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

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

Reference to Extrinsic material permissible, reports and History

Reference to Extrinsic material permissible, reports and History For Establishing Intent

But avoiding absurd results is not the only reason why courts should be willing to look beyond the plain meaning of a statute. As one commentator noted some years ago, state legislative history is ignored because state legislatures see no need for it. (Stewart, J., dissenting) ("[S]tate statutes are often enacted with little recorded legislative history, and the bare words of a statute will often be unilluminating in interpreting legislative intent."[1]) There is growing recognition that legislators often deliberately employ vague, symbolic, and sometimes meaningless statutory language . . . in order to placate warring interests and achieve compromise, to please as many and alienate as few constituencies as possible, or to avoid difficult policy choices by postponing decision or transferring responsibility to an agency through a broad delegation.[2] ".In the case at bench, the extrinsic evidence in dispute was highly relevant to show the legislative intent underlying the statute. It follows that the trial court was not only free, but also duty bound to admit the challenged extrinsic evidence to ascertain the true intent of the Legislature and to effectuate the purpose of the law[3]. This is consistent with the approach taken by the California Supreme Court in where the court noted the absence of support for plaintiff's argument in the legislative history[4].

• The trend is growing. Statutory ambiguity is not always a necessity. More and more we see the courts resorting to extrinsic evidence of legislative history that supports a "plain meaning" interpretation of the statutes.

Intrinsic and extrinsic Aids to establish Intent

If the courts could not look at expressions of intention by Parliament, then a fortiori they should not look at such expressions by royal commissions or committees.[5] In contrast, Viscount Dilhorne took the view that it did not follow that the court could refer to Hansard just because it looked at the whole of an official report.[6]

Lord Donaldson, in the House of Lords debate on the Interpretation Bill 1980,[7] expressed concern that “looking at what was said in Parliament” would mean that there would be a real danger that the courts would give effect to the intention, not of Parliament, but of the executive.

Lord Diplock defended the role of the courts in Fothergill v Monarch Airlines Ltd.[8] when he said:

“The constitutional function performed by courts of justice as interpreters of the written law laid down in Acts of Parliament is often described as ascertaining ‘the intention of Parliament’; but what this metaphor, though convenient, omits to take into account is that the court, when acting in its interpretative role, as well as when it is engaged in reviewing the legality of administrative action, is doing so as mediator between the state in the exercise of its legislative power and the private citizen for whom the law made by Parliament constitutes a rule binding upon him and enforceable by the executive power of the state”.

Lord Simon, in refusing to look at the legislative history, stated in Ealing LBC v Race Relations Board[9] that:

“In the absence of ‘preparatory works’ ... the courts must ascertain the legislative intention principally by examining (1) the social background; (2) a conspectus of all relevant law; (3) the long title of the statute and, where possible, the preamble; (4) the actual words used; (5) other statutory provisions which illuminate the meaning of the actual words used ... .”

The Privy Council[10],had ,reasoned at p. 51[11] :

" If one had to guess at the intention of the Legislature it,framing a Section in the words used, one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both. In any case the reasons would apply as might be thought a fortiori to an alleged statement made by a person ultimately accused. But in truth when the meaning or words is plain it is not the duty of the Courts to busy themselves with supposed intentions. I have been long and deeply impressed with the wisdom of the rule, none believe universally adopted,at least in the Courts of law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instruments, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther.[12] To quote from the language of Tindal C.J. when delivering the opinion of the Judges[13]:.

‘The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law-giver. But if any doubt arises from' the terms employed by the Legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble which according to Dyer.[14] C.J. is a key to open the minds of the makers of the Act, and the mischiefs which they are intended to redress[15].

In dealing with a contention that a statute [p1015] containing an unconstitutional provision should be construed as if the remainder stood alone, the court there said:

“This would be to mutilate the section and garble its meaning. The legislative intention must not be confounded with their power to carry that intention into effect. To refuse to give force and vitality to a provision of law is one thing, and to refuse to read it is a very different thing. It is by a mere figure of speech that we say an unconstitutional provision of a statute is "stricken out." For all the purposes of construction, it is to be regarded as part of the act. The meaning of the legislature must be gathered from all that they have said, as well from that which is ineffectual for want of power, as from that which is authorized by law.Here the excepting provision was in the statute when it was enacted, and there can be no doubt that the legislature intended that the meaning of the other provisions should be taken as restricted accordingly. Only with that restricted meaning did they receive the legislative sanction which was essential to make them part of the statute law of the State; and no other authority is competent to give them a larger application.[16]”

“the statute is made to enact what confessedly the legislature never meant. It confers upon the statute a positive operation beyond the legislative intent, and beyond what anyone can say it would have enacted in view of the illegality of the exceptions[17]”

.In the same case giving emphasis to the legislative intention it was stated as follows:

“A severability clause does not, however, conclusively resolve the issue. "[T]he determination, in the end, is reached by" asking "[w]hat was the intent of the lawmakers,[18]" and "will rarely turn on the presence or absence of such a clause.[19]"“A severability clause creates a presumption that Congress intended the valid portion of the statute to remain in force when one part is found to be invalid[20]. Carter v. Carter Coal Co[21]"

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[1] See Eric Lane, Legislative Process and its Judicial Renderings: A Study in Contrasts, 48 U. PITT. L. REV. 639, 651 (1987). See also City of Lafayette v Louisiana Power & Light Co., 435 U.S. 389, 437 (1978)

[2] Things Judges Do: State Statutory Interpretation [foot note 41 Judith S. Kaye

[3] Pennisi v. Fish & Game (1979) 97 Cal. App. 3d 268, 275. [Emphasis added]

[4] Mercy Hospital & Medical Center v. Farmers Insurance Group of Companies[4] (1997) 15 Cal. 4 th 213, 223

[5] Ibid at 615.

[6] Ibid at 623F.

[7] 503 H.L. Debs, col 288. This was Lord Scarman’s Bill which tried to implement the Draft Clauses contained in the United Kingdom Law Commission’s Report, “The Interpretation of Statutes” (Law Com No. 21) (Scot Law Com No. 11) 1969.

[8] [1981] AC 251, at 279.

[9] [1972] AC 342, at 361.

[10] Pakala Narayana Swami v. EmperorA.I.R. 1939 P.C. 47

[11]as Quoted in: NANDINI SATPATHYvDANI (P.L.),. 1978 AIR 1025: 1978 SCR (3) 608

[12] [Lord Wensleydale in (1875) 6 HLC 613 at p. 106].

[13] in (1844) 11 CL & F 85 at page 143,

[14] (1562) 1 Plowd 353 at p. 369

[15] : Lord Halsbury LC in (1891) AC 531 at p. 542.'

[16] REHNQUIST, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES 462 U.S. 919 INS v. ChadhaAPPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[See also Frost v. Corporation Comm'n of Oklahoma, 278 U.S. 515, 525 (1929).

[17]Quoted from: REHNQUIST, J., Dissenting Opinion SUPREME COURT OF THE UNITED STATES 462 U.S. 919 INS v. ChadhaAPPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT citing Spraigue v. Thompson, 118 U.S. 90, 95 (1886).

[18] Citation ommited

[19] United States v. Jackson, 390 U.S. 570, 585, n. 27 (1968).

[20] Carter v. Carter Coal Co., 298 U.S. 238

[21] See also:298 U.S. 238, 312 (1936); Champlin Refining Co. v. Corporation Comm'n of Oklahoma, 286 U.S. 210, 235 [p1014] (1932).

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