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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Thursday, April 29, 2010

Reference to Extrinsic material permissible, reports and History

Reference to Extrinsic material permissible, reports and History For Establishing Intent

But avoiding absurd results is not the only reason why courts should be willing to look beyond the plain meaning of a statute. As one commentator noted some years ago, state legislative history is ignored because state legislatures see no need for it. (Stewart, J., dissenting) ("[S]tate statutes are often enacted with little recorded legislative history, and the bare words of a statute will often be unilluminating in interpreting legislative intent."[1]) There is growing recognition that legislators often deliberately employ vague, symbolic, and sometimes meaningless statutory language . . . in order to placate warring interests and achieve compromise, to please as many and alienate as few constituencies as possible, or to avoid difficult policy choices by postponing decision or transferring responsibility to an agency through a broad delegation.[2] ".In the case at bench, the extrinsic evidence in dispute was highly relevant to show the legislative intent underlying the statute. It follows that the trial court was not only free, but also duty bound to admit the challenged extrinsic evidence to ascertain the true intent of the Legislature and to effectuate the purpose of the law[3]. This is consistent with the approach taken by the California Supreme Court in where the court noted the absence of support for plaintiff's argument in the legislative history[4].

  • The trend is growing. Statutory ambiguity is not always a necessity. More and more we see the courts resorting to extrinsic evidence of legislative history that supports a "plain meaning" interpretation of the statutes.

Intrinsic and extrinsic Aids to establish Intent

If the courts could not look at expressions of intention by Parliament, then a fortiori they should not look at such expressions by royal commissions or committees.[5] In contrast, Viscount Dilhorne took the view that it did not follow that the court could refer to Hansard just because it looked at the whole of an official report.[6]

Lord Donaldson, in the House of Lords debate on the Interpretation Bill 1980,[7] expressed concern that “looking at what was said in Parliament” would mean that there would be a real danger that the courts would give effect to the intention, not of Parliament, but of the executive.

Lord Diplock defended the role of the courts in Fothergill v Monarch Airlines Ltd.[8] when he said:

“The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining ‘the intention of Parliament’; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state”.

Lord Simon, in refusing to look at the legislative history, stated in Ealing LBC v Race Relations Board[9] that:

“In the absence of ‘preparatory works’ ... the courts must ascertain the legislative intention principally by examining (1) the social background; (2) a conspectus of all relevant law; (3) the long title of the statute and, where possible, the preamble; (4) the actual words used; (5) other statutory provisions which illuminate the meaning of the actual words used ... .”

The Privy Council[10],had ,reasoned at p. 51[11] :

" If one had to guess at the intention of the Legislature it,framing a Section in the words used, one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both. In any case the reasons would apply as might be thought a fortiori to an alleged statement made by a person ultimately accused. But in truth when the meaning or words is plain it is not the duty of the Courts to busy themselves with supposed intentions. I have been long and deeply impressed with the wisdom of the rule, none believe universally adopted,at least in the Courts of law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instruments, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.[12] To quote from the language of Tindal C.J. when delivering the opinion of the Judges[13]:.

‘The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law-giver. But if any doubt arises from' the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble which according to Dyer.[14] C.J. is a key to open the minds of the makers of the Act, and the mischiefs which they are intended to redress[15].

In dealing with a contention that a statute [p1015] containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said:

“This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction, it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application.[16]

“the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions[17]

.In the same case giving emphasis to the legislative intention it was stated as follows:

“A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers,[18]" and "will rarely turn on the presence or absence of such a clause.[19]"“A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid[20]. Carter v. Carter Coal Co[21]"

[1] See Eric Lane, Legislative Process and its Judicial Renderings: A Study in Contrasts, 48 U. PITT. L. REV. 639, 651 (1987). See also City of Lafayette v Louisiana Power & Light Co., 435 U.S. 389, 437 (1978)

[2] Things Judges Do: State Statutory Interpretation [foot note 41 Judith S. Kaye

[3] Pennisi v. Fish & Game (1979) 97 Cal. App. 3d 268, 275. [Emphasis added]

[4] Mercy Hospital & Medical Center v. Farmers Insurance Group of Companies[4] (1997) 15 Cal. 4 th 213, 223

[5] Ibid at 615.

[6] Ibid at 623F.

[7] 503 H.L. Debs, col 288. This was Lord Scarman’s Bill which tried to implement the Draft Clauses contained in the United Kingdom Law Commission’s Report, “The Interpretation of Statutes” (Law Com No. 21) (Scot Law Com No. 11) 1969.

[8] [1981] AC 251, at 279.

[9] [1972] AC 342, at 361.

[10] Pakala Narayana Swami v. EmperorA.I.R. 1939 P.C. 47

[11]as Quoted in: NANDINI SATPATHYvDANI (P.L.),. 1978 AIR 1025: 1978 SCR (3) 608

[12] [Lord Wensleydale in (1875) 6 HLC 613 at p. 106].

[13] in (1844) 11 CL & F 85 at page 143,

[14] (1562) 1 Plowd 353 at p. 369

[15] : Lord Halsbury LC in (1891) AC 531 at p. 542.'

[16] REHNQUIST, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES 462 U.S. 919 INS v. ChadhaAPPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[See also Frost v. Corporation Comm'n of Oklahoma, 278 U.S. 515, 525 (1929).

[17]Quoted from: REHNQUIST, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES 462 U.S. 919 INS v. ChadhaAPPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT citing Spraigue v. Thompson, 118 U.S. 90, 95 (1886).

[18] Citation ommited

[19] United States v. Jackson, 390 U.S. 570, 585, n. 27 (1968).

[20] Carter v. Carter Coal Co., 298 U.S. 238

[21] See also:298 U.S. 238, 312 (1936); Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 235 [p1014] (1932).


Major Sources of Legislative intent

Courts frequently look to the following sources in attempting to determine the goals and purposes that the legislative body had in mind when it passed the law:

  • the text of the bill as proposed to the legislative body,
  • amendments to the bill that were proposed and accepted or rejected,
  • the record of hearings on the topic,
  • legislative records or journals,
  • speeches and floor debate made prior to the vote on the bill,
  • legislative subcommittee minutes, factual findings, and/or reports,
  • other relevant statutes which can be used to understand the definitions in the statute on question,
  • other relevant statutes which indicate the limits of the statute in question,
  • legislative files of the executive branch, such as the governor or president, case law prior to the statute or following it which demonstrates the problems the legislature was attempting to address with the bill, or constitutional determinations (i.e. "Would Congress still have passed certain sections of a statute 'had it known' about the constitutional invalidity of the other portions of the statute?") . United States v. Booker.[1]

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.“

[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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