Statutory interpretation and environmental law in Australia

Abstract

Introduction:........The first aim of this paper is to examine the potential of the ‘purposive’ approach, as compared to the ‘literal’ approach, to positively influence the environmental outcomes of the interpretation of environmental legislation. Chapter II introduces both the purposive and literal approaches and Chapter III examines their judicial application in a range of environmental disputes. This examination also provides examples of the way that judicial approaches to environmental legislation and the ensuing interpretative outcomes both engage and are shaped by a range of issues that exist in wider social, economic and environmental debate. Such issues include: the appropriate demarcation of the separation of powers; the extent of power that should be wielded by the State; the extent to which economic considerations should be allowed to influence environmental outcomes; and the difficulties of reconciling developing environmental principles with established common law property rights. It will be suggested that application of the purposive approach generally results in more favourable environmental outcomes, but that it is not free from difficulty. These difficulties will be briefly highlighted and will include a recognition of the problem associated with interpreting legislation designed to address a number of issues, extending beyond environmental protection. Chapter IV examines the influence of objects clauses on the process of statutory interpretation. Objects clauses work in concert with the purposive approach to secure beneficial environmental outcomes by forming statutory canons of interpretation in environmental law. However, objects clauses also raise a number of concerns which include the potential introduction of conflict between environmental and economic outcomes. These conflicts are analysed and some possible solutions are advanced. Chapter V pursues the secondary objective of this paper, which is to examine the feasibility of recognising a special environmental canon of statutory interpretation at common law. This investigation is divided into two parts. The first examines the practicality of recognising a ‘green’ canon tentatively proposed by Farber. The second examines whether the well-known canon relating to beneficial or remedial legislation can have any application to Australian environmental legislation.