LAWS1201 TEXTBOOK CHAPTER 13
Presumptions used in the Interpretation of Legislation
Introduction
o When courts interpret legislation, they do so against the background of a series of
common law presumptions, or assumptions
o Such presumptions could be conceptualised as part of an Act’s context.
o Presumptions of interpretation are called into service because they are accepted as
part of the body of principles used in the interpretation of legislation.
[presumption of interpretation: an assumption capable of being displaced by the words of a
statute]
o There presumption can be broadly classified into three groups. First, ‘syntactical’
presumptions, that certain practices will be following in drafting statutes. Second,
presumptions that facilitate interpretation, such as the presumption that re-
enactment of a provision that has been judicially interpreted constitutes the
legislature’s approval of that interpretation. Third, number of presumptions are
grounded in the liberal values based on the abstract concepts of freedom and the
sanctity of private property, which are generally held by people living in
parliamentary democracies under the rule of law.
o The application of any of these presumptions in an individual case is theoretically not
dependent on the personal views of the judges deciding the case
o The approach of interpretation where it is presumed Parliament does not intend to
abrogate fundamental rights and freedoms is also termed the ‘principle of legality’.
o Presumptions can be rebutted
Summary of Principles
o The key principles discussed in relation to presumptions of interpretation:
I. Courts interpret legislation against a background of series of presumptions
about the intention of the legislature
II. These presumptions form part of an Act’s context and include those that are
syntactical and those that derive from shared values
III. Those presumptions that derive from values shared by the courts, community
and legislature are sometimes said to form a ‘common law Bill of Rights’ and
the approach of interpreting legislation so that it is presumed Parliament
does not intend to abrogate fundamental rights is part of the ‘principle of
legality’
IV. No definitive list of fundamental rights exists. As they are based on shared
values, they are susceptible to change as societal values change.
V. Presumptions of interpretation are not of equal value – that is, some
presumptions are more readily rebutted than others. The presumption that
Parliament does not intend to deprive people of access to the courts.
VI. Generally speaking, a presumption can be rebutted either by explicit
language in the statute, or by implication. Rebuttal by implication happens
when the content (subject matter, language, or both) of the statute is
incompatible with the presumption. Courts have used phrases such as ‘clear
and unambiguous words’ to indicate what is required to rebut a
presumption.
, Presumption of interpretation and a common law Bill of Rights
o It is accepted that presumptions of interpretation function as an element of a
common law Bill of Rights
Common Law Presumptions of Interpretation
o Here are some of the more important common law presumptions of interpretation:
I. Statutes do not operate retrospectively
II. Parliament does not interfere with common law rights
III. Parliament does not abrogate the privilege against self-incrimination
IV. Parliament does not abrogate legal professional privilege
V. Parliament does not deprive people of access to the courts
VI. Legislation does not bind the Crown
VII. Penal provisions are strictly constructed
VIII. Property rights are not taken away without compensation
IX. Re-enactment of a provision constitutes approval of a previous judicial
interpretation of the provision
X. Legislation does not have extraterritorial effect
XI. Parliament intends to legislate in conformity with international law
Changes in presumptions and their Rebuttal
o The strength of presumptions changes over time
o General interpretive presumptions may be removed, acknowledged, modified, or
created by the legislature
o All common law presumptions of interpretation are rebuttable. It must, however, be
clear from the terms of the legislation that Parliament intended to rebut a
presumption
o Courts have used various phrases as tests of rebuttal. Spigelman CJ collected many of
these phrases in Durham Holidays Pty Ltd v New South Wales.
I. ‘Clear and unambiguous words’
II. ‘Unambiguously clear’
III. ‘Irresistible clearness’
IV. ‘Express words of plain intendment’
V. ‘Clear words or by necessary implication’
VI. ‘Unmistakable and unambiguous’
VII. ‘Expressly states or necessarily to be implied’
VIII. ‘Clearly emerges whether by express words or necessary implication’
IX. ‘With a clearness which admits no doubt’
o The phrase used in an indicator of the strength of the presumption: the stronger the
presumption, the clearer the language required.
Presumptions used in the Interpretation of Legislation
Introduction
o When courts interpret legislation, they do so against the background of a series of
common law presumptions, or assumptions
o Such presumptions could be conceptualised as part of an Act’s context.
o Presumptions of interpretation are called into service because they are accepted as
part of the body of principles used in the interpretation of legislation.
[presumption of interpretation: an assumption capable of being displaced by the words of a
statute]
o There presumption can be broadly classified into three groups. First, ‘syntactical’
presumptions, that certain practices will be following in drafting statutes. Second,
presumptions that facilitate interpretation, such as the presumption that re-
enactment of a provision that has been judicially interpreted constitutes the
legislature’s approval of that interpretation. Third, number of presumptions are
grounded in the liberal values based on the abstract concepts of freedom and the
sanctity of private property, which are generally held by people living in
parliamentary democracies under the rule of law.
o The application of any of these presumptions in an individual case is theoretically not
dependent on the personal views of the judges deciding the case
o The approach of interpretation where it is presumed Parliament does not intend to
abrogate fundamental rights and freedoms is also termed the ‘principle of legality’.
o Presumptions can be rebutted
Summary of Principles
o The key principles discussed in relation to presumptions of interpretation:
I. Courts interpret legislation against a background of series of presumptions
about the intention of the legislature
II. These presumptions form part of an Act’s context and include those that are
syntactical and those that derive from shared values
III. Those presumptions that derive from values shared by the courts, community
and legislature are sometimes said to form a ‘common law Bill of Rights’ and
the approach of interpreting legislation so that it is presumed Parliament
does not intend to abrogate fundamental rights is part of the ‘principle of
legality’
IV. No definitive list of fundamental rights exists. As they are based on shared
values, they are susceptible to change as societal values change.
V. Presumptions of interpretation are not of equal value – that is, some
presumptions are more readily rebutted than others. The presumption that
Parliament does not intend to deprive people of access to the courts.
VI. Generally speaking, a presumption can be rebutted either by explicit
language in the statute, or by implication. Rebuttal by implication happens
when the content (subject matter, language, or both) of the statute is
incompatible with the presumption. Courts have used phrases such as ‘clear
and unambiguous words’ to indicate what is required to rebut a
presumption.
, Presumption of interpretation and a common law Bill of Rights
o It is accepted that presumptions of interpretation function as an element of a
common law Bill of Rights
Common Law Presumptions of Interpretation
o Here are some of the more important common law presumptions of interpretation:
I. Statutes do not operate retrospectively
II. Parliament does not interfere with common law rights
III. Parliament does not abrogate the privilege against self-incrimination
IV. Parliament does not abrogate legal professional privilege
V. Parliament does not deprive people of access to the courts
VI. Legislation does not bind the Crown
VII. Penal provisions are strictly constructed
VIII. Property rights are not taken away without compensation
IX. Re-enactment of a provision constitutes approval of a previous judicial
interpretation of the provision
X. Legislation does not have extraterritorial effect
XI. Parliament intends to legislate in conformity with international law
Changes in presumptions and their Rebuttal
o The strength of presumptions changes over time
o General interpretive presumptions may be removed, acknowledged, modified, or
created by the legislature
o All common law presumptions of interpretation are rebuttable. It must, however, be
clear from the terms of the legislation that Parliament intended to rebut a
presumption
o Courts have used various phrases as tests of rebuttal. Spigelman CJ collected many of
these phrases in Durham Holidays Pty Ltd v New South Wales.
I. ‘Clear and unambiguous words’
II. ‘Unambiguously clear’
III. ‘Irresistible clearness’
IV. ‘Express words of plain intendment’
V. ‘Clear words or by necessary implication’
VI. ‘Unmistakable and unambiguous’
VII. ‘Expressly states or necessarily to be implied’
VIII. ‘Clearly emerges whether by express words or necessary implication’
IX. ‘With a clearness which admits no doubt’
o The phrase used in an indicator of the strength of the presumption: the stronger the
presumption, the clearer the language required.
