Fundamental Rights Based Approach-New ZealandValue

One of the most interesting points that Professor Burrows makes is that fundamental values have become a significant part of the interpretation process and that there is an increasing express recognition of their use.[ 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.] What is described by Burrows as "value–based interpretation" fringes on the same idea as the golden rule that maintains that where possible the words of a statute should be interpreted to avoid an absurd, unjust or repugnant result. The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) requires a value-based interpretation but there are many other fundamental values not included in the Bill of Rights Act (freedom from slavery, privacy and the sanctity of property are examples given by Professor Burrows).

Value-based interpretation is only applicable where there is some uncertainty over meaning. It is particularly helpful in situations where it is difficult to determine Parliamentary intent and so the purposive approach is of little help. In many cases extrinsic aids are unable to expressly state Parliament's intention in regard to a particular provision. In this situation the courts are able to consider fundamental values that exist outside of the statute when interpreting the statute. In one sense this can be seen as a way of making a presumption about Parliamentary intent. Burrows, however, argues that fundamental values operate as part of our legal system and are independent of Parliamentary intent. In other words, if Parliament intends to enact something that contravenes fundamental values but does not do so with clear enough language then the court can override Parliamentary purpose in favour of preserving a fundamental value. Parliamentary intent is only relevant in that it can exclude values by an express statement.

This type of value-based interpretation shifts the power to create laws away from Parliament and onto the judiciary. The "fundamental" values are outside of the statute and, unless they are rights under the Bill of Rights Act, they are left to be defined by the judges. The values may not always accord with Parliamentary intent. It is arguable that fundamental values "exist" only in so far as they are believed in and applied by the judiciary. Whether or not fundamental values are inherent in the nature of the world or whether they are a subjective human creation is a contentious issue. If they are subjectively defined then the personal morality of each judge may sometimes influence his or her assessment of the relevant fundamental values in any given case. For discussion on subjectivity and the lack of diversity on the Bench see Part I E The Effect of Judicial Personality on Interpretation.

Trends In Statutory Interpretation And The Judicial Process,Victoria University of Wellington Law Review, Victoria University of Wellington Law Review, [2002] VUWLRev 41 Kate Tokeley Senior Lecturer in Law, Victoria University of Wellington.