Journal article

When interpretation acts require interpretation: purposive statutory interpretation and criminal liability in Queensland

1 Oct 2017
Description

When interpreting words or construing provisions in an Act of Parliament, the context in which the words appear and the purpose of the Act can be used to ascertain meaning. The catchcry of text, context and purpose has become a repeated moniker for the High Court of Australia’s 'modern approach’ to statutory interpretation. In this context, the thought of removing either text, context or purpose as a primary factor to be considered when divining meaning seems unfathomable. Unfortunately, due to the confusing language used in section 14A(2) of the Acts Interpretation Act 1954 (Qld), this may well be the result in Queensland.

On one view, section 14A(2) is drafted in a way that prevents an interpretation of an Act that will best achieve its purpose, if such an interpretation would create or extend criminal liability for an individual. Put another way, an Act’s purpose cannot be used to imbue a word (or phrase) with meaning, if the result would be an increased likelihood of criminal liability for a person. Whilst this outcome might feel intuitively right (criminal liability is serious, so it should not be imposed unless an Act of Parliament is clear), it overlooks the fact that the text, context and purpose of an Act are all necessary to determine whether the meaning of a provision of an Act is clear in the first place.

This article suggests that the meaning of Queensland’s section 14A ('Interpretation best achieving Act’s purpose’) is unclear, primarily due to historical amendments of the section made in an ad hoc fashion. As a result, two competing interpretations exist as to the permitted scope of purposive statutory interpretation in Queensland. One interpretation is that section 14A(2) is declarative in nature, confirming that the effect of section 14A(1) does not create or extend criminal liability. A second interpretation of section 14A(2) is that it prohibits a purposive interpretation of provisions of an Act, if the result would be the creation or extension of criminal liability for an individual. Given the daily importance of statutory interpretation to the judicial role (and to numerous other end users of legislation), this suggested ambiguity is problematic. A shared understanding of the meaning of this section is important, because understanding the scope for purposive legislative interpretation in Queensland is important. The latent ambiguity in the section is also unusual, given that subsection 14A(2) has existed in its current form since 1994. In the time since, no Queensland court or tribunal has dealt with the meaning or application of this subsection, despite it being cited in several judgments.

The purpose of this article, then, is to understand how section 14A of the Acts Interpretation Act 1954 (Qld) should be read and understood. This is a 'meta’ task, involving interpretation of an interpretation Act. The article begins in Part II by considering the history of statutory requirements to interpret legislation in a way that is consistent with the Act’s purpose. Part III considers how penal provisions in a statute have been dealt with at common law and under legislation. Part IV looks at cases where section 14A(2) of the Acts Interpretation Act 1954 (Qld) has been mentioned, but not meaningfully engaged with. Part V discusses the two competing interpretations of section 14A(2) and how each might be justified. A conclusion is reached as to which interpretation best represents the intention of the Queensland Parliament. Part VI concludes that section 14A of the Acts Interpretation Act 1954 (Qld) needs to be rewritten on the basis that it is not only unclear, but also sits uncomfortably with the High Court’s 'modern approach’ to statutory interpretation.

Publication Details
Volume: 
40
Issue: 
3
Pagination: 
952-975
License Type: 
All Rights Reserved
Peer Reviewed: 
Yes
Published year only: 
2017
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