¹ M Loughlin, Public Law and Political Theory (1992) at 39.

² Mr Justice Bryson, “Statutory Interpretation” (1992) 8 Aust Bar Rev 185.

³ D N MacCormick and R S Summers, “Interpretation and Justification” in D N MacCormick and R S Summers (eds), Interpreting Statutes: A Comparative Study (1991) 511 at 538.

⁴ Another Look at Statutory Interpretation (1982). An edited record of the Symposium on Statutory Interpretation conducted by the Attorney-General's Department in Canberra in March 1981.

⁵ The Law Commission and the Scottish Law Commission, The Interpretation of Statutes (1969) (hereafter, Law Commissions); Northern Territory Law Reform Committee, Report on Statutory Interpretation (1987); Law Commission (NZ), A New Interpretation Act to Avoid “Prolixity and Tautology” (1990).

⁶ Eg, ss 15AA and 15AB of the Acts Interpretation Act 1901 (Cth).

⁷ FAR Bennion, Statutory Interpretation: A Code (2nd ed 1992), is almost a thousand pages.

⁸ Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at629-630 per Lord Wilberforce.

⁹ In the United States of America discussions have “erupted both on the bench and in the academy”Easterbrook, F H “What Does Legislative History Tell Us?” (1990)Google Scholar 66 Chi-Kent L Rev 441. See also on this point W D Popkin (ed), “Symposium on Statutory Interpretation” (1990) 66(2) Chi-Kent L Rev; Frickey, P P “From the Big Sleep to the Big Heat: The Revival of Theory in Statutory Interpretation” (1992)Google Scholar 77 Minn L Rev 241. For an English perspective, see J Bell and G Engle, Cross on Statutory Interpretation (2nd ed 1987) at 194-195; and J Bell, “Studying Statute Law” (1993) 13 O/LS 130. For an Australian perspective, see Gava, J, “Review: Statutory Interpretation in Australia” (1993)Google Scholar 9 Aust J of L & Soc 118. A comprehensive critical overview appears in W N Eskridge and P P Frickey, “Statutory Interpretation as Practical Reasoning” (1990) 42 Stan L Rev 321 at 324-345. Interdisciplinary works include K S Abraham, “Statutory Interpretation and LiteraryTheory: Some Concerns of an Unlikely Pair” (1979) 32 Rutgers L Rev 676; P Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (1986); R A Posner, Law and Literature: A Misunderstood Relation (1988) at ch 5; I Evans, Statutory Interpretation: Problems of Communication(1988); S Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989); G Airo-Farulla, “‘Dirty Deeds Done Dirt Cheap’: Deconstruction, Derrida, Discrimination and Difference/ance in (the High) Court” (1991) 9(2) L in Con102; A Glass, “Interpretive Practices in Law and Literary Criticism”(1991) 7 Aust I of L & Soc 16; Schanck, P C, “Understanding Postmodern Thought and its Implications for Statutory Interpretation” (1992)Google Scholar 65 S Cal L Rev 2505; IA Ferejohn and B R Weingast, “A PositiveTheory of Statutory Interpretation” (1992) 12 International Review of Law and Economics 263; IP Stevens, “The Shakespeare Canon of Statutory Construction” (1992) 140 UPaL Rev 1373; and P Campos, “That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text” (1993) 77 Minn L Rev 1065.

¹⁰ See generally Pearce D C and Geddes R S, Statutory Interpretation in Australia (3rd ed 1988) at paras 2.22-2.25; G Morris et al, Laying Down the Law (3rd ed 1992) at 157-161; C Enright, Legal Research and Interpretation (1988) at 229-231; C Corns, “Purposive Construction of Legislation and ludicial Autonomy” (1984) 58 LIJ 391; I Cameron, ‘“Now Yon See Me, Now You –' Section 5A and the Interpretation of the Legislation to which it Relates” (1985) 3 C&SLJ 46; R East, “The Lawmaking Role of the Appellate Judiciary: Some Lessons from Australia” (1990) 11 Stat LR 48; Mr Justice Bryson, above n 2; D Gifford, Statutory Interpretation (1990) at ch 4.

¹¹ FAR Bennion, above n 7 at 1 and 2. To be fair, Bennion does qualify this statement by saying that criticism is also essential (at 3); a task he carries out at length.

¹² D Gifford, above n 10 at 56. Emphasis added. On “interpretive communities”, see below n 172.

¹³ Sir Anthony Mason, “Future Directions in Australian Law” (1987) 13 Mon U L Rev 149 at 158-159.

¹⁴ FAR Bennion, above n 7 at 3.

¹⁵ J Bell and G Engle, above n 9 at 36.

¹⁶ DAS Ward, “A Criticism of the Interpretation of Statutes in the New Zealand Courts” [1963] NZLJ 293 at 296.

¹⁷ >Tucker, E “The Gospel of Statutory Rules Requiring Liberal Interpretation According to St Peter's” (1985)Google Scholar 35 1171/113.

¹⁸ >Miers, D “Legal Theory and the Interpretation of Statutes” in W Twining (ed), Legal Theory and the Common Law (1986)Google Scholar 115 at 117.

¹⁹ C Sampford, The Disorder of Law: A Critique of Legal Theory (1989): see below at 120.

²⁰ >Wittgenstein, L Philosophical Investigations (3rd ed 1967) at para 129, cited in M Krygier,“Law as Tradition” (1986)Google Scholar 5L Phil 237 at 238.

²¹ R Young (ed) Untying the Text – A Poststructuralist Reader (1981) at 18, cited in G Airo-Farulla, above n 9 at 104.

²² Ibid at 102. These conditions, he adds, “are not inherent in the text, are not in the collection of signs which constitute the text; but in the role that the text plays in discursive practices, and specifically in the exercise of power”: ibid at 103.

²³ >Pearce, D C “Executive Versus Judiciary” (1991)Google Scholar 2 PLR 179 at 186. Emphasis added.

²⁴ H Lords Deb 1966, Vol 277 at 1294.

²⁵ Below at 153-154.

²⁶ Below at 155-157.

²⁷ J M Keynes, cited in T Eagleton, Literary Theory: An Introduction (1983) at vii.

²⁸ Twining, W and Miers, D How to Do Things With Rules (3rd ed 1991) at 379. For a lucid exposition, see S Berns, Concise Jurisprudence (1993)Google Scholar.

²⁹ C Sampford, above n 19 at 13.

³⁰ Ibid at 16. Emphasis in original.

³¹ G Sawer, Law in Society (1965) at 17, cited in C Sampford, above n 19 at 75.

³² See, eg, O Fiss, “The Death of the Law?” (1986) 72 Cornell L Rev 1; D Miers, above n 18 at 116-118.

³³ C Sampford, above n 19 at 143-148.

³⁴ Ibid at 145.

³⁵ Ibid at 224.

³⁶ Ibid at 247.

³⁷ Ibid at 247.

³⁸ See generally, S Bottomley, N Guriningham and S Parker, Law in Context (1991) at ch 12.

³⁹ C Sampford, above n 19 at 207.

⁴⁰ See generally Q Skinner (ed), The Return of Grand Theory in the Human Sciences (1985).

⁴¹ C Sampford, above n 19 at 6 and 11.

⁴² Ibid at 150.

⁴³ Ibid at 151. For example, he holds that values are “entirely internal mental phenomena”: ibid at 173.

⁴⁴ I Hassan, “Pluralism in Postmodern Perspective” (1986) 12 Critical Inquiry 503 at 505.

⁴⁵ C Sampford, above n 19 at 203.

⁴⁶ Ibid at 219-220. Emphasis added.

⁴⁷ Ibid at ch 7.

⁴⁸ Ibid at ch 8.

⁴⁹ Ibid at 223.

⁵⁰ S Bottomley, N Gunningham and S Parker, above n 38 at ch 12.

⁵¹ W Twining and D Miers, above n 28 at 125 and 243. The relevance of that work to the theoretical framework adopted here is explained below at 124-125.

⁵² C Sampford, above n 19 at 149. Emphasis added.

⁵³ Ibid at 209.

⁵⁴ Ibid at 152-153 and 203.

⁵⁵ Ibid at 203-204.

⁵⁶ Ibid at 6. Emphasis in original.

⁵⁷ Ibid at 252.

⁵⁸ See above n 44.

⁵⁹ I McGowan, Postmodernism and its Critics (1991) at 16.

⁶⁰ O Fiss, above n 32.

⁶¹ C Sampford, above n 19 at 200.

⁶² Ibid at 247.

⁶³ Ibid at 159.

⁶⁴ Ibid at 166-167 and 206-207.

⁶⁵ Ibid at 173 and 195.

⁶⁶ Ibid at 2-3.

⁶⁷ Ibid at 263.

⁶⁸ Ibid at 262.

⁶⁹ Ibid at 149.

⁷⁰ A Hunt, “The Role and Place of Theory in Legal Education: Reflections on Foundationalism” (1989) 9 LS 146 at 163; P Cheah, “TheLaw of/as Rape Poststructuralism and the Framing of the Legal Text” (1991) 9(2) L in Con 117 at 118-119; R Cranston, Law, Government and Public Policy (1987) at 6.

⁷¹ C Sampford, above n 19 at 259-260.

⁷² Courts and tribunals are included. See generally D Miers, above n 18 at 125-126 for a critique of studies which fail to acknowledge the limited scope of their inquiry.

⁷³ S Bottomley, N Gunningham and S Parker, above n 38 at 310-314 (“‘pure’ consensus”,“consensus pluralism”).

⁷⁴ P Devlin, The Judge (1979) at 5 and 9-10.

⁷⁵ Above at 118.

⁷⁶ Mr Justice Brennan, “Ministers of the Third Branch of Government”, an address to a luncheon organised by the Young Lawyers' Section of the Law Society of NSW, Sydney, 29 May 1981.

⁷⁷ W Twining and D Miers, above n 28.

⁷⁸ Ibid at ch 6.

⁷⁹ Ibid at 236-237.

⁸⁰ >Krever, R “Murphy on Taxation” in J A Scutt (ed), Lionel Murphy: A Radical ludge (1987)Google Scholar 128 at 130.

⁸¹ (1981) 147 CLR 297.

⁸² In this section I have been generally assisted by the analysis in J Bell and G Engle, above n 9 at chs 1 and 2.

⁸³ On the causes of interpretive problems generally, see W Twining and D Miers, above n 28 at ch 6. For a drafter's perspective, see D Ward, above n 16 at 293-294.

⁸⁴ (1844) 11 CI & Fin 85 at 143; 8 ER1034 at 1057. Emphasis added.

⁸⁵ I Bell and G Engle, above n 9 at 36.

⁸⁶ Ibid at 4.

⁸⁷ Ibid at 4.

⁸⁸ G Barwick, Foreword to the First Edition, D C Pearce and R S Geddes, above n 10 at vii.

⁸⁹ FAR Bennion, above n 7 at 378 and 380.

⁹⁰ M Zander, The Law-Making Process (2nd ed 1985) at75refers to this tradition. Inadvertently, he perhaps perpetuates it.

⁹¹ DC Pearce and R S Geddes, above n 10 at para 1.4.

⁹² FAR Bennion, above n 7 at 7.

⁹³ W Twining and D Miers, above n 28 at 133.

⁹⁴ On the ambiguities in the literal approach, see below at 137-140. On the purposive approach, see below at 140-141 and Part Two. See also W Twining and D Miers, above n 28 at 365.

⁹⁵ See generally FAR Bennion, above n 7 at 387-389.

⁹⁶ Ibid at 389.

⁹⁷ W Twining and D Miers, above n 28 at 209. See also H McN Henderson, cited in I Maclean, “Responsibility and the Act of Interpretation: the Case of Law” in I Maclean et al (eds), The Political Responsibility of Intellectuals (1990) at 161. Lord Reid once observed that: “One may say what one likes about the way in which Acts of Parliament are interpreted in the courts at the moment, but the proof of the pudding is in the eating, and in ninety-nine cases out of a hundred counsel can advise in advance what the court is likely to say a particular section means, because the court acts on the words of the section which are plain for everybody to see.”: H Lords Deb 1966, Vol 277 at 1278.

⁹⁸ Pepper (Inspector of Taxes) v Hart [1993] AC 593 [HL]; South Australian Commissioner for Prices and Consumer Affairs v Charles Moore (Aust) Ltd (1977) 139 CLR 449 at 461 (HC); D C Pearce and R S Geddes, above n 10 at para 3.3. In Australia the rule was more liberal in operation at the State level in that reference to the mischief and other historical background was frequently permitted: D C Pearce and R S Geddes, above n 10 at paras 3.2-3.6.

⁹⁹ G C MacCallum Jr, “Legislative Intent” (1966) 75 Yale LJ 754.

¹⁰⁰ J Stone, Social Dimensions of Law and Justice (1966) at 130.

¹⁰¹ J Stone, Legal System and Lawyers' Reasonings (1964) at 32 and 292.

¹⁰² L L Fuller, cited in J Stone, above n 101 at 292.

¹⁰³ M Zander, above n 90 at 139.

¹⁰⁴ G C MacCallum, above n 99 at 764.

¹⁰⁵ M Zander, above n 90 at 139.

¹⁰⁶ See above n 98.

¹⁰⁷ D Gifford, above n 10 at 52.

¹⁰⁸ Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 613 per Lord Reid. His Lordship made this comment in the context of discussing the use of extrinsic material.

¹⁰⁹ M Zander, above n 90 at 139-140; Lord Diplock, “The Courts as Legislators”, Holdsworth Club Lecture, 1965, cited in M Zander, above n 90 at 156. G C MacCallum, however, discusses the possibility that the courts may be agents of Parliament under an “agency model” of legislative intent: above n 99 at 780-784.

¹¹⁰ Lord Diplock, “The Courts as Legislators”, Holdsworth Club Lecture, 1965, cited in M Zander, above n 90 at 156.

¹¹¹ M Zander, above n 90 at 140.

¹¹² The Law Commissions were sympathetic to criticism of the concept of the intention of Parliament (above n 5 at paras 54-55), but defended it by drawing a distinction between a “particular legislative intention” and a “general legislative intention”, the latter being “the purpose which the legislature intended to achieve”: Law Commissions, above n 5 at para 55, drawing on G C MacCallum Jr, above n 99. But to align the purpose with overall meaning is to confuse the two: G C MacCallum, above n 99 at 757; and see Part Two.

¹¹³ G C MacCallum, above n 99 at 761, 762 and 767.

¹¹⁴ W Twining and D Miers, above n 28 at 209-210.

¹¹⁵ J Bell and G Engle, above n 9 at 28.

¹¹⁶ See generally S D Smith, “Reductionism in Legal Thought” (1991) 91 Colum L Rev 68.

¹¹⁷ H Lords Deb 1966, Vol 277 at 1278 (Lord Reid).

¹¹⁸ FAR Bennion, above n 7.

¹¹⁹ yj Twining and D Miers, above n 28.

¹²⁰ See above n 9.

¹²¹ Black-Clawson International Ltd v Papierwerke Waldhof-Aschajfenburg AG [1975] AC 591 at 629-630 per Lord Wilberforce. See also H Gibbs, Foreword in D Gifford, above n 10 at viii.

¹²² FAR Bennion, above n 7 at 2.

¹²³ J Bell and G Engle, above n 9 at 194. For examples of theoretical approaches, see now J Bell and G Engle, above n 9 at ch 2; D Miers, above n 18. For interdisciplinary studies, see above n 9.

¹²⁴ J Bell and G Engle, above n 9 at 194.

¹²⁵ R Cross, Statutory Interpretation (1st ed 1976) at v.

¹²⁶ For instance, M Zander, above n 90 at 75 perpetuates the tradition that “there are said to be three basic rules” though, in fairness to him, he does later state (at 129) that it is a misnomer to call them rules, and refers generally to the many other guides to interpretation.

¹²⁷ w Twining and D Miers, above n 28 at 152 and 368.

¹²⁸ Ibid at 366.

¹²⁹ Ibid.

¹³⁰ The distinction between a literal approach and a literal interpretation is well made by M Zander, above n 90 at 93; see also below at 135-136.

¹³¹ J Stone, The Province and Function of Law (1946) at 172.

¹³² W Twining and D Miers, above n 28 at 365.

¹³³ Ibid at 196.

¹³⁴ A A Farrar, “Judicial Approaches to Meaning in the Interpretation of Statutes”, LLM thesis, University of Canterbury, NZ (1982) at 246.

¹³⁵ Sussex Peerage (1844) 11 CI & Fin 85 at 143; 8 ER1034 at 1057. Emphasis added.

¹³⁶ Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR129 at 161-162.

¹³⁷ (1857) 6 HLC 61 at 106; 10 ER1216 at 1234.

¹³⁸ (1584) 3 Co Rep 7a at 7b; 76 ER 637 at 638.

¹³⁹ J Bell and G Engle, above n 9 at 18.

¹⁴⁰ Stradling v Morgan (1560) 1 Plowd 199 at 205; 75 ER 305 at 315.

¹⁴¹ FAR Bennion, above n 7 at 378; D R Miers and A C Page, Legislation (1st ed 1982) at 187188 referring to Lloyd, Cross and Driedger.

¹⁴² A and J Farrar, “Legislation” in J F Corkery (ed), A Career in Law (2nd ed 1989) 54 at 66 and 67.

¹⁴³ See E Driedger, Construction of Statutes (2nd ed 1983) at 87, 89-91 and 107, who cites various English authorities, all pre-1973, for a method of construction which he calls “literal in total context” (at 2).

¹⁴⁴ Ibid at 8.

¹⁴⁵ Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461. However, it has been argued that a wholesale shift to the approach claimed by Driedger had not been worked out by the courts immediately before the enactment of the purpose rule: A A Farrar, above n 134 at 248.

¹⁴⁶ Northern Territory Law Reform Committee, above n 5 at 8-9 cites the following for what it calls the purpose approach: Bradley v Commonwealth of Australia (1973) 128 CLR 557 at 565 (“subject matter and object”); MP Metals Pty Ltd v Commissioner of Taxation of Commonwealth of Australia (1967) 117 CLR 631 at 633 (“policy” of an enactment); and Moreton Central Sugar Mill Co Ltd v Commissioner of Taxation of Commonwealth of Australia (1967) 116 CLR 151 at 157 (“apparent general purpose”).

¹⁴⁷ (1934) 52 CLR 234.

¹⁴⁸ Ibid at 244.

¹⁴⁹ See M Zander, above n 90.

¹⁵⁰ >Hopkins, E R “The Literal Canon and the Golden Rule” (1937)Google Scholar 15 Can Bar Rev 689 at 696.

¹⁵¹ Above n 9 at 340. A recent illustration is Re Secretary of Department of Sodal Security and Diepenbroeck (1992) 15 AAR 411 at 414 (Cth AAT, per O'Connor J). See also Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 638 per Lord Diplock; P S Atiyah and R S Summers, Form and Substance in Anglo-American Law (1987) at 108.

¹⁵² M Zander, above n 90 at 89-91.

¹⁵³ Ibid at 92-93.

¹⁵⁴ P S Atiyah and R S Summers, above n 151 at 107.

¹⁵⁵ w N Eskridge and P P Frickey, above n 9 at 332.

¹⁵⁶ D N MacCormick and R S Summers, above n 3 at 519.

¹⁵⁷ W Twining and D Miers, above n 28 at 215.

¹⁵⁸ D N MacCormick and R S Summers, above n 3 at 514.

¹⁵⁹ Ibid at 520.

¹⁶⁰ w N Eskridge and P P Frickey, above n 9 at 334, drawing on H M Hart Jr and A M Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Tentative ed 1958) at 1415.

¹⁶¹ D N MacCormick and R S Summers, above n 3 at 519.

¹⁶² Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423.

¹⁶³ D R Miers and A C Page, above n 141 at 205.

¹⁶⁴ The Honourable Justice Michael Kirby, “Statutory Interpretation and the Rule of Law – Whose Rule, What Law?” in D St L Kelly (ed), Essays on Legislative Drafting (1988) 84 at 92.

¹⁶⁵ por a comparison of English and American approaches to statutory interpretation, see P S Atiyah and R S Summers, above n 151 at 100-101.

¹⁶⁶ Arthur Yates & Co Ltd v Minister for Agriculture & Fisheries [1979] 1 NZLR 469 at 472 per Chilwell J.

¹⁶⁷ P S Atiyah and R S Summers, above n 151 at 104.

¹⁶⁸ Pepper (Inspector of Taxes) v Hart [1993] AC 593.

¹⁶⁹ D Oliver, “Pepper v Hart: A Suitable Case for Reference to HansardT [1993] PL 5 at 9 and 1213; footnotes omitted; emphasis added. See further Part Two (determining purposive meaning).

¹⁷⁰ K S Abraham, above n 9.

¹⁷¹ S Fish, above n 9, which largely consists of previously published writings on law and literature.

¹⁷² Explained in S Fish, above n 9 at 141: “The notion of ‘interpretive communities’ was originally introduced as an answer to a question that had long seemed crucial to literary studies. What is the source of interpretive authority: the text or the reader? Those who answered ‘the text’ were embarrassed by the fact of disagreement... Those who answered ‘the reader’ were embarrassed by the fact of agreement ... What was required was an explanation that could account for both agreement and disagreement, and that explanation was found in the idea of an interpretive community, not so much a group of individuals who shared a point of view, but a point of view or way of organising experience that shared individuals in the sense that its assumed distinctions, categories of understanding, and stipulations of relevance and irrelevance were the content of the consciousness of community members ...” The notion was not, however, invented by Fish: see R Posner, The Problems of Jurisprudence (1990) at 436.

¹⁷³ S Fish, above n 9 at 295. I am grateful to Dr A Goldsmith for clarifying the background conditions or constituting notions.

¹⁷⁴ Ibid at 512-513.

¹⁷⁵ Ibid at 295.

¹⁷⁶ Ibid at 185.

¹⁷⁷ w N Eskridge and P P Frickey, above n 9 at 341.

¹⁷⁸ Ibid at 342.

¹⁷⁹ Ibid at 343.

¹⁸⁰ A A Farrar/ above n 134 at 130. She cites Whiteley v Chappell (1869) 4 LRQB 147; Fisher v Bell [1961] 1 QB 394; Bourne v Norwich Crematorium Ltd [1967] 2 All ER 576.

¹⁸¹ A A Farrar, above n 134 at 130.

¹⁸² Ibid at 117-119.

¹⁸³ [1957] AC 436 at 473 per Lord Somervell.

¹⁸⁴ Ibid at 461 per Viscount Simonds.

¹⁸⁵ Ibid at 473 per Lord Somervell.

¹⁸⁶ Ibid at 461 and 473.

¹⁸⁷ Law Commissions, above n 5 at paras 42-44; G Morris et al, above n 10 at 184-187.

¹⁸⁸ Above n 134 at 133. In the Hanover case Viscount Simonds included the mischief within the necessary context of the Act: [1957] AC 436 at 461.

¹⁸⁹ See, eg, Fisher v Bell [1961] 1 QB 394.

¹⁹⁰ Re Secretary of Department of Social Security and Diepenbroeck (1992) 15 AAR 411 at 414 (AAT per O'Connor J).

¹⁹¹ A A Farrar, above n 134 at 123.

¹⁹² For instance, Harris v Sumner [1979] VR 343. J Bell and G Engle, above n 9 at 37 note the case of Newbury DC v Secretary of State for the Environment [1981] AC 578 “where the House of Lords adopted an interpretation of the word ‘repository’ which Lawton LJ in the Court of Appeal had described as one which ‘no literate person’ would adopt: see [1979] 1 All ER 243, 252”.

¹⁹³ A A Farrar, above n 134 at 125-128.

¹⁹⁴ Ibid at 249.

¹⁹⁵ (1844) 11 CI & Fin 85 at 143; 8 ER 1034 at 1057, citing Dyer CJ in Stowel v Lord Zouch (1569) 1 Plowd 353 at 369; 75 ER 536 at 560.

¹⁹⁶ Above n 10 at para 2.21.

¹⁹⁷ FAR Bennion, above n 7 at 13-14.

¹⁹⁸ Above n 9 at 334.

¹⁹⁹ Ibid at 334-335.

²⁰⁰ Ibid at 335.

²⁰¹ w Twining and D Miers, above n 28 at 214.

²⁰² Above n 17 at 148.

²⁰³ Ibid at 116.

²⁰⁴ Ibid at 117-123.

²⁰⁵ par Bennion, above n 7 at 654-658.

²⁰⁶ Carter v Bradbeer [1975] 1 WLR 1204 at 1206-1207.

²⁰⁷ Black-Clawson International Ltd v Papierwerke WaldhofAschajfenburg AG [1975] AC 591 at 638.

²⁰⁸ w Twining and D Miers, above n 28 at 342.

²⁰⁹ Fothergill v Monarch Airlines Ltd [1980] 3 WLR 209 at 222 per Lord Diplock.

²¹⁰ Ibid. A leading critic in Australia is R Eagleson, “Efficiency in Legal Drafting’ in D St L Kelly (ed), Essays on Legislative Drafting (1988) 13.

²¹¹ I Turnbull, “Clear Legislative Drafting: New Approaches in Australia’ (1990) 11(3) Stat LR 161.

²¹² Parliament of the Commonwealth of Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Clearer Commonwealth Law (1993) at para 8.4.

²¹³ C Sampford, above n 19 at 232. The re-written clear English Social Security Act 1991 (Cth) contains almost 1400 sections. In Re Blunn v Cleaver (1993) 119 ALR 65 at 81-83 the full Federal Court strongly criticised the redrafting of this Act. It stated that “an Act that is two or three times as long is not necessarily easier to read because some technical expressions (which once understood were succinct) have been replaced by wordier ones“ (at 82). It noted that “[t]he professed aim of the drafting of the Act is to make it more accessible to persons without legal training” (at 81); yet, it found that “no one seriously believes the layman can master the Act unaided” (at 81-82).

²¹⁴ Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 630.

²¹⁵ Law Commissions, above n 5.

²¹⁶ Above n 98.

²¹⁷ Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 630. The Australian authorities are set out in D C Pearce and R S Geddes, above n 10 at para 3.9.

²¹⁸ Pepper (Inspector of Taxes) v Hart [1993] AC 593 at 635; H Lords Deb 1980/ Vol 405 at 281; H Lords Deb 1981, Vol 418 at 67; see also D C Pearce and R S Geddes, above n 10 at para 3.2.

²¹⁹ Sagnata Investments v Norwich Corporation 11971] 2 QB 614 at 624, discussed in FAR Bennion, Statutory Interpretation, Second Edition, Supplement (1993) at A64-A65.

²²⁰ C Sampford, above n 19 at 230; W Twining and D Miers, above n 28 at 323-324 give useful illustrations.

²²¹ Other writers have pointed out the different traditions which have arisen within Western democracies, eg P S Atiyah and R S Summers, above n 151 at 103-104.

²²² R M Unger, Law in Modern Society (1976) at 193.

²²³ Ibid at 196.

²²⁴ Ibid.

²²⁵ H VV Arthurs, “Rethinking Administrative Law: A Slightly Dicey Business” (1979) 17 Osgoode Hall LJ 1 at 20-22 offers several reasons why judges may be unconsciously at odds with the legislature or even consciously “conceive that their mandate entitles them to revise legislation through interpretation” (at 21). P McAuslan, “Administrative Law, Collective Consumption and Judicial Policy” (1983) 46 MLR 1 argues that the judiciary is “antipathetic to collective consumption” (at 19) and have a general “ideological preference ... for the individual as opposed to the collective” (at 11).

²²⁶ S Rice, “Judicial ‘Habits’ and other Curious Tales” (1993) 18 Alt LJ 244; S Berns, above n 28 at 77-81, discussing the writings of Duncan Kennedy.

²²⁷ E Tucker, above n 17 at 143-147. The question of values in particular cases involving the purposive approach is taken up in Part Two.

²²⁸ Sir Anthony Mason, above n 13 at 157-158 and 160-161; see also R Unger, above n 222 at 194-200.

²²⁹ The Honourable Justice Michael Kirby, above n 164 at 92.

²³⁰ Sir Anthony Mason, “Book Review” (1983) 6 UNSWLJ 234 at 235-236.

²³¹ A Blackshield, “Judicial Innovation as a Democratic Process” in Future Directions in Australian Politics (1979) 35.

²³² The Honourable Justice Michael Kirby, above n 164 at 92.

²³³ See generally, FAR Bennion, above n 7 at 389-390.

²³⁴ See also G Bird, The Process of Law in Australia (2nd ed 1993) at 198-201.

²³⁵ C Sampford, above n 19 at 188-190.

²³⁶ D N MacCormick, Legal Reasoning and Legal Theory (1978) at 105-106.

²³⁷ w Twining and D Miers, above n 28 at 194.

²³⁸ Mr JusticeHutley, F C “The Legal Traditions of Australia as Contrasted with those of the United States” (1981)Google Scholar 55 ALJ 63.

²³⁹ M Coper, “Interpreting the Constitution: A Handbook for Judges and Commentators” in A R Blackshield (ed), Legal Change: Essays in Honour of Julius Stone (1983) 52 at 53-54.

²⁴⁰ w Twining and D Miers, above n 28 at 196-197.

²⁴¹ Ibid at 189. Emphasis added.

²⁴² Ibid at 192.

²⁴³ Ibid at 240. Emphasis in original.

²⁴⁴ Ibid at 190-191.

²⁴⁵ C Sampford, above n 19 at 232.

²⁴⁶ p Bridgman, “New Ways with Old Acts – Queensland's Innovative Acts Interpretation Act” (1991) 21 Queensland Law Society Journal 333.

²⁴⁷ Law Commissions, above n 5 at para 6.

²⁴⁸ Above at 11.

²⁴⁹ j Willis, “Statute Interpretation in a Nutshell” (1938) 16 Can Bar Rev 1 at 16.

²⁵⁰ E Tucker, above n 17 at 114.

²⁵¹ For a strong judicial statement of the benefits of the literal approach to the judicial role in law-making, see Mr Justice F C Hutley, above n 238.

²⁵² Sir Anthony Mason, above n 13 at 154-155; M Kirby, P, above n 164 at 92.

²⁵³ Dixon CJ, Address on being sworn in as Chief Justice, (1952) 85 CLR xi at xiii-xiv.

²⁵⁴ See further below, discussion of seminar at 155.

²⁵⁵ P Bridgman, above n 246 at 333.

²⁵⁶ D Gifford, above n 10 at 56. See also S Fish and his discussion of “interpretive communities”: above n 9 at 125-128.

²⁵⁷ See further, discussion of tax avoidance era below at 154.

²⁵⁸ See n 97 above.

²⁵⁹ C Sampford, above n 19 at 182.

²⁶⁰ Ibid at 207.

²⁶¹ Ibid at 182.

²⁶² Twining and D Miers, above n 28 at 230.

²⁶³ Above n 5 at para 1.

²⁶⁴ Above n 5.

²⁶⁵ Already mentioned above were its criticisms with respect to the concept of legislative intention (n 112) and the obscurity of the rules limiting the materials which could be considered (n 215).

²⁶⁶ Above n 5 at para 29.

²⁶⁷ Ibid at para 8.

²⁶⁸ Ibid at para 9.

²⁶⁹ Ibid at para 32.

²⁷⁰ Ibid at para 33.

²⁷¹ Ibid at para 81.

²⁷² Ibid.

²⁷³ Ibid at para 8.

²⁷⁴ Ibid at para 79.

²⁷⁵ H Lords Deb 1966, Vol 277 at 1294.

²⁷⁶ Acts Interpretation Act 1924 (NZ) at s 5(j); emphasis added. See generally DAS Ward, above n 16 whose view was that it was a “modern restatement” of the rule in Hey don's case (at294)-

²⁷⁷ Above n 5 at para 33 and n 79: Interpretation Act 1967 (Canada), s 11; see generally E Tucker, above n 17. The Canadian provision stated that: “Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.

²⁷⁸ Ibid at para 33.

²⁷⁹ Ibid at para 52, citing Govindan Sellappah Nayar Kodakan Pillai v Punchi Banda Mudanayake [1953] AC 514 at 528 (PC).

²⁸⁰ Law Commissions, above n 5 at para 61.

²⁸¹ Ibid at para 54.

²⁸² Ibid at para 55. Emphasis in original. The Commissions drew on G C MacCallum Jr, above n 99.

²⁸³ Law Commissions, above n 5 at para 55. The Commissions drew on an unnamed author, “A Re-evaluation of the Use of Legislative History in the Federal Courts” (1952) 52 Colum L Rev 125 at 126.

²⁸⁴ Re-evaluation of the Use of Legislative History in the Federal Courts, above n 283 at n 16.

²⁸⁵ G C MacCallum Jr, above n 99 at 786.

²⁸⁶ C Sampford, above n 19 at 256.

²⁸⁷ The Renton Committee, The Preparation of Legislation, Cmnd 6053 (1975).

²⁸⁸ Ibid at para 19.27.

²⁸⁹ Ibid at para 19.28.

²⁹⁰ Interpretation of Legislation Bill 1981 (HL Bill No 67), set out in D R Miers and A C Page, above n 141 at 245-246.

²⁹¹ Sen Deb 1981, Vol 90 at 2166 (“The British proposals, I should add, have bee?n initiated and supported by very distinguished law lords, including Lord Scarman and Lord Wilberforce”: Senator Durack, Attorney-General.)

²⁹² H Lords Deb 1980, Vol 405 at 306.

²⁹³ H Lords Deb 1981, Vol 418 at 83.

²⁹⁴ H Lords Deb 1980, Vol 405 at 277.

²⁹⁵ Ibid at 295.

²⁹⁶ Ibid at 278. See also at 287 and 289; H Lords Deb 1981, Vol 418 at 77, 78 and 81.

²⁹⁷ H Lords Deb 1980, Vol 405 at 279.

²⁹⁸ H Lords Deb 1981, Vol 418 at 74.

²⁹⁹ Ibid at 66.

³⁰⁰ H Lords Deb 1980, Vol 405 at 279.

³⁰¹ H Lords Deb 1981, Vol 418 at 72.

³⁰² por background I am indebted to R Krever, above n 80.

³⁰³ Ibid at 129-130.

³⁰⁴ Slutzkin v Commissioner of Taxation of Commonwealth of Australia (1977) 140 CLR 314; Commissioner of Taxation of Commonwealth of Australia v South Australian Battery Makers Pty Ltd (1978) 140 CLR 645; Commissioner of Taxation of Commonwealth of Australia v Everett (1980) 143 CLR 440; Commissioner ofTaxation of Commonwealth of Australia v Westraders Pty Ltd (1980) 144 CLR 55; Commissioner of Taxation of Commonwealth of Australia v Commonwealth Aluminium Corporation Ltd (1980) 143 CLR 646.

³⁰⁵ R Krever, above n 80 at 130.

³⁰⁶ Ibid.

³⁰⁷ Ibid at 134.

³⁰⁸ Ibid at 141.

³⁰⁹ Ibid at 132.

³¹⁰ C Sampford, above n 19 at 166.

³¹¹ Sir Anthony Mason, above n 13 at 161.

³¹² Westraders v Federal Commissioner of Taxation (1975) 144 CLR 55 at 60 and 61.

³¹³ p p McGuiness, quoted by G McGregor, “The High Court: Backwards into the Future”, National Times, 17-23 February 1980, p 14, cited in R Krever, above n 80 at 133.

³¹⁴ M Philp, “Michel Foucault” in Q Skinner (ed), The Return of Grand Theory in the Human Sciences (1985) 65 at 70.

³¹⁵ Another Look at Statutory Interpretation, above n 4.

³¹⁶ Ibid at 6.

³¹⁷ Ibid at 7.

³¹⁸ p Brazi “Purposive Versus Literal Approach” in Another Look at Statutory Interpretation (1982) 16 at 18.

³¹⁹ J G Starke, “Statutory Guidelines for Interpreting Commonwealth Statutes” (1981) 55 ALJ 711.

³²⁰ C Sampford, above n 19 at 201.

³²¹ P Brazil, “Opening of Seminar”, in Another Look at Statutory Interpretation (1982) 1.

³²² It was noted in the Preface that the publication contained selections of the discussion of the main papers. The need to legislate was an issue which concerned commentators after enactment of the purpose rule: C Corns, above n 10 at 392; J G Starke, above n 319 at 712713.

³²³ See generally, C Sampford, above n 19 at 175.

³²⁴ Above n 318 at 19-20.

³²⁵ Another Look at Statutory Interpretation, above n 4 at 4.

³²⁶ Ibid.

³²⁷ Ibid at 7.

³²⁸ Above n 318 at 20. In view of the several noted differences and tensions between Mr Brazil's own view and the proposed purpose rule, it is worth noting the disordering nature of bureaucratic policy-making. The literature suggests that policy-making is generally “confined to a series ofwell-rehearsed options familiar to all the participants”, rather than being a highly rational process in which the consequences of the policy chosen most closely match the goals to be secured: W Twining and D Miers, above n 28 at 325. Of course, one of the options which the Australian promoters did consider was the report of the Law Commissions.

³²⁹ Director-General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 at 654.

³³⁰ Stock v Frank Jones (Tipton) Ltd [1978] 1 All ER 948 at 951 per Viscount Dilhorne.

³³¹ Carter v Bradbeer [1975] 1 WLR 1204 at 1206-1207 per Lord Diplock. See further, Part Two. The following year, Unger published a landmark jurisprudential work in which similar trends were observed: R M Unger, above n 222 at 195.

³³² Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297; Mr Justice Bryson, above n 2 at 191: “the judgments in Cooper Brookes, and particularly [the judgment of Mason and Wilson JJ] constitute a new beginning for ascertaining the state of opinion in the High Court on statutory interpretation”.

³³³ See n 367 for further details.

³³⁴ Section 15AA of the Acts Interpretation Act 1901 (Cth) was inserted by the Statute Law Revision Act 1981 (Cth), s 115.

³³⁵ Compare above at 150.

³³⁶ The State and Territory counterparts of s 15AA are the Interpretation Act 1967 (ACT), s 11 A; Interpretation Act 1987 (NSW), s 33; Acts Interpretation Act 1915 (SA), s 22; Acts Interpretation Act 1931 (Tas), s 8A; Interpretation of Legislation Act 1984 (Vic), s 35(a); Acts Interpretation Act 1954 (Qld), s 14A; and Interpretation Act 1984 (WA), s 18. The South Australian version is a weaker version on paper: G Morris et al, above n 10 at 158159. TheQueensland version is a stronger version on paper: P Bridgman, above n 246 at 335-337. Both the South Australian and Queensland versions are discussed in Part Two. There is a further Commonwealth/State and Territory purpose rule in s 109H of the Corporations Law which was enacted in 1990. See commentaryby A J Black, “Interpretation” in Australian Corporation Law, Principles and Practice, Vol 1 at paras 1.2.0020 and 1.2.0025. It replaced asimilar rule which applied under the previous co-operative scheme of corporations legislation: Companies and Securities (Interpretation and Miscellaneous Provisions) Act 1980 (Cth), s 5A, and respective State Codes – see, eg, Re Guardian Investments Pty Ltd (1984) 2 ACLC 165. That section is discussed in I Cameron, above n 10.

³³⁷ Acts Interpretation Act 1901 (Cth), s 46; Interpretation Act 1987 (NSW), s 33; Interpretation of Legislation Act 1984 (Vic), s 35; Interpretation Act 1984 (WA), s 18; Interpretation Act 1967 (ACT), s 49; Statutory Instruments Act 1992 (Qld), s 14(1); Acts Interpretation Act 1931 (Tas), s 4; Acts Interpretation Act 1915 (SA), s 3; D C Pearce and R S Geddes, above n 10 at paras 2.23 and 2.24.

³³⁸ Acts Interpretation Act 1901 (Cth), s 2(1); D C Pearce and R S Geddes, above n 10 at para 2.23; Interpretation Act 1987 (NSW), s 5(1); Interpretation of Legislation Act 1984 (Vic), s 4(1); Interpretation Act 1984 (WA), s 3(1); Interpretation Act 1967 (ACT), ss 6, 49; Acts Interpretation Act 1954 (Qld), s 2(1); Acts Interpretation Act 1931 (Tas), s 4; Acts Interpretation Act 1915 (SA), s 3.

³³⁹ Section 15AB of the Acts Interpretation Act 1901 (Cth) was inserted by the Acts Interpretation Amendment Act 1984 (Cth). Its relationship with s 15AA will be explored in Part Two.

³⁴⁰ Interpretation Act 1967 (ACT), s 11B; Interpretation Act 1987 (NSW), s 34; Acts Interpretation Act 1954 (Qld), s 14B; Interpretation Act 1984 (Vic), s 35(b); Interpretation Act 1984 (WA), s 19; Acts Interpretation Act 1931 (Tas), s 8B.

³⁴¹ Acts Interpretation Act 1901 (Cth), s 46; Interpretation Act 1987 (NSW), s 34; Interpretation Act 1984 (WA), s 19; Interpretation Act (ACT), s 49; Interpretation of Legislation Act 1984 (Vic), s 35; Acts Interpretation Act 1931 (Tas), s 4; Statutory Instruments Act 1992 (Qld), ss 14(1), 15.

³⁴² Acts Interpretation Act 1901 (Cth), s 2(1); Interpretation Act 1987 (NSW), s 5(1); Interpretation Act 1984 (WA), s 3(1); Interpretation Act 1967 (ACT), ss 6, 49; Interpretation of Legislation Act 1984 (Vic), s 4(1); Acts Interpretation Act 1954 (Qld), s 2(1); Acts Interpretation Act 1931 (Tas), s 4.

³⁴³ w Twining and D Miers, above n 28 at 119.

³⁴⁴ Sen Deb 1981, Vol 90 at 2166.

³⁴⁵ Ibid at 2314-2315. Emphasis added.

³⁴⁶ Ibid at 2315.

³⁴⁷ Ibid at 2314.

³⁴⁸ Ibid at 2310. See also similar concerns in the lower House: H Rep Deb 1981, Vol 123 at 3437 and 3439. Mr Jacobi MP called it a “disaster” (at 3439).

³⁴⁹ Sen Deb 1981, Vol 90 at 2312.

³⁵⁰ Ibid at 2310 and 2311.

³⁵¹ Ibid at 2310.

³⁵² Ibid at 2313.

³⁵³ H Rep Deb 1981, Vol 123 at 3437. Mr Brown MP ironically noted that the courts would not be able to have the benefit of the member's remarks: ibid at 3440.

³⁵⁴ Ibid at 3439.

³⁵⁵ Sen Deb 1981, Vol 90 at 2166 and 2314.

³⁵⁶ Ibid at 2313.

³⁵⁷ See generally W N Eskridge and P P Frickey, above n 9 at 325-339.

³⁵⁸ D C Pearce and R S Geddes, above n 10 at para 2.23; emphasis in original. See also G Morris et al, above n 10 at 151.

³⁵⁹ (1990) 57 Aust Admin Law Bull at para 1996. Of course, those favouring a “mandatory” construction (such as Pearce and Geddes) would agree that no ambiguity is necessary for its invocation.

³⁶⁰ E Campbell and others, Legal Research: Materials and Methods (3rd ed 1988) at 105.

³⁶¹ D Gifford, above n 10 at 6.

³⁶² Ibid at 57.

³⁶³ C Enright, above n 10 at 230.

³⁶⁴ C Corns, above n 10 at 392.

³⁶⁵ J G Starke, above n 319 at 712. In Federal Commissioner of Taxation v Trustees of the Lisa Marie Walsh Trust (1983) 14 ATR 399 at 420 Fitzgerald J thought the opportunity to discern the object from extrinsic material was “worth little”.

³⁶⁶ L Street, “Judicial Law-Making – Some Reflections” (1982) 9 Syd LR 535 at 539.

³⁶⁷ It was passed by the Houses of Parliament on 10 June. The rule was enacted and commenced to operate on 12 June 1981: Statute Law Revision Act 1981 (Cth), s 2(1). The High Court's decision was delivered on 5 June 1981.

³⁶⁸ R Krever, above n 80 at 140-141.

³⁶⁹ (1981) 147 CLR 297.

³⁷⁰ Ibid at 315-316.

³⁷¹ Ibid at 304, 310 and 320.

³⁷² Ibid at 320.

³⁷³ J Stone, above n 101 at 22.

³⁷⁴ (1981) 147 CLR 297 at 307,310 and 320.

³⁷⁵ Ibid at 320 and 321.

³⁷⁶ Ibid at 304 and 306.

³⁷⁷ Ibid at 320.

³⁷⁸ Ibid at 319. W N Eskridge and P P Frickey call it “counter-majoritarian anxiety”: above n 9 at 324.

³⁷⁹ On the facts their Honours decided the case in favour of the Commissioner on traditional grounds: (1) “the literal interpretation ... results in an operation ... which in our opinion is capricious and irrational”: (1981) 147 CLR 297 at 321. (2) The preferred interpretation was a “necessary implication to be deduced from the legislative scheme as a whole”: ibid at 322. (3) It “may also be justified as an application of the ‘mischief rule”’: ibid.

³⁸⁰ (1981) 147 CLR 297 at 320.

³⁸¹ Ibid.

³⁸² Ibid.

³⁸³ Ibid at 321. Emphasis added.

³⁸⁴ Ibid. F

³⁸⁵ Ibid at 305.

³⁸⁶ Ibid at 310.

³⁸⁷ C Sampford, above n 19 at 277.

³⁸⁸ Krygier, above n 20 at 251-254, discussing the relationship between tradition and change in the law.

³⁸⁹ (1981) 147 CLR 297 at 310.

³⁹⁰ Ibid at 311, citing Curtis v Stovin (1889) 22 QBD 513 at 519.

³⁹¹ Ibid at 320 and 321.

³⁹² Ibid at 310.

³⁹³ Transcript of Proceedings, High Court of Australia, 4 June 1980, p 8 (L J Priestley QC, counsel for the appellant).

³⁹⁴ See Part Two.

³⁹⁵ See Part Two.

³⁹⁶ Twining and D Miers, above n 28 at ch 6.