Is the High Court Mistaken About the Aim of Statutory Interpretation?

Federal Law Review, Vol. 44, No. 2, 2016

U of Melbourne Legal Studies Research Paper No. 741

39 Pages Posted: 9 Sep 2016

See all articles by Dale Smith

Dale Smith

University of Melbourne - Law School

Date Written: September 8, 2016

Abstract

Fundamental to the High Court of Australia’s account of statutory interpretation is the claim that the ultimate aim when interpreting a statutory provision is to ascertain the meaning of the words contained in that provision. The goal of this article is to challenge that claim, which I call “the meaning thesis”. I argue that the High Court’s acceptance of the meaning thesis leaves it unable to account for important features of the practice of statutory interpretation. In particular, it struggles to account for the ways in which statutory provisions interact with other legal norms (including other statutory provisions), especially when those other norms are introduced into the law after the statutory provisions with which they interact. This, I argue, provides a powerful reason to abandon the meaning thesis. I conclude by briefly suggesting how we might begin to develop a more satisfactory account of statutory interpretation.

Keywords: statutory interpretation, the meaning thesis, Mark Greenberg, legislative intent

JEL Classification: K30

Suggested Citation

Smith, Dale, Is the High Court Mistaken About the Aim of Statutory Interpretation? (September 8, 2016). Federal Law Review, Vol. 44, No. 2, 2016; U of Melbourne Legal Studies Research Paper No. 741. Available at SSRN: https://ssrn.com/abstract=2836341

Dale Smith (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

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