Chapter-5 Views about Reading into the words Part-9.2

Chapter-5

Views about Reading into the words

Part-9.2

Canadian Approach

‘Since the judge's task is to interpret the statute, not to create it, as a general rule, interpretation should not add to the terms of the law. Legislation is deemed to be well drafted, and to express completely what the legislator wanted to say…

The presumption against adding words must be treated with caution because legal communication, like all communication, has both implicit and explicit elements. The presumption only concerns the explicit element of the legislature's message: it assumes that the judge usurps the role of Parliament if terms are added to a provision. However, if the judge makes additions in order to render the implicit explicit, he is not over reaching his authority. The relevant question is not whether the judge can add words or not, but rather if the words that he adds do anything more than express what is already implied by the statute.[1]’

Australian Approach summarized

Even if it could be said that the failure to make provision for increases arising from negotiated agreements resulted from legislative inadvertence, the court cannot "supply the deficiency.[2]" It would not be -

"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 [that] condition is fulfilled any attempt by a court of justice to ,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.[3]" "... no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done[4]."However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 requires a court to construe an Act, not to rewrite it, in the light of its purposes.[5]"This statement is also as per the standard rule of statutory interpretation that Judges do not make the law but interpret[6]. DIXON CJ and FULLAGAR J, however, stated with some authority that is not usually followed[7]by the courts but the courts do observed the principle exceptional cases only else it shall amount to usurping the legislative role. The approach requires abundant caution if nothing else[8]:

“There is a superficial difficulty in cl. 8, because it purports to incorporate a set of conditions so far as they are inconsistent with what has been specifically agreed upon. No real difficulty, however, is created. Words may generally be supplied, omitted or corrected, in an instrument, where it is clearly necessary in order to avoid absurdity or inconsistency.” One looks into the context and analyze on case to case basis.

Where provisions of an Act appear, on the basis of their language, to conflict, conflict must be alleviated to the extent possible by adjusting the meaning of the competing provisions to: best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.[9]

Legislative inadvertence and Remedy

In Tokyo Mart MAHONEY JA at 283 distinguished two different types of “legislative inadvertence”, saying that one of which could, but the other could not, be remedied by the process of statutory interpretation. His Honour explained:

‘Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, the remedy the omission.[10]’

[1] Murphy v. Welsh; Stoddard v. Watson, [1993] 2 S.C.R. 1069{Supreme Court of Canada]

[2] Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283; see also Pearce and Geddes, Statutory Interpretation in Australia, 4^th Ed, §2.5 and §2.16.

[3]See Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106; see also R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

[4] [1990] HCA 6; (1990) 169 CLR 214 at 235.Mills v Meeking per DAWSON j

[5] Extracted from Mills v Meeking (1990) 169 CLR 214, per DAWSON J, at 235

[6] "If the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. Section 35 [Interpretation Act, s 18] requires a court to construe an Act, not to rewrite it, in the light of its purposes."

[7] [1956] HCA 53; (1956) 95 CLR 420 at 426

[8] Elderslie Property Investments No 2 P/L v Dunn [2008] QCA 158 (20 June 2008)

[9] See Australian Alliance Assurance Co Ltd v Attorney-General of Queensland [1916] St R Qd 135 at 161 per COOPER CJ; Minister for Resources v Dover Fisheries [1993] FCA 366; (1993) 43 FCR 565 at 574 per GUMMOW J; [1993] FCA 366; 116 ALR 54 at 63). [13]

[10] Director-General Department Of Land And Water Conservation v Jackson And Ors [2003] NSWLEC 81 (31 March 2003)