Mischief Rule
The mischief rule is a common law rule that directs a court to interpret a
statute by reference to its original policy. In the original phraseology of this
rule in the celebrated Heydon’s
Case,
a court must interpret a statute
“according to the intent of the Parliament that made it”.
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This will involve
nullifying the “mischief”,
or the “harm” to use the modern word, that caused
the statute to be enacted.
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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.
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Under this rule a court is required to make a “sure and true interpretation” of a
statute by interpreting “according to the true intent of the makers of the
Act”.
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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.
In short, the mischief rule requires a court to look at the problem with which
the statute is dealing and to interpret the statute by treating it as the solution to
the problem. To explain the rule in more formal terms, a court initially does
three things.
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First, it ascertains the “common law before the making of the
Act” or the statute law then prevailing. Second, it has to ascertain the problem,
that is, “the mischief and defect for which the common law” or the statute did
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Heydon’s Case (1584) 3 Co Rep 7a at 7b
124
Amalgamated Society of Engineers v Adelaide Steamship Co
(Engineers’ Case)
(1920) 28 CLR 129, 161-162, per Higgins J
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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.
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Heydon's Case (1584) 3 Co Rep 7a, 7b
127
Heydon's Case (1584) 3 Co Rep 7a, 7b
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