Since the rules are presumptions or guidelines, rather than inflexible directions,
they do not always give a clear and simple result. Indeed,
in some cases the
rules may conflict with one another.
401
For these
reasons
they do not bring a
great degree of certainty to the task of statutory interpretation.
What now follows is a brief description of some of the major rules. A more
comprehensive coverage of the rules can be found in the textbooks on
statutory interpretation.
Basic Rules
Introduction
There are three basic rules or maxims to consider, the policy rule, the literal
rule and the golden rule.
Literal Rule
In the vast majority of cases, the literal rule is almost violently misunderstood
and misstated. This problem has been discussed elsewhere so a summary of
the proper rule of the literal rule will suffice here.
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Taken rationally, the literal
rule says that, ordinarily a court cannot interpret a provision by attributing to it
a meaning which is not reasonably contained within the words of the
provision. The meaning must fall fairly, even if not totally squarely, within the
words of the text of the statute.
While this is the ordinary way interpretation should be done, there is an
exception for the special case covered by the golden rule. As we will now
explain, the golden rule permits a court to modify the literal meaning to avoid
an inconsistency or an absurdity.
Golden Rule
The literal rule is strongly linked with the proposition that courts are not
concerned with whether a statute is just or unjust, wise or unwise – courts are
concerned only with what the legislature intended as conveyed by the words of
the statute.
403
Language, however, is sometimes used in a sense either narrower
or broader than intended. Given this, courts face a dilemma. On the one hand,
the words of a statute are what the legislature has enacted. On the other hand,
the words may not be what the legislature intended.
401
Llewellyn (1950) list 56 canons and divides them into 28 pairs. Llewellyn
then analyses each pair and demonstrates that they in conflict with each other,
either inherently or in some contexts. Sinclair (2006) provides commentary and
analysis of the canons. For a spirited defence of maxims or canons see Graham
(2001).
402
Christopher Enright Legal Reasoning Chapter 25 Analysing Ambiguity
403
Airlines of NSW v NSW (No 2) (1965) 113 CLR 54, 115
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