What Parliament Didn't Say: The Effect of Silence During Legislative Scrutiny on Statutory Interpretation

When interpreting legislation, it has become routine for courts and other readers<br/>to refer to related Hansard and other parliamentary materials to help determine what the legislation means. Most of the time that parliamentary record is used for what it says about the proposed legislation. However, it is also possible to use Hansard for what it doesn’t say. In American statutory interpretation law, this is called the ‘dog that did not bark’ canon, named after a Sherlock Holmes story, where a watchdog that failed to bark was a critical clue. In Australia, there is no statutory interpretation canon or presumption with this colourful moniker. But there is evidence from Australian case law that interpreters of legislation can use silence in parliamentary deliberations on proposed legislation to infer something about the meaning of that legislation. This article demonstrates how silence in<br/>legislative scrutiny deliberations can influence statutory meaning in Australia and identifies some implications of that use for both law makers and interpreters.