Extrinsic Materials

Extrinsic materials and statutory interpretation:
Extrinsic materials are documentary materials that exist outside the statute
being interpreted.
Such materials are part of the background, or context, of legislation.
The materials may be relevant in providing insights into the purpose or object
of an Act.
Statutory provisions and principles developed by the courts have led to
further increases in the use of such materials in the interpretation of
legislation.
Courts and tribunals now routinely rely on these common law principles to
justify referring to extrinsic materials as part of the process of interpretation.
Use of extrinsic materials at common law:

-
There are several different types of materials that are extrinsic or external
to the legislation under scrutiny but closely related to it. These include:
reports of parliamentary debates, executive documents, commission and
committee reports and international agreements referred to or relating to the
legislation.
Parliamentary and related materials at common law:

-
In Commissioner for Prices and Consumer Affairs (SA) v Charles Moore (Aust)
Pty Ltd (1977) 139 CLR 449, the High Court affirmed the rule that the courts
would not refer to reports of parliamentary debates for any purpose as an aid
to the construction of a statute.
However, the High Court decisions in Wacando v Commonwealth (1981) CLR
1 and Commissioner of Taxation (Cth) v Whitfords Beach Pty Ltd (1982) 150
CLR 355 marked a departure from that traditional approach.
In those cases, Mason J suggested (at 25 in Wacando and 373 in Whitfords
Beach) that when a Bill was introduced to remedy a mischief there were
grounds for making an exception to the general rule that reports of
parliamentary debates were not admissible.
The High Courts use of convention debates and referendum materials in the
interpretation of the Commonwealth Constitution has been considered in
several cases e.g. Cole v Whitfield (1988) 165 CLR 360, 385.
International agreements at common law:

-
If an Act purports to give effect to an international agreement, the court is at

liberty to refer to the agreement to resolve any ambiguity in the Act.
However, an agreement may be referred to although it is not mentioned in
the Act.
It may also be referred to when the statute has been enacted before
ratification of the agreement.
Sometimes an international convention or treaty or part thereof is enacted
into domestic law. Legislation may also provide that a particular word or
phrase contained in it shall have the same meaning as it has in an
international convention or treaty. In these circumstances, Australian courts
have taken the view that Parliament has intended such legislation to be
interpreted by reference to the rules applicable to the interpretation of

treaties, the principles governing the interpretation of legislation giving way
to those rules.
On the interpretation of treaties, Brennan CJ explained in Applicant A v
Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225: In
interpreting a treaty, it is erroneous to adopt a rigid priority in the application
of interpretative rulesRatherit is necessary to adopt an holistic but
ordered approach. The holistic approach to interpretation may require a
consideration of both the text and the object and purpose of the treaty in
order to ascertain its true meaning.
Reference should be made to the warning of McHugh, Gummow, Kirby and
Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1995)
194 CLR 355, 391-2 that many international conventions and agreements
are expressed in indeterminate language, as the result of compromises made
between contracting State parties.
Use of extrinsic materials under statute:

-
S 15AB(2) of the Acts Interpretation Act 1901 (Cth) provides that listed
extrinsic materials may be considered in the interpretation of a provision of
an Act in accordance with the purposive approach detailed in s 15AB(1)
Under s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), material outside
the Act (including the material listen in s 15AB(2)) may be used to confirm
the ordinary meaning of a provision. In other words, extrinsic materials may
be taken into account even where the provision is clear.
Apart from that, extrinsic materials may be used in accordance with s
15AB(1)(b) only to determine the meaning of a provision in cases of
ambiguity or doubt, or where the ordinary meaning leads to a manifestly
absurd or unreasonable result.
In Re Australian Federation of Construction Contractors; Ex parte Billing
(1986) 68 ALR 416, 420 all members of the High Court, in a joint judgement
said: Reliance is also placed on a sentence in the second reading speech of
the Minister when introducing the Consequential Provisions Act, but that
reliance is misplaced. Section 15AB of the Acts interpretation Act 1901 (Cth),
as amended, does not permit recourse to that speech for the purpose of
departing from the ordinary meaning of the text unless either the meaning of
the provision to be construed is ambiguous or obscure or in its ordinary
meaning leads to a result that is manifestly absurd or is unreasonable. In our
view neither of those conditions is satisfied in the present case.
Therefore, in order for a reference to extrinsic materials to have the potential
to change the interpretation which would otherwise have been arrived at, it is
necessary for a court to conclude that one of the conditions in s 15AB(1)(b)(i)
or (ii) is present. The court must conclude, ignoring any extrinsic materials,
that the provision in question is ambiguous or obscure or, taking account
of its context and the underlying purpose or object of the Act, that the
ordinary meaning leads to a result that is manifestly absurd or
unreasonable.
The threshold test described above is a limitation on the operation of s 15AB

compared with s 15AA. Section 15AA always operates, whereas s 15AB can
operate to change an interpretation only if one of the conditions identified in
sub-s (1)(b) is met.
To this extent, s 15AB represents a qualification of the proposition, discussed
in the next chapter, that context must be considered in the first instance.
Another difference between the sections is that, although a court is required
to apply s15AA, the language of s15AB merely permits a court to refer to
extrinsic materials placed before it.
Note: You can only use common law to determine the mischief/purpose of the
legislation in question. You can do this under the common law without the need for
uncertainty or ambiguity. Rule: CIC Insurance Ltd v Bankstown Football Club Ltd
(1997) 187 CLR 384, 408. Determining the ordinary meaning of the statute is done
in relevance to s 15AB of the Acts Interpretation Act 1901. Note s15AB also allows
for the use of extrinsic materials in order to determine the mischief/purpose of
legislation.
Note: Extrinsic materials cannot be used to rewrite the provision in question. Rule
from: Re Bolton; Ex parte Beane (1987) 162 CLR 514, 517-518: The words of a
Minister must not be substituted for the text of the law. Particularly is this so when
the intention stated by the minister but unexpressed in the law is restrictive of the
liberty of the individual. It is always possible that through oversight or inadvertence
the clear intention of the Parliament fails to be translated into the law. However
unfortunate it may be when that happens, the task of the court remains clear. The
function of the court is to give effect to the will of Parliament as expressed in the
law.
Note when referring to the case using extrinsic materials due to s 15AB(1)(b)(ii)- Act
leads to a result that is manifestly absurd or is unreasonable. You can cite case: Re
Shingles and Director-General of Social Security (1984) 6 ALD 568.

Extrinsic Materials

Uploaded by

Copyright:

Available Formats

Extrinsic Materials

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Extrinsic Materials

Uploaded by

Copyright:

Available Formats

Extrinsic materials and statutory interpretation:

Use of extrinsic materials at common law:

Parliamentary and related materials at common law:

International agreements at common law:

If an Act purports to give effect to an international agreement, the court is at

interpreted by reference to the rules applicable to the interpretation of

Use of extrinsic materials under statute:

The threshold test described above is a limitation on the operation of s 15AB

You might also like