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Contextualism: ‘The Modern Approach to Statutory Interpretation’


Jeffrey Barnes

The widespread realisation that ‘[l]egislation is the cornerstone of the modern legal system’ (Justice McHugh) has brought increased judicial and scholarly attention to legislation’s partner, statutory interpretation. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court of Australia referred to the ‘modern approach to statutory interpretation’. That modern approach has subsequently been called ‘contextualism’. The central questions addressed in this article are: what is contextualism? Is it principled? And is it a coherent general approach? After stating and illustrating key principles from six High Court cases, the author considers challenges to contextualism, including textualism and purposivism. Like the statutes it monitors, statutory interpretation may be ‘broad and deep and variegated’, as Lord Wilberforce once observed. But, at the same time, it is concluded that statutory interpretation does not lack a general approach that lends coherence to the interpretative enterprise – for contextualism performs this function.

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(2018) 41(4) UNSWLJ 1083: