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)

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

For later use

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Chapter-5 Whether to Temporarily Suspend the Declaration of Invalidity:Issue Part-8

Chapter-5

Whether to Temporarily Suspend the Declaration of Invalidity:Issue

Part-8

‘Having identified the extent of the inconsistency, and having determined whether that inconsistency should be dealt with by way of striking down, severance or reading in, the court has identified what portion must be struck down. The final step is to determine whether the declaration of invalidity of that portion should be temporarily suspended.

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (R. v. Swain, supra) or otherwise threatens the rule of law[1]. It may also be appropriate in cases of under inclusiveness as opposed to over breadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its under inclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits.

Furthermore, the fact that the court's declaration is delayed is not really relevant to the question of which course of action, reading in or nullification, is less intrusive upon the institution of the legislature. By deciding upon nullification or reading in, the court has already chosen the less intrusive path. If reading in is less intrusive than nullification in a particular case, then there is no reason to think that a delayed nullification would be any better. To delay nullification forces the matter back onto the legislative agenda at a time not of the choosing of the legislature, and within time limits under which the legislature would not normally be forced to act. This is a serious interference in itself with the institution of the legislature. Where reading in is appropriate, the legislature may consider the issue in its own good time and take whatever action it wishes. Thus delayed declarations of nullity should not be seen as preferable to reading in in cases where reading in is appropriate.

The question whether to delay the application of a declaration of nullity should therefore turn not on considerations of the role of the courts and the legislature, but rather on considerations listed earlier relating to the effect of an immediate declaration on the public.’[2]The other cases that were referred to by LAMER CJ are given below.[3] The Acts that are discussed are as follows.[4] In considering the validity of a law passed by the Parliament, it is neither necessary nor appropriate to seek to characterise that law as a law with respect to a single head of legislative power. The law may, and commonly will, find support in several heads of power. The present case, and the situation considered in Newcrest, are examples where s 122 is one of several heads. So also is Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame[289][5]. Secondly, if, in addition to whatever other characters it may have, the law has the character of a law with respect to the acquisition of property, the law in that aspect must satisfy the safeguard, restriction or qualification provided by s 51(xxxi), namely, the provision of just terms.

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[1] Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721

[2] Per LAMER J: Schachter v. Canada, [1992] 2 S.C.R. 679 [ Supreme Court Of Canada]

[3] By Lamer C.J.Considered: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Attorney‑General of Nova Scotia v. Phillips (1986), 34 D.L.R. (4th) 633; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Swain, [1991] 1 S.C.R. 933; referred to: Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503; Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; Tétrault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790; R. v. Hebb (1989), 69 C.R. (3d) 1; Russow v. B.C. (A.G.) (1989), 35 B.C.L.R. (2d) 29; Welsh v. United States, 398 U.S. 333 (1970); Re Blainey and Ontario Hockey Association (1986), 54 O.R. (2d) 513; Reference Re Manitoba Language Rights, [1985] 1 S.C.R. 721; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.

By La Forest J.Referred to: R. v. Wong, [1990] 3 S.C.R. 36; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; R. v. Oakes, [1986] 1 S.C.R. 103.

[4] Statutes and Regulations Cited,Barristers and Solicitors Act, R.S.B.C. 1979, c. 26, s. 42.,Canadian Charter of Rights and Freedoms, ss. 1, 7, 15(1), 24(1).,Constitution Act, 1982, s. 52(1).;Criminal Code, R.S.C. 1970, c. C‑34, s. 542(2).;Criminal Code, R.S.C., 1985, c. C.‑46, s. 276.;Federal Court Rules, C.R.C., C. 663, Rule 341A [ad. SOR/79‑57, s. 8].;Human Rights Code, 1981, S.O. 1981, c. 53, ss. 1, 19.;Lord's Day Act, R.S.C. 1970, c. L‑13.;Unemployment Insurance Act, 1971, S.C. 1970‑71‑72, c. 48, ss. 30 [am. by S.C. 1980‑81‑82‑83, c. 150, s. 4], 32(1) [am. by S.C. 1980‑81‑82‑83, c. 150, s. 5].

[5] 2005) 222 CLR 439; [2005] HCA 36.