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General Harangue about Statutory Interpretation - Seeing All the Trees and the Wood

On the Legal Tender furphy page, I point out that just because sec 115 of the Constitution says that a State cannot make anything but gold and silver coin legal tender, you cannot conclude that no Parliament can do so - and that in fact the Commonwealth Parliament has specific powers in sec 51 to make laws re both paper money and legal tender. This is an illustration of a general principle of reading statutes (which indeed can be generalised to reading other legal texts) - you have to read every word of a section, and you have to read every section in the context of the whole Act.

People who fail to do this, and who, for example, conclude that nothing but gold and silver can be legal tender (and therefore the whole currency system is invalid, and therefore we don't have to pay our taxes - or whatever other self-serving conclusion they come to) are not just failing to see the wood for the trees, they are failing to see all the trees because of their focus on just one tree, or part of one tree.

Let me illustrate that:

A woodSome trees
(probably part of a wood or forest)
One tree, seen through blinkers
(not even the most significant tree)

Steps in statutory interpretation

First, read every word of the section you're focussed on

Ie, look very carefully at your favourite tree. People who read "A State shall not... make anything but gold and silver coin a legal tender in payment of debts" and conclude that nobody can provide that paper money, or bank cheques, or credit cards, are legal tender, are not even reading all the words of sec 115. It only says "A State shall not...". Knowing that we're in a federation, you would at least want to check whether the Commonwealth can do it and you might even infer that if the drafters have specifically prohibited the States, and only the States, it's possibly because they've given a power to the Commonwealth to do the prohibited thing.

Read the section in the context of the whole Act (or Constitution)

Ie, take off the blinkers and look at all the other trees. In the case of the Constitution, you could probably guess that having found a section that prohibits the States from certain actions, those same things might be in the list of Commonwealth powers. So, hey presto, when you look at the table of contents you might notice that section 51 has the heading " Legislative powers of the Parliament" so you'd look there. And there, a bit above the middle of a long list, you'd find them - "legal tender" and "the issue of paper money".

And then, to be really sure, you'd really have to read the whole Constitution. Fairly often, reading the whole Table of Contents of an Act and the definitions section will be enough to make you fairly confident that you haven't missed something relevant - but you can't be totally sure until you've read every word. If there is only one clear meaning left once you have read the section in the context of the Act, you can stop there, but if there is any uncertainty left then proceed to the next step. (And sometimes doing the next step anyway will confirm the conclusion you've already come to.)

Consider the general purpose of the Act, its "vibe", and its historical context

Ie, consider the trees not just as trees but as part of a wood. This may be particularly important when interpreting the Constitution - as Dixon J said in West v Commissioner of Taxation (NSW), an approach to the interpretation of documents that forbad the making of implications "would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied". (The implication that he drew in that case has been somewhat modified, or "explained", subsequently.)

The general purpose of the Constitution was to set up a federation. This has some consequences which slightly limit the breadth of the grants of power to the Commonwealth - it cannot make laws that will "destroy or curtail the existence of the States or their continuing to function as [States]" (for an example see Clarke v Commissioner of Taxation). However, federation also has consequences which severely limit State power. The drafters, and the voters who endorsed their draft, were also intending to set up a nationally-integrated economy, with no internal trade barriers (see secs 90 and 92), no barriers to movement between the States (see sec 92 again, and sec 117), a common currency and a centrally-regulated banking system. This does not add anything to the conclusion we've already come to about legal tender, but it puts in in context - if any parliament was to define legal tender within Australia, it was going to be the Commonwealth Parliament, defining it for the whole country. The limit in sec 115 was only to reinforce that.

Woods and Trees applied more broadly

Quite apart from the problems that the blinkered approach can produce when reading the Constitution, an approach to any legal problem where people get too focussed on one point of law, or one fact, can lead people into trouble. I read a list of the Queenslanders who had been declared vexatious litigants a couple of years ago, and I thought "I've met, or been contacted by, almost half of these people". They get so obsessed with their litigation that they think nothing of ringing or emailing law lecturers for free legal advice, or even turning up unannounced in our doorways! And they all have one thing in common - they don't simply fail to see the wood for the trees, they are so focussed on the one tree that they don't see any other trees, let alone that they might constitute a wood. For an entertaining account of some vexatious litigants, read this piece by some Queensland lawyer writing as "Sir Terence O'Rort". But no, "Sir Terence", I don't believe Mr Rout is a Queenslander - we have our share of eccentrics but they're not all here.

As I say on the index page, sometimes (rather too often) Commonwealth and State Parliaments do pass supposed Acts that are unconstitutional. But if you want to challenge one of them, only do so on the basis of good legal advice. The world is complex and the law is complex, and a little knowledge is indeed a dangerous thing, especially in the mind of someone who builds a whole intellectual structure on that one little piece of knowledge.

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This page was last updated on the 26th August 2011.


John Pyke
Lecturer, QUT School of Law

Email: j.pyke@qut.edu.au
OzConstInfo website