The Reality and Indispensability of Legislative Intention

Abstract

Some members of the High Court have recently challenged the longstanding, fundamental principle that the primary object of statutory interpretation is to ascertain the legislature’s intention. They have described legislative intention as a ‘fiction’ that is, in reality, merely a by-product of the judicial interpretation of statutes. We acknowledge that there are good reasons for scepticism about some accounts of legislative intention, and for concern about the use of legislative history to reveal the subjective intentions of individual legislators. Nevertheless, we contend that radical scepticism about legislative intention is fundamentally misconceived, because it is inconsistent with the constitutional allocation of lawmaking authority to legislatures, reflected in orthodox principles of statutory interpretation, and with intelligible application of those principles in practice. We show how legislatures are complex purposive institutions, which form and act on intentions that arise from but are not reducible to the intentions of individual legislators. We also provide an account of a legislature’s ‘objective’ intentions, which are and should be the object of interpretation, and demonstrate that no other account either makes sense or provides a plausible rationale for its being the focus of statutory interpretation.

Keywords: legislative intention; statutory interpretation