Intent and reference to Extrinsic aids, Debates etc..

The basic rule for deriving the intent is summarized in the following paragraph.

‘The intention" of Parliament "must be found in the language finally adopted in the Statutes under construction, and in that language alone. No doubt general words may in certain cases properly be interpreted as having a meaning or scope other than the literal or usual meaning. They may be so interpreted where the scheme appearing from the language of the Legislature, read in its entirety, points to consistency as requiring the modification of what would be the meaning apart from any context, or apart from the purpose of the legislation as appearing from the words which the Legislature has used, or apart from the general law.[5]"

However,it has been well established that the judiciary has authority to consult the external aids for interpretation as is indicated by the following citations. No doubt the reference is permissible in the cases where there is ambiguity in the statute and the plain reading of the statute does not afford any help in meaningful interpretation of the provisions of the statute.[Blogger]

To assist in discovering the reason for the change in the terms of the legislation, it is appropriate to examine the debates in the House of Assembly at the time consideration was given to the Workers’ Compensation Act, S.N.S. 1994-95, c. 10. Such an exercise was referred to by the Supreme Court of Canada in R. v. Morgentaler.[1]

When attempting to discover the legislative intention behind a statute, common practice of professionals has long been a useful and valid extrinsic aid to interpretation., in Bassett v Bassett[2], “The uniform opinion and practice of eminent conveyancers has always had great regard paid to it by all courts of justice”. In Escoigne Properties Ltd v Inland Revenue Commissioners [3],it is stated that:

“In this country we do not refer to the legislative history of an enactment as they do in the United States of America. We do not look at the explanatory memoranda which preface the Bills before Parliament. We do not have recourse to the pages of Hansard. All that the courts can do is take judicial notice of the previous state of the law and of other matters generally known to well informed people.[4]”

Like wise the legislative intent can be drawn from the history and the context of the provisions.’ Viewed in the historical context which I have set out, when cl 2 of the transitional provisions is read as a whole it is in my opinion clear that the legislative objective was to generally reduce sentencing tariffs relating to terms of imprisonment which had been established by the courts by one-third, to offset the abolition of the automatic remission of one-third of each sentence imposed, without stifling the development of sentencing principle and practice by reference to an artificial point in time.[6]’

Apart from the words themselves in a provision and the remaining words of the relevant legislation, what is the material to which we may refer in discovering Parliament’s intent? This question was answered by in CIC Insurance Ltd v Bankstown Football Club Ltd:[7][524]

“ It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure .... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy .... Instances of general words in a statute being so constrained by their context are numerous.“

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[1] R. v. Morgentaler, 1993 CanLII 74 (S.C.C.), [1993] 3 S.C.R. 463f

[2] Bassett v Bassett [1744] EngR 1796; (1744) 3 Atk 203 (at 208) per LORD HARDWICK

[3] Escoigne Properties Ltd v Inland Revenue Commissioners [1958] AC 549, per LORD DENNING MR , Of course, the extrinsic aids excluded by Lord Denning MR are available in this State today (Interpretation Act 1987. s.34), but this does not discount the validity of common practice as an aid to interpretation. It has since been said that his Lordship’s reference to “well informed people” might be understood as “learned lawyers” (see Cross, Statutory Interpretation, 2ed, Butterworths, 1987, p191).

[4]Quoted from : Ispt Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 (12 August 2003) Supreme Court of New South Wales Decisions

[5] City of London Corporation v. Associated Newspapers Ltd. (1915) A.C., 674, at p. 692. LORD ATKINSON reaffirmed the view of LORD MACNAGHTEN in Vacher & Sons' Case. [1912] UKHL 3; (1913) A.C., 107. Again, LORD HALDANE L.C., in Watney, Combe, Reid & Co. v. Berners(1915) A.C., 885, at p. 891.

[6] YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)

[7] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618per BRENNAN CJ, DAWSON, TOOHEY and GUMMOW JJ

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Intention to be derived from the Text and words

It is an elementary and fundamental principle that the object of the court, in interpreting a statute, "is to see what is the intention expressed by the words used.[1]" It has been said that "the words of the statute, not non-statutory words seeking to explain them, have paramount significance[2]"

Mellish L. J. in commenting on the laxity of interpretation in England stated in Edwards v. Edwards[3]:

"If the Legislature says that a deed shall be null and void to all intents and purposes whatsoever, how can a Court of Equity say that in certain circumstances it shall be valid." We are seeking not what Parliament meant but the true meaning of what they said. In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no
further enquiry is permissible observed LORD REID.[4]

The classic exposition of the meaning of "intention" was given by Asquith L.J. in the case of Cunliffe v. Goodman[5]."An 'intention' to my mind connotes a state of affairs which the party 'intending' - I will call him X - does more than merely contemplate: it connotes a state of affairs which, on the contrary, he decides, so far as in him lies, to bring about, and which, in point of possibility, he has a reasonable prospect of being able to bring about, by his own act of volition.

X cannot, with any due regard to the English language, be said to 'intend' a result which is wholly beyond the control of his will. He cannot 'intend' that it shall be a fine day tomorrow: at most he can hope or desire or pray that it will. Nor, short of this, can X be said to 'intend' a particular result if its occurrence, though it may be not wholly uninfluenced by X's will, is dependent on so many other influences, accidents and cross-currents of circumstance that, not merely is it quite likely not to be achieved at all, but, if it is achieved, X's volition will have been no more than a minor agency collaborating with, or not thwarted by, the factors which predominately determine its occurrence. If there is a sufficiently formidable succession of fences to be surmounted before the result at which X aims can be achieved it may well be unmeaning to say that X 'intended' that result”

“Courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then this first canon is also the last: 'judicial inquiry is complete.”[6]

“In carrying out that task [interpretation] the House must employ the familiar tools of statutory interpretation. The starting point is the language of the Act, from which the court seeks to derive the meaning of what Parliament has enacted. Significance may be attached not only to what Parliament has said but also, on occasion, to what it has not said. Attention may be paid to presumptions applicable to the drafting of statutes, since these are rules which expert professional draftsmen may ordinarily be expected to follow in the absence of reason to conclude that they may not have done so or an indication in the statute that they have not done so. While the express terms of a statute are always crucial, the courts will eschew an overly literal construction, taking account of the purpose of the statute, the mischief sought to be remedied and other circumstances relevant to interpretation.[7]”

The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation.[8]” “The consideration of legislative objectives is one aspect of the modern approach to statutory interpretation. Yet, courts and tribunals must invoke statements of legislative purpose to elucidate, not to frustrate, legislative intent.[9]”

“We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.[10]" This statement has been repeated on many occasions in the House of Lords and the Privy Council.[11] The purpose of the legislation must be taken into account, even where the meaning appears to be clear, and so must the consequences". . . . The plain meaning of the words, if such exists, is a secondary interpretative principle aimed at discerning the intention of the legislator.[12]”Further the literal meaning of even a very familiar expression may have to be rejected if it leads to an interpretation or consequence which Parliament could not have intended.[13]”However the Supreme Court of South Africa as per SCHUTZ JA quoting a passage clarifies the situation The literal meaning of an Act in the sense of strict literalism) is not always the true one, but escaping its operation is usually not easy, most often impossible, for:

“The cardinal rule of construction of a statute is to endeavour to arrive at the intention of the lawgiver from the language employed in the enactment. . . . in construing a provision of an Act of Parliament the plain meaning of its language must be adopted unless it leads to some absurdity, inconsistency, hardship or anomaly which from a consideration of the enactment as a whole a court of law is satisfied the legislature could not have intended.” (Per STRATFORD JA in Bhyat v Commissioner for Immigration[14]. (Emphasis supplied).

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[1] River Wear Commissioners v. Adamson (1877) 2 App Cas 743, at p 763

[2] Nominal Defendant v GLG Australia Pty Limited [2006] HCA 11, per GLEESON CJ, GUMMOW, HAYNE and HEYDON JJ, at [22]

[3] Edwards v. Edwards [ L. R. 24 Ch. D. 291.]

[4] Black Clawson International Ltd v. Papierwerke AG [1975] UKHL 2 (05 March 1975)
URL: http://www.bailii.org/uk/cases/UKHL/1975/2.html
Cite as: [1975] UKHL 2, [1975] AC 591

[5] 1950 2 K.B.D. 237 @ 253

[6] Oberg v. Allied Van Lines, [1993] USCA2 1241; 11 F.3d 374 (7th Cir.1993); see also Public Citizen v. Dept. of Justice, [1989] USSC 125; 491 U.S. 440, 470[1989] USSC 125; , 109 S.Ct. 2558, 2574-75[1989] USSC 125; , 105 L.Ed.2d 377 (1988) (Kennedy, J., concurring) ("Where the language of a statute is clear in its application, the normal rule is that we are bound by it."); Family & Children's Center v. School City of Mishawaka, [1994] USCA7 9; 13 F.3d 1052, 1060 (7th Cir.1994) ("If the statute is unambiguous, we must enforce the plain meaning of the language enacted by Congress."). Like all general rules, there are secondary canons that may on rare occasions modify the first.)

[7] Secretary of State for Defence v Al-Skeini & Ors [2007] UKHL 26 (13 June 2007)
URL: http://www.bailii.org/uk/cases/UKHL/2007/26.html
Cite as: [2007] Inquest LR 168, [2007] 3 All ER 685, [2008] 1 AC 153, [2007] UKHRR 955, [2007] HRLR 31, [2007] 3 WLR 33, 22 BHRC 518, [2007] UKHL 26

[8] Barrie Public Utilities v. Canadian Cable Television Assn., [2003] 1 S.C.R. 476, 2003 SCC 28

[9] Barrie [supra]

[10] Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg A G [1975] AC 591, Lord Reid observed (at 613G):

[11] Roodal v. The State (Trinidad and Tobago) [2003] UKPC 78 (20 November 2003) ,ADVANCE COPY,Privy Council Appeal No. 18 of 2003

[12] Driedger, supra, at p. 3 as quoted in 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919

[13] Jackson [supra]

[14] Bhyat v Commissioner for Immigration 1932 AD 125 at 129