Deadly sins and handy hints of statutory interpretation
Commentary delivered at the Workshop conducted by the Bar Association of Queensland South Pacific Region Legal Education Committee
- At the heart of statutory construction is a straightforward proposition. The task is to give meaning to the text of a statute approved by parliament.
- Subject always to the limits of legislative competence and to other rights enshrined in a national constitution, parliament is supreme in each of our nations. Giving meaning to the text approved by parliament is therefore deferential to that supremacy.
- Our respective national constitutions separate and then distribute sovereign national power between a parliament, the judiciary and the executive. Within these branches of government, the task of giving meaning to the text of a statute is shared between the judiciary, via cases which are instituted in court, and the executive, via the general administration of legislation. But the conclusions reached by the judiciary as to the meaning of the text of a statute bind the executive, as they do everyone else in the nation. If parliament considers that meaning should be altered, it is for parliament to amend the statute.
- Each of our nations is a member of the Commonwealth of Nations. We share a common heritage and common values. The basal propositions which I have mentioned in the previous paragraph, flowing from the constitutional separation of powers, were the subject of elaboration as to the respective roles of each branch of government in the “Commonwealth Principles on the Three Branches of Government” (the Latimer House Principles), endorsed at the Commonwealth Heads of Government Meeting at Abuja in Nigeria in 2003 and as earlier agreed by the Commonwealth’s Law Ministers. I commend those principles to your study.
- Understanding and respecting the respective roles of the branches of government can reduce the tension which can from time to time arise between the three branches of government when the judiciary adopts a meaning of the text of a statute at variance with the understanding of an executive necessarily commanding a majority in parliament.
- When I was at the Bar, I had many reminders, in the context of statutory construction, of the respective roles of the branches of government and of the tensions that can sometimes occasion. One such reminder came in a case in which I appeared in the Federal Court of Australia for the Repatriation Commission. The Commission is an Australian statutory authority, charged with the administration of legislation concerning veterans’ entitlements. The case concerned the meaning and application of that legislation to an ageing Second World War veteran.
- More particularly, one issue was whether, on the evidence, the veteran was:
“by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity".The construction I promoted for the Commission in court entailed reading the word “loss” as more than a minimal loss but rather something substantial, a loss of a living wage. The Commission had been administering the legislation on the basis that this is what the text meant. There was some prior authority to support that but it was not conclusive and not binding on the trial judge. Not to construe the legislation that way carried with it the prospect of a greatly enlarged eligibility class to a totally and permanently incapacity pension amongst those who had reached a usual retirement age but were still undertaking a little work for minimal income.
- This is what the trial judge, Pincus J, observed about the submission I made for the Commission on this issue:
Mr Logan also said there needs to be not merely a loss of salary, wages or earnings, but a substantial loss, and relied on Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225, 226. The word "substantial" is used in the judgment of Fox J and it is not clear to me that Jenkinson J, who agreed generally with his Honour's reasons, is to be taken as accepting that qualification. The better view appears to be that the extent to which the section should be read down so as to exclude from its scope insubstantial or trivial losses, in order to avoid absurdity, is still an open one, and it is unnecessary to determine it in this case. I feel obliged to add, however, that this is not the first time in which the respondent Commission has implied in argument that provisions of this sort could not possibly have been intended to produce such anomalies as, literally read, seem to follow from them; but it is the constitutional function of Parliament, and not that of the judges, to correct any anomalies thought to arise from applying the plain language of legislation.
- The highlighted observations, by a judge who was, throughout his career, the personification of judicial independence, offer a stark example about how the separation of powers operates in practice in relation to statutory construction, and of the potential for tension to arise between branches of government.
- Statutory construction is not just the province of judges and those in public administration. Neither are its challenges only encountered in the courtroom. They are encountered by lawyers in offices large and small in capital cities and provincial centres all across our respective jurisdictions. Not infrequently, they entail construing, for the purpose of advising a client, the text of a statute or subordinate legislation for which there may be no prior, guiding authority from national courts. This added dimension in practice emphasises why understanding the principles of statutory construction is an essential skill for all lawyers. In providing such advice, a lawyer gives practical voice to the rule of law in a parliamentary democracy.
- The South Pacific embraces nations which vary greatly not just in population but also in the volume of commercial activity. Even for Australia, large by each measure in the South Pacific, these volumes are minor relative to the United Kingdom. An absence of local authority on the meaning of the text of a statute can, at first blush, make for a daunting challenge for a practitioner in a South Pacific nation. Remembering that we have a common heritage can, in my experience, greatly assist in the provision of advice and in the making of submissions in court about issues of statutory construction.
- The best example I can offer of this from my experience in practice comes from when, as a Silk, I was briefed to appear with a local junior in a land acquisition case in Fiji. By the time I was briefed, the issue of the legality of the acquisition of the subject land had been resolved (ultimately by a decision of the Judicial Committee of the Privy Council). What remained at issue was the amount to be awarded as just compensation for the compulsory acquisition of a large parcel of land for the purposes of construction of a power station for Suva.
- For various reasons, many years had passed since that acquisition. Over that time, there had been great change in the value of money. The value of the land fell for determination as at the time of acquisition. Unless “compensation” under statute extended to the awarding of interest on a compounding basis, the client would receive what was in current Fiji dollar terms, minor compensation for the taking of the land. Fiji’s land acquisition statute referred to “compensation” but did not expressly provide for the awarding of compound interest as a component of compensation. There was no Fijian authority on the meaning of the relevant section of the statute. Contested local cases concerning compulsory acquisition of land just had not occurred before. A hardly unusual predicament in a South Pacific island jurisdiction, and hardly confined to land acquisition cases, you might think.
- On researching the subject, what I found was that Fiji’s land acquisition legislation had been based upon legislation enacted in the United Kingdom in the 19th On researching further, I found that similar statutes had been enacted in other jurisdictions of British heritage. In turn, over the course of the twentieth century, some of these statutes had been construed by the Judicial Committee of the Privy Council in cases emanating from Canada, India and Hong Kong and by the High Court of Australia in cases concerning both national and State land acquisition statutes, which also had similar language to the original United Kingdom statute. I detected in these cases a liberal approach to the meaning of “compensation”. Referring to these overseas cases, I submitted that Fiji’s land acquisition statute should be construed in a similar way. That submission did not succeed in the High Court or in the Court of Appeal but it did, unanimously, in the Supreme Court. I drew the petition for the appeal to the Supreme Court and was briefed to appear there but was appointed to the Federal Court of Australia before the case was heard. So another Silk had the satisfaction of seeing the submission triumph. The result saw the awarding of a compound interest component which was large, given the passage of the years, in the overall award of compensation.
- The point is, no matter how small your local jurisdiction, you are not alone in relation to dealing with the challenges of statutory construction and in so many other areas of legal practice. Our common heritage is not just a matter of history. It has current, practical relevance.
- I also see this current, practical relevance repeatedly when I sit hearing appeals on the Supreme Court of Papua New Guinea. Of course, with over almost half a century of independence and social and economic development, there are, ever increasingly, local case authorities on issues of the construction of local statutes. But even these often draw upon prior case examples from our common heritage. We look to that common heritage for guidance in locally novel cases and to confirm understanding in cases which are not.
- Such overseas cases must always be read with a careful eye to local relevance in light of local constitutional and other considerations. But remembering our common heritage and widening your research accordingly frequently pays dividends.
- Undertaking research so as to locate overseas authorities of relevance has never been easier, thanks to the growing availability of reliable internet connections in the South Pacific and freely available legal research databases.
- This common heritage also underscores why broadening your professional memberships to include the Commonwealth Lawyers’ Association (CLA) can be beneficial. I can see great scope for regional CLA conferences covering topics of local interest and importance to supplement that association’s main conference. Attendance at the main conference may be too great an expense for many but perhaps not so for a regional conference.
- In conclusion, I sound a cautionary note about statutory construction.
- More than once when in practice, I reached a view that, on the true construction of a statute or piece of subordinate legislation, it did not apply to a client’s circumstances, sometimes because it was invalid. In cases where an emanation of government is the opposing party, to raise such an issue does not necessarily resolve the case in favour of your client, either at all or in the long term. If the impact of the construction unsettles a major policy position or has major budgetary implications, it is only to be expected that a government having a majority in parliament will, within the limits of legislative competence, seek to amend the statute concerned, sometimes with retroactive effect.
- None of this means that you are not duty bound as a lawyer not to advise your client about the view you have reached about a matter of statutory construction, only to counsel additionally advising your client about the possibility of that construction being reversed by amending legislation. The prospect of such amending legislation ought not to be a source of tension, for it, too, is but an example of the sovereignty of parliament in our shared understanding of the separation of powers.
© J A Logan 2022, Moral right of author asserted. Non-exclusive publication licence granted to the Queensland Bar Association and to the Law Societies, however descried, of Papua New Guinea, Tonga, Solomon Islands, Nauru and Vanuatu.
Judge, Federal Court of Australia; Judge, Supreme and National Courts of Papua New Guinea; Special Member (Judicial), Bar Association of Queensland.
 See: https://commonwealthlawyers.com/wp-content/uploads/2018/12/LatimerHousePrinciples.pdf Accessed, 24 May 2022. The popular term, “Latimer House Principles” is derived from a conference sponsored by the Commonwealth Parliamentary Association, the Commonwealth Legal Education Association, the Commonwealth Magistrates’ and Judges’ Association and the Commonwealth Lawyers’ Association, which was held in the United Kingdom at Latimer House, Buckinghamshire, in June 1998, where these principles were drawn up. It was these principles to which the Commonwealth’s Law Ministers agreed and which its Heads of Government endorsed.
 Gauntlett v Repatriation Commission  FCA 635; (1991) 32 FCR 73, at 76-77.
 Ben v Suva City Council  FJSC 17.