Shifting preferences:Literal to Purposive approach

A clear trend has been identified in relation to the interpretation of statutes from a strict or literal approach towards a more purposive approach. This has even been the case for revenue law which for some time has been considered as a penal statute. This trend is evident in other tax jurisdictions, both civilian and common law. After comparing and contrasting the various arguments for and against the purposive approach, it has been concluded that this observed change should not be welcomed in relation to the taxation legislation. Such an approach poses a serious threat to the separation of powers’, as the judicial arm would be able to read words into the legislation as they see fit. Even worse, however, is the threat to human rights, that is, the ability of the taxpayers to protect what is rightfully their own.

Introduction

The approach to statutory interpretation has undergone immense change over the past couple of decades, particularly in relation to the interpretation of revenue statutes.[ A Mason, ‘Taxation Policy and the Courts’ (1990) 2 CCH Journal of Australian Taxation, (Issue 4) 40, 42]The change is said to be from a strict or literal approach (which has tended to favour the taxpayer), towards a more purposive approach (which tends to favour revenue). This shift has been viewed as quite bold, given that revenue statutes have for a long time been considered penal statutes and interpreted accordingly, that is, strictly and in favour of the taxpayer. As with any criticism there are also praises, for example from Kirby J, in FC of T v Ryan: [(2000) 42 ATR 694, 715-716.],

‘In this last decade, there have been numerous cases in which members of this court … have insisted that the proper approach to the construction of federal legislation is that which advances and does not frustrate or defeat the ascertained purpose of the legislature … Even to the point of reading words into the legislation in proper cases, to carry into effect an apparent legislative purpose … This court should not return to the dark days of literalism.’

The following paragraph shows that purposive approach may not be in consonance with the concept of separation of power that is the essence of any free democratic set up. How can one be allowed to read in or read down words in the statute as a matter of prerogative. It is strictly condemnable.[Blogger]

In effect, Kirby J is stating that todays preferred approach to interpreting legislation is that approach which promotes the purpose of the legislation, rather than one that does not. One can ‘read words into’ the legislation to ensure that its apparent purpose is more easily recognised and promoted when making judgement. Kirby Js final words imply that the courts should adopt this more purposive approach for all judgments and the literal approach be forgotten. This article compares and contrasts the practicality of the different approaches to the interpretation of revenue statutes. It examines recent trends in legislative interpretation and considers the effectiveness and appropriateness of the purposive approach in today’s courts. First, however, let us examine the various approaches that have been adopted in relation to statutory interpretation as a whole.


THE TREND TOWARDS PURPOSIVE STATUTORY INTERPRETATION: HUMAN RIGHTS AT STAKE, By Tobias Lonnquist, BCom, BIT, MAcc (Bond). The author would like to thank Professor James Corkery, School of Law, Bond University for his assistance in preparing this paper


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Chapter-14 Doctrine of Reading in/Down part-1

Chapter-14

Doctrine of Reading Down

DOCTRINE OF READING DOWN

It is well established principle of interpretation that ‘where the words of an Act are clear, there is no need for applying any of the principles of interpretation’ .The presumptions are to be applied in the case of ambiguity in the statute. The safer and more correct course of dealing with the question of construction is to take the words at their face value meaning without in the first place refer to cases. Where an ambiguity arises to supposed intention of the legislature, one of the statutory constructions, the court prDoofounded is the doctrine of reading down. Lord Reid in Federal Steam Navigation Co. v. Department of Trade and Industry,[1] (as also extracted by Cross -Statutory Interpretation, Butterworths' Edition, 1976 at page 43 in preposition 3) has stated thus:

"the judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable, or totally irreconcilable with the rest of the statute."

It is hazardous for a Court to attempt to enforce what according to it is the moral value. Before embarking on the mission of "closing the gap between the law and morality and bring about as near an approximation between the two as possible", it is necessary for the Court to understand clearly its limitations. The power of the Court to legislate is strictly limited. "Judges ought to remember that their office is jus dicere and not jus dare to interpret the law, and not to make law or give law[2]".

The golden rule of statutory construction which is repeated here for the sake of reference is that the words and phrases or sentences should be interpreted according to the intent of the legislature that passed the Act. All the provisions should be read together. If the words of the statutes are in themselves precise and unambiguous, the words, or phrases or sentences themselves alone do, then no more can be necessary than to expound those words or phrases or sentences in their natural and ordinary sense. But if any doubt arises from the terms employed by the legislature, it is always safe means of collecting the intention, to call in aid the ground and cause of making the statute, and have recourse to the preamble, which is a key to open the minds of the makers of the statute and the mischiefs which the Act intends to redress. In determining the meaning of statute the first question to ask always is: what is the natural or ordinary meaning of that word or phrase in its context. It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intent of the legislature, then it is proper to look for some other possible meaning and the court cannot go further.

The courts, by its very nature, are most ill suited to undertake the task of legislating. There is no machinery for the Court to ascertain the condition of the people and their requirements and to make laws that would be most appropriate. Further two judges may think that a particular law would, be desirable to meet the requirements whereas another two judges may most profoundly differ from the conclusions arrived at by two judges[3].

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[1] Federal Steam Navigation Co. v. Department of Trade and Industry, [1974] 2 All E.R. 97 at p. 100

[2] JIT RAM SHIV KUMAR Vs.STATE OF HARYANA, 1980 AIR 1285; 1980 SCR (3) 689

[3] ibid also See: Shri Gurbaksh Singh Sibbia etc.v. State of U.P., [1908] 3 SCR p. 383 followed.