Literal Approach and Development of Other Approaches

No doubt we adopt the approach that helps us interpreting the provisions of a statute. Any approach is a valid approach till it results in a reasonable interpretation that reflects the intent of legislature.However, there is a common feeling that plain meaning and literal approach are same. However, the following does not suggest so. I am quoting from the case the citation of which is given at the end of the post..[Blogger]General Confusion about Adoption of Particular Approach
There is an apparent confusion regarding the ordinary meaning, plain meaning and literal rules of construction and the contextual, pragmatic and purposive approaches: [see generally R. Sullivan, Driedger on the Construction of Statutes, 3rd ed., (Toronto: Butterworths, 1994) (hereinafter Sullivan) and P.-A. Côté, Interpretation of Legislation in Canada, 2nd ed. (Cowansville, Que.: Les Éditions Yvon Blais, 1991).]

The history of the plain meaning rule is canvassed by Sullivan (at pages 1-6). Originally, the phrases plain meaning rule, ordinary meaning rule and literal construction rule were essentially interchangeable. The process of interpretation invoked by these rules was, first, to determine the literal meaning of the words used, and then, only if ambiguity remained, resolve the ambiguity by reference to elements such as the mischief the provision was intended to address. This two-pronged approach has gone by the wayside as it is formalistic, technical and narrow. This conclusion is addressed by Sullivan, at page 4, who quotes one of our own judges, Rouleau J. in ECG Canada Ltd. v. Canada, reflex, [1987] 2 F.C. 415 (T.D.), at page 423:

What is Ordinary Meaning

There is no question that the literal approach is a well established one in statutory interpretation. Nevertheless, it is always open to the Court to look to the object or purpose of a statute, not for the purpose of changing what was said by Parliament, but in order to understand and determine what was said. The object of a statute and its factual setting are always relevant considerations and are not to be taken into account only in cases of doubt.
The "ordinary meaning" rule, as defined by Sullivan, simply suggests that the ordinary meaning of words as generally understood provides the best evidence of what meaning Parliament intended to convey. The ordinary meaning is that gleaned on first impression from the words in their immediate context, that is in the context of the provision in which they appear. Under this approach, if there is no reason to reject it the ordinary meaning will be applied. However, the purpose and scheme of the Act, the consequences of the proposed meaning, and any other source that may point to the legislators' intent must be examined. This examination may lead the court to modify or reject the ordinary meaning if an alternative plausible interpretation exists. Where there is no reason to reject the ordinary meaning, or where there is no plausible alternative meaning, the court must apply the ordinary meaning: Sullivan, at pages 26-28, referring to the reasons of Cory J. in Thomson v. Canada (Deputy Minister of Agriculture) , 1992 CanLII 121 (S.C.C.), [1992] 1 S.C.R. 385.

Advent of Harminisation and context
The above conclusion is reflected in the jurisprudence of the Supreme Court and of this Court. In Hills v. Canada (Attorney General),1988 CanLII 67 (S.C.C.), [1988] 1 S.C.R. 513, an unemployment insurance case, Madam Justice L'Heureux-Dubé speaking for the majority endorsed the contextual approach. At page 549 [quoting Driedger, E. A. Construction of Statutes, 2nd ed., at page 87] she stated:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. MacGuigan J.A. addressed the proper approach to statutory interpretation in the context of taxation in Lor-Wes Contracting Ltd. v. The Queen, reflex, [1986] 1 F.C. 346, and determined in the oft-quoted passage, at page 352 that 
"[t]he only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions." In an unemployment insurance decision rendered shortly after Lor-Wes , Canada (Attorney General) v. Tucker, reflex, [1986] 2 F.C. 329 (C.A.), at page 340, MacGuigan J.A. writing for the majority adopted the reasoning inBourne (Inspector of Taxes) v. Norwich Crematorium, Ltd., [1967] 2 All E.R. 576 (Ch. D.), at page 578:
English words derive colour from those words which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which you have assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. So, too, you cannot take a section out of the Act, interpret it in isolation from its context and then put it back into the Act with the meaning assigned
. Purposive Approach To construction
Given this discussion of the purposive approach and the plain meaning (literal) and ordinary meaning rules of statutory construction, the method of interpretation we are to follow is, in my view, self-evident. In the context of this case, the supposed "plain meaning" approach advocated by the Commission in the interpretation of subsection 13(2) really amounts to the application of the literal approach. The Commission suggests that the subsection must be construed in isolation, without examining how it works within the scheme of the Act. I agree that if that subsection is interpreted in that fashion, its meaning is plain and unambiguous. It is the last twenty weeks of insurable employment that is relevant, regardless of whether those weeks relate to the first or second employment. Adopting the literal approach would certainly simplify the interpretation of this Act. However, Parliament did not pick the simple solution when it drafted the Act, which is commonly viewed as one of the most complex: see  Petts v. The Umpire (Unemployment Insurance) , [1974] 2 F.C. 225 (C.A.), at page 233 perJackett C.J. In this case, as will be demonstrated, the "simple" solution is illogical when consideration is given to the broader context.
In applying the contextual approach to the construction of subsection 13(2), it becomes clear that the meaning of the provision is ambiguous when examined in its full context, in particular with regard to its relation to section 7. In light of the interaction between these provisions, there are two plausible interpretations of subsection 13(2).

... It is well-settled law that the words of a statute must be read in their total context and with proper regard to the purpose and intent of Parliament as expressed in the statute. It is only in cases of ambiguity, however, that a court needs to look beyond the ordinary meaning and normal construction of the words used by Parliament. [per Robertson J.A. (dissenting)]

Canada v. Cymerman, [1996] 2 F.C. 593
It appears that "literalism" has in a number of recent cases been in effect repudiated, there is even today some residue of authority for the so-called literal rule, especially in view of the force of precedents in our system. The result may sometimes be that a court, faced with a difficult problem of interpretation, is too readily attracted to the apparently simple course of relying on what is said to be the plain and ordinary meaning of particular words without giving sufficient weight to other considerations which might suggest a different meaning. An excessive emphasis on the words of a provision divorced from their context may be especially inappropriate where it is unlikely that the legislator had in contemplation the particular facts which subsequently arise before a court and where the question is whether the words of the provision ought to be applied to cover the facts. Thus, where the question arose whether a new furnace chamber and chimney tower of a crematorium ranked for an annual capital allowance, as being expenditure on "buildings and structures" in use "for the purpose of a trade which consists in the manufacture of goods or materials or the subjection of goods or materials to any process," the allowance was refused because it would be "a distortion of the English language to describe the living or the dead as goods or materials."[See Bourne v. Norwich Crematorium Ltd. [1967] 1 W.L.R. 691 at p. 695. The enactment in question was the Income Tax Act 1952, ss. 266 and 271.

Basics Of Statutory Interpretation- Complete Article

Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity orvagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common lawjurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by thelegislature or to delegated legislation such as administrative agency regulations.
General principles
Meaning
The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:
Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.
Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced. This requiresstatutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by performing the construction the court can make sweeping changes in the operation of the law.
Conflicts between sources of law
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there."  [Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). ]  Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'"[1]
"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary."[ Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).]
"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);
Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, there are areas of law where provincial governments and the federal government have concurrent jurisdiction. In these cases the federal law is held to be paramount. However, in areas where the Canadian constitution is silent, the federal government does not necessarily have superior jurisdiction. Rather, an area of law that is not expressly mentioned in Canada's Constitution will have to be interpreted to fall under either the federal residual jurisdiction found in s. 91 -- known as the Peace, Order and Good Government clause -- or the provinces residual jurisdiction of "Property and Civil Rights" under s. 92(10) of the 1867 Constitution Act. This contrasts with other federal jurisdictions, notably the United Statesand Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions.
Internal and external consistency
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. Here, the term "dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.
A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.
Statements of the legislature
Legislative bodies themselves may try to influence or assist the courts in interpreting their laws by placing into the legislation itself statements to that effect. These provisions have many different names, but are typically noted as:
Findings;
Declarations, sometimes suffixed with of Policy or of Intent; or Sense of Congress, or of either house in multi-chamber bodies.
These provisions of the bill simply give the legislature's goals and desired effects of the law, and are considered nonsubstantive and non-enforcable in and of themselves.[2][3]
Canons
Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.
Textual
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.
Plain Meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule inCaminetti v. United States, 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."
Ejusdem generis (Of the same kinds, class, or nature)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
Expressio unius est exclusio alterius' (The express mention of one thing excludes all others) :
 Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."
In pari materia (Upon the same matter or subject)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
Noscitur a sociis (A word is known by the company it keeps)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
Reddendo singula singulis (Refers only to the last)
When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.
Generalia specialibus non derogant
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially - but not necessarily - in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.
Substantive
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.
"Charming Betsy" Canon
National statute must be construed so as not to conflict with international law. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804): "It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains..."
Interpretation in Light of Fundamental Values
Statute does not violate fundamental societal values. See, for example, Holy Trinity Church v. United States, 143 U.S. 457 (1892). It is also an presumption to statute
Rule of Lenity
In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. See McNally v. United States, 483 U.S. 350 (1987); See, e.g., Muscarello v. U.S., 524 U.S. 125 (1998) (declining to apply the rule of lenity); Evans v. U.S., 504 U.S. 255 (1992) (Thomas, J., dissenting); Scarborough v. U.S., 431 U.S. 563 (1977) (Stewart, J., dissenting); See United States v. Santos (2008).
Avoidance of abrogation of state sovereignty
See Gregory v. Ashcroft, 501 U.S. 452 (1991); see also Gonzales v. Oregon, 546 U.S. 243 (2006); see also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003)
Deference
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.
Deference to Administrative Interpretations (US Chevron deference)
If a statute administered by an agency is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated in the US by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
Avoidance Canon (Canon of Constitutional Avoidance)
If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.[4]
Avoiding Absurdity
The legislature did not intend an absurd or manifestly unjust result.[5][6]It is also based on a standard presumption that Parliament acts reasonably. The presumption is discussed in the Part /Division of Presumption to a Statue[Blogger]
Clear statement rule
When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way, and to ensure that voters are able to hold the appropriate legislators responsible for the modification.
Leges posteriores priores contrarias abrogant (Subsequent laws repeal those before enacted to the contrary, aka "Last in Time")
When two statutes conflict, the one enacted last prevails.
Criticism of Cannon of Construction 
Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislator, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process. In a classic article,Karl Llewellyn argued that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.[7]


However, it could be argued that the fundamental nature of language is to blame for the problem of "for every canon, a counter." Interpreting whether a statute applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of language necessarily means that there will often be good (or equally unconvincing) arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. Canons of statutory construction give judges the ability to decide questions of statutory interpretation that necessarily rely on an element of judicial discretion.
Approaches to Interpretation/Philosophies
Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods are:
The Golden rule
The Literal rule
The Mischief rule
The Purposive approach


These are discussed in this division 

1. ^ 503 U.S. 249, 254.
2. ^ Norman J. Singer, Sutherland Statutory Construction, 6th Edition, Vol. 1A, §20.12 (West Group 2000)
3. ^ American Jurisprudence 2d, Vol. 73, "Statutes" (West Group 2001)
4. ^ Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008), p. 237–39. ISBN 978-0-674-02460-1.
5. ^ Einer Elhauge. Statutory Default Rules: How to Interpret Unclear Legislation. Harvard University Press (2008), p. 148. ISBN 978-0-674-02460-1.
6. ^ Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989).
7. ^ Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules of Cannons About How Statutes are to be Construed, 3 Vand. L. Rev. 395 (1950) repubished with permission in 5 Green Bag 297 (2002).

International Perspective-Shift In trends of Approaches of Interpretation

An international perspective

The dominant approaches in the European Court of Justice (ECJ) have been the contextual and the teleological.[ Natalie Lee, ‘A Purposive Approach to the Interpretation of Tax Statutes?’ (1999) 20(2) Statute Law Review 131, this was the conclusion reached by L Neville Brown and T Kennedy in The Court of Justice of the European Communities (4th Ed 1994) 321.]The contextual approach requires the judiciary to take the provision in question in its context and interpret it in relation to its parallel provision in the Community Law. The teleological approach requires the judiciary to base a decision ‘on the purpose or object of the legislation appropriate for Community legislation where the reasons for the adoption of a particular provision, along with its objectives, are to be found in the legislation itself.’ Both approaches clearly sway towards a more purposive approach than the literal approach.

New Zealand  and Australia

In New Zealand the trend in statutory interpretation has been similar to that of Australia. There have been shifts in the old presumptions that prescribed that certain Acts, in particular criminal and tax Acts, must be strictly construed in favour of the individual. Thus in one New Zealand case where compensation paid by the Crown was treated as income, Cook J said [Duff v Commissioner of Inland Revenue [1982] 2 NZLR 710, 716.] :

if this be alleged to be too bold an approach to statutory interpretation, I can only say that it seems to me manifestly in accord with the intention of Parliament evinced by the subsection as a whole.

 Canada

In the civil jurisdictions of Canada the use of the purposive approach is not novel. It has been applied for quite some time, with Nathan Boidman CA and Bruno Ducharme30 noting that the Supreme Court of Canada has not expressly resorted to the literal approach since 1955. Moreover, a method of construction is expressed by EA Driedger in ‘The Construction of Statutes’ which would serve to oust entirely the literal rule. The use of the purposive approach in Canada has been seen in numerous cases. See Allied Farm Equipment v MNR 73 DTC 5036; Harel v The Deputy Minister of the Province of Quebec 77 DTC 5438; No 473 v MNR 57 DTC 559; McMahon v MNR 59 DTC 1109; Sunbeam Corporation (Canada) Ltd v MNR 63 DTC 1390; Home Oil Company Ltd v MNR 55 DTC 1148.]

In the United States however, such an approach is not as evident.[ See City Council of Augusta v Mangelly, 254 SE2d 315, 322 (1979) (‘[w]e have here…overly strict contructionalism resulting in constitutional amendments upon constitutional amendments for which this court is famous.’)].With specific reference to Europe, New Zealand and especially Canada, it can be generally concluded that most tax jurisdictions are either heading towards a pure purposive interpretation system or have been there for quite some time (as is the case of Canada). But is this a wise move? Is the purposive approach effective and appropriate in the tax sphere?

The appropriateness of the purposive approach

Various technical difficulties arise when attempting to apply the purposive approach to statutory interpretation. Here, the question arises, how does one know what the   intention of parliament is? This question, as suggested by Natalie Lee, raises difficulties at two levels – theoretical and practical. First, on a more theoretical level is whether such a thing as ‘parliamentary intention’ can exist. Natalie Lee points out that parliament is made up of more than one person, and it is questionable whether two or more people, with differing opinions, can share the same mental state of mind. Moreover, she recognises that not all of these people will have voted in favour of the Bill to be enacted; it may not have been their intention that the Act in its present form should have even been passed appearing on the statute book. It is therefore apparent that we cannot possibly know precisely whose intention is being sought.

Further, even if parliamentary intention did exist, who is to say that one could determine such an intention, or that different people would agree upon such an apparent intention or purpose? If one studies the nature of human communication it is clear that different people, however honestly and reasonably they attempt to find the meaning of the same document, can reach different interpretations. [Such a difficulty was declared in BP Oil Development Ltd v CIR (1991) 64 TC 498, 532 and was also evident in Frankland v IRC.

The second difficulty Natalie Lee raises, which is more practical, is that it may well be that the words used in the statute do not enable an interpreter to detect any purpose.[Such a difficulty was declared in BP Oil Development Ltd v CIR (1991) 64 TC 498, 532 and was also evident in Frankland v IRC [1997] STC 1450 and Pepper v Hart (above n 15) ]

A further impracticality lies in the fact that common-law judges will, under the guise or even the delusion of pursuing unexpressed legislative intents, pursue their own objectives and desires, extending their lawmaking activities from the common law to the statutory field. If judges are told to decide on the basis of what the legislature meant, rather than what is said, and there is no necessary connection between the

two, then surely there is the potential of the judge favouring his own intention, as it suits. The criteria for evaluating a taxation system include those of equity and fairness[ See the Ralph Committee, Discussion Paper, Review of Business Taxation, A Strong Foundation – Establishing objectives, principles and processes, November 1998, Overview, para 3.9]and the observance of taxpayer rights. Surely, then, we must consider the equity and fairness of the purposive approach to interpreting the tax statutes. In the past, equity, used in assessing a tax system, has referred to ‘horizontal’ and ‘vertical’ equity. used in assessing a tax system, has referred to ‘horizontal’and ‘vertical’ equity.

Equity or fairness also depends on or encompasses clarity and certainty. For the reasons given above, in relation to the difficulty in determining parliamentary intention, it is most probable that the adoption of a pure purposive interpretation system would result in inconsistency. Furthermore, accountants, lawyers and individual taxpayers would be expected to guess what meaning a judge will read into a provision when completing a tax return. A purposive regime militates against clarity or consistency.  Equity or fairness also depends on or encompasses clarity and certainty. For the reasons given above, in relation to the difficulty in determining parliamentary intention, it is most probable that the adoption of a pure purposive interpretation

system would result in inconsistency. Furthermore, accountants, lawyers and individual taxpayers would be expected to guess what meaning a judge will read into a provision when completing a tax return. A purposive regime militates against clarity or consistency.

Furthermore, while taxes are arguably a necessity in any modern society, the status of income tax has long been accepted as a punitive measure. Taxes have the effect of confiscating one’s right to property and hence liberty. The revenue statutes constitute penalties imposed by the state which encroach on a citizen’s liberty, that is, their right to prosper from free enterprise. Given that there exists no doctrine in the courts to

support the notion that there is a duty to contribute to the upkeep of the state through tax, and given there exists a right to avoid but no duty to pay taxes, it seems most appropriate that before the state confiscates a taxpayer’s liberty it should make its grounds for doing so crystal clear. For this very reason tax laws should be construed in highly technical terms, without regard for the purpose they were designed to serve, just as criminal penalties, which similarly impose a restriction on one’s liberty, are construed.

This change from literal to purposive approaches has had significant effect on our legal system. So much so that the powers of the legislative and judicial arms are beginning to converge. Parliament has enacted laws telling the judicial branch how they must interpret legislation, and the judicial arm can read words into legislation (as suggested by Kirby J) to promote what they believe is the apparent purpose of the legislature, when, in fact, unrestrained by obedience to the specific words of the statute, they could be promoting their own policy agenda. As stated by Bryson J, in relation to statutory interpretation and the purposive approach, ‘what is at stake is the separation of powers and respect by the judicial branch of government for the powers of the legislative branch.’ More so it must be realised that ‘[w]e are to be governed not by Parliament’s intentions but by Parliament enactments’. It is clear that although the purposive approach may result in some benefits, its application brings with it significant difficulties and problems. The greatest threat is to the taxpayer’s rights. Contrary to recent cases, the practice that should be adopted by a judge when a tax provision is absurd or does not make sense is to read the provision strictly and in favour of the taxpayer, and the responsibility should rest with the legislature to amend the provision.45 It can work injustice to adopt a pure purposive approach to the interpretation of the revenue statutes in the manner suggested by Kirby J and some others. Such a practice brings with it a greater threat – to basic human rights. The approach that should be adopted is the literal approach – the approach that will enable the taxpayers to protect what is rightfully theirs.