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Meaning Of Meaning Essay

9460 words - 38 pages


RMIT University, Melbourne School of Accounting and Law, Symposium on Statutory Interpretation Chapter House, St. Paul‟s Cathedral 13 August 2009.

The Hon. Michael Kirby AC CMG


The Hon. Michael Kirby AC CMG THE MAIN TASK OF MODERN LAWYERS Although we still describe ours as a common law system (to distinguish it from the countries of the civil law tradition), the label is now looking somewhat dubious.

The distinctive feature of ...view middle of the document...

Today there is nothing modest about the output of federal, State and Federal legislation. Every year it is contained in multiple volumes of printed paper. Happily, it is now more readily accessible by the

advances that have occurred in electronic technology. The shift in the expression of law from judge-made expositions to statutory and other rules has led to a number of changes in how statutory interpretation is undertaken.

First, by the mid-twentieth century, it was generally appreciated that the words of judges, written in their opinions, should not be subjected to the precise analysis appropriate to statutory and similar texts. Deriving the ratio decidendi of judicial holdings was recognised to be an art. Yet it was still commonly thought that securing the meaning of legislation was more of a science.

The explosion in the variety, detail and complexity of legislation has sorely tested this „scientific‟ theory. It has undermined the view that legislation has but one accurate meaning, which those bound by it only

need to search long and hard enough to find. The growth in the quantity of the written law has led to demands for plain English expression. However, it has also resulted in an appreciation that deriving the meaning of such laws presents „leeways for choice‟2, which courts, lawyers and others need to make in a transparent, consistent and principled manner.

Secondly, the growth in the size and importance of the laws made by and under parliament, has also led to changes in the rules applicable in Australia to the performance of statutory construction. Some of those rules have been enacted by parliament itself. Examples include the

federal, State and Territory statutory provisions requiring preference for a construction that promotes the purpose of legislation over one that does not3, and the authorisation of access by the interpreter to a wider range of extrinsic materials to assist him or her in this endeavour4. These statutory provisions effectively endorse moves that were already afoot in the judiciary of the common law both in England5 and Australia6.

SOME BASIC RULES OF APPROACH In addition to the encouragement of a purposive interpretation, legislative provisions have appeared designed to promote the

interpretation of legislation in ways consistent with enacted provisions

J. Stone, Social Dimensions of Law and Justice, (Maitland, Sydney, 1966), 649. Referring to the writings of Professor Carl Llewellyn, “The Normative, the Legal and the Law Jobs”, 49 Yale Law Journal, 1355 (1940. 3 See e.g. Acts Interpretation Act 1901 (Cth), s15AA; Interpretation of Legislation Act 1984 (Vic), s35(a). 4 See e.g. Acts Interpretation Act 1901 (Cth), s15AB; Interpretation of Legislation Act 1984 (Vic), r38(b). 5 Discussed J. Barnes “Statutory Interpretation” (Ch29) in I. Freckleton and H. Selby (eds.) Appealing to the Future (Thomson Reuters, Sydney, 2009), 721 at 736. See e.g. Forthergill v Monarch Airlines Ltd....

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