Constitution Watch receives many enquiries from our readers and one subject our readers continue to contact us about is the theory that Australia is Norfolk Island. Our readers tell us the theory is allegedly derived from the definition of "Australia" found in section 2B of the Acts Interpretation Act 1901. At the request of our readers we looked into the claim to see if there is any validity that Australia is Norfolk Island. We will let you the reader decide, all we can do is present the facts as they are uncovered in entirety. It appears the theory has neglected to consider additional provisions of the Acts Interpretation Act 1901 when interpreting section 2B of the Act.

 

 

 

It is clear from the definition above that when referring to Australia in a geographical sense it includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory. One must understand the legislators true intention, and the meaning cannot mean Norfolk Island is Australia as the meaning is a geographical meaning and not in a political sense as the theory claims.

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Section 15AA of the Act (above), provides the interpretation that would best achieve the the purpose or object of the Act is to be preferred to other interpretations. So the question at hand is, would the interpretation that Australia is Norfolk Island best achieve the purpose or object of this Act? Is an interpretation claiming Australia is Norfolk Island to be preferred to each other interpretation? And what of the Territory of Christmas Island & Cocos (Keeling) Island? One needs to ask themselves if Norfolk Island is included in the same definition as Christmas and Cocos (Keeling) Island why does the theory only lay claim Norfolk Island is Australia and not the additional included Territories?

 

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Section 15AB (below), provides guidelines for the use of extrinsic material in the interpretation of an Act. Lets apply it to the theory... Subsection 1 provides if material not forming the Act is capable of assisting to discover the true meaning of the provision consideration can be given to that material. Subsection 1(a) states that extrinsic material is to be used to confirm the ordinary meaning of the provision.

Subsection 1(b)(ii) below additionally provides the material may be used to determine the meaning of the provision when it is ambiguous or obscure or the ordinary meaning conveyed leads to a result that is manifestly absurd or is unreasonable. One needs to ask is the theory found above based on section 2B manifestly absurd or unreasonable?

 

 

 

 

Section 15AB subsection (3)(a) clearly asks if consideration should be given to the extrinsic material in accordance with subsection (1), or the weight given to that material to allow people to rely on the ordinary meaning within the text and the purpose or object of the Act. 

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Section 15B (below), which the definition of Australia references, provides rules as to the application of the meaning to the coastal seas of not only Australia (Allegedly Norfolk Island) but the coastal seas of the external Territories. Specifically the Coastal seas of Australia are in effect to be included in the territory of Australia, (Allegedly Norfolk Island).

Yet the provision goes on to provide the coastal seas of a territory, (lets use Norfolk Island as an example) provides the coastal seas of Norfolk Island are the coastal seas of that Territory. But wait? How can the coastal seas of Norfolk Island be Norfolk Island coastal seas if Australia is Norfolk Island? This in effect would make Norfolk Islands coastal seas the coastal seas of Australia and not the Territory as provided?

We ask you the reader how can this actually make sense?

 

 

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Lets look at some case law and see what the Judiciary and the High Court have to say with regard to the application of the maxim ~ "expressio unius exclusio alterius"

 

In R v Perfill, McDougall & John Bare Maetia (Unrep. Criminal Case No. 32 of 1992) Muria CJ stated at pages 2 – 3:

'The maxim "expressio unius exclusio alterius" is no more than an aid to construction and must be watched since its application to the two contrasting statutes here concerned may well lead to a misconception of the rule. The rule is, however, a valuable tool but one which must be watched. As Wills J., stated in Colquhoun -v- Brooks (1887) 19 QBD 400, at 406:

"I may observe that the method of construction summarized in the maxim 'expressio unius exclusio alterius' is one that certainly to be watched. Perhaps few so – called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the "expressio" complete very often arises from accidents, very often from the act that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualification and exceptions, that is rarely that such rules help one to arrive at what is meant."

On appeal to the Court of Appeal Lopes, LJ, (1888) 21 QBD 52 at p. 65) said:

"The maxim 'expressio unius exclusio alterius' has been pressed upon us. I agree with what is said in the Court below by Wills J., about the maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident and the maxim ought not to be applied, when its application, having regard to the subject – matter to which it is to be applied, leads to inconsistency or injustice."'

The Australian High Court and the English House of Lords have both made very strong statements against interfering with the plain and ordinary meaning of statutory provisions. That injunction is to be held paramount, even if a statutory provision is seen on close examination (and depending on view point) to be "inadequate" or not totally "comprehensive" in some respect or another.

Both courts, however, have left a door open to enable the judge to find solutions where totally irrational or anomalous results will defeat the statute and the perceived intention of Parliament. […] But it must be remembered that the overriding theme of the many decisions throughout the Commonwealth jurisdictions shows the continuing emphasis on the need for courts (and tribunals for that matter) to be wary of supplying "solutions" to supposed statutory deficiencies, and remind them that that is the function of the legislature.

The decision to assign additional words or to interfere with the actual wording of a statute is, of course, never lightly taken. The difficulty facing courts is whether the solution to a perceived error, anomaly, or ambiguity is sufficiently clear to warrant the court supplying a solution to ensure the intent of the act is not frustrated, rather than draw attention to it for correction by legislation.

The central theme of rules of interpretation of statutes, […] remains, that words be given their normal and ordinary sense and that the meaning of statutes and their provisions are to be determined from the actual wording of the legislature. For all that this may be hedged around by decisions which permit courts to endeavour to ascertain the intention of Parliament in cases of anomalous or irrational results, these decisions do not in any way derogate from the principle rule. Departure from the clear and unambiguous wording may only be resorted to in plain and obvious cases where, without correction the objectives of the act itself would be totally defeated.'

 

 

 

 

For further clarification on the Constitutional Principles and Coherence in Statutory Interpretation please read the link below.

 

Constitutional Principles and Coherence in Statutory Interpretation  

 

 

If you have additional information please reach out to us by using the link below.

 

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