Aids to Statutory Interpretation – Intrinsic and Extrinsic Aids

When a judge is examining a case and deciding how to apply the law, they will use both intrinsic and extrinsic aids to assist them. In this blog post, we will look at what is meant by these intrinsic and extrinsic aids and some examples of these. We will then consider how these aids are used to help interpret the law. There are four rules here: the literal rule, the golden rule, the mischief rule and the purposive approach. Different rules will require different aids to interpretation.

Intrinsic Aids

Intrinsic aids are those found within the Act itself. This can include the short title, the long title and any preamble to the Act, which may give an idea of Parliament’s intentions when they created the legislation. Schedules with the Act can also be used as intrinsic aids. There may be sections in an Act where words are specifically defined, which will help to interpret the Act accurately and in accordance with Parliament’s intentions.

Extrinsic Aids

Extrinsic aids are those from outside the Act that help to supply additional context. For example, previous Acts and decided cases can highlight what the issue is that the new Act set out to resolve, which may make Parliament’s intentions clearer. Hansard reports are also allowed to be referred to now, in a limited capacity. These are the official records of what was said in Parliament when the Act was being discussed. However, this can only be used to determine the true intention of any ambiguous wording in the Act or anything that would lead to a bizarre outcome.

Dictionaries from the time the Act was created can be used to consider Parliament’s intention. These will help to give words used in the Act their natural meaning at the time it was created. The historical context of an Act can also be considered, as this provides useful evidence of what the problem was at the time, the public’s views on it and what the proposed solution would likely be. Again, this helps to establish the actual intent behind the words in the Act, rather than their literal meaning.

Literal Rule

The literal rule is exactly what it sounds like – it looks at the exact meaning of the statute as it is written. The judge does not try to interpret the law at all, simply using the ordinary and natural meaning of the words. This means that Parliament, as the legislative body, retains the power that has been granted to them by the general public in an election. Judges should not have this power, so it makes sense to follow the literal rule in this respect. However, the literal rule can also lead to absurd and potentially unjust outcomes that Parliament did not foresee or intend when they drafted the legislation.

Golden Rule

The golden rule is a modification of the literal rule and allows for an alternative interpretation of the statute where following the literal rule would create an absurd result that it seems unlikely Parliament would have intended. This can only be used where the potential result would be contrary to the rest of the Act and only to avoid the absurdity, not to make any other changes. Unfortunately, there are no clear parameters of what counts as an absurdity so it is not always easy to know when the golden rule should be used.

Mischief Rule

The mischief rule gives more freedom to the judiciary than either of the last two rules. It allows judges to examine the statute for Parliament’s reasoning and determine what mischief they were trying to resolve, then interpret the statute accordingly. This can help to avoid absurd or unjust results, but there is no test for when the mischief rule should be used and to what degree. In addition, it is only based on the judge’s opinion of what is absurd, not Parliament’s. This can be a problem if judges have too much legislative power, as this is supposed to be Parliament’s role.

Purposive Approach

The purposive approach is more recent than the rest of the rules and gives the most freedom to judges. Whereas the mischief rule looks at what mischief Parliament intended to fix and treats the legislation as if it does, the purposive approach goes further. It still considers what the gap in the law was, but the judges will also decide what Parliament’s intention was in creating the statute.

Again, this could be seen as giving too much legislative power to judges. Not only are they filling in gaps in the law, but they are also presuming Parliament’s intent. However, it is likely that Parliament didn’t intend a lot of potential results, so it may be more in keeping with Parliamentary supremacy to allow some leeway in interpretation.

Wrapping Up

As you can see, judges have lots of tools at hand to help them interpret the law. In my next blog post, we will be looking at presumptions and rules of language, so come back in two weeks for that!

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