Administrative law mythbuster no 4: R v Kearney; Ex parte Jurlama and beneficial legislation

What people think Ex Parte Jurlama means

Beneficial legislation is typically understood to be that which confers a benefit or operates in a remedial way. For example, legislation that provides for the administration of Australia's social security system or that sets out land rights for Aboriginal persons in a given state or territory would ordinarily be considered to be beneficial. A simplistic view might suggest that ambiguities in such legislation should always be resolved in favour of a person to whom the benefit or remedy is said to apply.

In R v Kearney; Ex parte Jurlama (1984) 158 CLR 426, the question for the High Court was the construction of section 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRNT Act) and, specifically, whether traditional owners of a large piece of land ought to be considered as the traditional owners of a smaller, constituent part of that land notwithstanding that they did not occupy that smaller part. Chief Justice Gibbs, with whom Justices Brennan, Deane and Dawson agreed, explained that the claim over the land in question ought not to be considered in isolation from the broader context of the claimants' traditional ownership of the larger area.

In Chief Justice Gibbs' view, an ambiguity in the ALRNT Act ought to be resolved by the adoption of a broad construction that furthers the generally beneficial purpose of the legislation. Over time, several courts have adopted and developed the idea that beneficial legislation ought to be read liberally, with a view to minimising technicalities, which may otherwise preclude a claimant from the benefit sought.

The proposition that beneficial legislation should be interpreted broadly has recently found fresh voice in the Australian Veterans' Recognition (Putting Veterans and their Families First) Act 2019 (AVR Act). The AVR Act provides that Acts such as the Veterans' Entitlement Act 1986 and the Military Rehabilitation and Compensation Act 2004 (among others) ought to be interpreted in a manner that benefits veterans and their families.

So that's not right?

It isn't wrong per se; it's just a little more complicated than simply interpreting every section in a way that benefits the recipient of a benefit.

As Justice Gageler explained in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Act (2016) 260 CLR 232 (NSWALC):

"The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively."

This is to say that the observation of Chief Justice Gibbs in Jurlama that beneficial legislation is to be interpreted as such was not a new development in the law; merely a restatement of the established principle that legislation is to be interpreted in such a way as to give effect to its purpose. Where that purpose is beneficial, legislation may be interpreted as such.

However, even in schemes that are beneficial overall, not all sections of that legislation are to be read beneficially. As was pointed out by Justice Gageler in NSWALC, no statute pursues its aims at all costs. Some sections may be intended to limit access to a benefit; others may provide for the recovery of debts that are owed because of the incorrect payment of a benefit and should be construed consistently with that purpose.

Interpretation requires the discernment of the intended operation of the actual section under consideration. While that, in turn, would usually mandate a consideration of the context of the section (including the scheme within which it sits), as Chief Justice French and Justices Kiefel, Bell and Keane explained in NSWALC, it is generally an error to commence the task of interpretation by posing the type of construction to be afforded. This was to echo the remarks of Justice Heydon, with whom Acting Chief Justice McHugh and Justices Gummow, Kirby and Hayne agreed, in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, that beginning with a pre-conceived notion of "broad" or "liberal" interpretations of legislation was apt "to obscure the essential question, that of determining the meaning the relevant words used require.".

What you need to remember about Ex Parte Jurlama

The fact that a legislative scheme is beneficial is not irrelevant to the construction of its provision but the role that it plays must be properly understood. For quite some time, it has been standard practice to construe a provision by reference to both its text and its context to ascertain its intended operation. The broader aspirations of a legislative scheme are a part of the context of its provisions but they are not the only context.

A good example of specific intention outweighing general aspiration occurs in the AVR Act. Section 7(1) sets out that the legislation is to be considered beneficially "where that interpretation is consistent with the purpose of that provision". As was explained in the Explanatory Memorandum to the AVR Bill, however, not all sections will be able to be interpreted in such a way. Indeed, it is specifically set out that debt recovery provisions ought not to be read beneficially.

Ultimately, what a decision maker must bear in mind is that legislation rarely, if ever, pursues its goals at all costs and while reference to the general aspirations of a statute may, in some circumstances, be useful, such considerations rarely will be determinative. Statutory construction still requires faithful adherence to the meaning of the relevant section consistent with the context and purpose of the statutory scheme.

Related Insights

• Administrative law mythbuster no 01: Wednesbury
• Administrative law mythbuster no 02: Kioa v West
• Administrative law mythbuster no 03: Plaintiff S157