CONSTITUTIONAL ROLE OF THE JUDGE: Statutory Interpretation
The Hon Justice Susan Kenny

Statutory interpretation is something judges do most days.  Whilst recognising we must be careful and abide by the rules, we generally interpret statutory provisions as a matter of course.  We would not ordinarily consider the constitutional position that judges occupy as interpreters.  I propose this afternoon to examine this position.

At the outset, I shall map for you where I intend to go.  My choice of route results from a recent discussion with Professor Saunders, co-presenter in this session.  We began, as our Chair did today, with Ekins’ ideas about legislative intent.  We went on to discuss the following questions with respect to the Australian legal situation: 
(1)	what is meant by legislative intent?
(2)	what, if anything, is the continuing utility of the concept of legislative intent? 
(4)	has the legislative intent concept any practical effect on how the judge undertakes statutory interpretation?
(5)	how should the constitutional role of the judge in interpreting statutes best be understood?
I am going to explore each of these questions in turn.  My argument is that, for Australian judges, the concept of legislative intent continues to express  the constitutionally-defined goal of statutory interpretation; and that, viewed in this light, the concept has a practical effect on the rules and assumptions that govern our task and indicates what we should see as the most desired outcome of our interpretive work.  

What is meant by legislative intent? 
This is a key question.  My first proposition is that the meaning of legislative intent is determined by the function that the concept plays in “common law constitutionalism”, to adopt French CJ’s expression in Momcilovic.  

Amongst legal philosophers, the question has, of course, provoked a variety of answers.  As Eskridge said in his book, Dynamic Statutory Interpretation, since the early 1980s, in the United States, “theories of statutory interpretation have blossomed like dandelions in spring”.  He might also have said that such theories have blossomed around the common law world, including Australia.  Many theories focus on ‘legislative intent’ and, as Ekins writes in his recently published book, numerous scholars and some judges have challenged the utility of the concept of legislative intent and the validity of the proposition that the ‘discovery’ of ‘legislative intent’ is the aim of the game.  I am not going to stray further into this philosophical field, however, because it would take me the rest of my time to cover it.  

The fact is that Australian courts have almost always described the goal of statutory interpretation as the ascertainment of legislative intention.  In a passage in Federal Commissioner of Taxation v Munro, in 1926, Isaacs J wrote that “[c]onstruction of an enactment is ascertaining the intention of the legislature from the words it has used in the circumstances, on the occasion and in the collocation it has used them”.  Recently, this passage was again relied on in the High Court, in the plurality judgment in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia.   

So far as we, the judges are concerned, theory is usually less informative than practice; and Isaacs J’s statement indicates that the meaning of legislative intent depends on what we do when we engage in statutory interpretation.  I am, therefore, going to look at what we do in this process.

I first sketch what we do in terms familiar to us all.  In a moment I want to explore aspects of the sketch more carefully.

So far as judges are concerned, statutory interpretation is not merely the attribution of meaning to a text, such as a newspaper, a letter, or a book.  The authoritative status and legal nature of the text itself is significant.  The particular text with which the judge is concerned is a provision forming part of the set of provisions constituting a specific statute; and the significance of a statute is that it is enacted by the legislature as the law.  It is the legislature’s own constitutional role and authority that impresses a statutory text with its peculiar significance.  The very point of the legislature is, of course, to make law and, in our system, it is uniquely constituted to give effect to the principle of representative democracy.  Subject to constitutional constraints, an Australian Parliament can make or unmake any law it wishes.  

Except when the judge is required to declare that the legislature has passed beyond constitutional limits, the constitutional role of the judge with respect to statutes is, in brief, to apply its provisions to the case at hand and, where necessary, to interpret them to disclose their meaning.  In a simple circumstance, to quote Sir Philip Sales of the English High Court, “[t]he judges complete the law promulgated by Parliament by applying it”.  

At this point, you may say that I have arrived at my destination since I have identified the constitutional role of the judge in the interpretive context.  I have still not given meaning to legislative intent, however; and I am, therefore, not there yet.  Indeed, as we all know, the interpretive role is more than that of “completing” the law made by Parliament.  There are occasions when, as the interpreter, the judge departs from the grammar and ordinary meaning of the text in order to give effect to the apparent purpose of the enactment.  In this instance, the judge becomes the legislature’s “co-operative partner”, to adopt Suzanne Corcoran’s expression.  More importantly for the route I am taking, these occasions expose the fact that, as Peter Goodrich says in The New Oxford Companion to Law, “the judges in point of practice are the final arbiters of meaning”,  although this proposition too is subject to qualification. 

Whilst the judges are the final arbiters of the meaning of the provision in the case at hand, as some of us are aware from our experience, subject to constitutional constraints, the legislature can amend, overrule or abrogate the effect of judicial interpretation.   This is a salutary reminder to the judge of the superior authority of constitutionally valid statute law; and, even more importantly, that in our system of representative democracy, we, like the other branches of government, operate subject to certain checks upon our power.  

There is a further point to be made: without what I shall term certain ‘rules of engagement’, the three branches of government would compete for authority with respect to the interpretation of statute law.  The rules of engagement provide various checks.  We are well-acquainted with at least two of them.  One derives from the nature of the power confided to each branch of government, a limit which receives confirmation in the separation of powers operating most strongly in the Commonwealth constitutional context.  Another is the nature of the judge’s competence, which is limited to stating how the statute should apply when confronted with the particular case.

In the context of interpreting statutes, there is a third common law constraint: namely, that the common law states that the only goal of the judge’s interpretive role is to ascertain the legislative intent.  The common law defines this legislative intent as the meaning of the statutory provision that the legislature is taken to have intended it to have in conformity with the rules of construction, whether common law or statutory.  This is implicit in the now familiar statement in Project Blue Sky in 1998 that the objective of statutory construction “is to give the words of a statutory provision the meaning which the legislature is taken to have intended them to have”.

What is the continuing utility of the concept of legislative intent?  
This is the second question, which I proposed earlier.  The utility of the legislative intent concept is that it operates to constrain the judge in the interpretive role in a constitutionally appropriate way.  

By way of the legislative intention concept, the common law provides constitutional orientation for the judge when engaged in statutory interpretation.  That is, when the judge says that the goal is to ascertain what the legislature intended, the judge is acknowledging the nature of the judge’s constitutional relationship with the legislature, although rarely is this spelt out in intermediate appellate or trial courts.  

The legislative intent concept implicitly recognizes that the Parliament makes law by its enactment of the statute; that the judge must apply the law; and that, given the limits of language and imagination, it is often impossible to spell out in so many words what the law requires to be done in every situation to which it applies.  In the interpretive task, the judge ‘bridges the gap’ between the statutory provision as enacted by the legislature, and its operation and application in the circumstances of the particular case, via the concept of legislative intent.  At the same time, the legislative intent concept acknowledges that, in practice, the judge is the final arbiter of the meaning of the law and therefore its application to the case at hand.  In the interstices of the concept, there may also lurk recognition that, in the Australian context at least, the executive lacks direct power to make domestic law (as the legislature does) or to interpret the law (as the judge does).  As the High Court has said in Zheng v Cai and numerous cases since then, legislative intent is “an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws”.  

Has the legislative intent concept any practical effect on how the judge undertakes statutory interpretation?
This is my third question.  As I have said, the concept provides the judge with a constitutional compass, but it does a great deal more than this.  It also identifies the rules that govern the judge’s interpretive role.  In any particular case, the legislative intention is arrived at by the accepted rules of construction, whether sourced in common law or statute.  Momcilovic makes clear that, in Victoria, this includes s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Victorian Charter’).   As the joint judgment in Lacey states, the “[a]scertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts”.  Similar statements can be found elsewhere in the judgments of the High Court since Zheng. 

Whether or not it is desirable to invoke the putative knowledge of drafters, or as in Zheng, to take guidance from the “relationship of all arms of government in the system of representative democracy” is unclear.  Perhaps, statements of this kind emphasise that the rules are not just judge-made; rather, they are accepted through-out government.  Be this as it may, it is apparent that, by employing a concept of legislative intent, the common law neatly expresses the constitutional relationships that exist between the legislature and the judge when the judge engages in the interpretive task.  The use of the expression ‘legislative intent’ is, in a sense, code for some of the most fundamental aspects of the way the legislature and the judge relate to one another in the matter of statutory construction. 

When the meaning and function of the legislative intent concept is properly appreciated, it is evident that the actual intentions of the legislators are immaterial.  It was for this reason that the Commonwealth’s attempt, in the Malaysian Declaration Case, to have the Court interpret the critical provision of the Migration Act 1956 (Cth), by reference to matters known to the promoters of the legislation, was bound to fail.  The Commonwealth invited the Court to have regard to the fact that the promoters of the provision had Nauru in view at the time of its enactment and that the promoters knew that Nauru was not a signatory to the Refugees Convention.  As the plurality judgment said, the “hopes or intentions” of the promoters of the legislation did not bear on “curial determination of the question of construction of the legislative text”.  The theoretical concerns about the ascertainment of actual intentions are thus misplaced.  

Furthermore, as the Court said in Zheng and in Lacey, the legislative intent concept does not entail “the attribution of a collective mental state to legislators” or “an objective collective mental state”.   The common law concept, understood in this way, leaves little room for Ekins’ idea that the legislators’ joint action gives rise to a shared plan and, in consequence, legislative intent is that which is stated by voting for, or against, the plan.  Common law legislative intent is an expression of constitutional relationship as opposed to a statement of objective reality.  

In interpreting a statutory provision, the judge is not simply engaged in attributing meaning.  If this were all that were required, the judge might permissibly choose the meaning that she or he thought best served the common good.  Heydon J’s statement in Momcilovic that “the common law of statutory interpretation requires a court … to search, not for the intention of the legislature, but for the meaning of the language it used” is seemingly misconceived because it disregards the function that legislative intention serves.  

From the judge’s perspective, there is a third way in which the concept of legislative intent has a practical effect on the interpretive role.  Because the judge gives content to the concept of legislative intent by acting in conformity with the common law construction rules, as augmented by statute, the judge also proceeds on the basis of the assumptions that these rules entail.  These assumptions together constitute a touchstone by reference to which the judge evaluates the interpretive choices, to determine which is the most preferred.  Being intimately linked with legislative intent, the touchstone is also part of common law constitutionalism.  I am going to explain what I mean.  

As all of us know, applying these rules of construction, we commence with the text of the statutory provision, having regard to the whole of the statute and the law in the area with which it is concerned.  This initial focus on the text of a provision and the salient law assumes that the legislature acts rationally so as to create a law that sits reasonably with, or as one scholar has said, is “coherent and consistent” with the rest of the statute of which it is part and other relevant laws.  This is why Crennan and Kiefel JJ said in Momcilovic that the statutory direction in s 32(1) of the Charter – to keep Charter rights in mind in statutory construction – is “not, strictly speaking, necessary”.  An expression of this consistency and coherence assumption is that, to quote Bell in The New Oxford Companion to Law, “the preferable interpretation is one that makes sense of the specific legislative text as part of a systemic whole”.

Although the first port of call is the text, the history of statutory interpretation shows that this is not the end of the voyage.  Statements such as those in the joint judgment in Alcan in 2009 and in Consolidated Media in 2012 to the effect that the task of statutory construction must begin and end with a consideration of the statutory text go too far if they are intended to assert unyielding primacy to the text.  Indeed, in Consolidated Media, the authors of this statement also acknowledged that the text must be considered in its context, including its legislative history, although they went on to say that “[l]egislative history and extrinsic materials cannot displace the meaning of the statutory text”.  This statement is perplexing.  Issues of statutory interpretation arise because the text is uncertain.  There is circularity in such a statement that may lead one to doubt its true effect.

Furthermore, to give primacy to the text of the kind apparently mandated in Consolidated Media and Alcan is to ignore another powerful assumption that informs the common law’s rules of construction.  This is the assumption that the legislature acts reasonably, having regard to its purpose in making a law, its constitutional role and those of the other branches of government, and the rights, freedoms and immunities that the common law protects because they are seen as key in a liberal, representative democracy.

As judges, we know that the common law rule, confirmed by statutory provisions in the Commonwealth, the States and Territories, requires that, so far as possible, we give effect to the purpose of the provision in question.  Further, in the words of Project Blue Sky, a provision must not only be interpreted by reference to the statute viewed as a whole but so as to give effect to “harmonious goals”.  The assumption is that the legislature, being a rational body, can be taken to have intended to give effect to a rational purpose in enacting the provision.  

In applying the purpose rule, the judge looks back to the time before the provision was enacted, to identify the purpose to be addressed.  As the joint judgment in CIC Insurance makes clear, to this end, the common law, as well as statutory provisions, allow the judge to have regard to law reform reports, explanatory memoranda, the Minister’s second reading speech and the like.  CIC Insurance states that this kind of consideration, which may be called contextual consideration, was to occur “at the first instance” and not at some later stage when an ambiguity was thought to arise.  

At this point, I am going to deviate from my route for a moment, to note that, from time to time over recent years, a contrary approach has been countenanced in the High Court.  For example, in Saeed in 2010, it was said to be “erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.  Once again, I consider that such statements would be mistaken if they dissuaded the judge from applying the purpose rule in order to identify the legislative intent in the particular case.  The law reports are testament to cases, such as Wilson v State Rail Authority of New South Wales,  where the text provided misleading information about the mischief the provision was to address.  To adhere to a supposed rule that deferred consideration of such extrinsic material until an ambiguity were found would, in some circumstances, preclude the ascertainment of the legislative intent that is the goal of the judge’s inquiry.

The assumption that the legislature acts reasonably, having regard to its constitutional role and those of the other branches of government finds expression in various familiar constructional rules.  One is “the presumption that Parliament did not intend to pass beyond constitutional bounds”.  

The rules of construction applied in the Malaysian Declaration Case disclose an assumption that the legislature acts reasonably, having regard to its own legislative role, as well as the role of the executive in assuming international law obligations.  This was a case, so the Court said, in which the executive had assumed certain obligations under the Refugees Convention and the Parliament had legislated with these obligations in view.  The result was, so the Court held, that the enactment assumed that Australia had protection obligations to relevant individuals by virtue of the Convention.  The critical provision required that certain criteria be met before the Minister could make a declaration in relation to Malaysia, permitting asylum seekers such as the plaintiffs to be taken there.  The plurality relied on the fact that the enactment assumed the existence of these protection obligations, in order to conclude that, as a matter of legislative intent, the criteria to be met under the statute were to be objectively satisfied.  The plurality’s interpretive approach incorporated rules of construction that required them to proceed on the assumption that the Parliament would act reasonably with respect to known international law obligations incurred by the executive with respect to asylum seekers.  

The assumption that the legislature acts reasonably, having regard to the rights, freedoms and immunities protected by the common law is expressed in the interpretive principle of legality.  The principle of legality is the common law rule that, in the absence of clear and unambiguous language, the legislature does not intend to diminish or otherwise adversely interfere with common law rights, freedoms or immunities.  Unsurprisingly, in view of this, the High Court held in Hogan v Hinch and Momcilovic that s 32(1) of the Victorian Charter complements the common law rule.  Consistently with the concept of legislative intent, which picks up the legality principle, the principle also recognizes, however, that, subject to constitutional constraints, the Parliament may legislate so as to undo the common law rights, freedoms and immunities in expressly stated circumstances.  

These common law rights, freedoms and immunities embrace those aspects of the relationship of citizen and state, which, over time, judges have found – and the legislature has accepted – are inherent in our system of government.  The principle of legality is thus concerned with various aspects of this relationship, including the open justice principle and common law freedom of speech (in Hogan v Hinch); the expropriation and extinguishment of property rights without fair compensation (in Jemena Gas); continued detention at the unconstrained discretion of the executive (in Plaintiff M61); and those interpretive perennials, denial of procedural fairness to a person affected by an exercise of public power, and the abrogation of legal professional privilege.  

In the search for legislative intent, the judge is, therefore, required to be able to recognise common law rights, freedoms and immunities such as these; to be alert to statutory incursions on them; and to spell out an interpretation that, consistently with the statute, has, to quote French CJ in Hogan v Hinch, “the least adverse impact” on them.  This is a difficult task, although it vindicates Gummow J’s statement that the common law is to an extent “the ultimate constitutional foundation in Australia”.  For better or worse, the interpretive role of judges makes them vital caretakers of this foundation. 

How should the constitutional role of the judge in interpreting statutes be best understood? 
This is my last question.  As I hope my route today has shown the constitutional role of the judge in interpreting statutes is mostly defined by the common law and the fact that the judge’s role is, as French CJ’s put it in Momcilovic, “an expression of common law constitutionalism”.  The common law explains this interpretive role as the ascertainment of legislative intention, in conformity with the common law rules of interpretation, as augmented by statute.  Legislative intent is the judge’s constitutional compass and also supplies the rulebook as to how it can be ascertained.  The rulebook requires the judge to proceed on the basis of assumptions about coherence, consistency and reasonable action.  As a consequence, the judge may be required to make difficult evaluations, with a view to finding the most coherent, consistent and reasonable interpretation, in light of the matters identified in the rules, including the text, the statute as a whole, statutory purpose and matters that fall within the umbrella of the principle of legality.  This, so it seems to me, is the constitutional role of the judge with respect to interpreting statutes.  It is a difficult role.  Notwithstanding the assumptions on which we are required to proceed, statutory interpretation is often like finding harmony in dissonance and clarity in mud.  

There is disconformity between the constitutional ideal and the reality of what passes for legislation.  When faced with a seemingly intractable interpretive problem, I have so far followed the advice of Franklin D Roosevelt, “When you come to the end of your rope, tie a knot and hang on”.