4
expressing basic civil and human rights
7
. In this respect too, parliaments
in Australia have followed a long line of common law authority favouring
the expression of the law in a way upholding traditional common law
principles over one that would diminish basic rights
8
.
During the past decade or so, the High Court of Australia has
unanimously endorsed other principles as necessary to the accurate
reading of legislation. Amongst the most important of these principles
have been:
That where the applicable law is expressed in legislation the
correct starting point for analysis is the text of the legislation and
not judicial statements of the common law or even judicial
elaborations of the statute
9
That the overall objective of statutory construction is to give effect
to the purpose of parliament as expressed in the text of the
statutory provisions
10
; and
That in deriving meaning from the text, so as to fulfil the purpose of
parliament, it is a mistake to consider statutory words in isolation.
The proper approach demands the derivation of the meaning of
words from the legislative context in which those words appear.
7
. See e.g. Potter v Minehan (1908) 7 CLR 277; Bropho v Western Australia (1990) 171 CLR 1 at 15; Coco
v The Queen (1974) 179 CLR 427, 437; Human Rights Act 1988 (U.K.), 3(1) *“So far as it is possible to do so,
primary legislation and subordinate legislation must be read and given effect in a way that is compatible with
the Convention rights”+. See A. Lester, D. Pannick and J. Herbert (Gen. Eds), Human Rights Law and Practice
(3
rd
ed, LexisNexis, 2009), 42 [par.2.3.1]. See also Human Rights Act 2004 (ACT), s30; Charter of Human Rights
and Responsibilities Act 2006 (Vic), s32(1).
8
See e.g. R v Secretary of State for the Home Department; Ex parte Simms [1999] 3 AllER 400, 412-413
(HL). An important point made in the Symposium at which this article was discussed by First Parliamentary
Counsel of Victoria (Ms. Gemma Varley) was that the enactment of the Charter in Victoria had encouraged
drafting instructions and the drafts of legislation to conform, as far as possible, to the provisions of the Act, so
as to avoid possible later inconsistencies.
9
Some of the cases are collected in Visy Paper Pty Ltd v Australian Competition & Consumer
Commission (2003) 216 CLR 1 at 10 [24], fn35.
10
See e.g. Project Blue Sky Inc v AMA (1998) 194 CLR 355 at 381 *69+; cf. M.D. Kirby, “Towards A Grand
Theory of Interpretation: The Case of Statutes and Contracts” (2003) 24 Statute Law Review 95 at 99.