Intent and reference to Extrinsic aids, Debates etc..

The basic rule for deriving the intent is summarized in the following paragraph.

‘The intention" of Parliament "must be found in the language finally adopted in the Statutes under construction, and in that language alone. No doubt general words may in certain cases properly be interpreted as having a meaning or scope other than the literal or usual meaning. They may be so interpreted where the scheme appearing from the language of the Legislature, read in its entirety, points to consistency as requiring the modification of what would be the meaning apart from any context, or apart from the purpose of the legislation as appearing from the words which the Legislature has used, or apart from the general law.[5]"

However,it has been well established that the judiciary has authority to consult the external aids for interpretation as is indicated by the following citations. No doubt the reference is permissible in the cases where there is ambiguity in the statute and the plain reading of the statute does not afford any help in meaningful interpretation of the provisions of the statute.[Blogger]

To assist in discovering the reason for the change in the terms of the legislation, it is appropriate to examine the debates in the House of Assembly at the time consideration was given to the Workers’ Compensation Act, S.N.S. 1994-95, c. 10. Such an exercise was referred to by the Supreme Court of Canada in R. v. Morgentaler.[1]

When attempting to discover the legislative intention behind a statute, common practice of professionals has long been a useful and valid extrinsic aid to interpretation., in Bassett v Bassett[2], “The uniform opinion and practice of eminent conveyancers has always had great regard paid to it by all courts of justice”. In Escoigne Properties Ltd v Inland Revenue Commissioners [3],it is stated that:

“In this country we do not refer to the legislative history of an enactment as they do in the United States of America. We do not look at the explanatory memoranda which preface the Bills before Parliament. We do not have recourse to the pages of Hansard. All that the courts can do is take judicial notice of the previous state of the law and of other matters generally known to well informed people.[4]”

Like wise the legislative intent can be drawn from the history and the context of the provisions.’ Viewed in the historical context which I have set out, when cl 2 of the transitional provisions is read as a whole it is in my opinion clear that the legislative objective was to generally reduce sentencing tariffs relating to terms of imprisonment which had been established by the courts by one-third, to offset the abolition of the automatic remission of one-third of each sentence imposed, without stifling the development of sentencing principle and practice by reference to an artificial point in time.[6]’

Apart from the words themselves in a provision and the remaining words of the relevant legislation, what is the material to which we may refer in discovering Parliament’s intent? This question was answered by in CIC Insurance Ltd v Bankstown Football Club Ltd:[7][524]

“ It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure .... Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy .... Instances of general words in a statute being so constrained by their context are numerous.“

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[1] R. v. Morgentaler, 1993 CanLII 74 (S.C.C.), [1993] 3 S.C.R. 463f

[2] Bassett v Bassett [1744] EngR 1796; (1744) 3 Atk 203 (at 208) per LORD HARDWICK

[3] Escoigne Properties Ltd v Inland Revenue Commissioners [1958] AC 549, per LORD DENNING MR , Of course, the extrinsic aids excluded by Lord Denning MR are available in this State today (Interpretation Act 1987. s.34), but this does not discount the validity of common practice as an aid to interpretation. It has since been said that his Lordship’s reference to “well informed people” might be understood as “learned lawyers” (see Cross, Statutory Interpretation, 2ed, Butterworths, 1987, p191).

[4]Quoted from : Ispt Nominees Pty Ltd v Chief Commissioner of State Revenue [2003] NSWSC 697 (12 August 2003) Supreme Court of New South Wales Decisions

[5] City of London Corporation v. Associated Newspapers Ltd. (1915) A.C., 674, at p. 692. LORD ATKINSON reaffirmed the view of LORD MACNAGHTEN in Vacher & Sons' Case. [1912] UKHL 3; (1913) A.C., 107. Again, LORD HALDANE L.C., in Watney, Combe, Reid & Co. v. Berners(1915) A.C., 885, at p. 891.

[6] YATES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 144 (10 July 2008)

[7] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618per BRENNAN CJ, DAWSON, TOOHEY and GUMMOW JJ

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Parliamentary Debates:Extrinsic Material

Courts often take recourse to parliamentary material like debates in Constituent Assembly, speeches of the movers of the Bill, Reports of Committees or Commission, Statement of Objects and Reasons of the Bill, etc. As per traditional English view, these parliamentary material or Hansard were inadmissible as external aids, on the basis of ‘exclusionary rule’. This “exclusionary rule” was slowly given up and finally in Pepper v Hart, (1993) 1 ALLER 42 (HL), it was held that parliamentary material or Hansard may be admissible as an external aid for interpretation of a statute, subject to parliamentary privilege, under following circumstances; where (a) legislation is ambiguous or obscure or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill, together, if necessary, with such other parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied on are clear.

Indian Courts, in early days followed the ‘exclusionary rule’ which prevailed in England and refused to admit parliamentary material or Constituent Assembly debates for the purpose of interpretation of statutory or constitutional provision (see State of Travancore- Cochin and others v Bombay Co. Ltd., AIR 1952 SC 366; Aswini Kumar Ghose and another v Arbinda Bose and another, AIR 1952 SC 369. However, in subsequent cases, the Supreme Court relaxed this ‘exclusionary rule, much before the law laid down in England in ‘Pepper’ case. Krishna Iyer J. in State of Mysore v R.V. Bidop, AIR 1973 SC 2555, quoted a passage from Crawford on Statutory Construction (page 383) in which exclusionary rule was criticized. The relevant passage is quoted below:-

“The rule of Exclusion has been criticized by jurists as artificial. The trend of academic opinion and the practice in the European system suggests that interpretation of statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible”

Krishna Iyer J. has observed in this case:-

“There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute.” (para 5)

In this regard, Bhagwati J. (as he then was) in Fagu Shaw etc. v The State of West Bengal, AIR 1974 SC 613 has stated:

“Since the purpose of interpretation is to ascertain the real meaning of a constitutional provision, it is evident that nothing that is logically relevant to this process should be excluded from consideration. It was at one time thought that the speeches made by the members of the Constituent Assembly in the course of the debates of the Draft Constitution were wholly inadmissible as extraneous aids to the interpretation of a constitutional provision, but of late there has been a shift in this position and following the recent trends in juristic thought in some of the Western countries and the United States, the rule of exclusion rigidly followed in Anglo American jurisprudence has been considerably diluted… We may therefore legitimately refer to the Constituent Assembly debates for the purpose of ascertaining what was the object which the Constitution makers had in view and what was the purpose which they intended to achieve when they enacted cls (4) and (7) in their present form.” (para 45)

Again in R.S. Nayak v A.R. Antulay (Supra), the Supreme Court observed in this regard:

“…Therefore, it can be confidently said that the exclusionary rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court.” (para 34)

The Supreme Court in a numbers of cases referred to debates in the Constituent Assembly for interpretation of Constitutional provisions. Recently, the Supreme Court in S.R. Chaudhuri v State of Punjab and others, (2001) 7 SCC 126 has stated that it is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a Constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution. (para 33)

But as far as speeches in Parliament are concerned, a distinction is made between speeches of the mover of the Bill and speeches of other Members. Regarding speeches made by the Members of the Parliament at the time of consideration of a Bill, it has been held that they are not admissible as extrinsic aids to the interpretation of the statutory provision. (see - K.S. Paripoornan v State of Kerala and others, AIR 1995 SC 1012). However, speeches made by the mover of the Bill or Minister may be referred to for the purpose of finding out the object intended to be achieved by the Bill (see K.S. Paripoornan’s case ( supra). J. S. Verma J (as he then was) in R.Y. Prabhoo (Dr.) v. P.K. Kunte, (1995) 7 SCALE 1 made extensive reference to the speech of the then Law Minister Shri A.K. Sen for construing the word ‘his’ occurring in sub-section (3) of section 123 of the Representation of People Act 1951.

Similarly, Supreme Court in P.V. Narsimha Rao v State, AIR 1998 SC 2120 agreeing with the view taken in Pepper v Hart (Supra) has observed:

“It would thus be seen that as per the decisions of this Court, the statement of the Minister who had moved the Bill in Parliament can be looked at to ascertain mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. The statement of the Minister who had moved the Bill in Parliament is not taken into account for the purpose of interpreting the provision of the enactment.” (Para 77).

The Supreme Court in Sushila Rani v CIT and another, (2002) 2 SCC 697 referred to the speech of the Minister to find out the object of ‘Kar Vivad Samadhan Scheme 1998’.

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