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Sunday, May 30, 2010

Development of Purposive approach

Both Professor Burrows and Justice McGrath emphasised the increasing importance of the purposive approach to statutory interpretation [Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561, and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

Development of : Reference to Extrinsic Aid alng side Purposive Approach

Alongside the purposive approach has come the acceptance of the use of extrinsic material to assist in determining Parliamentary purpose. For example, courts are prepared to consider Hansard debates, [Marac Life Insurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694, 701 (CA)] Law Reform Committee or Law Commission Reports, the explanatory notes to Bills and international standards. Professor Burrows and Justice McGrath concluded that extrinsic material needs to be treated with care but can be of assistance in some situations by giving background information and occasionally indicating purpose.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

The requirement to have regard to purpose is contained in section 5(1) of the Acts Interpretation Act 1999. The section states that "the meaning of an enactment must be ascertained from its text and in light of its purpose". The purposive approach is not a new idea. It was stated in section 5(j) of the Acts Interpretation Act 1924.

Limitations of Purposive Approach

Although the purposive approach is an important tool of interpretation it is generally accepted that its application is limited. In theory there are two limits. First, the purposive approach should only be applied where there is uncertainty in the words of the statute. Secondly, it should only be used to employ a meaning that the words of the statute are reasonably capable of bearing. The courts should not use the purposive approach to make a law consistent with Parliamentary intent if Parliament has failed to effectively state that intent in the statute.The two limits on the application of the purposive approach are required in order to retain certainty in the law and to ensure that judges do not contravene the principle of the separation of powers by shifting from interpreting and applying the law to creating the law.

Section 5(1) of the Acts Interpretation Act 1999 has not changed the limits on the purposive approach despite omitting the useful phrase "shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act...". This phrase made it clear that the task is to interpret the words of the Act not to create new words in order to give effect to legislative intention. [See Union Motors Ltd v Motor Spirits Licensing Authority [1964] NZLR 146, 150 (SC) where Wilson J states that the word "fair" in section 5(j) indicates that the words must fairly be able to bear the meaning put on them. ] In the new section 5(1) the direction is to ascertainmeaning from the text of the enactment. Like the old section 5(j) this subsection indicates that the courts are involved in the process of interpreting and not creating the law.

The theory on the limits of the purposive approach is easy to state however the translation of theory into practice results in some difficulties. First, there is the difficulty in determining at what point a word's meaning can be said to be truly uncertain. Secondly, there is the difficulty in determining the point at which a meaning is one that the words can no longer reasonably bear. The more conservative approach is to apply the most natural and ordinary meaning of a word in context, despite the fact that this might contravene Parliamentary intent. A more flexible approach is to attempt to give effect to Parliamentary intent so long as the meaning ascribed to a provision is a possible meaning even if strained or unusual. Professor Burrow's example of the case where a container for sweets shaped like a baby's bottle was found to be a "toy" follows this more flexible approach. [ Commerce Commission v Myriad Marketing Ltd (2001) 7 NZBLC 103, 404 (HC), cited in Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 575. ]The court gave the word "toy" a somewhat strained meaning in order to give effect to Parliamentary purpose.

Although the limitations on the purposive approach described above are generally accepted, there is another more extreme and controversial approach. Under this approach the court, either expressly or covertly, overrides meaning in order to give effect to Parliamentary intent. An example of this is the Court of Appeal interpreting "every person" as including "every person other than a solicitor". [Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA).]In a more recent case, the Court interpreted a two-year time limit as applying to the making of an application rather than the making of a court order. [ Commissioner of Inland Revenue v Registrar of Companies (1993) 7 PRNZ 224 (CA).] The section was perhaps clumsy but it clearly meant the time limit to refer to the making of an order but the Court nevertheless found an ambiguity and applied the purposive approach.[ see J Bruce Robertson "Judges, Deconstruction and the Rule of Law" [1994] NZLJ 344, 345. See also Claire Baylis "Home Care – Homework?" [1996] NZLJ 291. Baylis discusses Cashman v Central Regional Health Authority [1997] 1 NZLR 7, [1996] 2 ERNZ 159 (CA). She argues that the Court in this case followed the purposive approach after finding an ambiguity in the statutory definition of "homeworker" where no such ambiguity in fact existed.] In this case the Court did not openly acknowledge that it was overriding meaning but instead claimed to find an ambiguity. Allowing courts to openly override meaning in some circumstances is an approach favoured by Jim Evans who recommends that the Interpretation Act 1999 should have a detailed provision to indicate when meaning should be disregarded.[ Jim Evans "Getting the Words Right" [1992] NZLJ 256. ]

This latter approach is strongly opposed to by both Justice McGrath and Professor Burrows. As Sir Ian McKay stated: "A purposive approach should not be made an excuse for starting with the underlying purpose, and then forcing the words into a preconceived and strained construction to fit that assumption".[ Sir Ian McKay "Interpreting Statutes – A Judge's View" (2000) 9 OULR 743, 749.] Of course, the line between the most natural and ordinary meaning, a strained meaning and a new meaning are not clear.

The following paper may be referred to for extensive treatment of the subject.[Blogger]

Trends In Statutory Interpretation And The Judicial Process,Victoria University of Wellington Law Review

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