Australian Citations Part-2 Part-3 Part-4 Part-5 Part-6 7
Inconsistency Between Two Statutes
3.06.2010
Tuesday, June 1, 2010
Words not be given strained construction
By making this [ie the requirement of consistency with purpose] plain, the courts would be provided with clear guidance to interpret legislation to give effect to a right so long as that interpretation is not so strained as to disturb the purpose of the legislation in question. This is consistent with some of the more recent cases in the United Kingdom, where a more purposive approach to interpretation was favoured. In the United Kingdom House of Lords decision in Ghaidan v Godin-Mendoza, Lord Nicholls of Birkenhead said
‘the meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must ... “go with the grain of the legislation”.’
Or as Lord Rodger of Earlsferry stated:
‘It does not allow the Courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen.
Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
‘the meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must ... “go with the grain of the legislation”.’
Or as Lord Rodger of Earlsferry stated:
‘It does not allow the Courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen.
Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
Presumption Of Legality
Section 6 of the New Zealand Bill of Rights Act 1990 (NZ) provides as follows:
6 Interpretation consistent with Bill of Rights to be preferred
Early in the life of the Act, Cooke P said that the ‘preference’ which s 6 commanded would:
come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough.[ Ministry of Transport v Noort [1992] 3 NZLR 260, 272; see also Police v Smith and Herewini [1994] 2 NZLR 306, 313 (Cooke P).]
In 1997, in Quilter v Attorney-Genera l[ [1998] 1 NZLR 523.]Tipping J (with whom Richardson P, Gault and Keith JJ agreed) said that for the purposes of s 6 a statutory provision could only be given a meaning consistent with a relevant right if the meaning was available ‘by a legitimate process of construction’. In 2007, in Hansen, [2007] 3 NZLR 1. Tipping J endorsed academic commentary to the effect that s 6 ‘has been read on the basis that an alternative meaning must be reasonably or properly open. It must be fairly open and tenable’.
In his Honour’s view, s 6 ‘cannot be used to give a meaning to an enactment which is clearly contrary to the meaning which Parliament understood its words to convey.’ Rather, an approach which inquires whether a suggested meaning is reasonably possible, seems to me to come as close as possible to capturing the way in which the statutory ‘can’ in s 6 must be applied. It is by this measure of reasonable possibility that I would distinguish at least some English discussions on the subject: they seem to adopt a meaning which is unreasonably possible from an interpretative point of view. I say that because alternative meanings have been found in England, under the aegis of s 3, despite an acknowledgment that this defeats Parliament’s purpose. In England s 3 appears at times to have been construed as mandating a judicial override of Parliament, if Parliament’s meaning is inconsistent with a right or freedom. That, for me, would be to use s 3 (the New Zealand s 6) as a concealed legislative tool. Whether it is appropriate in England is not for me to say, but I am satisfied it is not appropriate in New Zealand.
Elias CJ said in Hansen[2007] 3 NZLR 1. that, for a meaning to be available under s 6, it must be ‘tenable on the text and in the light of the purpose of the enactment.’ To similar effect, McGrath J described s 6 as being applicable ‘whenever the Court can identify a tenable meaning of an enactment’. But the Court may not ‘go beyond the reasonably available meaning of [a] word in its legal context’.
As Claudia Geiringer has pointed out in her illuminating analysis of Hansen, [Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’ (2008) 6 NZJPIL 58, 76.] McGrath J drew a parallel between the interpretive obligation under s 6 and the common law ‘principle of legality’. He said:
Section 6 should ... be seen as requiring that judges apply the presumption that legislation is to be interpreted in accordance with fundamental rights, as part of the statutory reassertion of the importance of New Zealand’s commitment to human rights in the interpretation exercise, which requires an approach to interpretation which is sympathetic to protected rights.
Ms Geiringer notes, Elias CJ had drawn the same parallel in earlier decisions under the Bill of Rights Act 1990 (NZ). Thus, in Ngati Apa Ki Te Waipounamu Trust v The Queen, [2000] 2 NZLR 659. her Honour referred to specific rights contained in the Act and said:
Similarly, in R v Pora, [2000] NZCA 403; [2001] 2 NZLR 37. the Chief Justice had said:
By s 6 the New Zealand Parliament has adopted a general principle of legality ... . Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 ...
Cited from:Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Early in the life of the Act, Cooke P said that the ‘preference’ which s 6 commanded would:
come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough.[ Ministry of Transport v Noort [1992] 3 NZLR 260, 272; see also Police v Smith and Herewini [1994] 2 NZLR 306, 313 (Cooke P).]
In 1997, in Quilter v Attorney-Genera l[ [1998] 1 NZLR 523.]Tipping J (with whom Richardson P, Gault and Keith JJ agreed) said that for the purposes of s 6 a statutory provision could only be given a meaning consistent with a relevant right if the meaning was available ‘by a legitimate process of construction’. In 2007, in Hansen, [2007] 3 NZLR 1. Tipping J endorsed academic commentary to the effect that s 6 ‘has been read on the basis that an alternative meaning must be reasonably or properly open. It must be fairly open and tenable’.
In his Honour’s view, s 6 ‘cannot be used to give a meaning to an enactment which is clearly contrary to the meaning which Parliament understood its words to convey.’ Rather, an approach which inquires whether a suggested meaning is reasonably possible, seems to me to come as close as possible to capturing the way in which the statutory ‘can’ in s 6 must be applied. It is by this measure of reasonable possibility that I would distinguish at least some English discussions on the subject: they seem to adopt a meaning which is unreasonably possible from an interpretative point of view. I say that because alternative meanings have been found in England, under the aegis of s 3, despite an acknowledgment that this defeats Parliament’s purpose. In England s 3 appears at times to have been construed as mandating a judicial override of Parliament, if Parliament’s meaning is inconsistent with a right or freedom. That, for me, would be to use s 3 (the New Zealand s 6) as a concealed legislative tool. Whether it is appropriate in England is not for me to say, but I am satisfied it is not appropriate in New Zealand.
Elias CJ said in Hansen[2007] 3 NZLR 1. that, for a meaning to be available under s 6, it must be ‘tenable on the text and in the light of the purpose of the enactment.’ To similar effect, McGrath J described s 6 as being applicable ‘whenever the Court can identify a tenable meaning of an enactment’. But the Court may not ‘go beyond the reasonably available meaning of [a] word in its legal context’.
As Claudia Geiringer has pointed out in her illuminating analysis of Hansen, [Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’ (2008) 6 NZJPIL 58, 76.] McGrath J drew a parallel between the interpretive obligation under s 6 and the common law ‘principle of legality’. He said:
Section 6 should ... be seen as requiring that judges apply the presumption that legislation is to be interpreted in accordance with fundamental rights, as part of the statutory reassertion of the importance of New Zealand’s commitment to human rights in the interpretation exercise, which requires an approach to interpretation which is sympathetic to protected rights.
To qualify as a meaning that can be given under s 6 what emerges must always be viable, in the sense of being a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the Court must prefer it to any inconsistent meaning. Hansen [2007] 3 NZLR 1, 80.
Ms Geiringer notes, Elias CJ had drawn the same parallel in earlier decisions under the Bill of Rights Act 1990 (NZ). Thus, in Ngati Apa Ki Te Waipounamu Trust v The Queen, [2000] 2 NZLR 659. her Honour referred to specific rights contained in the Act and said:
Such basic rights cannot be overridden by general or ambiguous words in a statute ... This principle of legality, recognised by the common law, has been expressly enacted by s 6 of the New Zealand Bill of Rights Act 1990.
Similarly, in R v Pora, [2000] NZCA 403; [2001] 2 NZLR 37. the Chief Justice had said:
By s 6 the New Zealand Parliament has adopted a general principle of legality ... . Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 ...
Cited from:Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
Courts Can Do some Violence with words
Courts can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point [Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 581,]
Cited from:R v Momcilovic [2010] VSCA 50 (17 March 2010),Supreme Court of Victoria - Court of Appeal
We have yet another case Of Canada wherein Maxwell is quoted as follows. The basic purpose of doing violence with the words of statute is permissible in cases where the meaning assigned to does not appear to be reasonable or just. It is quoted as follows.{blogger]
We have yet another case Of Canada wherein Maxwell is quoted as follows. The basic purpose of doing violence with the words of statute is permissible in cases where the meaning assigned to does not appear to be reasonable or just. It is quoted as follows.{blogger]
The opening paragraph of c. 10 of Maxwell on Interpretation of Statutes, 12th ed. (1969), p. 199, reads:
“Construction Most Agreeable To Justice And Reason
“1. PRESUMPTION AGAINST INTENDING WHAT IS INCONVENIENT OR UNREASONABLE
“In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. ‘An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available.’ Where to apply words literally would ‘defeat passing of the statute, not in the light of subsequent events.”the obvious intention of the legislation and produce a wholly unreasonable result’ we must ‘do some violence to the words’ and so achieve that obvious intention and produce a rational construction. The question of inconvenience or unreasonableness must be looked at in the light of the state of affairs at the date of the passing of the statute, not in the light of subsequent events.”
And further :
And further :
The opening paragraph of c. 11 reads at p. 228:
“EXCEPTIONAL CONSTRUCTION
“1. MODIFICATION OF THE LANGUAGE TO MEET THE INTENTION
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman’s unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Lord Reid has said that he prefers to see a mistake on the part of the draftsman in doing his revision rather than a deliberate attempt to introduce an irrational rule: ‘the canons of construction are not so rigid as to prevent a realistic solution.’
“What is, then, being discussed here are instances in which the courts will depart from the literal rule. Such instances are, however, exceptional, and it is impossible to lay down any categories of cases in which ordinary grammatical interpretation will inevitably be abandoned: the courts are very reluctant to substitute words in a statute or to add words to it, and it has been said that they will only do so where there is a repugnancy or something which is opposed to good sense.”
Subscribe to:
Posts (Atom)