formulated in Heydon’s Case.
334
The other basis, which
occurs in some
jurisdictions, is that statutory rules require courts to interpret in this way.
In
any event, unless there is some legal prohibition, a court can always choose of
its own volition to interpret law by reference to legislative intent. Finally, there
are provisions in international law for treaties to be interpreted in the light of
their object and purpose.
Mischief Rule
The mischief rule directs a court to interpret a statute by reference to its
original policy. In the
original phraseology of this common law rule in the
celebrated Heydon’s Case, a court must interpret a statute “according to the
intent of the Parliament that made it”
335
which will involve removing the
“mischief,” or the ‘harm’ to use the modern word, that caused the statute to
be enacted.
336
In Heydon’s Case the mischief rule was stated in the following way:
[F]or the sure and true interpretation of all Statutes in general four things are to be
discerned and considered: (1st) What was the common law before the making of the Act?
(2nd) What was the mischief and defect for which the common law did not provide? (3rd)
What remedy the Parliament hath resolved and appointed to cure the disease of the
Commonwealth? And (4th) the true reason for the remedy; and then the office of all the
Judges is always to make such construction as shall suppress the mischief, and advance the
remedy, and to suppress subtle inventions and evasions for continuance of the mischief, pro
privato commodo, and to add force and life to the cure and remedy, according to the true
intent of the makers of the Act, pro bono publico.
337
Under this rule a court is required to make a “sure and true interpretation” of a
statute by interpreting it “according to the true intent of the makers of the
Act”.
338
Heydon’s Case
specifically refers to the situation where common law
did not adequately deal with a problem, but by logical extension the rule should
also apply where earlier statute law on a subject is inadequate and has, for that
reason, been changed by a later statute. The rule is regarded in this way in
discussion here.
334
Heydon’s Case (1584) 3 Co Rep 7a at 7b.
335
Heydon’s Case (1584) 3 Co Rep 7a at 7b.
336
Amalgamated Society of Engineers v Adelaide Steamship Co
(Engineers’ Case)
(1920) 28 CLR 129, 161-162, per Higgins J
337
Heydon’s
Case
(1584) 3 Co Rep 7a at 7b. Pro privato commodo
means for
private or personal gain while pro bono publico
means for the public good. This
rule has been enunciated in many subsequent cases. See, for example, Lincoln
College’s Case (1595) 3 Co Rep 586 at 596, Mills v Meeking (1990) 91 ALR 16, 30-31 per
Dawson J, Maynard v O'Brien (1991) 78 NTR 16.
338
Heydon's Case (1584) 3 Co Rep 7a, 7b
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