Statutory Interpretation Transformed: Contextualism as a Force for Change in the Identification of Interpretative Factors

The duty to have regard to context (‘contextualism’) is a central principle of contemporary statutory interpretation. It mandates that the context of words, whose meaning is in question, be considered in all cases regardless of whether the meaning of the words, read in isolation, is plain. The leading Australian case is the decision of the High Court of Australia in CIC Insurance Ltd v Bankstown Football Club. Significantly, context in this sense is both intrinsic and extrinsic. The principle has dual functions: it is a significant component of the interpretative process, and a force for change in the law governing the identification of interpretative factors. As a component, it directs the manner in which considerations ought to be identified. As a force for change, the principle questions the necessity for any restriction on taking account of a consideration that can rationally assist understanding of meaning.

The presentation will elaborate how, as a force for change, the principle has led to a great number of the previous restrictions on taking account of particular considerations being altered or abandoned. As a result, a rule-based approach has been eschewed, interpretative criteria now largely consist of guidelines, and interpretation has been transformed into a far more multi-factorial exercise than in the past. The process of evaluation of the interpretative criteria that the principle has instituted, is ongoing.

The presentation will consider separate criticisms made by two commentators of the work of the High Court in bringing about these changes. The presenter argues that, for the most part, the criticisms lack force and that, overall, the High Court has made a significant positive contribution in guiding how interpretative factors are to be identified in the course of statutory interpretation.

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