So, when even one of these conditions is not satisfied, there are obstacles to
interpreting a statute by reference to its policy. For example, there may a
failure for Condition 6 so that there is not a meaning which causes an effect
and which accords precisely or even
sufficiently with the effect intended by
the statute’s object and purpose.
349
In this case a court cannot interpret simply
by reference to the policy. If the policy does “not in any way resolve the
ambiguity in the Act”
350
a court clearly has to resort to some other means of
interpretation. All that a court can do is choose the best meaning given the
circumstances, particularly by resort to inference from the provisions of the
Act and common understanding as to what the legislation is about.
Meta-Democracy
Instead of deferring to the judgment of the legislature as to how to interpret a
statute, a court might interpret a statute by taking into account the defects in
representative democracy both in principle and in practice. This approach is
called metademocracy.
351
It involves interpreting the statute in the way it would
be interpreted if the legislature was composed and functioning in a proper
democratic way so that it was truly democratic (instead of the partially formed
democracy that now exists). Obviously to interpret by this means the court has
to somehow divine an imputed popular intent by determining what the people
might have wanted. This is no easy task and may involve a substantial degree
of guess work or speculation.
To illustrate this approach, assume that a legislature enacts Statute X which is
intended to achieve Effect X. When the court comes to interpret a provision in
Statute X it forms the view that Statute X was not democratically made. Had it
been so made, it would have sought to achieve Effect M. For this reason the
court decides to interpret the statute according to the canons of
metademocracy in preference to those of conventional democracy. Thus it will
seek an interpretation that pursues Effect M rather than Effect X. Assuming
that Meaning 1 will cause Effect X so that Effect X equates with Effect 1 and
Meaning 2 will cause Effect M
so that Effect M equates with Effect 2, the
following table represents the position:
Meanings
Effects
Legislative Effects
Meaning 1
Effect 1
Effect X
Meaning 2
Effect 2
Effect M
349
Luke v Inland Revenue Commissioners [1963] AC 557, 577 per Lord Reid, which
was approved by the High Court in Macalister v R (1990) 92 ALR 39, 43 per Mason
CJ, Dawson , Toohey, Gaudron and McHugh JJ
350
Monier v Szabo (1992) 28 NSWLR 53, 67
351
Schacter (1995)
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