International Convention of Civil and Political Rights[26] and the International Covenant on Economic, Social and Cultural Rights[27]. The courts have stated that ‘so far as the language of a statute permits, it should be interpreted and applied in conformity with the established rules of international law.’[28]

As discussed above, statutory interpretation generally needs to first identify an ambiguity in the law before providing an interpretation. However, some have argued that international law should not only be used to interpret narrow ambiguities in the legislation. Indeed, in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh,Chief Justice Mason and Justice Deane argue for a broad understanding of ambiguity to allow for international law to be used whenever the law is inconsistent with human rights:

[T]here are strong reasons for rejecting a narrow conception of ambiguity. If the language of legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.[29]

Thus, according to Mason and Deane, international law should be used whenever an interpretation consistent with international law will allow, thus providing a broader protection of human rights. Such a decision widens the use of international human rights standards to influence statutory interpretation. Indeed, as The Honourable Michael Kirby affirms, even if there is no ambiguity in the law, when the legislation is found to be contrary to international law ‘it is permissible and proper for an Australian court to re-examine the Australian common law, as the High Court did in Mabo.’[30] By allowing international law to be used more widely, international human rights law can have a greater impact on the development of the administrative law, and indeed the entire Australian legal system.

However, such a use of statutory interpretation is still disfavoured, especially by the legislature, who sees such use as a threat to parliamentary sovereignty and the separation of powers. After the decision of Teoh, the Government sought to enact the Administrative Decisions (Effect of International Instruments) bill into parliament, in order to reverse the affect that Teoh had on Australian administrative law.[31] While this bill was never passed through parliament, it shows that there is still a great hesitation in incorporating international human rights law into the Australian legal system.

IV     Conclusion

Some may argue that ‘the canons and rules of interpretation are soft logic, persuasive only to people who prefer the result they support or at least have no reason to resist them.’[32] However, such ‘soft’ interpretations are sometimes essential in curtailing the increasing erosion of human rights in Australia. One only has to look to the ever-changing Migration Act to understand the attempts of Parliament to legislate contrary to human rights.[33] Administrative law is vital to protect against such abuses of power.

While the principles of statutory interpretation require ambiguity in the text, the courts have taken a broad approach to reading such ambiguity. This provides the courts with a wide discretion in which to read legislation to comply with common law presumptions of fundamental freedoms. In addition, the courts may even attempt to read the legislation in light of Australia’s obligations under international law, thus ensuring compliance with international treaties. While such approaches may be derided by some as ‘soft logic’, they are vital in the protection of fundamental rights – the most important role of administrative law.

 

[1] DF Jackson and JC Conde, ‘Statutory Interpretation in the First Quarter of the Twenty-First Century’ (2014) 38 Australian Bar Review 168, 168.

[2] Murray Gleeson, ‘The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights’ Public Law Review 26, 26.

[3] MRRL Kelly, Administrative Law: Law Briefs (Pearson Education, 2009) 16.

[4] Kath Hall and Claire Elizabeth Macken, Legislation and Statutory Interpretation (LexisNexis Butterworths, 2008) 72.

[5] Gleeson, above n 2, 31.

[6] Kath Hall, Legislation (Butterworths, 2002) 74.

[7] Kelly, above n 3, 16.

[8] Hall and Macken, above n 4, 73.

[9] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 161-2

[10] Hall and Macken, above n 4, 72.

[11] Acts Interpretation Act 1901 (Cth) s 15AA

[12] Hall and Macken, above n 4, 73.

[13] DC Pearce, Statutory Interpretation in Australia (Butterworths, 5th ed, 2001) 5.1.

[14] Constantine v Imperial Hotels Ltd [1944] 1 KB 693, 708.

[15] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492.

[16] See, for example, Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), which lead to the reintroduction of the Pacific Solution.

[17] Australian Constitution.

[18] Peter Cane, ‘The Making of Australian Administrative Law’ (2003) 24 Australian Bar Review 114, 115–116.

[19] Report of the Commonwealth Administrative Review Committee, Parliamentary Paper No 144 of 1971.

[20] Administrative Decisions (Judicial Review) Act 1977 (Cth).

[21] Cane, above n 18, 133.

[22] Ibid 128.

[23] Kioa v West (1985) 159 CLR 550; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J: s 5(2)(b) of the Act is ‘substantially declaratory of the common law’.

[24] See, for example, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, para 102.

[25] Coco v R (1994) 179 CLR 427, 437.

[26] International Covenant on Civil and Political Rights (‘ICCPR’), opened for signature 19December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[27] International Covenant on Economic Social and Cultural Rights (‘ICESCR’), opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[28] Al-Kateb v Godwin & Ors(2004) 219 CLR 562,para 63.

[29] Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 287, para 27.

[30] Michael Kirby, ‘The Growing Impact of International Law on Australian Constitutional Values’ (Speech delivered at the Australian Red Cross National Oration, The University Of Tasmania, 8 May 2008), 14 <www.hcourt.gov.au/assets/publications/speeches/former-justices/kirbyj/kirbyj_8may08.pdf>.

[31] Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth)

[32] James C Raymond, ‘Saving the Literal’ in Tom Gotsis (ed), Statutory Interpretation: Principles and Pragmatism for a New Age (Judicial Commission of New South Wales, 2007) 177, 195.

[33] Migration Act 1958 (Cth).

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