Words must Be read In context

There is only one principle or approach, namely the words of an act are to be read in their entire context and in their grammatical and ordinary sense harmoniously, with the scheme of the act, the object of the act and the intention of Parliament.

Stubert Investments Limited vs. Her Majesty the Queen (phonetic) 1984 CanLII 20 (S.C.C.), (1984) 1 S.C.R. 536, at 578,

Cited from

Westbank Indian band development Co. Ltd. v. Kelowna, 1991 CanLII 1445 (BC S.C.)
In another case where the court was considering the meaning of Section 13(2) of the Unemployment Insurance Act,[Unemployment Insurance Act, R.S.C., 1985, c. U-1 , ss. 6(1) (as am. by S.C. 1990, c. 40, s. 5), (2) (as am. idem), 7(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 14, s. 1), (3) (as am. idem), (6) (as enacted idem), (7) (as enacted idem), 9(1), 13, 14 (as am. by S.C. 1990, c. 40, s. 10), 17 (as am. idem, s. 11), 24 (as am. idem, s. 17).] it was observed that: "I do not understand the Commission to be suggesting that we should adopt a strict or literal construction of subsection XXXX or that we should interpret it in isolation. That would indeed be a vain attempt. It is well-settled law that the words of a statute must be read in their total context and with proper regard to the purpose and intent of Parliament as expressed in the statute. It is only in cases of ambiguity, however, that a court needs to look beyond the ordinary meaning and normal construction of the words used by Parliament. "

From the above it is clear that there is a shift from literal approach to Contextual and Modern/ Or Modern Purposive approach.The position is well settled in Canada.{blogger]The words are not to be seen in  isolation but should be given the contextual meaning keeping the object of the statute.[Blogger] Canada v. Cymerman, [1996] 2 F.C. 593 That the so-called "literal rule"does not today confine the judge to a sterile grammatical analysis of the actual words which he is called upon to interpret has been emphasised by Lord Somervell in Attorney-General v. Prince Ernest Augustus of Hanover [I957] A.C. 436 at p. 473. where he said:

"Is it unreal to proceed as if the court looked first at the provision in dispute without  knowing whether it was contained in a Finance Act or a Public Health Act. The title and general scope of the Act constitute the background of the context. When a court comes to the Act itself, bearing in mind any relevant extraneous matters, thcre is, in my opinion, one compelling rule. The whole or any part of the Act may be referred to and relied on. It is, I hope, not disrespectful to regret that the subject was not left where Sir John Nicholl left it in 1826. 'The key to the opening of every law is the reason and spirit of the law – it is the "animus imponentis", the intention of the lawmaker, expressed in the law itself taken as a whole. Hence, to arrive at the true meaning of any particular phrase in a statute, that particular phrase is not to be viewed, detached from its context in the statute: it is to be viewed in connexion with its whole context – meaning by this as well the title and preamble as the purview or enacting part of the statute '

 [(Sir John Nicholl in Brett v. Brett) "(1826) 3 Add. 210 at p. 216

In the same case [1957] A.C. 436 at p. 461.]  Viscount Simonds said:

" . . . words, and particularly general words, cannot be read in isolation: their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense, which I have already indicated as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy." 

In a later passage [At p. 463. ] Viscount Simonds referred to 

“the elementary rule . . . that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear or unambiguous."

Purposive approach- New Zealand Constitution

In the following paragraph that have been taken from the Article cited below the learned author has emphasized very important facts and have reached at certain conclusions that are in line with the basic discussion that one should apply liberal approach while interpreting the Constitution as it is a live document and is not static in any manner, it changes as the society changes. It is an important expression of the learned author that I quote below.{blogger]

New Zealand The Bill of Rights Act, 1990

Section 6 of the New Zealand Bill of Rights Act,1990 requires a value-based approach to statutory interpretation . It provides:

6. Interpretation consistent with the Bill of Rights Act 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.

The Courts have concluded that section 6 has a significant impact on statutory interpretation . In Ministry of Transport v Noort [Ministry of Transport v Noort [1992] 3 NZLR 260, 272 (CA) Cooke P]Sir Robin Cooke stated that section 6 is "perhaps of even greater importance" than the purposive approach in section 5(j) of the Acts Interpretation Act 1924. Both Professor Burrows and Justice McGrath describe the Bill of Rights Act as a qualification of the purposive approach.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

In a recent article Michael Hodge questions the presumed importance of section 6 to statutory interpretation and its purported paramouncy over the purposive approach. [Michael Hodge " Statutory Interpretation” and Section 6 of the New Zealand Bill of Rights Act: A blank Cheque or a Return to the Prevailing Doctrine?"(2000) 9 Auckland U LR 1. ]Section 6 allows enactments to be give a "meaning" consistent with the rights in the Act. He argues that the "meaning" of an enactment is determined by the reasonable reader's best estimate of the legislature's meaning taking into account syntax and semantics together with all the pragmatic factors that are available to the hearer. These factors include the "general state of the law and the social concerns that the law addresses". Certainly where the Bill of Rights Act is not in issue this is the prevailing method that the courts use to determine meaning.

Although a provision may at first appear ambiguous, Hodge points out that after a full consideration it is rare that there are two or more best estimate meanings. His concern is that the courts are applying section 6 to allow any "meaning" that is a "tenable" estimate of the legislature's meaning and that this shows a failure to appreciate the nature of meaning. Only the best estimate of meaning should be recognised as the meaning of a provision.

Under this approach, section 6 has a far more limited scope. It does not allow the courts to ignore the purposive approach or the natural meaning of the word in context, in favour of a possible meaning that is consistent with the Bill of Rights. Instead, Hodge argues, the courts are required to determine the true meaning of a provision in light of its purpose and if this meaning is clear then section 6 is irrelevant. It is only on the rare occasions where there is genuine ambiguity that section 6 is applicable.

The approach advocated by Hodge is not presently used by the courts and does not reflect how Professor Burrows and Justice McGrath view section 6. The courts apply section 6 wherever a possible meaning is consistent with the rights in the Act. The word "meaning" is therefore interpreted widely as including all tenable estimates of legislatures' meaning as well as the best estimate of meaning. This is arguably in accordance with the words of section 6, which simply require that the preferred meaning must be "a" meaning that an enactment "can" be given. The broad interpretation of "a meaning" also allows the Bill of Rights Act to best ensure it meets its stated objective of affirming, protecting, and promoting human rights and fundamental freedoms in New Zealand.

One may Like to refer to this important document by the learned author.[Blogger]

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.

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