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Saturday, May 29, 2010

Purposive approach to identify the Intention

The purposive approach to statutory construction is now enshrined in statutes. [E.g. Interpretation Act 1901 (Cth) sl5AA; Interpretation Act 1987 (NSW) s33] It is not without its difficulties. It must not be forgotten that the task is to identify the meaning of what Parliament said, not to identify what Parliament meant to say.”[ Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG above n3, at 613 per Lord Reid, 645 per Lord Simon of Glaisdale; R v Bolton; Ex parte Beane (1987) 162 CLR 514 at 518; Byme v Australian Airlines Ltd (1995) 185 CLR 410 at 459.]

Reading the purpose of the Act provides the context as well. The following statement would also provide a support to depart from the literal meaning when it cannot be applied.[blogger]

A good short hand description of this approach is "literal in total context". E. Driedger, Construction of Statutes 2nd Ed. Scarborough: Butterworths, 1983; Barnes "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law- Part One" (1994) 22 Fed LR 116 at 134.] Wherever general words must be construed, it is essential for the interpreter to bear in mind that a statute has a context, it has a background and it reflects assumptions as to the circumstances in which it will operate. The words of a statute do not exist in limbo’[Morris v Beardmore [I9811 AC 446 at 449 per Lord Edmund-Davies.]

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