Are Legislative Intentions Real?
journal contributionposted on 29.10.2019 by Jim South
Any type of content formally published in an academic journal, usually following a peer-review process.
In Lacey v Attorney-General (Qld), six members of the High Court asserted that the legislative intention is not an objective collective mental state and that such a state is a fiction. They also asserted that the legislative intention is ascertained by applying the rules of construction. This article considers whether it follows from these assertions that there is no such thing as a true intention behind an Act. The article contends that legislative intentions should be conceptualised as intentions taken to have been acted on, rather than formed, by the legislature. It further contends that when conceptualised that way, it can be seen that the intentions ascertained by applying the rules of construction can be real or fictional. The article concludes that acceptance of that proposition would not affect the way the courts interpret legislation under the existing rules of construction, but that it would limit the extent to which those rules can be modified.