Chapter-5 Citation of Views about Reading into the Act Part-9.1

Chapter-5

Citation of Views about Reading into the Act

Part-9.1

About the Proposition of Reading into

‘The proposition that a court can introduce words into an Act of Parliament offends a fundamental principle of our constitutional law. It is no part of the function of any judge to amend legislation. The task of the courts is to determine what Parliament meant by the words it used, not to determine what Parliament intended to say.[1]’

The most frequently cited formulations are: "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.[2] "...we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself"[3]. To similar effect is the following formulation: "Additional words ought not to be read into a statute unless they are required in order to make the provision intelligible.[4]"

The contemporary approach is as set out as:

"My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd[5] provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.[6]"

The passage has been adopted and applied in many cases[7]. The contemporary approach to construction is well described as `literal in total context'[8]. Where the words actually used are not reasonably capable of being construed in the manner contended for, they will not be so construed[9].

The Court must not add anything to legislation or delete anything from it in order to make it consistent with the the constitution, and it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the constitution and hence of no force or effect[10]. There are a number of authorities which deal with the "filling of gaps" or altering words in statutes. A recent statement of the general principle in this Court is to be found in the reasons in Marshall v. Watson[11]:

"Granted that there may seem to be lacking in the legislation powers which it might be thought the Legislature would have done well to include, it is no power (? part) of the judicial function to fill gaps disclosed in legislation; as LORD SIMONDS said in Magor and St. Mellons R.D.C. v. Newport Corporation[12] , 'If a gap is disclosed, the remedy lies in an amending Act' and not in a 'usurpation of the legislative function under the thin disguise of interpretation'."

In Stock v. Frank Jones (Tipton) Ltd[13] five members of the House of Lords dealt with this question and although their speeches differ in emphasis they were united in declining to read words into the Act there in question.It was stated that: "It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it.” 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.[14]'

It is not a function of this Court to give advisory opinions where there is no longer any real contest between the parties.[15]’

US practice

The general practice followed in US is as per the following: Courts

"have no authority to modify the plain language of a statute based upon what [they] wish[ ] it said...." (EBEL J. dissenting)[16] And to the same effect the Court of US had observed that:

Judges are not authorized to add words (such as "properly") that would change the Rule's substantive effect[17].'. . . we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself'.[18]

"The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said, rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct these should coincide. So if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory, objective, anomaly, etc.) which throw light on what the draftsman meant to say.[19]"

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[1]See Stock v Frank Jones (Tipton) Ltd [1978] WLR 231 at 236G; Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] UKHL 2; [1975] AC 591 at 613G, 645C-D; R v Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 459. quoted from R v.Young [supra] per SPIGELMAN CJ observing further at para 6:” In order to construe the words actually used by Parliament, it is sometimes necessary to give them an effect as if they contained additional words. This is not, however, to introduce words into the Act. This involves the construction of the words actually used. Judicial statements which appear to have been prepared to countenance something more than this, should be so understood”

[2] Thompson v Goold & Co [1910] AC 409 at 420 per LORD MERSEY

[3] Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 at 445 per LORD LOREBURN LC

[4] Wills v Bowley [1983] 1 AC 57 at 78B

[5] Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1951] UKHL 2; [1971] AC 850

[6] Wentworth Securities v Jones [1982] UKHL 5; [1980] AC 74 at 105-107 per LORD DIPLOCK

[7]See Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422 per McHUGH JA (an authority frequently quoted with approval, eg. in Bropho v Western Australia [1990] HCA 24; (1991) 171 CLR 1 at 20); Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283 per MAHONEY JA: Bermingham v Corrective Services Commission of NSW (1988) 15 NSWLR 292 at 299-300 per HOPE JA; 302 per McHUGH JA. See also Saraswati [1991] HCA 21; (1990-91) 172 CLR 1 at 22 per McHUGH J and Newcastle City Council v GIO General Ltd [1997] HCA 53; (1996-97) 191 CLR 85 at 113 per McHUGH J)

[8] E Dreidger Construction of Statutes (2nd ed, 1983) p2). See eg CIC Insurances Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1995-97) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490; 72 ALJR 841. The courts no longer "make a fortress out of the dictionary" (Cabell v Markham 148 F2d 737 (1945) at 739 per LEARNED HAND J.It was quoted by SPIGELMAN in R v. YOUNG [supra] wherein he also stated that:” The construction reached in this way will often be more clearly expressed by way of the addition of words to the words actually used in the legislation. The references in the authorities to the court `supplying omitted words' should be understood as a means of expressing the court's conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases, what the court has done is to construe the words actually used in their total context. When the authorities are so understood, the additional words proposed in the present case are plainly impermissible. “The basic Australian authority on legislative inadvertence is Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297. The statutory provision under consideration was to the effect that references in another section to a "company" apply in relation to a holding company, as if they were references to the holding company. Some of the references to a "company" in the other section, so applied, made perfect sense. If the reference in the particular paragraph under consideration was so applied, the effect of doing so was variously described as "incongruous" (Gibbs CJ at 305), "an anachronism" (Stephen J at 311) and "capricious and irrational" (Mason and Wilson JJ at 321). The legislative history of the provision indicated that the draftsperson had made a mistake.” This case has been explained as "in effect" reading words into the statute (Pearce & Geddes Statutory Interpretation in Australia (4th ed, 1996) par 2.16). I would not so describe it. What the court concluded was that in a particular paragraph, the word "company" would not be given the extended meaning which a subsection said that all such references should be given. In the full context of all the relevant provisions and of the legislative history - `literal in total context' - the subsection which made provision for the extended meaning was read down so as not to apply to the specific reference in the paragraph.” She further stated :” As DEANE J put it in the Full Federal Court, the effect of the construction was the same as if the words "where appropriate" had been introduced into the subsection. However, his Honour added: "The implication of words such as `where appropriate', in a legislative direction to substitute words in another legislative provision so as to apply that legislative provision to circumstances to which it would not otherwise be applicable, does not involve doing violence to the words which Parliament has used. Where, as in the present case, the direction to substitute the different words is given in respect of a variety of different legislative provisions, the implication can be made almost as readily as can the implication of the qualification `subject to a contrary intention' in a definition section". (FCT v Cooper Brookes (Wollongong) Pty Ltd (1979) 25 ALR 511 at 516) “

[9] McAlister [1990] HCA 15; (1990) 169 CLR 324 at 330; R v Di Maria [1996] SASC 5882; (1996) 67 SASR 466 at 472-474

[10] Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031[Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.]

[11] Marshall v. Watson [1972] HCA 27; (1972) 124 CLR 640, at p 649 per STEPHEN J

[12] Magor and St. Mellons R.D.C. v. Newport Corporation (1952) AC 189, at p 191

[13] Stock v. Frank Jones (Tipton) Ltd. (1978) 1 WLR 231; (1978) 1 All ER 948 per VISCOUNT DILHORNE, with whom LORD FRASER of Tullybelton agreed

[14] Thompson v. Goold & Co. (1910) AC 409, at p 420 per LORD MERSEY

[15] see Burnie Port Corporation Pty Ltd v Burnie City Council [1999] TASSC 72, per Crawford J at [11])

[16] Quoted from: Resolution Trust Corporation v Westgate Partners Ltd [1991] USCA10 594; 937 F.2d 526; 60 USLW 2049 (27 June 1991) [1991] USCA10 261; 937 F.2d 526

[17] Jaskolski v Daniels [2005] USCA7 610; 427 F.3d 456 (21 October 2005) [2005] USCA7 610; 427 F.3d 456

[18] Vickers, Sons & Maxim Ltd. v. Evans (1910) AC 444, at p 445 per LORD LOREBURN L.C

[19] (1978) 1 WLR, at p 236; (1978) 1 All ER, at p 953