“inadvertence”
168
where the natural meaning of the words would not cover the
situation.
169
Logically two requirements need to be met. (i) Since the strained
or stretched construction is triggered by the need to implement the purpose of
the statute, it is necessary for the court to be confident that it knows this
purpose, including “the mischief with which the Act was dealing”.
170
(ii) Giving
words their strict meaning would not fulfil this purpose.
171
Multiple Characteristics
Many terms have multiple characteristics or components. The question arises
as to which characteristics must be present to satisfy the term. Is it all
characteristics or just some? If it is just some, which ones are necessary?
This can be illustrated by s80 of the Constitution
of the Commonwealth of
Australia. So far as relevant, s80 provides that the "trial on indictment of any
offence against the Commonwealth shall be by jury”.
In 1900, when the Constitution was enacted, a jury had specific characteristics
such as a name ('jury'), a composition (12 men), procedures (unanimous
verdict) and a function (deciding questions of fact to determine guilt or
innocence). Given this, a century and more on a major question arises. When a
court now interprets the Constitution, which of these characteristics must be
present to constitute a jury that will satisfy the requirement of s80? Must it still
be called a jury? Must it still have 12 members, or can it have more or fewer?
Who do these members have to be? All male as they were in 1900, or can
females serve on a jury? Does it function by reaching a unanimous verdict as it
did then, or is the modern practice of a statutory provision for a majority
verdict satisfactory?
In deciding these questions a court has two broad choices. It can perform
constitutional cryogenics and freeze the meaning of jury so that to be a jury it
must still have all the essential characteristics that it had in 1900. In other
words, the court takes "the meaning of the words [in the Constitution] as they
were understood at the time the statute was passed?"
172
Or it thaws out the
concept to reveal and accommodate changes in thinking and practice regarding
juries that have taken place since 1900. In Cheatle v The Queen, the High
Court of Australia placed an each way bet.
173
It held that a jury could now
have female as well as male members, in contrast to its all male composition in
168
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
169
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
170
Wentworth Securities v Jones [1980] AC 74, 105-106 per McHugh J
171
Bermingham v Corrective Services Commission (1988) 15 NSWLR 292, 302
172
Brown v The Queen (1986) 160 CLR 171, 189-190, per Wilson J
173
Cheatle v The Queen (1993) 177 CLR 541, 552, 560-561
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