[2.1] Contemporary statutory interpretation law involves, broadly, consideration of the statutory text, taking account of its full context and having regard to its purpose. These three concepts have loosely existed in statutory interpretation law for centuries, providing the basis for determining the legislative intent of a statute to varying degrees. This chapter considers the relatively recent history of these key concepts, starting at the beginning of the 20th century. Having some basic knowledge and understanding of this recent history enhances understanding of contemporary concepts and provides historical context to the current law and older cases. Following federation in 1901, Australia continued to be bound, and influenced, by English law. The English approach to interpretation placed considerable emphasis on the grammatical meaning of text, with limited regard to context and purpose.

[4.1] The fundamental object of statutory interpretation is to ascertain the ‘intention’ of Parliament, or the ‘legislative intent’, in relation to the statute being construed. Legislative intent is an objective notion, representative of the constitutional relationship between the arms of government. The phrase can be misleading as the word ‘intent’ suggests something subjective. But it is clear that legislative intent is not the collective, or individual, subjective mental states of individuals involved in the making of legislation. The so-called intent of Parliament is to be ascertained from applying the principles of statutory interpretation to a piece of legislation.

[34.1] This chapter addresses the extent to which the courts are prepared to read legislation as if the statutory text is modified in order to address an apparent drafting error. This is known as ‘remedial construction’. The doctrine of the separation of powers and the notion of legislative intent are central to remedial constructions. Drafting deficiencies can be viewed on a spectrum. At one end of the spectrum are obvious and simple printing or grammatical errors, which courts will readily read as corrected. Further along the spectrum are less straightforward instances of drafting errors where determining the line between interpretation and legislation may involve the application of particular guiding factors. In these instances courts may be willing to read legislation as if it contained additional words, substituted words or omitted words.

This chapter launches a concise but sustained critique of the historical ultra vires debate and the main positions in it – especially the so-called modified ultra vires theories, which it argues should be renamed so that ultra vires can be reappropriated for the inherent common law jurisdiction to supervise the bounds of official powers. The ultra vires debate started in the context of a review of non-statutory power, but the debate quickly moved on to become one about the radical English doctrine of parliamentary sovereignty. A high degree of consensus on that doctrine and a rather surreal choice of premises by the ‘common law’ and ‘legislative intent’ camps, respectively, led to an intense but ultimately frustrating debate. The framework presented in earlier chapters offers a way to circumvent the terms of the historical debate and take a fresh look at the vitally important questions at its heart.