The Victorian cases of DPP v Walters and Boulton v The Queen demonstrate how textualist arguments can be used to sustain judgments that clearly do not accord with the legislative intent of Parliament. These cases involved courts engaged in supposedly textualist analysis that resulted in interpretations of statutes that were clearly and wholly inconsistent with the intention of the Victorian Parliament; over the public protestations of the parliamentarians who had enacted those very laws. This outcome raises serious democratic concerns given the inability of the public to engage with judges in policy debate, or to hold them to account for anything other than serious misdemeanours. It also infringes upon the clear constitutional separation of powers designed to ensure that no single branch of government is able to exercise too great an authority. Fundamentally, the use of textualist arguments to frustrate the clear intention of Parliament undermines textualism’s claim to support and further the rule of law.
In Walters, the Court of Appeal was called upon to interpret the Victorian Government’s newly introduced ‘baseline’ sentencing scheme. This was a scheme designed to ‘fix a baseline sentence’ for certain serious indictable offences, including murder and sexual offences against young children, in response to community concern about the leniency of sentences for those offences. By a majority of 4-1, the Court found that the scheme was ‘unworkable’ on the basis that it was impossible to derive a sentence from a ‘statistical end-point’ and beyond its power to create a new ‘mechanism’ for doing so. The majority, in reaching this finding, expressly adopted a technical definition of the term ‘median’ derived from mathematics and statistics. Based on this interpretation of the words of the Sentencing Amendment Act 2014 the majority were able to find that Parliament did not mean the term ‘median’ to be ‘a measure of offence seriousness’. This reading of the Act was, as the Court acknowledged, directly in opposition to the Attorney-General’s Second Reading statement that the baseline scheme was intended to apply to ‘the sorts of cases that incur a mid-point sentence.’
It was plainly open to the Court of Appeal to adopt a definition of the term ‘median’ more in keeping with the clear and stated intention of the Parliament. This would have allowed the Court to make sense of the relevant provisions in a way that could be reconciled with existing sentencing principles. Macquarie defines ‘median’ as: ‘situated in or relating to the middle.’ Collins’ definitions include: ‘of, relating to, situated in, or directed towards the middle.’ Merriam-Webster offers, inter alia, the definition: ‘being in the middle or in an intermediate position’. As Justice Whelan observed in his dissenting opinion, the inherent difficulties with a statistical definition of the term ‘median’ could be interpreted to ‘indicate that Parliament [did] not intend this new consideration to be applied in a rigid manner, much less, in any mathematical way.’ Although textualists may argue that consideration of ministerial statements is outside the scope of the statutory interpretation exercise, it seems negligent and unnecessary to theorise about what Parliament’s intent should be taken to be when parliamentary debates and public comments provide a clear insight into what was in fact intended.
The decision in Boulton raises similar issues. It concerned the newly introduced ‘Community Corrections Order’ scheme designed to replace suspended sentences by providing a more coercive alternative to Community Based Orders. Like the ‘baseline’ scheme, this was a reform introduced in response to concerns about diminishing public confidence in the criminal justice system. The controversy in the Boulton decision stems from the Court of Appeal’s finding that CCOs should be available in ‘cases where … imprisonment would formerly have been regarded as the only option.’ This was never the intention of Parliament, given that it introduced CCOs in an attempt to address concerns about criminal offenders avoiding punishment. The Court’s use of CCOs as a substitute for custodial sentences was a wholly unintended consequence of their introduction. Furthermore, Boulton represents what has been described as a ‘watershed moment in sentencing jurisprudence [that] will provide Courts with enormous flexibility in sentencing offenders’. The ability of a court to read itself into power in this way, creating new sentencing options for itself in ways not intended by Parliament, is a direct challenge to the separation of powers. However, because textualism is largely unconcerned with the intention of Parliament, this result many not be problematic from a textualist perspective. But a legal system in a representative democracy should respect governments acting with a popular mandate, and outcomes which place the courts in such clear opposition to Parliament should be concerning.
 DPP v Walters (a pseudonym)  VSCA 303 (‘Walters’).
 Boulton v The Queen  VSCA 342 (‘Boulton’).
 Sentencing Amendment (Baseline Sentences) Act 2014 (Vic), s 1.
 Walters (n 1) at ,  and .
 Walters (n 1) at , .
 Walters (n 1) at .
 Walters (n 1) at , quoting from Victoria, Parliamentary Debates, Legislative Assembly, 3 April 2014, 1275 (Robert Clark). Emphasis added.
 Macquarie Dictionary at https://www.macquariedictionary.com.au/features/word/search/?word=median.
 Collins Unabridged English Dictionary at https://www.collinsdictionary.com/dictionary/english/median.
 Boulton (n 2) at .
 Sentencing Advisory Council, Suspended Sentences: Final Report Part 1 (2006) 48.
 Boulton (n 2) at .
 Galbally & O’Bryan, Supreme Court of Victoria emphasises importance of rehabilitation in sentencing process (2015). Emphasis added.