Context or Chaos: Statutory Interpretation and the Australian Copyright Act

Abstract

This paper examines the recent approach of the High Court in Australia to interpreting the Copyright Act 1968, and in particular the role and the usefulness of legislative context in that interpretation.There is no doubt that copyright law is complex. There is also little doubt that it has become increasingly complex both in its application and its terms, since the 1968 Act came into effect in Australia. The law is required to operate in a fast changing environment and one in which there are many divergent interests at stake. At the same time, the courts’ approach to statutory interpretation has changed in recent years, with a renewed focus on context. Despite this judicial mandate to use context in interpreting legislation, there are many problems in its effect. First, the law making process is one which is, at times, shrouded in mystery as to its process and lack of clarity about the policy behind the law. This context or the purpose or object of the statute, can be impossible to ascertain. Law making involves several stages, all of which have the potential to give rise to distort or obscure the purpose or context of the law and these are considered in part one of this article. In part two, the recent approach of the High Court of Australia in determining context in copyright law will be considered. Suggestions will be made for reform which could improve the availability of reliable context to assist the courts in statutory interpretation.