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Sunday, May 30, 2010

Purposive approach- New Zealand Constitution

In the following paragraph that have been taken from the Article cited below the learned author has emphasized very important facts and have reached at certain conclusions that are in line with the basic discussion that one should apply liberal approach while interpreting the Constitution as it is a live document and is not static in any manner, it changes as the society changes. It is an important expression of the learned author that I quote below.{blogger]

New Zealand The Bill of Rights Act, 1990

Section 6 of the New Zealand Bill of Rights Act,1990 requires a value-based approach to statutory interpretation . It provides:

6. Interpretation consistent with the Bill of Rights Act to be preferred – Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

The Courts have concluded that section 6 has a significant impact on statutory interpretation . In Ministry of Transport v Noort [Ministry of Transport v Noort [1992] 3 NZLR 260, 272 (CA) Cooke P]Sir Robin Cooke stated that section 6 is "perhaps of even greater importance" than the purposive approach in section 5(j) of the Acts Interpretation Act 1924. Both Professor Burrows and Justice McGrath describe the Bill of Rights Act as a qualification of the purposive approach.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

In a recent article Michael Hodge questions the presumed importance of section 6 to statutory interpretation and its purported paramouncy over the purposive approach. [Michael Hodge " Statutory Interpretation and Section 6 of the New Zealand Bill of Rights Act: A blank Cheque or a Return to the Prevailing Doctrine?"(2000) 9 Auckland U LR 1. ]Section 6 allows enactments to be give a "meaning" consistent with the rights in the Act. He argues that the "meaning" of an enactment is determined by the reasonable reader's best estimate of the legislature's meaning taking into account syntax and semantics together with all the pragmatic factors that are available to the hearer. These factors include the "general state of the law and the social concerns that the law addresses". Certainly where the Bill of Rights Act is not in issue this is the prevailing method that the courts use to determine meaning.

Although a provision may at first appear ambiguous, Hodge points out that after a full consideration it is rare that there are two or more best estimate meanings. His concern is that the courts are applying section 6 to allow any "meaning" that is a "tenable" estimate of the legislature's meaning and that this shows a failure to appreciate the nature of meaning. Only the best estimate of meaning should be recognised as the meaning of a provision.

Under this approach, section 6 has a far more limited scope. It does not allow the courts to ignore the purposive approach or the natural meaning of the word in context, in favour of a possible meaning that is consistent with the Bill of Rights. Instead, Hodge argues, the courts are required to determine the true meaning of a provision in light of its purpose and if this meaning is clear then section 6 is irrelevant. It is only on the rare occasions where there is genuine ambiguity that section 6 is applicable.

The approach advocated by Hodge is not presently used by the courts and does not reflect how Professor Burrows and Justice McGrath view section 6. The courts apply section 6 wherever a possible meaning is consistent with the rights in the Act. The word "meaning" is therefore interpreted widely as including all tenable estimates of legislatures' meaning as well as the best estimate of meaning. This is arguably in accordance with the words of section 6, which simply require that the preferred meaning must be "a" meaning that an enactment "can" be given. The broad interpretation of "a meaning" also allows the Bill of Rights Act to best ensure it meets its stated objective of affirming, protecting, and promoting human rights and fundamental freedoms in New Zealand.

One may Like to refer to this important document by the learned author.[Blogger]

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.

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