Re-thinking Extrinsic Materials in Statutory Interpretation: Revelations from the Legislative Process

Abstract

The well-established framework of text, context and purpose in statutory interpretation emphasises a statute as a 'speech act' authored by Parliament and so to be construed in terms of conventions about language. But this framework does not sit well with the ability of courts and other interpreters to refer to extrinsic materials. It has led to a state of the law where recourse to such materials is poorly rationalised, sometimes contradictory and offers little cohesive guidance for an assessment of the probative value of extrinsic materials in an interpretative task. In an attempt to better understand the use of extrinsic materials, this thesis adopts a different perspective. It uses an institutional approach to the use of extrinsic materials to explore whether that approach offers a clearer rationale and a more systematic framework for the use of these materials in interpretation. This approach is not about institutional power, but about the processes and participants involved in the making of statutes and extrinsic materials. The High Court has made broad comments about the institutional setting of statutes. These comments and the very nature of extrinsic materials (products of, or relevant to, the making of a statute) invite a rigorous institutional perspective. However, despite occasional extra-judicial comments about the merits of exploring institutional factors, and a growing body of American scholarship in support of this perspective for statutory interpretation, the institutional setting of statutes has not been extensively explored in Australian statutory interpretation scholarship, and not at all for extrinsic materials. To adopt this approach, this thesis asks what can we learn from the legislative process about the use of extrinsic materials in statutory interpretation. It uses a variety of methodologies. It starts with a historical analysis to identify the recent origins of the current law. Then it engages in a doctrinal analysis to establish the current state of the law. The thesis then undertakes a quantitative empirical analysis of High Court of Australia and Full Court of the Federal Court of Australia cases to provide evidence of patterns of use of extrinsic materials. The thesis then engages in exploratory research by examining the processes, actors, and materials involved in the making of a statute, from executive approval of a legislative proposal through to parliamentary enactment. Learnings from the exploratory research are then used as a basis for an analysis. That analysis suggests a tension in the law relating to extrinsic materials, and that an institutional perspective offers an alternative rationale for why courts refer to extrinsic materials as well as suggested guidance about their appropriate use.