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ANNE WINCKEL[*]
[A preamble can play both constructive and contextual roles in statutory interpretation. Some commentators and judges have disagreed over the contextual role. A small number have advocated that a preamble could not even be referred to as part of the context of an Act without an ambiguity being independently identified in the substantive enactments. Evidence suggests that this ‘rule’ has never been the favoured view of the courts, and it is certainly not an accurate statement of the current law. Misconceptions about the contextual role of a preamble can be traced to both mistaken assumptions about the legal status of preambles, and the imperfect methods of statutory interpretation commentators.]
Vigorous debate at the 1998 Constitutional Convention regarding a new preamble for the Commonwealth Constitution demonstrated the need for clarification of the legal significance of the preamble.[1] In order to evaluate the constitutional significance of the preamble, it is necessary to begin by examining the significance of preambles in ordinary Acts of Parliament. There are also other incentives which justify a reconsideration of the current and past status of preambles in statutory interpretation. Firstly, while very few modern statutes have preambles,[2] there is some suggestion that the practice is again increasing.[3] Secondly, there is merit in reconsidering the current legal situation in the light of 1980s’ changes to Australian Acts Interpretation Acts. Finally, the status of preambles in statutory interpretation prior to the 1980s has been the subject of some dispute,[4] and this debate may be clarified through further analysis of the past role of preambles.
A preamble is an amendable, descriptive component of a statute,[5] and it is generally placed after the long title and before the enacting words and the substantive sections. It is a useful guide to the intention of the Parliament in that it may detail the mischief to which the Act is directed;[6] explain the reason, purpose, object or scope of the Act;[7] and detail facts or values which are relevant to the Act.[8]
Preambles can be seen to have both a contextual and a constructive role in statutory interpretation.[9] The contextual role is where the preamble assists with confirming the ordinary meaning of the enactments, and assists with determining if there is any ambiguity in the Act. The constructive role is where the preamble is effectual in clarifying or modifying the meaning of ambiguous enactments. While there is substantial consensus on the function of a preamble in relation to the latter role, the contextual role of a preamble has had the more contested history. It is the contextual role of a preamble which is the primary concern of this article. Recent judicial comment in Australia has clarified the significance of a preamble as part of the context of a whole Act.[10] However, differing opinions as to whether such a contextual role existed earlier in this century — particularly in relation to a statute which was not ambiguous — need closer attention. There is evidence to suggest that the proponents of what I call the ‘no recourse rule’ (the suggestion that a preamble cannot be referred to at all unless an ambiguity is independently identified in the statute) were not accurately reflecting the accepted state of the law.
After a brief summary of the constructive role of a preamble, I will then consider in detail the role of a preamble as part of the context of a whole Act, both currently and historically.
The constructive role of a preamble in statutory interpretation relates to the effect that a preamble may have in modifying the ordinary meaning of substantive enactments in a statute. While there is no doubt that the preamble may play a constructive role where ambiguity exists in the text, the extent of that role will always be dependent on the individual facts of each case.[11] Chitty LJ commented that: ‘The effect of the preamble must vary according to the greater or less ambiguity of the enacting words, and the distinctive language of the preamble itself.’[12]
If there is an ambiguity in the text, the text may be clarified through reference to the preamble.[13] If the preamble is quite clear (it is of little assistance if it is itself ambiguous),[14] then it may ‘throw light upon’ the preferred meaning.[15] As a guide to legislative intent and the object of the Act, the preamble may indicate how various ambiguous enactments may be restrained[16] or enlarged[17] to better reflect the intentions of Parliament. This intention may be discovered through various types of information provided in preambles, such as information about the mischief to be remedied, the motives behind the legislation, and the purposes, objects and scope of the Act.
However, just because the preamble is narrower in scope than a substantive section does not mean that the enactment has to be restrained. We are frequently reminded that an enactment should not be automatically limited by virtue of the fact that the preamble is narrower.[18] More often than not it is obvious that the parliament intended to legislate beyond the preamble. Likewise, a wide preamble ought not to automatically suggest an enlarged enactment, for the legislature may have desired to be more specific in that area.
Where there is no ambiguity, where the text is plain and clear, the preamble cannot affect the interpretation of the words — either to narrow or enlarge the meaning[19] — but the words must be construed according to their ordinary meaning.[20] There is a well-known rule that ‘where the words of a Statute are plain and clear, their meaning cannot be cut down by reference to the preamble.’[21] Similarly, the plain and clear enactment cannot be ‘controlled’,[22] ‘restrained’,[23] ‘restricted’,[24] ‘qualif[ied]’,[25] ‘confine[d]’[26] or ‘limited’[27] by a narrower preamble. Likewise, the preamble may not broaden a clear substantive section.[28]
Where a substantive section of an Act includes ‘general’ words, even though they are plain, clear and could be applied in their ordinary meaning, nevertheless they may be given a restricted interpretation by the court.[29] It must, however, be clear that the words were intended to be limited.[30] In such a situation where general words are used, reference to the preamble is relevant to the question of whether the words were intended to be limited, and what construction is therefore appropriate. Due to the apparent clarity of many general words, it is easy to mistakenly apply the rule that the preamble may not cut down plain words. However, it has been suggested that the very nature of the generality can create an ambiguity which needs clarification.[31] Also, the generality of the words may be seen as bringing into doubt the scope of the Act.
Most law-makers are familiar with the ‘settled’ rule of statutory interpretation that a preamble cannot be used to cut down or restrain the words of a substantive section if they are clear and unambiguous. However, it is important not to confuse this rule with what I am calling the ‘no recourse rule’: the suggestion that unless there is an ambiguity, a preamble may not even be referred to by the court. The former settled rule is clarifying the constructive role of a preamble in statutory interpretation, whereas the ‘no recourse rule’ is suggesting that without an ambiguity, a preamble may not have a contextual role. The ‘no recourse rule’ is the subject of considerable discussion in Part III of this article.
The contextual role of a preamble in statutory interpretation relates to the manner in which, as part of the context of a whole Act, a preamble may assist in confirming the ordinary meaning of enactments, or indeed, be suggestive of alternative meanings which are consistent with the intentions of the legislature. The current state of the law is definitively expressed by the House of Lords in A-G v Prince Ernest Augustus of Hanover,[32] and is mentioned by Mason J in the High Court case of Wacando v Commonwealth.[33] It is further clarified by the amendments to most Acts Interpretation Acts in the 1980s[34] and subsequent High Court precedents[35] providing for purposive approaches to statutory interpretation. These authorities all support the idea that the preamble may be surveyed as part of the wider context of a statute when determining the meaning of any section. They also suggest that the preamble, as part of the context, may be used for checking to see if an ambiguity is present.[36] Likewise, Bennion suggests that it is ‘unsafe to construe the enactment without reference to the preamble’.[37] In contrast, various commentators in the past have suggested that in the absence of an ambiguity, a preamble does not have a contextual role.[38] It is contended in this paper that such a position is no longer the case, and there is strong evidence to suggest that it never was the legal position.
Maxwell on the Interpretation of Statutes (‘Maxwell’)[39] commented that there was now little to be said about preambles in interpretation, as it had been ‘authoritatively stated’ by the House of Lords in A-G v Prince Ernest Augustus of Hanover (‘Prince Ernest’s Case’).[40] While this case is an example of a situation where the preamble was of no assistance in construing the statute because the preamble was itself unclear, nevertheless the judges gave some definitive explanations of the role of a preamble in statutory interpretation. Included in these explanations were a number of references to the preamble’s role as part of the context. In particular, the case is authority for the proposition that an Act cannot be said to be unambiguous until it is read as a whole, including the preamble if there is one.[41]
Prince Ernest’s Case emphasised the contextual role of the preamble with respect to the initial reading of a statute.[42] The Court explained that statutes should be read as a whole first, to determine if in fact the enactments were clear or ambiguous. Viscount Simonds argued that words could not be read in isolation, but ‘their colour and content [were] derived from their context.’[43] He went on to say that it was his right and duty to consider the preamble, as he had to examine every word of the statute in its context.[44] Viscount Simonds further added that:
[N]o one should profess to understand any part of a statute ... before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiguous.[45]
Lord Normand put it as follows:
In order to discover the intention of Parliament it is proper that the court should read the whole Act, inform itself of the legal context of the Act ... and of the factual context, such as the mischief to be remedied ... It is the merest commonplace to say that words abstracted from context may be meaningless or misleading. ... [N]o part of a statute can be regarded as independent of the rest.[46]
The principles of statutory interpretation expressed in this House of Lords judgment have been approved by the High Court,[47] and the use of the preamble as part of the context was explicitly affirmed by Mason J in Wacando v Commonwealth (‘Wacando’s Case’).[48]
Wacando’s Case concerned the question of whether or not certain islands of the Torres Strait fell within the boundaries of the State of Queensland. The Commonwealth argued that the Crown had had the power to annex to any colony the islands in question, and that in particular, s 2 of the Australian Colonies Act 1861 (UK)[49] provided an argument which allowed for such an annexation.[50] Carmello Wacando, an inhabitant of Darnley Island, argued that the preamble of the Australian Colonies Act 1861 (UK) suggested a narrower interpretation of the statute, and a limit to the relevant Crown power. Mason J agreed with this argument, reiterating the principle found in Prince Ernest’s Case: ‘The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.’[51]
Mason J acknowledged that the preamble of the Australian Colonies Act 1861 (UK) suggested a narrower interpretation, and s 2 of the Act was ‘readily susceptible of the [alternate] interpretation’.[52] Thus, an ambiguity was identified and Mason J concluded that the Act was best given a limited interpretation, consistent with ‘reading the 1861 Act as a whole and giving effect to its expressed object and purpose’.[53]
Wilson J agreed with Mason J that the Australian Colonies Act 1861 (UK) could not have authorised annexation of Darnley Island to Queensland, but he came to his conclusion without reference to the preamble. After reading the Act in the context of the preamble, Gibbs CJ came to the opposite conclusion — that the Act did authorise annexation. Unlike Mason J, Gibbs CJ construed the relevant section as ‘plain and unambiguous’, and therefore not able to be limited by the preamble.[54]
Notwithstanding the differences in the Court in relation to the effect of the 1861 Act, Carmello Wacando was not successful. While the 1861 Act was not found to authorise the annexation, the Court was unanimous that the annexation was validated under the later Colonial Boundaries Act 1895 (UK).[55] The decision with respect to the 1861 Act was not essential to the judgment; in fact Brennan and Murphy JJ failed to comment on the issue at all. Aitkin J did not discuss it, but merely agreed with the judgment of the Gibbs CJ who, in any case, had relied on the 1895 Act to justify his decision in the end. Conversely, Mason and Wilson JJ both disagreed with Gibbs CJ in relation to the Australian Colonies Act 1861 (UK), and they took a narrower interpretation of the Act consistent with the legislative intent evident in the preamble.[56] Pearce and Geddes submit that Mason J’s comments on the contextual role of the preamble, are the ‘better view’ of the case.[57] Certainly Mason J’s description of the principle seems to be consistent with subsequent High Court precedents, and the approach to interpretation now required under Australian Interpretation Acts.
The contextual role of the preamble in assisting with the ordinary meaning of the enactments, and in clarifying if the Act is clear or ambiguous, is consistent with current interpretation legislation passed by most Australian Parliaments. The 1981 amendment to the Acts Interpretation Act 1901 (Cth) requires that a purposive approach to statutory interpretation be preferred by courts. Section 15AA(1) was inserted as follows:
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
All States and the Australian Capital Territory have enacted similar, if not identical, provisions.[58] Section 15AA can itself be interpreted in two ways: either to represent the equivalent of the ‘mischief rule’ of interpretation — allowing the purpose to be considered where an ambiguity exists — or establishing that the Act’s purpose is to be considered even if the enactments are clear.[59] It is this second broader understanding that seems to be consistent with the current approach of the High Court. Dawson J’s analysis of the equivalent Victorian provision in Mills v Meeking[60] is an example of the view that the purpose of an Act ought be considered even in the absence of an ambiguity. Dawson J explained that the interpretive approach imposed by s 35 of the Interpretation of Legislation Act 1984 (Vic), ‘needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction.’[61] The High Court’s approach to interpretation in CIC Insurance Ltd v Bankstown Football Club Ltd is also consistent with the principle that an ambiguity is not needed for consideration to be given to the purpose of an Act, or the mischief which the Act aims to remedy:
[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which ... one may discern the statute was intended to remedy.[62]
South Australia is one State which possibly could be found to have a more limited approach to interpretation, as the South Australian equivalent to s 15AA of the Acts Interpretation Act 1901 (Cth) begins with the words ‘where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose ...’[63] This phrase could suggest that an ambiguity must already be present before the context or purpose of the Act becomes relevant.[64] Nevertheless, there is still a common law argument that a preamble may be considered as part of the context in the initial reading of an Act as a whole, whether or not an ambiguity exists.[65]
The addition of s 15AB to the Acts Interpretation Act 1901 (Cth) in 1984, expanded the availability of extrinsic material in the interpretation of a Commonwealth Act. Sections 15AB(1)(a) and (b) both confirm that the ordinary meaning of the text is to be determined, ‘taking into account its context in the Act and the purpose or object underlying the Act’. Clearly the preamble as part of the Act is able to assist in determining the ordinary meaning. Secondly, the context and purpose or object of the Act are relevant to determining if the text will lead to a result that is manifestly absurd or unreasonable.[66] Again, all states and the ACT (except South Australia) have enacted analogous provisions to the Commonwealth’s s 15AB.[67]
The High Court has affirmed that the context of the whole Act is significant to determining the ordinary meaning of the words construed. Sections 33 and 34 of the Interpretation Act 1987 (NSW) are equivalent to the Commonwealth’s ss 15AA and 15AB. In Saraswati v The Queen,[68] the High Court had to consider the interpretation of the Crimes Act 1900 (NSW), and in so doing McHugh J commented (Toohey J concurring) that ss 33 and 34 of the Interpretation Act 1987 (NSW) confirmed that,
it is always necessary in determining ‘the ordinary meaning’ of a provision ... to have regard to the purpose of the legislation and the context of the provision as well as the literal meaning of the provision.[69]
McHugh J further explained that the purpose of legislation could sometimes only be discovered by an ‘examination of the legislation as a whole’.[70]
In the latter part of the twentieth century there is little doubt that a preamble is used like the rest of the context: to help establish the ordinary meaning of the substantive words and to be a guide to the intention of the legislature.[71] It seems to follow from this that a preamble may also assist in identifying ambiguities in the Act where an alternative construction could better enact the intent of the Parliament. The contextual role of a preamble is supported by both legislation, and by consistent common law precedents.
Before the rise of the purposive approach to statutory interpretation, the courts were still adopting a wholistic approach to the reading of statutes, and using the preamble in a contextual role. It is evident from early cases, that long before the turn of the century, the preamble was used to assist with the ordinary meaning of the substantive sections. There is also some suggestion that even then the preamble was able to prompt alternative meanings which made evident any ambiguities in the text.
The early cases themselves are an excellent guide to the view and habit of the courts with respect to the role that preambles were able to take. The Interpretation Act 1889 (UK)[72] did not give assistance with respect to the status or role of preambles. Primarily the Imperial Act was concerned with defining specific words and expressions, and made no mention of preambles or any preferred approach to interpretation. Very early cases reveal that far from restricting the role of a preamble, great significance was given to it. Dyer CJ in Stowell v Lord Zouch is recorded as saying that the preamble is a ‘key to open the minds of the makers of the Act, and the mischiefs which they intended to redress’, and he pointed out that ‘for the better apprehension of the purview, the preamble of the Act is to be considered’.[73] Lord Coke echoed the same sentiments in his Institutes, where he agreed that the preamble is ‘a good mean to find out the meaning of the statute, and as it were a key to open the understanding thereof’.[74]
It seems clear that early courts commonly used the preamble as part of the context of the whole Act to confirm or assist with the ordinary meaning of the text. In 1749, Lord Lee CJ stated that: ‘Every word of the statute must be considered both of the preamble and enacting clause.’[75] The Court was considering a clear but broad section of an Act, and in fact they did read the preamble as part of the context, to assist in determining the ordinary meaning of the words. In 1828, Lord Tenterden CJ stated that: ‘In construing Acts of Parliament we are to look not only at the language of the preamble, or of any particular clause, but at the language of the whole Act.’[76] Sir John Nicholl in Brett v Brett[77] had some very expansive words to say on the subject:
The key to the opening of every law is the reason and spirit of the law — it is the ‘animus imponentis’, the intention of the law-maker, expressed in the law itself, taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed detached from its context in the statute: it is to be viewed in connexion with its whole context — meaning by this as well the title and preamble as the purview or enacting part of the statute. It is to the preamble more especially that we are to look for the reason or spirit of every statute; rehearsing this, as it ordinarily does, the evils sought to be remedied, or the doubts purported to be removed by the statute, and so evidencing, in the best and most satisfactory manner, the object or intention of the legislature in making and passing the statute itself.[78]
Nicholl’s reverence for contextual interpretation was quoted and approved in Prince Ernest’s Case, where Lord Somervell expressed his regret that ‘the subject was not left where Sir John Nicholl left it in 1826.’[79] Lord Somervell also emphasised ‘one compelling rule’: that the ‘whole or any part of the Act may be referred to and relied on.’[80]
In 1853, Pollock CB advocated the necessity of a wholistic reading of a statute:
[H]owever plain the apparent grammatical construction of a sentence may be, if it be perfectly clear from the contents of the same document ... that the apparent grammatical construction cannot be the true one, then that which upon the whole is the true meaning, shall prevail in spite of the grammatical construction of a particular part of it.[81]
William Craies confirms and elaborates Pollock’s principle in his 1892 commentary, citing a number of other authorities which concur.[82] Further support for the contextual role of the preamble is found in 1902, when Lord Thring declared that: ‘The proper function of a preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood’.[83] The preamble as part of the context plays an even larger role where the statute concerned is a penal statute, for such Acts are interpreted narrowly.[84]
Around the turn of the century, less consensus existed with respect to the role of the preamble in helping to identify any ambiguities in a substantive section of the Act, through raising alternative meanings which were consistent with the intention of Parliament. It should be remembered that by raising an ambiguity, the preamble does not then automatically help to resolve it. The ordinary meaning of the words may prevail, notwithstanding the fact that an alternative construction is identified through reference to the preamble.
The contextual role of the preamble is evident in the series of cases dealing with the ‘Wills Act’ 1752 (Imp).[85] The statutory section in question included the words ‘any will or codicil’.[86] The issue was whether the section related to real property only (as suggested by the preamble and the long title) or ‘any’ wills including personal property. Lees v Summersgill[87] decided that the words ‘any will or codicil’ were perfectly plain, and could not be limited by reference to the preamble. Lees v Summersgill was not followed in Brett v Brett,[88] and was overruled by Emanuel v Constable.[89] It is clear from the latter two cases that the words ‘any will or codicil’ were found to be general, indefinite words, and capable of a more limited meaning. In Emanuel v Constable, Sir John Leach MR said:
I agree that the preamble of a statute cannot controul a clear and express enactment: but the plain intent of the legislature is expressed in the preamble, and the nature of the mischief, which is sought to be remedied, may serve to give a definite and qualified meaning to indefinite and general terms.[90]
In deciding that the words could not be applied in their ordinary meaning, the courts relied heavily on the suggestion in the preamble that the Act was related to wills for real property, and in particular, to frauds involving legal witnesses to the will. The Court arrived at the alternative meaning which better represented the intention of the Parliament, as a result of reading the Act in context, including the preamble.
L’Apostre v Le Plaistrier[91] is another case where the word ‘any’ created a general and so indefinite meaning. The case involved an action of trover for diamonds in the possession of a bankrupt. The diamonds were left in the keeping of a person who subsequently went bankrupt, and the law provided for the disposal of ‘any goods or chattels’ which the bankrupt had in their possession.[92] The Court had to determine if the statute applied only to the goods of the bankrupt, or also to goods which were being held in safekeeping for another. The decision was that the narrower words of the preamble should restrict the Act as the preamble spoke only of the bankrupt’s goods, and so in this case the jewels were not liable to the bankruptcy.[93] In Ryall v Rowles,[94] the Court had to construe the same statute, and they came to the identical conclusion about the meaning of the words ‘any goods or chattels’. Lord Parker CB said:
I admit in many cases the preamble will not restrain the general purview ... But it is a rule, and so agreed there, that where the not restraining the generality of the enacting clause will be attended with inconvenience, it shall restrain.[95]
As these cases involved general words, one might argue that in fact they concerned ambiguous statutes,[96] and were thus uncontroversial in their reference to the preambles. However, one might equally argue that the plain general words of the statutes would have been applied literally, but for the alternative interpretations prompted by the preambles.
An example of where the general and universal words of the statute were not restricted by the preamble is The Sussex Peerage Case.[97] That case involved the interpretation of the Royal Marriage Act 1772 (Imp),[98] and particularly whether overseas marriages had to comply with the rule requiring marriages of the King’s descendants to be given royal consent. The words ‘contracting matrimony’ were found to be general and universal, but they were nevertheless given their plain meaning. It is noteworthy that this construction was found to be consistent with the preamble, the object of the Act, and the mischief intended to be prevented.[99] In this case the preamble was used in its contextual role to confirm the ordinary meaning of the words.
There is currently little doubt that a preamble must be read as part of the context of the whole Act, and may in fact raise doubts about the meaning of substantive sections. There is also evidence that early courts commonly used the preamble in this contextual role. However, a small number of judges and commentators reject this historical claim, and suggest that no reference could be made to the preamble of an Act unless there was already an ambiguity evident in a substantive section. This is a strict view of interpretation which I am calling the ‘no recourse rule’. In essence, the rule is that unless there is an independently established ambiguity in a substantive section of the Act, the preamble may not be referred to. This rule completely prohibits a contextual role for the preamble if an ambiguity has not independently been identified. The automatic result of this rule is that the preamble can never itself raise or suggest an ambiguity in the substantive text of an Act, and nor can the preamble play a constructive role in the interpretation of enactments which seem clear when read in isolation. While there is no doubt that such a view was held by some, the weight of the judicial authority supports the historical validity of the contextual role of the preamble described above. To understand the debate, it is useful to clarify the meaning of the ‘no recourse rule’, and identify and analyse its various advocates.
Firstly, it is important not to confuse the advocates of the ‘no recourse rule’ with those who are merely repeating the ‘settled rule’ that ‘the preamble cannot be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms.’[100] This latter rule is not prohibiting reference to the preamble, but rather prohibiting use of the preamble in its constructive role in affecting the meaning of clear substantive sections. The legal meaning of control is to ‘restrain’ or ‘overrule’[101] — it cannot be taken to mean that the preamble is irrelevant, or that it cannot assist with the enactments by either confirming their meaning or raising doubts about their meaning. The Earl of Halsbury LC also reflects on the constructive role of the preamble in Powell v Kempton Park Racecourse Co Ltd (‘Powell’s Case II’):
Two propositions are quite clear — one that a preamble may afford useful light as to what a statute intends to reach, and another that, if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.[102]
While this statement includes another good example of the settled rule of construction that a preamble may not restrain a clear enactment, it has been mistakenly cited as evidence of the ‘no recourse rule’.[103] In fact, a number of judges from both Powell’s Cases (Court of Appeal 1897; House of Lords 1899) actually relied on the preamble of the Betting Act 1853 (UK)[104] to indicate that the word ‘place’ in the Act needed limiting.[105] Furthermore, Lord Shand of the House of Lords went so far as to say that notwithstanding any ambiguity in the statute, ‘the terms of the preamble are so clear as to the object and intended scope of the statute that the judgment, even in that view, must be given in favour of the respondents.’[106]
Mason J in Wacando’s Case recognised the potential confusion between the two ideas:
It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.[107]
In 1792, Grose J gave a similar explanation in Crespigny v Wittenoom: ‘Though the preamble cannot controul the enacting clause, we may compare it with the rest of the Act, in order to collect the intention of the Legislature’.[108] It is essential to differentiate between the constructive role and the contextual role of a preamble.[109]
Secondly, the ‘no recourse rule’ must be distinguished from the often repeated statement that recourse may be had to the preamble to help resolve an ambiguity in the text. For instance, Lord James stated that,
if the wording of the statute gives rise to doubts as to its proper construction, the preamble can be and ought to be referred to in order to arrive at the proper construction to be put upon the enacting portion of the statute.[110]
Such a statement is in the manner of a permission to use a preamble in its constructive role. It is in no way intended to be a prohibition on using the preamble as part of the context of the Act. It is natural that if there is an ambiguity, then we will be directed to the preamble (or perhaps extrinsic aids) to help resolve the interpretation. Nevertheless, such an exhortation is not suggesting that unless there is an ambiguity, the preamble may not be referred to — as is the case with the advocates of the ‘no recourse rule’ below. Similarly, the words of Lord Tindal CJ in The Sussex Peerage Case can be understood as a permission and not a prohibition:
[I]f any doubt arises from the terms employed by the Legislature, it has always been held a safe mean of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble.[111]
Indeed, far from ignoring the preamble because the text was clear, Lord Tindal CJ’s judgment itself made considerable use of the preamble in its contextual role. A preamble was often read by judges as part of the context of an Act, but then disregarded as an interpretive tool, when the text itself was found to be sufficiently clear.[112] Such judgments recognised that enactments sometimes had deliberate application to things other than those mentioned by the preamble, and that the meaning of the statute should not in those cases be restrained or enlarged just because the preamble was different in scope. Nevertheless, the courts commonly employed the preamble in its contextual role, even in the absence of an ambiguity.
The ‘no recourse rule’ is a direct prohibition on any reference to the preamble in the absence of ambiguity on the face of the statute, and it has a number of apparent proponents. Two judges from the Powell’s Cases,[113] Craies on Statute Law,[114] Craven,[115] Cross on Statutory Interpretation[116] and Halsbury’s Laws of Australia[117] all seem to advocate some form of the rule.
For instance, in Powell v Kempton Park Racecourse Co Ltd (‘Powell’s Case I’), Rigby LJ of the Court of Appeal stated that the enacting clauses were to be dealt with first, ‘unless there be some ambiguity which [made] it permissible to refer to the preamble.’[118] Lord Davey commented in the subsequent 1899 House of Lords decision that:
[T]he preamble is a key to the statute, and affords a clue to the scope of the statute when the words construed by themselves without the aid of the preamble are fairly capable of more than one meaning. There is, however, another rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital.[119]
It is essential to note that both Rigby LJ and Lord Davey were delivering dissenting judgments. No other member of the House of Lords or the Court of Appeal concurred with Rigby LJ’s view that the enacted words ought to be read first. Indeed, A L Smith LJ expressly advised that the preamble ‘must’ be read first.[120] Nor did they concur with Lord Davey’s warning about not imagining an ambiguity to bring in the aid of the preamble. In fact, in Prince Ernest’s Case, Viscount Simonds specifically rejected Lord Davey’s manner of describing the process:
To say, then, that you may not call in aid the preamble in order to create an ambiguity in effect means very little, and, with great respect to those who have from time to time invoked this rule, I would suggest that it is better stated by saying that the context of the preamble is not to influence the meaning otherwise ascribable to the enacting part unless there is a compelling reason for it.[121]
The emphasis is on the fact that a text ought not automatically be affected by an inconsistent preamble. A compelling reason is necessary for the preamble to be relevant. A ‘compelling reason’ may be understood as an unambiguous preamble which clearly reveals the intention of Parliament with respect to the enactment in question, and an enactment whose words can legitimately bear the altered interpretation.
Craies on Statute Law also appears to support the ‘no recourse rule’. Since 1892, every edition of the commentary (‘Craies’) has repeated the phrase:
[T]he general rule with regard to [the preamble’s] effect upon the enacting part of the statute has always been that if the meaning of the enactment is clear and unequivocal without the preamble, the preamble can have no effect whatever.[122]
While in 1892 this statement could initially be taken to apply to the settled rule about the constructive role of the preamble — that a preamble could not restrain clear enactments — as time passed the various editions of Craies refined the text surrounding this ‘general rule’ statement, so that it increasingly seemed to advocate the ‘no recourse rule’. For instance, Craies (2nd ed, 1892) follows this ‘general rule’ statement with a description of Overseers of West Ham v Iles.[123] That case is not strong support for the ‘no recourse rule’.[124] Craies (3rd ed, 1901)[125] follows this ‘general rule’ statement with the quote from the Earl of Halsbury LC’s judgment in Powell’s Case II.[126] As detailed above, the Earl of Halsbury LC’s comment is indicative of the settled rule that a preamble cannot restrain a clear enactment.[127] Craies (3rd ed, 1901) then goes on to quote from the only clear precedent supporting the ‘no recourse rule’ — the judgment of Lord Davey in Powell’s Case II.[128] This preference for the dissenting judgment of Lord Davey carries right through to Craies (7th ed, 1971), where Lord Davey is quoted twice,[129] even though he is not supported by the majority judgments.
Increasing support for the ‘no recourse rule’ in the Craies’ commentaries is similarly indicated by the selective reference made to Prince Ernest’s Case. Craies (7th ed, 1971) quotes the judgment of Viscount Simonds regarding the need for a ‘compelling reason’[130] before allowing the preamble to influence the meaning of the statute.[131] However, Craies omits to make any reference to Simonds’ extensive remarks on the contextual role of the preamble.[132]
Craies (7th ed, 1971) also supports the ‘general rule’ statement (about the preamble having ‘no effect whatever’) with footnote references to Ward v Holman[133] and Eton College v Minister of Agriculture.[134] The footnote reference in Craies (7th ed, 1971)[135] to Ward v Holman quotes the misleading headnote rather than the judgment.[136] The reference to Eton College v Minister of Agriculture suggests that Wilberforce J held that ‘as the enacting section was unambiguous, the preamble must be ignored’.[137] This summary of the judgment is incorrect. Wilberforce J certainly considered the preambles to the Ecclesiastical Leases Act 1571 (Eng),[138] but he found that the preamble to s 3 of the Act was in itself ‘far from clear’, and that being ambiguous, the preamble could not restrict the clear enactments.[139]
Other than Lord Davey’s dissenting judgment from Powell’s Case II, Craies (7th ed, 1971) has little other judicial support for the ‘no recourse rule’.
In the course of discussing the significance of the preamble of the Constitution Act to the secession of an Australian State, Craven, in 1984, strongly endorsed the ‘rule’ that, ‘recourse may only be had to the preamble in the event that the words of the section under consideration have first been found to be unclear or ambiguous’;[140] and later:
The preamble would therefore not even be consulted if the words of the section under consideration did not reveal an ambiguity. Thus, in the case of clear words, the preamble was ignored.[141]
Craven made it clear that this ‘rule’ applied to the role of preambles as affecting interpretation, as clarifying the mischief to be remedied and purpose for the Act, and as assisting with context. In other words, in Craven’s analysis, neither the content of the preamble, the context of the preamble, nor the preamble as an aid to interpretation could be relevant or referred to, unless the substantive section was found to be independently ambiguous.
It is important to note that Craven was writing before the 1984 amendment to the Acts Interpretation Act 1901 (Cth),[142] and he was not writing with the benefit of recent judicial comments on the purposive approach to statutory interpretation. Although his view of the preamble’s role appears to have remained unchanged in 1986,[143] he has more recently acknowledged that the ‘no recourse rule’ is not representative of the current state of the law.[144] Craven’s initial rejection of the contextual role of the preamble can be attributed to an over-reliance on Craies (7th ed, 1971).[145] Craven also cited cases in support of the ‘no recourse rule’ which actually propose either the settled rule of construction that a preamble cannot restrain a clear enactment,[146] or the statement of permission to use the preamble when needed to resolve an ambiguity.[147] For instance, Craven cites Bowtell v Goldsbrough, Mort & Co Ltd (‘Bowtell’s Case’)[148] in support of the ‘no recourse rule’. After accepting the settled principle that the preamble cannot cut down the clear words of an enactment, Griffith CJ went on to use the permissive language ‘[b]ut if’ rather than the prohibitive language ‘[o]nly where’ suggested by Craven. Griffith CJ’s comment was:
But if the words are uncertain as applied to the subject matter, and may bear more than one meaning, then you may, in a proper case, refer to the preamble to ascertain what was the occasion for the alteration of the law.[149]
Craven’s interpretation of Bowtell’s Case is that Griffith CJ proposed that, ‘the plain words of an enactment could “never be affected” by the preamble. Only where the words themselves were uncertain ... would the preamble be consulted.’[150] Griffith CJ’s judgment is not a strong authority for Craven’s ‘rule’.
Cross on Statutory Interpretation (3rd ed, 1995) (‘Cross’) likewise advocates the ‘no recourse rule’:
If the sole cause of doubt [about the clear meaning of an enactment] is a disparity between the otherwise clear and unambiguous words and a title, preamble, heading or side-note, the judge must disregard his doubts and apply the otherwise clear and unambiguous words ... although the parts of the statute which do not enact anything may be consulted as a guide to Parliamentary intent and hence to the meaning of the enacted words, effect must not be given to any doubts which they may raise about the meaning of those words.[151]
This statement is not specifically relevant to the Australian context, as Cross is a relatively modern English text. It was also written in the context of the fact that UK Acts Interpretation legislation had not been amended to require a purposive approach to statutory interpretation.[152] Nevertheless, it is instructive to look at the statement in Cross as it is indicative of a typical view of the common law. The basic proposition is that the plain meaning of an enactment will prevail over a doubt created only by the preamble, title, heading or side-note. The statement seems to assume that there is a similarity between rules about preambles, and statutory interpretation principles regarding headings and side-notes. The latter two elements of a statute are unamendable descriptive components, and there has never been any suggestion that headings and side-notes could raise an ambiguity in an Act. On the other hand, when Cross later deals specifically with preambles, there is a clear contradiction. The commentary affirms the rule in Prince Ernest’s Case, which provided that a court could not be certain that the enactments were unambiguous until the whole Act had been read in the context of the preamble.[153] It seems that the attitude in Cross toward the ‘no recourse rule’ is itself ambiguous.
Finally, the confusion which can result from not clearly articulating the various principles is evident in the brief comment found in Halsbury’s Laws of Australia:
The preamble has been held to be part of the statute and thus allows the court, where ambiguity in the text exists, to examine it for the colour and context of the whole statute.[154]
At first glance this summary suggests that an ambiguity is necessary before the contextual role of the preamble may be employed. However, of the six references that are cited, only one of them actually supports the ‘prohibition’. That one authority is Lord Davey from Powell’s Case II, and his argument, as already discussed, is put as part of an isolated dissenting judgment.[155] Also, the words quoted above from Halsbury’s Laws of Australia regarding the ‘colour and context of the whole statute’ seem to have their origin in a statement by Viscount Simonds in Prince Ernest’s Case: ‘For words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context.’[156] The statement of the law in Halsbury’s Laws of Australia may be better understood as an attempt to summarise both the contextual and constructive role of a preamble in one succinct statement. Unfortunately, in this instance, the brevity can lead to ambiguity.
Each of these advocates of the ‘no recourse rule’ can be understood more accurately when considered in the broader context of statutory interpretation and its diverse set of principles.
There are a number of explanations for the existence of the ‘no recourse rule’, including mistaken assumptions about the role of preambles, mistaken assumptions about the legal status of preambles, the rise of legal formalism, and the imperfect methods of commentators.
One of the reasons why there has been confusion both about when it is permissible to refer to the preamble and when it is permissible to use the preamble to construe the enactments, is because of the tendency to assume that the preamble is irrelevant in the absence of a disputed interpretation. We ought not forget that the preamble has a variety of roles. As a declaration of information,[157] the preamble constantly informs the reader of legislation throughout the life of the Act, perhaps never becoming subject to litigation at all. However, when a dispute arises about the meaning of a substantive section, then there may be argument about what role the preamble should play. In the event of an ambiguity, it is natural that the mischief to be remedied or the legislative intent will be sought, thus immediately focussing attention on the preamble. But one could argue that reference to the preamble to throw light on an ambiguity is not the preamble’s primary role. Preambles are not put into place only to assist when things become unclear. Fundamentally, they are there to inform the community throughout the operation of the law. It is a narrow view to always consider the role of preambles in terms of disputed meanings.
Another incorrect assumption which has encouraged limitations on reference to the preamble is the assumption that the preamble is not part of the Act. While this proposition is clearly incorrect,[158] certain restrictive attitudes to reading preambles can be traced to it. An United States commentary, Statutes and Statutory Construction by J G Sutherland (‘Sutherland’), reflects on this connection.[159] Sutherland suggests that rules which restrict reference to the preamble are ‘founded on the misconception that the preamble, because it precedes the enacting clause, is not enacted by the legislature.’[160] Sutherland reminds the reader that there is no doubt that a preamble is part of the Act, and the text goes on to suggest that: ‘More accurate interpretations will be achieved if the preamble is considered the same as the enacted part of the law and the “whole act” manner of interpretation is followed.’[161]
A preamble is clearly identified in the common law as part of the Act of Parliament,[162] but not part of the law-making portion of the Act.[163] An Act of Parliament can be divided into three main parts: the operative components (including the sections and schedules); the amendable descriptive components (including the long title, the preamble, and the short title); and the unamendable descriptive components (including the marginal notes, the punctuation and the sectional headings).[164] Traditionally, unamendable components have had less significance in relation to statutory interpretation, as these sections of the Act are not formally discussed by the Parliament (they are generally finalised by the legislative drafters after the Bill has been passed). In comparison, the preamble has been seen as a reliable source of the intention of Parliament, as it is subject to parliamentary debate.[165]
Halsbury’s Laws of England suggests that preambles have been accepted as a part of the statute since the middle of the nineteenth century.[166] Salkeld v Johnson provides that ‘the preamble is undoubtedly a part of the act, and may be used to explain it’.[167] There is some evidence in previous centuries that the preamble was once not considered part of the statute,[168] but such cases have long been considered bad precedents.[169] Bennion goes so far as to suggest that judges have never doubted that the preamble was part of the Act.[170] However, it is certainly true that titles of statutes were once not considered part of the Act, because they were initially added by the judges for clarity, as Parliament did not originally supply a title.[171]
The discredited idea that the preamble is not part of the Act may well explain the conviction of some of the advocates of the ‘no recourse rule’.[172] Their view that reference to the preamble ought to be restricted can be likened to the similar rule which applied to using extrinsic sources. Access to sources outside the ‘four corners of the Act’ was either prohibited altogether (such as reference to Hansard), or restricted to occasions where the mischief to be remedied, or the intention of Parliament was required to resolve an ambiguity (such as reference to the history of the legislation as provided for by the ‘mischief rule’).[173] In fact, the words of Rigby LJ — that the enacting clauses were to be dealt with first, unless there was an ambiguity which made it ‘permissible to refer to the preamble’[174] — are reminiscent of the traditional mischief rule as proposed by Heydon’s Case.[175] However, there is a clear difference between identifying the purpose of an Act through reference to the preamble, and going beyond the four corners of the Act to extrinsic sources.[176]
Likewise, Craven’s use of the phrase ‘manifest ambiguity’ suggests a misleading correlation between the principles governing preambles, and the old rules about extrinsic sources. Craven, in his 1984 article, suggested that both Dixon v Todd[177] and President etc of the Shire of Arapiles v Board of Land & Works[178] were examples of the High Court approving The Sussex Peerage Case[179] for ‘the proposition that the preamble to a statute could only be employed in the case of manifest ambiguity.’[180] Neither case involved the issue of a preamble, and neither mentioned the idea of ‘manifest ambiguity’. However, both cases did discuss the concept of ‘manifest absurdity’,[181] and this is most likely the source of Craven’s phrase. However, generally courts have made it clear that even ‘doubt’ about the meaning of an enactment is enough to be called ‘ambiguous’,[182] and there is no judicial authority to support the idea that a ‘manifest ambiguity’ is necessary to allow the preamble to play its constructive role. Authority varies, but ambiguity has been said to exist where there are: equivocal words;[183] doubts as to the proper construction;[184] two possible constructions;[185] two rival constructions;[186] or, such general words that they could apply universally or be limited.[187]
Like extrinsic sources, marginal notes have never been considered part of an Act, and for a long time neither were headings.[188] Nevertheless, commentaries such as Cross (3rd ed, 1995) sometimes treat preambles in the same manner as headings or side-notes.[189] This is again suggestive of the misconception that the preamble is not part of the Act.
Cross (3rd ed, 1995) further suggests that the rules regarding the use of preambles in interpretation are identical to the rules regarding statutory long titles.[190] Earlier commentaries such as Maxwell (1st ed, 1875) and Craies (2nd ed, 1892) treat long titles and preambles quite separately. Both early commentaries agree that the title was not part of the statute, and ought not be considered when construing the statute.[191] Conversely, Maxwell (1st ed, 1875) and Craies (2nd ed, 1892) both emphasise that preambles have had a long history of being favoured by the court as an interpretive tool, and that preambles are ‘undoubtedly part of the Act.’[192] In Powell’s Case I, the title and preamble are clearly distinguished from each other by the fact that the title is not considered part of the Act.[193] There is evidence that in 1854, the practice of the House of Commons was changed to allow the House to amend the title.[194] The titles of all statutes passed before that date could in no way have been considered part of the Act. As with extrinsic sources which did not form part of the Act, reference to the title was originally limited to occasions where an ambiguity already existed.[195] The tendency to treat titles and preambles alike is a more recent practice.[196] To treat preambles in the same manner as titles is based on another misleading assumption.
The ‘no recourse rule’ is also the natural consequence of an allegiance to a strictly formal approach to statutory interpretation. With the rise of positivism, courts were increasingly emphasising the specific operative words of an Act, rather than other evidence of the ‘intention of the legislature’ which was less quantifiable. Mason J directly criticised this narrow literal approach:
Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasize the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance ...[197]
It is not surprising that courts which abided by a strictly positivist approach to law would choose to only consider words in isolation. Lord Tindal CJ in The Sussex Peerage Case appeared to support such a practice. He explained that,
the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.[198]
Certainly, Lord Tindal CJ seems to be expressing a narrow literal view of interpretation. Indeed, it is a generally accepted principle that clear words are the best indication of Parliament’s intention, but we must also remember that there is considerable authority for the practice of looking for the real intention of the legislature in the ‘whole Act’[199] or the ‘statute itself’,[200] including both the preamble and the enactments.[201] Furthermore, while Lord Tindal CJ’s words seem to suggest a strictly literal approach, his actual judgment is far more flexible, making reference to the preamble as part of the context.[202] In any case, even the most formal approach to statutory interpretation cannot deny that the meaning of an English word is often only discernible through its context.
Finally, the existence of the ‘no recourse rule’ can to some extent be explained by the ordinary methods of commentators. By nature of their activity, commentators on statutory interpretation prefer to present a succinct set of rules, rather than a diverse set of contradictory principles. Thus, most commentators like to speak in terms of ‘rules’, and they divide their analysis into two parts: when the words are plain, and when the words are not plain.[203] This division can be an artificial construction which increases the likelihood of inflexible ‘rules’ being associated with only one of these categories. For instance, in Craies (2nd ed, 1892) the author used a marginal note which said: ‘But if language is not clear’; whereas the text of the commentary actually said: ‘If the object or meaning of an enactment is not clear’.[204] As preambles are generally not associated with the commentary on ‘when the words are plain’, the resulting inferences encourage those who advocate the ‘no recourse rule’.
Also, care must be taken to not use the language of commentators (rather than the language of the courts) when describing the rules of statutory interpretation. Commentators are frequently trying to summarise vast amounts of information into one text, and occasionally may provide summaries which mislead due to their brevity. The statement from Halsbury’s Laws of Australia mentioned above regarding the examination of the preamble ‘where ambiguity in the text exists’ is an example of such a summary.[205] It is instructive to note that Halsbury’s Laws of Australia gives only five sentences of information on preambles. It is an exceedingly condensed analysis which may inevitably lead to incorrect inferences.
Another common habit in commentaries which can lead to erroneous inferences is associated with the practice of reprinting commentaries over many decades, with a variety of authors. Authors over time, tend to add new information to the commentary without substantially changing the surrounding context. An example of this is seen in a commentary by Pearce and Geddes, where after Wacando’s Case[206] was decided, they inserted into their commentary a significant quote from Mason J on the contextual role of the preamble.[207] However, because the reference to Wacando’s Case was inserted directly after a pre-existing quote from Griffith CJ in Bowtell’s Case,[208] the information communicated on the contextual role of the preamble has a potentially misleading context. The Pearce and Geddes text could conceivably result in the perception that the contextual role of the preamble is incompatible with settled rules about the constructive role of the preamble.[209]
Notwithstanding the various misconceptions about preambles, the tendency of some judges towards a highly literal approach to interpretation, and the misleading language of some commentaries — the common practice of judges has been to have recourse to the preamble even when the meaning is plain. This is the contextual role of the preamble. If the meaning of the enactments remained unambiguous in the context of the preamble and the whole Act, then there was no need to employ the preamble in its constructive role to refine the meaning of the Act. This common practice in statutory interpretation cases is far from the suggestion that no recourse may be had to the preamble unless an ambiguity is independently identified in the Act.
Preambles have a contextual as well as a constructive role in statutory interpretation. Preambles are part of the wider context of a statute, and should be referred to during the initial reading of an Act as a whole. The preamble may, in that role, confirm the plain and ordinary meaning of the words, or it may in fact raise or confirm alternative constructions which suggest an ambiguity in the substantive sections. An Act cannot be said to have a clear meaning until it has been read through as a whole document, including the preamble if one exists. However, the interpretation of an Act will not automatically be affected just because an alternative meaning (thus an ambiguity) is raised through reference to the preamble. To restrain or enlarge the enactments, the enactment must be able to bear the alternative meaning, and there must be a compelling indication that the preamble is the most accurate guide to the intention of the legislature regarding the meaning of the substantive words.
While the contextual role of a preamble is consistent with English common law, current Acts Interpretation legislation, and recent High Court precedents, the past existence of a contextual role for a preamble has been contested by those who advocate the rule that a preamble cannot be referred to if there is no ambiguity already evident in the text. These advocates of the ‘no recourse rule’ can be understood to some extent in the context of misleading assumptions and misleading commentaries on statutory interpretation.
Historically, preambles have been used by the courts, not only to aid the interpretation of ambiguous sections and to assist in determining the mischief to be remedied by the Act, but also to determine the intentions of Parliament, as context for clarifying the possible meaning of substantive sections, and as a guide for when to limit ‘general’ substantive provisions. Suggestions that the preamble could not be referred to without an ambiguity in the Act seem to lack strong authority. Taking into account the differences between ordinary statutes and constitutions,[210] it must also be clarified if the preamble to the Commonwealth Constitution may or must be considered as part of the context when interpreting a substantive provision which on its face is unambiguous.
[*] BA, LLB, Dip Ed (Adel), GCLP (SA); Barrister and Solicitor of the Supreme Court of South Australia; Lecturer, Faculty of Law, The University of Melbourne.
[1] See Department of Prime Minister and Cabinet, ‘Constitutional Convention: Transcript of Proceedings’ (1998) <http://www.dpmc.gov.au/convention/hansard.html> .
[2] D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) 16; Alastair MacAdam and Tom Smith, Statutes (3rd ed, 1993) 71.
[3] Gwen Morris et al, Laying Down the Law (4th ed, 1996) 128. Examples of modern statutes incorporating preambles include: Sex Discrimination Act 1984 (Cth), Law Reform (Decriminalization of Sodomy) Act 1989 (WA), Anti-Discrimination Act 1991 (Qld), Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (as amended in 1993). Also, preambles are now common in regulations, legislation of the European Parliament, constitutions and modern international covenants.
[4] See below Parts III(B)–(C).
[5] F A R Bennion, Statutory Interpretation: A Code (2nd ed, 1992) 483. The preamble is part of the Act: A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 467 (Lord Normand); but does not itself have substantive law-making power: 475 (Lord Somervell). See below nn 162–163.
[6] Eg Betting Act 1853 (UK) 16 & 17 Vict, c 119, as discussed in Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 184, the preamble of which indicated that the Act aimed to suppress ‘a kind of gaming [that had] of late sprung up tending to the injury and demoralisation of improvident persons by the opening of places called betting houses or offices’. See also Bennion, above n 5, 499.
[7] Eg Anti-Discrimination Act 1991 (Qld), where the preamble begins with the words ‘Parliament’s reasons for enacting this Act are-’; and the ‘Wills Act’ 1752 (Imp) 25 Geo 2, c 6, as discussed in Brett v Brett (1826) 3 Add 210; 162 ER 456 — the preamble of which suggested that the scope of the Act extended to wills and codicils of real property only, and not all property. See also MacAdam and Smith, above n 2, 70.
[8] Eg Communist Party Dissolution Act 1950 (Cth) which contained a detailed preamble describing the threat of the Communist Party, the need for opposition to Communism, and the legitimacy of the Act under various constitutional heads of power. See also John Bell and Sir George Engle, Cross on Statutory Interpretation (3rd ed, 1995) 126–7. It should be noted that statements of fact in a preamble should not be regarded as conclusive, but merely as prima facie evidence of the truth of those facts; and where the power to make the law depends on the recital of facts in the preamble, even prima facie probative force should not be allowed: Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 263–4 (Fullagar J).
[9] I have chosen the terms constructive and contextual for ease of denotation, and they ought not be taken too literally. For instance, when considering a preamble in its contextual role, one is still involved in construing a statute.
[10] See below Parts III(A)(2)–(3).
[11] R v Pierce [1814] EngR 477; (1814) 3 M & S 62; 105 ER 534, 536 (Lord Ellenborough CJ); A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 474 (Lord Somervell).
[12] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 299.
[13] MacAdam and Smith, above n 2, 71; John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 284; Peter Maxwell, On the Interpretation of Statutes (1st ed, 1875) 46; The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057 (Lord Tindal CJ).
[14] Eg Eton College v Minister of Agriculture, Fisheries and Food [1964] 1 Ch 274.
[15] Mason v Armitage [1806] EngR 271; (1806) 13 Ves Jun 25; 33 ER 204, 208 (Lord Erskine LC).
[16] Eg Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143; where the word ‘place’ in the Betting Act 1853 (UK) 16 & 17 Vict, c 119, was interpreted narrowly, in line with the object of the Act expressed in the preamble, so as not to prohibit the conduct of bookmakers in an open inclosure at race meetings.
[17] See Earl of Halsbury, Laws of England, vol 27 (1913) Statutes, ‘2 Classification and Framework’ [201]. See also Maxwell, (1st ed, 1875), above n 13, 46.
[18] Eg Dean & Chapter of York v Middleborough [1827] EngR 874; (1827) 2 Y & J 196; 148 ER 888, 897 (Lord Alexander CB); A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 462–3 (Viscount Simonds); Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 23 (Mason J); Pearce and Geddes, above n 2, 118; Maxwell, (1st ed, 1875), above n 13, 39.
[19] MacAdam and Smith, above n 2, 71; Quick and Garran, above n 13, 284.
[20] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 272 (A L Smith LJ).
[21] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 451 (Griffith CJ). This statement was affirmed by Gibbs CJ in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 16. See also Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 157 (Earl of Halsbury LC).
[22] Eg Emanuel v Constable [1827] EngR 557; (1827) 3 Russ 436; 38 ER 639, 640 (Sir John Leach MR); Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 290 (Rigby LJ), 299 (Chitty LJ); Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 192 (Lord James); Ward v Holman [1964] 2 QB 580, 587 (Lord Parker CJ).
[23] Eg Ryall v Rowles [1749] EngR 11; (1749) 1 Ves Sen 348; 27 ER 1074, 1084 (Lord Parker CB).
[24] Eg Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 261 (Lindley LJ).
[25] Eg Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 157 (Earl of Halsbury LC).
[26] Eg Mason v Armitage [1806] EngR 271; (1806) 13 Ves Jun 25; 33 ER 204, 208 (Lord Erskine LC).
[27] Eg Halton v Cove [1830] EngR 865; (1830) 1 B & Ad 538; 109 ER 887, 895 (Lord Tenterden CJ).
[28] Eg Wilson v Knubley [1806] EngR 45; (1806) 7 East 128; 103 ER 49, 51–2 (Lord Ellenborough CJ).
[29] William Craies, A Treatise on the Construction and Effect of Statute Law (2nd ed, 1892) 223; Emanuel v Constable [1827] EngR 557; (1827) 3 Russ 436; 38 ER 639, 640 (Sir John Leach MR).
[30] Craies, (2nd ed, 1892), above n 29, 223; Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 266 (Lopes LJ).
[31] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 457 (O’Connor J).
[32] [1957] AC 436, 463 (Viscount Simonds); 465–8 (Lord Normand). See below nn 45–46 and accompanying text.
[33] [1981] HCA 60; (1981) 148 CLR 1, 23. See below n 51 and accompanying text.
[34] Eg the insertion of ss 15AA and 15AB in the Acts Interpretation Act 1901 (Cth). See below nn 58 and 67.
[35] Eg Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. See below nn 62 and 69 and accompanying text.
[36] MacAdam and Smith, above n 2, 71; Butterworths, Halsbury’s Laws of Australia, vol 24 (at 29 March 1999) Statutes, ‘2 Interpretation and Construction’ [385-160].
[39] P St J Langan, Maxwell on the Interpretation of Statutes (12th ed, 1969) 7.
[41] Ibid 463 (Viscount Simonds). See also Bell and Engle, Cross (3rd ed, 1995), above n 8, 129; MacAdam and Smith, above n 2, 71.
[42] [1957] AC 436, 461–3 (Viscount Simonds), 472 (Lord Tucker), 465–7 (Lord Normand), 473–4 (Lord Somervell). This principle of the contextual role of the preamble was approved and applied by Brandon J in The Norwhale [1975] 2 All ER 501, 506–7.
[43] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 461.
[44] Ibid.
[45] Ibid 463.
[46] Ibid 465, 467.
[47] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). See also Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 452 (Toohey J).
[48] [1981] HCA 60; (1981) 148 CLR 1, 23.
[49] 24 & 25 Vict, c 44.
[50] The argument was that the Australian Colonies Act 1861 (UK) authorised the annexation by certain Letters Patent 1878.
[51] Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 23.
[52] Ibid.
[53] Ibid 24.
[54] Ibid 16.
[55] 58 & 59 Vict, c 35.
[56] Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 24 (Mason J), 29 (Wilson J). Wilson J alleged that he was able to reach his decision based on the construction of the enactment, and not relying on the preamble.
[57] Pearce and Geddes, above n 2, 118. See also below n 209.
[58] Interpretation Act 1987 (NSW) s 33; Interpretation of Legislation Act 1984 (Vic) s 35(a); Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1915 (SA) s 22; Interpretation Act 1984 (WA) s 18; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation Act 1967 (ACT) s 11A.
[59] Pearce and Geddes, above n 2, 27. Pearce and Geddes expressly support the latter application that the purpose must be considered in all cases. Barnes refers to such a requirement that the purpose be considered at ‘first level interpretation’ as the ‘obligatory view’: Jeffrey Barnes, ‘Statutory Interpretation, Law Reform and Sampford’s Theory of the Disorder of Law’ (Pt 2) (1995) 22 Federal Law Review 77, 105.
[60] [1990] HCA 6; (1990) 169 CLR 214, 235. Dawson J is in dissent, but Barnes suggests that it would seem that Mason CJ and Toohey J agreed with him in principle: Barnes, above n 59, 105.
[61] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, 235.
[62] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). While this case does not involve a preamble, the comments are particularly relevant to our debate, as the mischief which a statute is intended to remedy is commonly described in the preamble. See also Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 20–1 (McHugh J).
[63] Acts Interpretation Act 1915 (SA) s 22(1).
[64] Pearce and Geddes, above n 2, 31.
[65] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 463 (Viscount Simonds); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). See comments in above n 62.
[66] Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(ii).
[67] Interpretation Act 1987 (NSW) s 34; Interpretation of Legislation Act 1984 (Vic) s 35(b); Acts Interpretation Act 1954 (Qld) s 14B; Interpretation Act 1984 (WA) s 19; Acts Interpretation Act 1931 (Tas) s 8B; Interpretation Act 1967 (ACT) s 11B.
[68] [1991] HCA 21; (1991) 172 CLR 1.
[69] Ibid 21.
[70] Ibid.
[71] It is interesting to note that international treaties are also to be interpreted ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’: Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 31(1) (entered into force 27 January 1980) in Pearce and Geddes, above n 2, 46. The context is specifically deemed to include the preamble, according to the Vienna Convention on the Law of Treaties, art 31(2).
[72] 52 & 53 Vict, c 63.
[73] (1562) 1 Plowd 353; 75 ER 536, 560.
[74] Lord Edward Coke, Institutes of the Laws of England (1628, Co Litt) 79. In Salkeld v Johnson [1848] EngR 498; (1848) 2 Exch 256; 154 ER 487, 499, Pollock CB, citing 4 Inst 330, quoted Lord Coke as describing the preamble as ‘a key to open the meaning of the makers of the act, and the mischiefs it was intended to remedy’ — which seems to be an unusual reiteration of the two concepts — that the preamble is the key to the statute and the key to the makers.
[75] Ryall v Rowles [1749] EngR 11; (1749) 1 Ves Sen 348; 27 ER 1074, 1086.
[76] Doe v Brandling [1828] EngR 51; (1828) 7 B & C 643; 108 ER 863, 870.
[77] (1826) 3 Add 210; 162 ER 456. This case was decided in the Arches Court of Canterbury — an ecclesiastical court — but it was confirmed by the Court of Delegates on appeal: see Emanuel v Constable [1827] EngR 557; (1827) 3 Russ 436; 38 ER 639, 640.
[78] Brett v Brett (1826) 3 Add 210; 162 ER 456, 458–9.
[79] [1957] AC 436, 473.
[80] Ibid.
[81] Waugh v Middleton [1853] EngR 181; (1853) 8 Exch 352; 155 ER 1383, 1385.
[82] Craies, (2nd ed, 1892), above n 29, 99.
[83] Lord Thring, Practical Legislation: The Composition and Language of Acts of Parliament and Business Documents (2nd ed, 1902) 92.
[84] Eg A-G v Sillem [1863] EngR 989; (1863) 2 H & C 431; 159 ER 178, 214 (Pollock CB). See also Bell and Engle, Cross (3rd ed, 1995), above n 8, 172.
[85] 25 Geo 2, c 6.
[86] ‘Wills Act’ 1752 (Imp) 25 Geo 2, c 6.
[87] [1811] EngR 236; (1811) 17 Ves Jun 508; 34 ER 197.
[88] (1826) 3 Add 210; 162 ER 456, 458.
[89] [1827] EngR 557; (1827) 3 Russ 436; 38 ER 639.
[90] Ibid 640. The latter part of Sir John Leach MR’s quote was cited by Quick and Garran, above n 13, 285.
[91] Cited in Copeman v Gallant [1716] EngR 13; (1716) 1 P Wms 314; 24 ER 404, 406.
[92] ‘Bankruptcy Act’ 1623 (Eng) 21 Jac 1, c 19.
[93] Craies, (2nd ed, 1892), above n 29, 223–4.
[94] [1749] EngR 11; (1749) 1 Ves Sen 348; 27 ER 1074. Ryall v Rowles overruled the conclusion reached in an earlier case (Copeman v Gallant [1716] EngR 13; (1716) 1 P Wms 314; 24 ER 404) that the preamble could not restrain the general words in the ‘Bankruptcy Act’ 1623 (Eng) 21 Jac 1, c 19.
[95] Ryall v Rowles [1749] EngR 11; (1749) 1 Ves Sen 348; 27 ER 1074, 1084. Lord Hardwicke LC concurred at 1088.
[96] See above n 31 and accompanying text.
[97] [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034.
[98] 12 Geo 3, c 11.
[99] The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1058 (Lord Tindal CJ).
[100] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 299 (Chitty LJ).
[101] John White, A Complete Latin-English and English-Latin Dictionary (no publication date) 85; J Simpson and E Weiner (eds), The Oxford English Dictionary (2nd ed, 1989) 853 respectively.
[102] [1899] UKLawRpAC 11; [1899] AC 143, 157.
[103] Eg William Craies, A Treatise on the Construction and Effect of Statute Law (3rd ed, 1901) 209. See also Gregory Craven, ‘The Constitutionality of the Unilateral Secession of an Australian State’ (1984) 15 Federal Law Review 123, 128.
[104] 16 & 17 Vict, c 119.
[105] Eg Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 256 (Lord Esher MR), 266 (Lopes LJ), 271–3 (A L Smith LJ). Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 183 (Lord Shand), 193 (Lord James).
[106] Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 183.
[107] Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 23.
[108] (1792) 4 Tem Rep 790; [1792] EngR 3107; 100 ER 1304, 1306.
[109] It is interesting to note that the principle prohibiting the preamble from restraining clear enactments has not always been the most well-known rule. Some early cases present the ‘rules’ as though the preamble were favoured above the enactment. For instance, in R v Pierce [1814] EngR 477; (1814) 3 M & S 62; 105 ER 534, 536, Lord Ellenborough CJ completely reverses the onus by stating that: ‘It cannot by any means be regarded, as an universal rule, that large and comprehensive words in the enacting clause of a statute are to be restrained by the preamble.’
[110] Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 192–3.
[111] [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057.
[112] Eg The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034. See also Wilson v Knubley [1806] EngR 45; (1806) 7 East 128; 103 ER 49.
[113] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242; Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143.
[114] S G G Edgar, Craies on Statute Law (7th ed, 1971).
[116] Bell and Engle, Cross (3rd ed, 1995), above n 8.
[117] Halsbury’s Laws of Australia, above n 36.
[118] [1897] UKLawRpKQB 116; [1897] 2 QB 242, 285.
[119] Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 185.
[120] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 271.
[121] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 463.
[122] Eg Craies, (2nd ed, 1892), above n 29, 221; Edgar, Craies (7th ed, 1971), above n 114, 201–2. Note that the first edition of 1879 is by Henry Hardcastle.
[123] (1883) 8 App Cas 386. See also Craven, above n 103, 128.
[124] The preamble of the ‘Sturges Bourne’s Act’ 1819 (UK) 59 Geo 3, c 12 was found to be misinformed and unhelpful, and so it did not assist in the construction of the enactment which seemed to be ambiguous: Overseers of West Ham v Iles (1883) 8 App Cas 386, 389 (Lord Blackburn).
[125] Craies, (3rd ed, 1901), above n 103, 209.
[126] Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 157. See also Craven, above n 103, 128. Note that Craven mistakenly attributes the Earl of Halsbury LC’s quotation to the Court of Appeal judgment in Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 269 [sic].
[127] See above n 102 and accompanying text.
[128] Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 184–5.
[129] Edgar, Craies (7th ed, 1971), above n 114, 202–3.
[130] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 463.
[131] Edgar, Craies (7th ed, 1971), above n 114, 203.
[132] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 461–3.
[133] [1964] 2 QB 580. See also Craven, above n 103, 130.
[135] Edgar, Craies (7th ed, 1971), above n 114, 202 fn 90.
[136] The headnote for Ward v Holman [1964] 2 QB 580, 580 held that: ‘as section 5 of the Public Order Act, 1936, was plain and unambiguous, that section could not be construed by reference to the preamble of the Act’. At face value, this statement could possibly be taken to support the ‘no recourse rule’, but in actual fact Lord Parker CJ did refer to the preamble, and he actually concluded that the preamble was not inconsistent with the substantive sections: at 587. The headnote to Ward v Holman is inaccurate and misleading. There is also evidence to suggest that in Ward v Holman the preamble was confused with the long title: Bennion, above n 5, 497.
[137] Edgar, Craies (7th ed, 1971), above n 114, 202 fn 90.
[138] 13 Eliz 1, c 10. The Act fell into two parts, with a preamble introducing each.
[139] Eton College v Minister of Agriculture [1964] 1 Ch 274, 280.
[140] Craven, above n 103, 127–8.
[141] Ibid 128 fn 38. Craven, ibid 127–30, reiterated this rule in at least eight different ways.
[142] In 1984, s 15AB was added to the Acts Interpretation Act 1901 (Cth).
[143] See Gregory Craven, Secession: The Ultimate States Right (1986) 85–8.
[144] See Commonwealth, Constitutional Convention [2nd to 13th February 1998], Transcript of Proceedings, 9 February 1998, 472–3 (Professor Gregory Craven, Non-Parliamentary Appointed Delegate).
[145] Eg Craven, above n 103, 130.
[146] Eg Mason v Armitage [1806] EngR 271; (1806) 13 Ves Jun 25; 33 ER 204, 208 (Lord Erskine LC); Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 451 (Griffith CJ); Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 15–16 (Gibbs CJ); Lees v Summersgill [1811] EngR 236; (1811) 17 Ves Jun 508; 34 ER 197. This latter case was overruled by Emanuel v Constable [1827] EngR 557; (1827) 3 Russ 436; 38 ER 639, 640–1. It is noteworthy that Craven removes reference to Mason v Armitage, Lees v Summersgill and Overseers of West Ham v Iles (1883) 8 App Cas 386, in his later work: Craven, Secession, above n 143, 215.
[147] Eg The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057 (Lord Tindal CJ); Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 451 (Griffith CJ).
[148] [1905] HCA 60; (1906) 3 CLR 444.
[149] Ibid 451.
[150] Craven, above n 103, 128. Griffith CJ does not use the words ‘never be affected’ in Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444.
[151] Bell and Engle, Cross (3rd ed, 1995), above n 8, 124–5.
[152] In 1969, Law Commissions for England, Wales and Scotland produced a report recommending a preference for the purposive approach to statutory interpretation: Law Commission for England and Wales and Scottish Law Commission, The Interpretation of Statutes, Law Com No 21, Scot Law Com No 11 (1969). The UK did not respond to this recommendation by enacting it in UK interpretation legislation: Pearce and Geddes, above n 2, 26.
[153] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 463 (Viscount Simonds); Bell and Engle, Cross (3rd ed, 1995), above n 8, 129.
[154] Halsbury’s Laws of Australia, above n 36, [385-200].
[155] See above n 119 and accompanying text.
[156] A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 461.
[157] See above nn 6–8 and accompanying text.
[158] See below nn 162, 167 and 170 and accompanying text.
[159] Frank Horack, Statutes and Statutory Construction by J G Sutherland (3rd ed, 1943) vol 2.
[160] Ibid 349.
[161] Ibid.
[162] Eg, A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 467; where Lord Normand stated that ‘the preamble is part of the statute’. See also Halsbury’s Laws of Australia, above n 36, [385-200].
[163] Eg, A-G v Prince Ernest Augustus of Hanover [1957] AC 436, 475, where Lord Somervell stated that ‘a preamble is not an enacting provision’.
[164] Bennion, above n 5, 483.
[165] For instance, a lengthy preamble to the Aboriginal and Torres Strait Islander Commission Bill 1989 (Cth) was deleted after considerable parliamentary debate. (A preamble was later added to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) in 1993.)
[166] Lord Hailsham (ed), Halsbury’s Laws of England, vol 44(1) (4th ed, 1995) Statutes, ‘1 Nature of Primary Legislation’ [1265].
[167] [1848] EngR 498; (1848) 2 Exch 256; 154 ER 487, 499 (Pollock CB).
[168] The main case cited for the proposition that a preamble is ‘no part of the Act’ is Mills v Wilkins (1704) 6 Mod Rep 62; 87 ER 822. This case is actually dealing with titles to Acts, and the reference to preambles is obiter dicta. Also, a close reading reveals that while Counsel proposed the idea that a title was not part of the Act, Holt CJ rephrased the proposition to emphasise that the title (and preamble) were not part of the ‘law’ or ‘enacting part’: at 822–3.
[169] Halsbury’s Laws of England, above n 166, [1263]; Craies, (2nd ed, 1892), above n 29, 220.
[170] Bennion, above n 5, 500.
[171] A-G v Lord Weymouth [1743] EngR 4; (1743) Amb 20; 27 ER 11, 12 (Lord Hardwicke LC).
[172] For instance, Craven, above n 103, 127, seemed uncommitted regarding the status of the preamble as part of the Act. He cited the discredited case Mills v Wilkins (1704) 6 Mod Rep 62; 87 ER 822 (see above nn 168–169), he commented that the preamble ‘would appear’ to be part of the statute, and he further used indefinite phrases such as ‘whatever the position’ and ‘may be part of the statute’.
[173] Edgar, Craies (7th ed, 1971), above n 114, 125, 127.
[174] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 285.
[175] [1584] EngR 9; (1584) 3 Co Rep 7a; 76 ER 637, 638.
[176] A preamble is clearly within the four corners of the Act: Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735, 754 (Latham CJ).
[177] [1904] HCA 52; (1904) 1 CLR 320.
[178] [1904] ArgusLawRp 90; (1904) 1 CLR 679.
[179] [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034.
[180] Craven, above n 103, 128.
[181] Dixon v Todd [1904] HCA 52; (1904) 1 CLR 320, 327 (Griffith CJ); President etc of the Shire of Arapiles v Board of Land and Works [1904] ArgusLawRp 90; (1904) 1 CLR 679, 686 (Griffith CJ).
[182] Eg The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057 (Lord Tindal CJ).
[183] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 266 (Lopes LJ).
[184] Eg Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 192 (Lord James); The Sussex Peerage Case [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057 (Lord Tindal CJ); Mason v Armitage [1806] EngR 271; (1806) 13 Ves Jun 25; 33 ER 204, 208 (Lord Erskine LC). See also Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 22 (McHugh J).
[185] Eg Powell v Kempton Park Racecourse Co Ltd [1899] UKLawRpAC 11; [1899] AC 143, 183 (Lord Shand).
[186] Ibid 179 (Lord Hobhouse dissenting).
[187] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 457 (O’Connor J).
[188] Edgar, Craies (7th ed, 1971), above n 114, 195, 209–10.
[189] Bell and Engle, Cross (3rd ed, 1995), above n 8, 124–5. See above n 151 and accompanying text.
[190] Ibid 126.
[191] Maxwell, (1st ed, 1875), above n 13, 34; Craies, (2nd ed, 1892), above n 29, 212. See also A-G v Lord Weymouth [1743] EngR 4; (1743) Amb 20; 27 ER 11.
[192] Craies, (2nd ed, 1892), above n 29, 220.
[193] Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 265 (Lopes LJ), 289 (Rigby LJ).
[194] By Standing Order 34: Powell v Kempton Park Racecourse Co Ltd [1897] UKLawRpKQB 116; [1897] 2 QB 242, 289 (Rigby LJ).
[195] Edgar, Craies (7th ed, 1971), above n 114, 193–4.
[196] Eg Bell and Engle, Cross (3rd ed, 1995), above n 8, 126; Pearce and Geddes, above n 2, 117.
[197] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, 315.
[198] [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1057.
[199] Doe v Brandling [1828] EngR 51; (1828) 7 B & C 643; 108 ER 863, 870 (Lord Tenterden CJ). See also Crespigny v Wittenoom (1792) 4 Tem Rep 790; [1792] EngR 3107; 100 ER 1304, 1306 (Grose J).
[200] Becke v Smith [1836] EngR 22; (1836) 2 M & W 191; 150 ER 724, 726 (Parke B). See also Caledonian Railway Co v North British Railway Co (1881) 6 App Cas 114, 122 (Lord Selbourne LC).
[201] A-G v Sillem [1863] EngR 989; (1863) 2 H & C 431; 159 ER 178, 216 (Pollock CB). See also Halton v Cove [1830] EngR 865; (1830) 1 B & Ad 538; 109 ER 887, 895 (Lord Tenterden CJ). See also Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 613 (Gummow J).
[202] [1844] EngR 822; (1844) 11 Cl & Fin 85; 8 ER 1034, 1058.
[203] Eg Craies, (2nd ed, 1892), above n 29, 76 and 110.
[204] Ibid 223.
[205] Halsbury’s Laws of Australia, above n 36, [385-200]. See above n 154 and accompanying text.
[206] [1981] HCA 60; (1981) 148 CLR 1.
[207] Pearce and Geddes, above n 2, 118. See above n 107 and accompanying text.
[208] Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 451.
[209] As Gibbs CJ in Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 15–16, had endorsed Griffith CJ’s statement that a preamble could not cut down the meaning of plain and clear enactments (Griffith CJ’s statement being the pre-existing quote from Bowtell v Goldsbrough, Mort & Co Ltd [1905] HCA 60; (1906) 3 CLR 444, 451 in Pearce and Geddes), the authors make reference to Gibbs CJ’s endorsement first, followed by the words: ‘But what is submitted to be the better view appears in that same case from Mason J’: Pearce and Geddes, above n 2, 118.
[210] A constitutional preamble arguably differs in authorship, content, amendability and interpretation. For example, if approved at referendum, the preamble cannot be said to be authored purely by a legislature; the content will generally include a declaration of the source of authority for the constitution; it will not be amendable by the legislature alone; and it will be understood in the context of principles of constitutional interpretation.
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