Fundamental Rights Based Approach-New ZealandValue

One of the most interesting points that Professor Burrows makes is that fundamental values have become a significant part of the interpretation process and that there is an increasing express recognition of their use.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561, and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.] What is described by Burrows as "value–based interpretation" fringes on the same idea as the golden rule that maintains that where possible the words of a statute should be interpreted to avoid an absurd, unjust or repugnant result. The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) requires a value-based interpretation but there are many other fundamental values not included in the Bill of Rights Act (freedom from slavery, privacy and the sanctity of property are examples given by Professor Burrows).

Value-based interpretation is only applicable where there is some uncertainty over meaning. It is particularly helpful in situations where it is difficult to determine Parliamentary intent and so the purposive approach is of little help. In many cases extrinsic aids are unable to expressly state Parliament's intention in regard to a particular provision. In this situation the courts are able to consider fundamental values that exist outside of the statute when interpreting the statute. In one sense this can be seen as a way of making a presumption about Parliamentary intent. Burrows, however, argues that fundamental values operate as part of our legal system and are independent of Parliamentary intent. In other words, if Parliament intends to enact something that contravenes fundamental values but does not do so with clear enough language then the court can override Parliamentary purpose in favour of preserving a fundamental value. Parliamentary intent is only relevant in that it can exclude values by an express statement.

This type of value-based interpretation shifts the power to create laws away from Parliament and onto the judiciary. The "fundamental" values are outside of the statute and, unless they are rights under the Bill of Rights Act, they are left to be defined by the judges. The values may not always accord with Parliamentary intent. It is arguable that fundamental values "exist" only in so far as they are believed in and applied by the judiciary. Whether or not fundamental values are inherent in the nature of the world or whether they are a subjective human creation is a contentious issue. If they are subjectively defined then the personal morality of each judge may sometimes influence his or her assessment of the relevant fundamental values in any given case. For discussion on subjectivity and the lack of diversity on the Bench see Part I E The Effect of Judicial Personality on Interpretation.

Trends In Statutory Interpretation And The Judicial Process,Victoria University of Wellington Law Review, Victoria University of Wellington Law Review, [2002] VUWLRev 41 Kate Tokeley Senior Lecturer in Law, Victoria University of Wellington.

Shift in Interpretation to Purposive and Value Based Approach

A Shift from Strict Literal Meaning to Natural and Ordinary Meaning in Context

Both Professor Burrows and Justice McGrath refer to the old style of interpretation where courts applied the strict literal meaning of statutes as deduced from the words in question, the dictionary meanings, and rules of grammar.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597. ]

Adoption of Golden Rule when Literal Approach leads to absurdity

The golden rule allowed this approach to be departed from where a literal interpretation would lead to an absurd or unjust result. However, the new meaning given to the words still needed to be one that the words could bear.[ River Wear Commissioners v Adamson [1877] 2 AC 743, 764 (HL). As both Professor Burrows and Justice McGrath explained,[River Water Commission supra ] there has been a shift away from this strict literal approach. The shift includes a move toward a purposive approach and an increasing recognition of an approach described by Professor Burrows as "value-based interpretation".[River Water Commission supra]

Shift from Literal Approach to Natural and Ordinary Meaning in context

There has also been a subtler shift in approach, which is worth considering further since it was not the main focus of Professor Burrow's and Justice McGrath's papers. This is the shift from the strict literal approach to an approach that looks for the natural and ordinary meaning of words in their context.

This relaxation of the strict literal approach involves a wider search for meaning than simply looking at the word in question, its dictionary meaning and rules of grammar. The modern courts are concerned with finding the natural and ordinary meaning of that word or provision in its context. This involves consideration of the natural and ordinary meaning of the word in everyday usage as a more important indicator of meaning than the dictionary definition. More important than both the dictionary and ordinary usage is the internal context of the Act. Professor Burrows refers to this as the "scheme of the Act". The word must be examined in the context of the whole Act rather than limiting the inquiry to the section in question. So, for example if the issue is whether the word "wildlife" includes a dead kiwi in section 63 of an Act [Wildlife Act 1953]. it is relevant that under section 55 of the same Act the drafter refers to "the dead bodies of ... wildlife".[See Police v Johnson (1990) 3 NZLR 211 (HC).] If the word "wildlife" included the dead bodies of such wildlife there would be no need to use the expression "dead bodies of wildlife".

The examination of the internal context of the Act is more than a tool to be used when determining the purpose of the Act, it is firstly and more importantly a method for deducing natural meaning. Jefferies J stated in Arataki Honey Ltd v Minister of Agriculture and Fisheries "[i]n the complex task of wresting the true construction of an Act it cannot be compartmentalised and scrutinised molecularly".[ Arataki Honey Ltd v Minister of Agriculture and Fisheries [1979] 2 NZLR 311, 314 (SC) Jefferies J]

Although the strict literal rule has been relaxed and the purposive approach has been given more emphasis in recent years, the basic rule that prima facie the natural and ordinary meaning of words in their context must be applied still stands. The statutory language is still the starting point and in many cases it also provides the answer. A study conducted at the University of Otago showed that in almost half of the Court of Appeal cases involving statutory interpretation in 1976, 1986 and 1996, the Court reached its decision relying on simply the statutory language itself and any relevant precedent cases.[ See Jane Allen " Statutory Interpretation and the Courts" (1999) 18 NZULR 439, 479. ] Recognition of the importance of the statutory language itself is now contained in section 5(1) of the Acts Interpretation Act 1999, which directs the courts to ascertain meaning from the text of an enactment in light of its purpose.

Development of Purposive approach

Both Professor Burrows and Justice McGrath emphasised the increasing importance of the purposive approach to statutory interpretation [Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561, and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

Development of : Reference to Extrinsic Aid alng side Purposive Approach

Alongside the purposive approach has come the acceptance of the use of extrinsic material to assist in determining Parliamentary purpose. For example, courts are prepared to consider Hansard debates, [Marac Life Insurance Ltd v Commissioner of Inland Revenue [1986] 1 NZLR 694, 701 (CA)] Law Reform Committee or Law Commission Reports, the explanatory notes to Bills and international standards. Professor Burrows and Justice McGrath concluded that extrinsic material needs to be treated with care but can be of assistance in some situations by giving background information and occasionally indicating purpose.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

The requirement to have regard to purpose is contained in section 5(1) of the Acts Interpretation Act 1999. The section states that "the meaning of an enactment must be ascertained from its text and in light of its purpose". The purposive approach is not a new idea. It was stated in section 5(j) of the Acts Interpretation Act 1924.

Limitations of Purposive Approach

Although the purposive approach is an important tool of interpretation it is generally accepted that its application is limited. In theory there are two limits. First, the purposive approach should only be applied where there is uncertainty in the words of the statute. Secondly, it should only be used to employ a meaning that the words of the statute are reasonably capable of bearing. The courts should not use the purposive approach to make a law consistent with Parliamentary intent if Parliament has failed to effectively state that intent in the statute.The two limits on the application of the purposive approach are required in order to retain certainty in the law and to ensure that judges do not contravene the principle of the separation of powers by shifting from interpreting and applying the law to creating the law.

Section 5(1) of the Acts Interpretation Act 1999 has not changed the limits on the purposive approach despite omitting the useful phrase "shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act...". This phrase made it clear that the task is to interpret the words of the Act not to create new words in order to give effect to legislative intention. [See Union Motors Ltd v Motor Spirits Licensing Authority [1964] NZLR 146, 150 (SC) where Wilson J states that the word "fair" in section 5(j) indicates that the words must fairly be able to bear the meaning put on them. ] In the new section 5(1) the direction is to ascertainmeaning from the text of the enactment. Like the old section 5(j) this subsection indicates that the courts are involved in the process of interpreting and not creating the law.

The theory on the limits of the purposive approach is easy to state however the translation of theory into practice results in some difficulties. First, there is the difficulty in determining at what point a word's meaning can be said to be truly uncertain. Secondly, there is the difficulty in determining the point at which a meaning is one that the words can no longer reasonably bear. The more conservative approach is to apply the most natural and ordinary meaning of a word in context, despite the fact that this might contravene Parliamentary intent. A more flexible approach is to attempt to give effect to Parliamentary intent so long as the meaning ascribed to a provision is a possible meaning even if strained or unusual. Professor Burrow's example of the case where a container for sweets shaped like a baby's bottle was found to be a "toy" follows this more flexible approach. [ Commerce Commission v Myriad Marketing Ltd (2001) 7 NZBLC 103, 404 (HC), cited in Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 575. ]The court gave the word "toy" a somewhat strained meaning in order to give effect to Parliamentary purpose.

Although the limitations on the purposive approach described above are generally accepted, there is another more extreme and controversial approach. Under this approach the court, either expressly or covertly, overrides meaning in order to give effect to Parliamentary intent. An example of this is the Court of Appeal interpreting "every person" as including "every person other than a solicitor". [Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 (CA).]In a more recent case, the Court interpreted a two-year time limit as applying to the making of an application rather than the making of a court order. [ Commissioner of Inland Revenue v Registrar of Companies (1993) 7 PRNZ 224 (CA).] The section was perhaps clumsy but it clearly meant the time limit to refer to the making of an order but the Court nevertheless found an ambiguity and applied the purposive approach.[ see J Bruce Robertson "Judges, Deconstruction and the Rule of Law" [1994] NZLJ 344, 345. See also Claire Baylis "Home Care – Homework?" [1996] NZLJ 291. Baylis discusses Cashman v Central Regional Health Authority [1997] 1 NZLR 7, [1996] 2 ERNZ 159 (CA). She argues that the Court in this case followed the purposive approach after finding an ambiguity in the statutory definition of "homeworker" where no such ambiguity in fact existed.] In this case the Court did not openly acknowledge that it was overriding meaning but instead claimed to find an ambiguity. Allowing courts to openly override meaning in some circumstances is an approach favoured by Jim Evans who recommends that the Interpretation Act 1999 should have a detailed provision to indicate when meaning should be disregarded.[ Jim Evans "Getting the Words Right" [1992] NZLJ 256. ]

This latter approach is strongly opposed to by both Justice McGrath and Professor Burrows. As Sir Ian McKay stated: "A purposive approach should not be made an excuse for starting with the underlying purpose, and then forcing the words into a preconceived and strained construction to fit that assumption".[ Sir Ian McKay "Interpreting Statutes – A Judge's View" (2000) 9 OULR 743, 749.] Of course, the line between the most natural and ordinary meaning, a strained meaning and a new meaning are not clear.

The following paper may be referred to for extensive treatment of the subject.[Blogger]

Trends In Statutory Interpretation And The Judicial Process,Victoria University of Wellington Law Review