When considering matters before them, judges will first look at relevant legislation. Parliaments pass legislation but interpreting, applying and enforcing this legislation is left up to the courts. In order to do this, judges must first make sense of legislation. Acts of parliament are often written in plain, direct language, however sometimes the words, terms or phrases in legislation can seem ambiguous, vague or open to interpretation. It is up to the judge to read the relevant legislation, interpret the meaning of specific words and phrases in the act, then form conclusions about how it applies to the case before the court. This process is called statutory interpretation. The judge will include any statutory interpretation in his or her ratio decendi and it will form a binding precedent on lower courts.
As an example, consider the following extract from a 2003 amendment to the Crimes Act (Vic, 1958). This part of the statute defines the crime of ‘cyberstalking’, an offence that is becoming more common with the advent of new technologies:
A magistrate or judge referring to this legislation for the first time may not have any precedents or guidelines to fall back on. He or she will have to interpret relevant sections of the act, as they apply to the case. By way of examples, the magistrate or judge might need to consider the following parts of the act:
3(1)(ba) – “publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material… relating to the victim or any other person”. The terms of this clause could be interpreted very broadly. “The Internet” could be taken to mean any web site, social networking page, online forum, e-mail, private or online message. But how might a judge interpret the phrase “relating to… any other person”?
3(1)(bb) – “…an unauthorised computer function”. This phrase has the potential to cover a wide range of malicious events, such as the installation of a program, virus, Trojan or keylogger. It could also include booting or shutting down a computer, accessing the Internet, or uploading or downloading of files without permission. Would all of these constitute an act of ‘cyberstalking’?
3(1)(bc) – “tracing the victim’s… use of the Internet or of e-mail or other electronic communications”. This kind of behaviour may include illegal access of e-mail accounts, unauthorised access to web browsing history, unauthorised access to ‘private’ pages on Facebook, and so forth. It would be up to the magistrate or judge to determine which actions are encompassed by the term “tracing”.
Statutory interpretation is necessary for a number of reasons:
Changing definitions. Words are imperfect devices for communicating ideas because their meaning often changes or shifts over time (‘semantic drift’). Legislators might have one definition in mind when they draft a statute – but this meaning may evolve or change in just a few years. Some legislative terms that have changed definition in recent years include “man” (because of gender reassignment) “family” (because of changing social values and perceptions of the family unit) and “telecommunications” (to include Internet and data, as well as telephone and telegraph services).
Ambiguous words and phrases. Since statutes are drafted to cover a relatively broad range of situations, sometimes they can contain words or phrases that are too broad or not adequately defined. Judges may have to reach a conclusion about the specific meaning of certain words or phrases.
Errors in the drafting of legislation. Occasionally legislation is passed that may contain flaws, inconsistencies or loopholes. Alternatively, the precise intention of the parliament may not be clear from the legislation as it is written. The judge may be required to interpret the legislation, identify errors and take them into account. In doing this, the judge may form conclusions about the intention of parliament in passing the legislation.
Changing circumstances. In the time that passes after legislation is drafted and accepted by the parliament, changes in society, technology and the law may affect the content of the legislation. Courts may be called upon to decide whether new or recent developments are covered by existing legislation, as in R v. Brislan (1935).
Statutory interpretation is not just the judge or magistrate reading the legislation and giving it their ‘best guess’. The judge will call on several resources and tools to help him or her clarify the meaning of legislation. These resources are collectively known as aids to statutory interpretation.