Administrative law updater: Can the heading of a statutory provision be used to help interpret the text?

By Caroline Bush, Neil Cuthbert, Ingmar Duldig
05 Mar 2020
A recent case shows the High Court taking a broader view that includes using extrinsic materials such as headings to resolve ambiguities in statutory provisions.

What is the problem decision-makers face?

When the text of a legislative provision has multiple possible meanings, there is a question as to the scope of extrinsic materials which may be used to resolve the ambiguity. A recent decision of the High Court provides guidance on the way in which the heading to a provision can properly form part of the surrounding context to aid in its construction.

The facts and decision in The Queen v A2

The Queen v A2 [2019] HCA 35 involved an appeal against sentences relating to female genital mutilation (FGM). The High Court was tasked with examining whether the crime of "otherwise mutilat[ing]" a person's genitals is to be read according to its ordinary, grammatical meaning, or whether it is intended to encompass the broader concept of FGM. While The Queen v A2 is a criminal case, we think that elements of the High Court's reasoning are instructive of the Court's current approach to interpreting statutes more broadly.

The three Appellants were charged in 2015 with offences related to a breach of section 45(1) of the Crimes Act 1900 (NSW), which at the time read:

45 Prohibition of female genital mutilation

(1) A person who:

(a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or

(b) aids, abets, counsels or procures a person to perform any of those acts on another person,

is liable to imprisonment for 21 years.

The question for the High Court was whether "mutilates" should be given its ordinarily or grammatical meaning (which would mean rendering part of the body irreparably damaged) or whether it should be given a broader meaning consistent with the umbrella concept of FGM (which would including injuring to any extent). The court was split 5:2 on the issue. The decision of Chief Justice Kiefel and Justice Keane (with whom Justices Nettle and Gordon and Justice Edelman agreed on this issue) began with a restatement of the principle that statutory interpretation begins with an examination of the specific words of a provision. However they also reasoned that:

  • the Court's task is determining, via an analysis of the context of the provision, a construction which best achieves the purpose of the statute as a whole. One way of framing this endeavour is by examining what "mischief" the statute is trying to overcome;
  • although headings to a provision do not form part of the provision – they do not in themselves have any legal force – headings can be used as an aide to interpreting the provision, similarly to other extrinsic materials. The heading of a provision may be used to "identify the mischief to which the provision is directed"; and that
  • because the heading of section 45 was "Prohibition of female genital mutilation", the term "otherwise mutilates" should be given a meaning consistent with the broader umbrella concept of FGM, which, in their assessment, includes the type of ritualised cutting or "nicking" relevant to this case.

Justices Bell and Gageler dissented, and considered that the heading of the provision could not be used to overturn the ordinary, grammatical meaning of the term "mutilate". They concluded that section 45(1) is a prohibition on conduct which results in mutilation, and that it is for the jury to be satisfied whether this has occurred, by reference to the ordinary, narrower, meaning of the term "mutilation".

After The Queen v A2, here's what you need to remember

The Queen v A2 is relevant to the process of statutory interpretation in a public law context because it presents a unique but broadly applicable example of what Chief Justice Kiefel and Justice Keane termed a "modern approach to statutory construction", taking account of the heading of a provision as part of its broader context. Where a word in a provision is susceptible to multiple constructions, the heading may be used to resolve the apparent ambiguity.

Although not a unanimous decision, The Queen v A2 tells us the following about the High Court's interpretive method:

  • the starting point is to examine the text of the provision;
  • the preferred construction of a provision is one which best achieves the purpose of the broader statute; and
  • where multiple constructions are available, the heading of a provision is a legitimate tool for determining the meaning of a provision consistent with the purpose of the statute.

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