words in their technical sense, words not being surplus, words being used
consistently and words being interpreted in context.
Popular Sense of Ordinary Words
Prima facie, words are construed in their popular sense or “common
usage”,
410
which can be ascertained, in broad terms at least, from a standard
English dictionary. Their popular sense was once considered to be the sense
and scope they bore at the time the statute was passed, or the contemporanea
expositio as the Latin puts it. Now this maxim has been modified by a rule that
has two parts. First, there is the case when the original meaning is different in
kind from the present one. The word used to mean X and now means Y. In
this case the original meaning, X, is to be used in preference to the current
meaning, Y. Second, if all that has changed is the scope of the meaning (it
means X and still means X but X now has a wider
or narrower scope than
previously) the words are given their current scope as distinct from their
original scope.
Technical Sense of Technical Words
While ordinary words are construed in their popular sense, legal terms should
be given their legal, not their popular, meaning.
411
In like manner technical
words must be given their technical meaning.
Presumption against Surplus Words
Words are to be construed as used precisely and exactly, not loosely or
inexactly. This drifts into the presumption that provisions be valid and
effective because part of this presumption is that one does not construe a
word or phrase in a way that renders another word or phrase meaningless or
redundant.
Thus courts will generally not consider any word or sentence as superfluous,
redundant or insignificant. Instead they give it life and force.
412
Every word has
something to say. More so is this the case when the word was added by
amendment.
413
Posner, however, argues that the maxim is suspect. It will not operate in all
circumstances (and the ones in which it should operate are not readily
ascertainable). Posner contends that making legislation entails “[c]osts of
410
Muller v BP Exploration (Alaska) Inc 923 P 2d 783, 787-88 (Alaska 1996)
411
Frendo v Department of Social Security
(1987) 77 ALR 682, applying Attorney
General v Brewery Employees Union (1908) 6 CLR 469
412
Project Blue Sky v Australian Broadcasting Authority
(1998) 153 ALR 490, 510
per McHugh, Gummow, Kirby and Hayne JJ.
413
Transport Accident Commission v Treloar [1992] 1 VR 447, 462
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