PRINCIPLES RELATING TO THE INTERPRETATION OF STATUTES AND CONSTITUTIONS
Overview
In this unit we will introduce some of the principles relating to statutes. These are the general approaches to interpretation of statutes.
Legal language is, in part, the language that is used by the legislature to communicate with the people. It is also the language that lawyers and judges use to communicate. But the language in legislation is a significant part of what we call 'legal language'.
As is the case in verbal communication, you understand the words a speaker uses – the speaker communicates his or her intention through words. Sometimes you have difficulty in finding out what the speaker or the author (legislature) is saying. That is why we have rules, such as the literal, golden and mischief rules to help us. The reason for the existence of an Act (that is the ratio legis) is a very handy aid when you have to interpret a statute. The courts will not easily read words, which are not there, into a statute.
Learning objectives
At the conclusion of this unit, you will be able to understand:
the operation of certain of the rules of legal interpretation
the literal rule
the golden rule
the mischief rule
the problem of casus omissus, and the role of the ratio legis
Introduction
As we have seen above, there are rules of statutory interpretation that are used to find the meaning of the language used in an Act. Put simply, the meaning of an Act is that meaning which the legislature intended it to have when it brought the Act into effect. Thus, the rules of statutory interpretation are used to ascertain the intention of the legislature. Once you have established the intention, you can rest assured that you have established the meaning of the Act. But you must remember that the intention is primarily to be found in the document itself rather than in the debates in parliament or in the minds of the Minister who introduced the legislation.
The document itself is the source of the intention of the parliament in just the same way as the written contract or the deed of partnership is presumed to be the place where you find the intention of the parties to it. You will recall that there is a parol evidence rule which prevents one from adducing evidence to contradict the terms of a written contract or a will.
Consider the reason for this for a moment. Many contracts and legal documents are required to be in writing under the Statute of Frauds or its contemporary equivalents. To allow oral evidence to contradict the terms of the written contract would subvert that requirement and make it rather pointless. But what about a statute? There is certainly no statute of Frauds which requires that statutes be in writing. However the principle is similar. Think about it for a moment and click here if you need assistance.
Hint Writing is valued in a particular culture because it produces an element of certainty into relationships between human beings. Western culture is what is called a literate culture and Western law is the product of a literate culture. Note the extent to which in your legal studies you have been concerned with the interpretation of written documents - statutes, contracts, case reports and so on.
In the case of statutes the document is public proof that the legislative process has been undertaken according to democratic or other procedures as appropriate. Hence the primary reliance on the written document, which is presumed to embody the actual intention of the parliament produces an element of certainty so far as the court is concerned. Remember that the task of the courts is to find or discover the law, not to make it. This follows from the separation of powers doctrine. By relying on the document primarily the courts avoid the charge that they are doing something other than discovering the law in a reliable way.
There are three basic rules of interpretation of statutes which we examine further in this unit:
The literal rule
The golden rule
The mischief rule
These rules have been adopted from the practice in England and have their origin in British courts. The same rules still apply in Britain today and are applied throughout the South Pacific jurisdictions largely because of the influence of the British system of common law.
Before we have a closer look at each of the three rules, we must first look at the problem of language, as this problem lies at the heart of most problems in statutory interpretation.
The Problem of Language
Let us retrace some of the issues raised in the earlier Units in a slightly different way.
People communicate in many ways, e.g. by means of signals (signs), gestures, sounds (for instance, hooting of a motorcar), and of course language. Language is the most important medium of communication used by human beings. Although we can express ourselves quite clearly through the spoken or the written word, language actually is a rather imprecise and imperfect medium in which to communicate. Lawyers especially will testify to this fact, as they tend to be as precise as possible when using words and concepts.
Language is the main medium of communication in law. The legislature uses especially the written word to communicate with the population. But, because the population as a whole is not as obedient, understanding or honest as the legislature would have liked, - there are always people who are prepared to operate just outside or beyond the limits of the law) the legislature must express itself in a very precise manner.
Justice Stephen in In re Castioni (1891) Q.B. 169 had this to say about Acts and people:
… that degree of precision which is essential to every one who has ever had, as I have had on many occasions, to draft Acts of Parliament, which although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain a degree of precision which a person, reading in good faith can understand: but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand.
Lawyers therefore tend to be too precise and specific in their expressions, and this leads to many problems in the field of understanding and in interpretation. A beautiful example is that used by Dickerson in his book Legal Drafting (p. 179) where he quotes from the Wisconsin Bar Bulletin:
When an ordinary man wants to give an orange to another, he would merely say, ‘I give you this orange’. But when a lawyer does it, he says it this way: ‘Know all men by these presents that I hereby give, grant, bargain, sell, release, convey, transfer, and quitclaim all my right, title, interest, benefit and use whatever in, of, and concerning this chattel, otherwise known as an orange, or citrus orantium, together with all the appurtenances thereto of skin, pulp, pip, rind, seeds, and juice, to have and to hold the said orange together with its skin, pulp, pip, rind, seeds, and juice for his own use and behalf, to himself and his heirs in fee simple forever, free from all liens, encumbrances, easements, limitations, restraints or conditions whatsoever, any and all prior deeds, transfers or other documents whatsoever, now or anywhere made to the contrary notwithstanding, with full power to bite, cut, suck, or otherwise eat the said orange or to give away the same, with or without its skin, pulp, pip, rind, seeds, or juice.
Dickerson identifies some of the following ‘diseases’ of legislative language:
Ambiguity (one word refers to more than one object, for instance ‘grandmother’ can refer to the mother’s mother or the father’s mother)
Vagueness (the meaning is not precise, for instance the word ‘red’ – there exist numerous shades of red).
These are common features in legal language so we do not have to spend more time on them. However lawyers, and particularly judges, are aware of these problems of interpretation. The rules of interpretation which we will examine in this unit are an attempt to provide some sort of reliable and consistent approach to the interpretation of statutes. Of course there is disagreement about the correct approach to be taken and about which rule should be applied in particular situations. But generally what the judges have attempted to do is to produce approaches to interpretation which permit lawyers and citizens to predict the ways in which a statute will be interpreted by them. Otherwise the matter of interpretation would appear to be quite arbitrary. This presupposes also that lawyers will act in a certain way. It sets a certain role for them. Think about this for a moment and then click here.
Hint 2
The lawyer's function is one of advising clients about their position under the law. The advice in any given case will be more sound if the lawyer can anticipate the way in which the written law will be interpreted and applied by the courts.
The approach of particular courts to questions of interpretation will vary from time to time and place to place. There have been periods when a particular court, depending on its composition can be seen to be taking a radical approach to the interpretation of the law. At other times they will be more conservative in approach.
Hence a competent lawyer would be one who not only knows the rules relating to statutory interpretation but also the dispositions of particular courts on key issues.
A now famous provision regarding the (sometimes complete) unintelligibility of legal language is the following one, a provision from the Groundnuts Amending Order of April 1956, an Overseas Act:
In the Nuts (Unground) (Other than Groundnuts) Order the expression nuts shall have reference to such nuts other than groundnuts, as would, but for this Amending Order, not qualify as nuts (Unground) (Other than Groundnuts) by reason of their being nuts (Unground).
Legal language, as we have seen, is not really ‘ordinary language’. That is certainly one reason why we need rules of interpretation to help us to understand what has been said or written. The rules provide us with a guide. But so of course do the decisions of the courts themselves. Statutes are interpreted by the courts which, in effect, extend their meaning by interpretation. Those interpretations are authoritative statements as to that meaning. They provide lawyers and the population in future with a further source of understanding the meaning of the statute.
It should be noted at the outset that when we talk of rules of construction these rules are not rules of law. They do not have the status of legal rules themselves so that if the court fails to apply the rule it has made a legal error. The rules are more properly approaches or guides to the interpretation of statutes. On this basis there is a degree of flexibility about the application of the rules. This should become obvious enough from the following discussion.
THE LITERAL RULE
This is the cardinal rule of construction (interpretation) of statutes. According to this rule, words must be given their ordinary, literal, grammatical meaning. The literal rule is the first rule to be used in establishing the intention of the legislature.
This rule comes directly from the English law. In an English case
Hess v The State (1895) 2 O.R.C. 112 the court states as follows:
I have no doubt as to the intention of the legislature, but quod voluerunt non dixerunt…[ i.e. that which was really intended by the legislature was not said in the statute] The legislative intent must appear from the words actually used, and not from what the legislature intended to say, but did not say…
In effect what is being said is that the courts do not go beyond the words in the statute itself. These words are the outcome of the formal process by which the parliament has expressed its decision on what the law is. The statute is the formal expression of the will of parliament. The courts see themselves as merely interpreters of the will of parliament. It is not their function to speculate about what parliament 'really' intended by looking behind the statute at parliamentary debates for example. In interpreting the law under the literal approach the courts look at the statute itself and try to formulate the meaning intended by the parliament on that basis. It does not matter whether the statute is a constitution or an ordinary statute of the parliament.
One of the reasons for this approach is that it appears to be a politically neutral one. There is a long tradition of the courts seeing themselves as beyond politics and issues of political ideology. By merely relying on the words in the statute they maintained some sense of political neutrality by putting themselves outside the issues which led to the adoption of any particular statute before them. Put another way, such an approach to interpretation reinforces the legitimacy of the courts in the eyes of the citizens at large. That is to say, by encouraging the belief that the courts are neutral in their approach, it is more likely that people will have faith in the operation of the court system of the country.
However, the courts do have difficulty sometimes in applying the literal rule, but the courts nevertheless will apply the literal rule in spite of the fact that its application is not completely satisfactory. In the English case
Regina v Braham, 8 B. and C. 99 Lord Tenderden says:
Our decision may, in this particular case, operate to defeat the object of the Act; but it is better to abide by this consequence than to put upon it a construction not warranted by the words of the Act in order to give effect to what we may suppose to have been the intention of the Legislature… we must give effect to the plain and obvious meaning of the clause, no matter what the result may be, and the Legislature meant what it said.
In other words, the courts under the literal approach see themselves as bound to apply the ordinary meaning of the language in the statute regardless of the consequences. Why would they do that? Again it is a matter of achieving neutrality in interpretation. In the British Westminster style of government, which applies with some variation throughout the countries of the USP region, the courts are discovers of the law and not lawmakers themselves. The task of making the law is that of the parliament alone.
The Australian case of Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia (1981) 147 CLR 297 is now a leading case in Australia regarding the role of the court and how it deals with the problem of interpretation:
Statute law, the direct product of the legislature, is perhaps the least appropriate field of all in which to indulge in judicial law-making. The corner of that field occupied by closely drafted statutes of high complexity should be particularly uninviting to the judicial law-maker. It provides the very antithesis of those occasional legislative measures which lay down only general principles and invite the courts to supply the details. It can never be enough to justify judicial intervention that what has been enacted may seem to a court to lead to an irrational result. As Lord Reid said… ‘Of course we must go by the words of the Act and if they are only capable of one meaning then we must take that meaning however irrational the result’…
To seek some guidance on interpretation of statutes one should in my opinion resort to that useful book of
Maxwell on the Interpretation of Statutes, 12th Edition. There it is stated that the rule of construction is:-
(1) ‘to intend the Legislature to have meant what they have actually expressed’,
(2) ‘the intention of Parliament must of course be deduced from the language used for it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make law’, and
(3) ‘where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise.’
The above few quotations should bring the point home that the
literal rule is the primary, cardinal rule of the interpretation of statutes. The application of the literal rule though, implies certain ‘sub-rules’ which we will now have a look at. These sub-rules are, to some extent, exceptions to the literal approach. Why is there a need for exceptions? What if the ordinary meaning of the words in the statute lead to results which are totally nonsensical and absurd? What if it is clear that in the drafting of the legislation there have been obvious omissions and errors? What about cases where one section of the legislation completely contradicts another section of the same legislation or some other legislation? These are some of the complexities which can arise and which a simple application of the literal rule cannot resolve.
Another deeper problem (what we call a 'theoretical problem') is with the idea of words having a plain or an ordinary meaning. Many words do not have just one obvious or singular meaning. Language just does not work like that. You might be able to think of some basic examples for yourself. If not you will see some examples as you read on. The issue becomes more of a problem when persons from one language group are faced with words from another. For example, in English the term 'brother' usually only refers to persons who are the sons of the same parents but in some Pacific languages it can include first cousins as well. Other words might have a common usage but also a highly technical usage. Which one should the court adopt when it interprets the statute?
Literal meaning
The meaning that must be given to the words in a statute is the ordinary, grammatical, literal, day-to-day meaning of the words. The idea behind this rule is that the legislature uses the language of the ordinary citizen. As the above section on the ‘Problem of Language’ has illustrated, this is not necessarily true. This rule, however, applies because it is based on the premise that the legislature uses ordinary language.
In the Cooper Brookes case (supra) the court said:
However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if this leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’, as Lord Moulton said… it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.
The following statements by a New Zealand court in Arthur Yates & Co Ltd v Ministry of Agriculture and Fisheries [1979] 1 NZLR 469 are quite clear:
A recent tendency by the Courts to look behind the plain meaning of words has been restrained by high authority. English law prefers certainty of interpretation, based on what Parliament has said, to the uncertain approach which prevails in the United States of America, based on one Judge’s feeling as to what Parliament meant…
‘Where the words of an Act of Parliament are clear, there is no room for applying any of [the] principles of interpretation, which are merely presumptions in cases of ambiguity’ – per Scott JJ in Croxford v Universal Insurance Co Ltd [1936] 2 K B 253…
There are certain principles which apply to the interpretation of penal statutes but they apply only… if there is no ambiguity… Likewise the rule against the anomalous or unjust result must yield to the plain words of the statute…
Of course, the words must be read in their context which sometimes requires a consideration of the Act as a whole… But that exercise cannot be taken to extremes. The clear meaning of a section cannot be destroyed by another part of the Act in question.
In Sewell v Sandle and others [1973] 2 NZLR 584 a New Zealand court said:
The Court however, will not depart from the ordinary and natural meaning of words used in a statute without good and sufficient reason.
In The Australasian Temperance and General Mutual Life Assurance Society Limited v Howe (1922) 31 CLR 290 the court said:
The rule is that words used by the Legislature should be given their plain and natural meaning unless it is manifest from the general scope and intention of the statute that injustice and absurdity would result from so construing them… By plain and natural meaning is meant the literal and popular, as opposed to a figurative or technical, meaning.
In Police v Drummond [1973] 2 NZLR 263 the court said:
It is, of course, very trite law, but an aspect necessary to be re-emphasised from time to time, that the primary rule of construction of words of common use found in a statute is that they are to be construed in their ordinary meaning or popular sense unless such construction leads to gross absurdity or unless the context requires some special meaning.
‘Where the words used are familiar and are in common and general use in the English language, then… it is inappropriate to try to define them further by judicial interpretation and to lay down their meaning as a rule of construction, and the only question for a court is whether the words are apt to cover or describe the circumstances in question in a particular case.’ 36 Halsbury’s Laws of England (3rd ed) 392’
In Swiss Bank Corporation v Lloyds Bank Ltd and others [1980] 3 WLR 457 the court said:
In my judgment, the language of paragraph 88(b) must be construed in accordance with the ordinary rules of construction. The language must be given its normal meaning if this is clearly expressed, unless this would lead to so surprising a result in the context and having regard to the subject matter as to lead convincingly to the conclusion that the author cannot have intended that meaning, and even so the language cannot be construed in any other sense unless it is capable of bearing it.
In Nolan v Clifford (1904) 1 CLR 429 the court said:
The first and most important rule in the construction of Statutes is to give effect to words according to their grammatical meaning. If that meaning is clear, then, whether an alteration is made in the common or the statute law or not, and, whether of a serious character or not, is of no moment; (is this a correct phrase? YES)effect must be given to the words the legislature has used.
Dictionaries
The courts very often use dictionaries in establishing the meaning of words. A great variety of dictionaries are used such as Webster’s, Collins’, Oxford and Longman’s.
In Police v Drummond (supra) the court said:
‘In defining the ordinary meaning of common words it is permissible to refer to dictionaries.’
In The Queen v Peters (1886) 16 QBD 636 the court said:
I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in Acts of Parliaments, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.
A good example on how the courts use dictionaries appears in the Western Samoan case of Police v Tapa (Kaisala) [1970/79] WSLR 103:
The term ‘ward’ is not defined in the Act… The term ‘ward’ in its ordinary and legal sense means an infant who is in the care of a guardian: Osborn’s Concise Law Dictionary, 5th Ed., p. 332. The crux of the matter is the meaning of the term ‘guardian’. In its natural and ordinary meaning the term means, ‘one who guards, protects or preserves: on to whom the care or preservation of any thing is committed’: Shorter Oxford Dictionary, 3rd Ed., Vol II.
Technical meaning
In technical statutes, the courts will look at the technical meaning of the words and not the ordinary meaning. The main problem is to determine when the statute is a technical one.
In the (now famous) case of Unwin v Hanson, (1891) 2 QB 115 the British judge, looking at the meaning of the words ‘waist’ and ‘skin’ said:
If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business or transaction, and words are used which everybody conversant with this trade, business or transaction knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning though it may differ from the common or ordinary meaning of the words. For instance, the ‘waist’ or ‘skin’ are well-known terms as applied to a ship, and nobody would think of their meaning the waist or skin of a person when they are used in an Act of Parliament dealing with ships.
These words have a very specific meaning when they are used to refer to certain things relating to ships.
In Mackintosh v Limmer [1960] NZLR 302 the court said:
It is well settled that ordinary words must be construed according to their popular sense, and critical refinements and subtle distinctions are to be avoided… Similarly, if the statute is one passed with reference to a particular trade or business, and words are used therein which everybody conversant with that trade or business knows and understands to have a particular meaning, then the words are to be construed as having that particular meaning, which may differ from the ordinary or popular meaning.
However, one would have to give evidence that a word in a particular provision has a special or technical meaning. In Anderson and Heeley Ltd v Paterson [1975] 2 NZLR 150 the court had to decide whether the words ‘tower wagon’ have a technical meaning or not. The court said:
In deciding whether the use of the vehicle concerned did not call for the holding of an operator’s licence because it was a ‘tower wagon,’ one has to construe that description in its ordinary, popular and generally accepted sense. If trade custom or understanding conferred a special character on tower wagons, there would have to be evidence to prove it. None was adduced in that regard before the justices. What then is the ordinary, popular meaning to be attributed to the descriptive phrase ‘tower wagon?’
Regional or national meaning
Sometimes words have a meaning that is peculiar to a particular region or country. For instance, during the apartheid era in South Africa, the word ‘Asiatic’ referred to Indians only, and not to any other person coming from Asia such as. Chinese or Japanese. Despite developments in international law, statute making is still very much focused on what is put in place by parliaments in nation states. Hence the meaning of statutes is not to be taken as universal or international in every sense. Local meaning is assumed to be relevant.
Read the Case Note : R v Sikuea in the Journal of South Pacific Law and note the effect given to section 21 of the Interpretation Act 1988 (Tonga) as regards statutes written in both Tongan and English.
General words have general meaning
Another rule is that general words must receive a general meaning. A general word is something that applies to many different kinds of things rather than specifying exactly what kind of thing it applies to. Words like 'humans' 'animals', 'beasts' 'machinery', 'industry', 'technology' and so on are general words. They do not refer to any specific thing.
If for instance, a regulation says that
‘No person without a permit shall bring into the country birds, reptiles, mammals and other animals’
the words ‘other animals’ is a general term and must be interpreted in that manner. That means that people will have to have a permit for any kind of animal they intend to bring into the country.
The Master of the Rolls in the case of Beckford v Wade, 17 Ves. 19 says:
General words in a statute must receive a general construction unless you can find in the statute itself some ground for limiting or restricting their meaning by reasonable construction and not by arbitrary addition or retrenchment.
All words have meaning
The court will give effect to each and every word in a statute.
The idea behind this rule is that the legislature will not use words if it did not intend them to be used. The courts will therefore take note of every word written in a statute.
However, this rule has its problems as well. Sometimes words are put into a statute by error or inadvertence. But the courts will be very careful when they decide to take no notice of such words. Words which are unnecessary or nonsensical do appear sometimes in statutes. Sometimes the draftsman has left out a word or uses a word mistakenly. In those cases, the courts will not slavishly follow the literal rule. The court is not always bound by the literal meaning of the words because the drafter may have made a mistake in the use of a word, or may have omitted a word or even added unnecessary words.
In Beckwith v R (1976) 12 Alr 333 the court said:
As a general rule a court will adopt that construction of a statute which will give some effect to all of the words which it contains.
Something else which does appear in statutes are tautologies. A well-known example of a tautology is the phrase: ‘He killed the man dead’. Another is: ‘He reversed the car backwards’. The same thing is said twice by using different words. This type of thing appears in statutes as well, usually because the legislature wants to make sure that the meaning is clear.
In the Western Samoan case of Attorney-General v Western Samoa National Provident Fund and Berking (1970/79) WSLR 218 the court said:
The Court’s function is to ascertain the intention of the Legislature. The intention is to be sought primarily in the words of the statute. I bear in mind also another primary rule of construction that effect must be given, if possible, to all the words used for the Legislature is deemed not to waste its words or say anything in vain.
In a way what the court is assuming is that, because the parliamentary process which produced the statute is a formal one, all the words appearing in the formal statute must have been intended to have some meaning. Their inclusion was not an accident.
Words must be interpreted in their context
Although this rule is a sub-rule of the literal rule, it is actually one of the most important rules in statutory interpretation. It seems unnecessary that such a rule as this one is specifically mentioned, as this rule applies in all understanding of written or oral texts. This is actually a basic rule of grammar and semantics. We cannot ‘understand’ words when they are not used within a particular context..
Dictionaries do not give us the meaning of words, but only the potential meaning of words. In fact, dictionaries will usually indicate that words have several different meanings. In other words, only meanings as they might appear in certain contexts are given. When used in a particular context, the particular context will activate a particular potential meaning. 'The context' here means the language situation in which the word or words are used.
This illustration will demonstrate what is involved. The word ‘salt’ has many potential meanings, depending on the context in which it is used:
The salt saluted the captain.
Put some salt on your food.
You owe me some salt, fella. Hand it over right now!
The salt of the matter is that one must do unto others before they do unto you!
That man uses a lot of salt in his speeches.
There are other (potential) meanings of the word salt as well, but let us have a look at these five sentences.
In sentence (a), the word ‘salt’ means sailor.
In sentence (b), the word ‘salt’ has its usual meaning - the white crystals we put on food.
In sentence (c), ‘salt’ means money.
In sentence (d), it means heart or core of the matter.
In sentence (e), ‘salt’ means wit or humour.
It would be meaningless to attribute the potential meaning of sailor to the last sentence’s ‘salt’: ‘That man uses a lot of sailor in his speeches’ would be nonsensical. The other meanings of the word would be equally ludicrous. Clearly then, context is the most important indicator of a word’s meaning, and not necessarily the immediate context (grammatical or syntactic), but also in the wider context of understanding as such.
In In Re Bidie (1949, Ch. 121) the question relates to the meaning of the word ‘representation’ in a provision requiring certain proceedings to be brought ‘within six months from the date on which representation in regard to the testator’s estate for general purposes is first taken out’. At p. 129, Lord Greene says:
The first thing to be done, I think, in construing particular words in a section of an Act of Parliament is not to take those words in vacuo [i.e. 'in a void or vacuum'], so to speak, and attribute to them what is sometimes called their natural or ordinary meaning. Few words in the English language have a natural or ordinary meaning in the sense that their meaning is entirely independent of their context. The method of construing statutes that I myself prefer is not to take out particular words and attribute to them a sort of prima facie meaning which may have to be displaced or modified, it is to read the statute as a whole and ask myself the question: ‘In this statute, in this context, relating to this subject matter, what is the true meaning of that word?’ In the present case, if I might respectfully make a criticism of the learned Judge’s method of approach, I think he attributed too much force to the abstract or unconditioned meaning of the word ‘representation’. No doubt in certain contexts the word ‘representation’ would be sufficient to cover not merely probate, not merely letters of administration with the will annexed, but administration simpliciter. The real question that we have to decide is, what does the wordmean in the context in which we here find it, both in the immediate context of the sub-section in which the word occurs and in the general context of the Act, having regard to the declared intention of the Act and the obvious evil that it is designed to remedy’.
This rule, that context must be used is also known as the ex visceribus actus rule, that is ‘from the inside of the Act.’ This is clearly implied in Broken Hill South Limited (Public Officer) v The Commissioner of Taxation (New South Wales) (1937) 56 CLR 337:
The question is one of interpretation, and, unless an artificial construction is adopted in order to avoid an excess of constitutional authority, we must give that meaning to the provision which we think it actually expresses. In forming an opinion as to what meaning it does express, we must be guided by the rules of construction and, accordingly consider the subject matter and examine the rest of the statute in which it occurs. But we must not forget that the chief of those rules forbids departure from the ordinary grammatical sense of the words used except for the purpose of avoiding some obscurity or some inconsistency with other parts of the statute.
What the court was saying here is that the first approach must be to ascertain whether the words have a clear meaning in the general context in which they appear. That general context is the statute taken as a whole. Which might appear to be unclear when read in isolation might be quite sensible when the whole of the statute is considered. There might be other parts of the statute which show the court how particular words and phrases were intended to be understood.
The same words get the same meaning
When a particular word is used in an Act, the same meaning must be attributed to the word throughout.
In F.T. Eastment & Sons Py. Ltd. V McLeish [1970] 2 NSWR 282 the court said:
It is a safe rule and reasonable to be implied that the same meaning is to be applied by the use of the same expression in every part of an Act…
You will have noticed that the courts continually refer to the ‘intention of the Legislature’, and that the words of a statute:
Reflect the intention of the legislature.
The intention of the legislature must be ascertained from the words used in a statute.
But due to the problems created when only the literal rule is applied which does not clearly point to the intention of the legislature, in the courts another rule is applied. This rule is known as the ‘Golden Rule’.
Study Task 1
Before you proceed to the next rule, the Golden rule, attempt to answer the following questions:
What is meant by the ‘literal rule’?
What are the sub-rules of the literal rule?
How important is ‘context’ when we interpret a statute?
THE GOLDEN RULE
The Golden rule was first set out in the case of
Grey v Pearson,
(1857) 6 HLC 106, an old British case. The gist of this rule is that if the words are given their ordinary meaning, and it is clear that this meaning does not correspond with the clear intention of the legislature (as one can find in the whole of the statute or other relevant issues), then one can depart from the ordinary meaning of the statute so that one can give effect to the intention of the legislature. As you will see, this rule has its own peculiarities.
Lord Wensley Dale’s statement in Grey v Pearson is important:
We are to take the whole statute together and construe it altogether, giving the words their ordinary signification, unless when so applied they produce an inconsistency, so as to justify the court in placing on them some other signification, which, though less proper, is one which the court thinks the words will bear.
Lord ESHER, then Master of the Rolls, in The Queen v Judge of the City of London Court (1892 1 Q.B.D. 273) criticising a judgment of Sir George Jessel, the late Master of the Rolls, says (p. 290):
JESSEL, M R says that the words of sec. 2 are quite clear, and that if the words of an Act of Parliament are clear you must take them in their ordinary and natural meaning, unless that meaning produces a manifest absurdity. Now I say that no such rule of construction was ever laid down before. If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity. In my opinion the rule has always been this - if the words of an Act admit of two interpretations, then they are not clear; and if one interpretation leads to an absurdity, and the other does not, the Court will conclude that the legislature did not intend to lead to an absurdity, and will adopt the other interpretation.
The judge then refers to the remarks of Lord Watson in a case which came before the House of Lords (Vestry of St John Hampstead v Cotton (12 App. Cas. 1)) where he said:
The word ‘street’ in sec. 53 admittedly means, according to its natural and ordinary construction, each any and every street. On the part of the appellants it is contended that it must be read, for the purposes of the Act, as limited to old streets or to streets other than new streets as defined by sec. 112 of the statute. It is quite possible that such a construction might become imperative; but in order to justify a departure from the primary meaning of the words of the legislature, it must be shown either that the ordinary and grammatical construction of the words would lead to some absurdity, such as the legislature could never have contemplated, or that it would be plainly contrary to the general scheme disclosed in the context of the statute.
In McLennan v Mowbray (1970) 15 FLR 442 the court said:
The literal meaning of words is never allowed to prevail where it would produce absurdity or consequences not intended by the legislature…, and there is, I believe, an increasing tendency, since the ‘golden rule’ enunciated by Lord Wensleydale in Grey v Pearson in 1857, in modern methods of construction to look at the object and intention of the legislature in construing a statute…
In Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia [1981] 147 CLR 297 the court said:
But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonable open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute… There is a similar problem with the related so-called ‘golden rule’ of construction. There are statements of the rule which would confine the courts to the ordinary grammatical sense of the words used unless that produces and absurdity or inconsistency. It is to be noted that Dixon J. in Broken Hill South Ltd. V Commissioner of Taxation (N.S.W) observed that departure from the ordinary grammatical sense is not legitimate unless there is ‘some obscurity or some inconsistency’, though it may be that ‘obscurity’ was intended to be a reference to ‘absurdity’. For the reason already given in the discussion of the literal rule, departure from the ordinary grammatical sense cannot be restricted to cases of absurdity and inconsistency… In some cases in the past these rules of construction have been applied too rigidly. The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction… The rules, as D.C Pearce says in Statutory Interpretation, p. 14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the legislature… On the other hand, when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions… Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.
In the Tongan case of Sione Tu’ifua Vaikona v Teisina (No. 2) [1990} TLR 68 the court once more set out the golden rule’
The golden rule is based on the word of Parker CB in Mitchell v Torup [1766] Park 227 and may be applied when there is a choice of meanings as a presumption that a meaning which produces an absurd, unjust or inconvenient result was not intended. However, it is emphasised that the rule is only used in the most unusual cases as a justification for ignoring or reading in words… It is only when a secondary meaning is available that a court can abandon a primary meaning because it produces an absurdity, i.e. a result which cannot reasonably be supposed to have been the intention of the legislature. No judge can decide to apply a provision because it seems to him to lead to absurd results, nor can he, for this or any other reason, give words a meaning they will not bear…
Study Task
You should now review your understanding of the operation of the ‘golden rule’. The case of Judge Blue's decision under the Small Birds Act mentioned above, as an example. Write a brief essay (500 words or so) on why the judge should have applied the Golden Rule rather than the Literal Rule in a case such as this? Explain precisely why you think that rule would be more appropriate.
Note : This is not an assessment task. It is merely practice for yourself.
THE MISCHIEF RULE
This rule too originated in British courts. It was first formulated by Lord Coke in the
Heydon’s case (3 Co. Rep. 7b).
It was then formulated by the Judges who were called upon to advise the House of Lords in the Sussex Peerage case (8 E.R. 1057):
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…
To arrive at the real meaning we have according to Lord COKE (Heydon’s case) to consider:
what was the law before the measure was passed;
what was the mischief or defect for which the law had not provided;
what remedy the Legislator had appointed; and
the reason of the remedy.
In The River Wear Commissioners v William Adamson and others [1877] 2 App Cas 743 the court fully explained the operation of the mischief and the golden rules:
And this, as applied to the construction of statutes, is no new doctrine. As long ago as Heydon’s Case Lord Coke says that it was resolved ‘that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging the Common Law) four things are to be discerned and considered; 1st What was the Common Law before the act? 2nd What was the mischief and effect for which the Common Law did not provide? 3rd What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth? And 4th The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy.’ But it is to be borne in mind that the office of the Judges is not to legislate, but to declare the expressed intention of the Legislature, even if that intention appears to the Court injurious; and I believe that it is not disputed that what Lord Wensleydale used to call the golden rule is right, viz., that we are to take the whole statute together, and construe it all together, giving the words their ordinary signification, unless when so applied they produce an inconsistency, or an absurdity or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification, which though less proper, is one which the Court thinks the words will bear.
In other words the mischief rule is to be applied where even the golden rule fails to resolve the problems of interpretation. Here in effect the context of interpretation of the words in the statute is being widened. The court will look at the position of the law before the statute was passed and interpret the statute in light of those provisions.
THE PROBLEM OF CASUS OMISSUS AND THE RATIO LEGIS
A casus omissus is a gap in a statute. The classic rule is that courts will not fill the gaps in statutes - their function is ius dicere non facere (that is, to discover or say what the law is rather than to make the law). This principle and its effect on interpretation was explained above. Some explanation of ius dicere non facere?
This rule that the courts will not fill a gap in a statute, is based on the literal rule, i.e. the courts will only read what a statute actually says, and will not ‘read in’ words which are not in the statute.
In Re Athanassopoulos 91092) 41 ALR 603 the court refused to fill a gap in the Bankruptcy Rules:
It is true that when the language of a statute admits of two possible constructions one of which would lead to obvious injustice or absurdity the courts act upon the view that such a result could not have been intended unless the intention had been manifested in express and plain words… But this rule of statutory interpretation would not, in my view, enable me to fill in the gaps left in the Bankruptcy Rules by amending Rule No 304 as to how the new scale is to be applied… merely because I think that one approach may be more just than another. It is for the Government to remedy both difficulties which have been created.
In The Council of the City of Parramatta v Brickworks Limited (1972) 128 CLR 1 the court said:
…if the words of the sub-section are unambiguous we must give effect to the intention which they reveal and it is for the legislature and not for the courts to fill any gap that may unintentionally have been left in the statute.
The Privy Council in B.P Refinery (Westernport) Pty. Ltd v President, Councillors and Ratepayers of Shire of Hastings (1977) 52 ALJR 20, quoting Lord Mersey in Thompson v Goold & Co., [1910] A.C. 409 said:
‘It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.’
In the Fijian case of Evans v Reginam (1965) 11 FLR 38 the court said:
May the Court correct the error or supply the omission? Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. On the other hand it is "a strong thing to read into an Act of Parliament words which are not there, and, in the absence of clear necessity, it is a wrong thing to do".’
In exceptional cases the courts were prepared to read words, which are not there, into a statute, but these cases are rare indeed.
In the Zimbabwean case of S v Takaendesa, 1972 (3) SA 72 (R.A.D.), which is a Full Bench decision of the court, the court said:
In view of the line of argument followed in this case it is not out of place to emphasise once more the elementary rules on the interpretation of statutes. Maxwell, Interpretation of Statutes, 12th ed., p. 28, aptly sums them up thus:
The rule of construction is ‘to intend the Legislature to have meant what they have actually expressed’. The object of all interpretation is to discover the intention of Parliament, ‘but the intention of Parliament must be deduced from the language used,’ for ‘it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.
Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. Lord Morris of Borth-y-Gest, in a revenue case, said:
The decision in this case calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, however, harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the court as to what is just and expedient; words are not to be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the court is to expound the law as it stands, and to ‘leave the remedy (if one be resolved upon) to others’.
Instances when words can be read into an Act and omissions supplied are rare indeed. See Craies, Statute Law, 6th ed. p. 70:
In R v Wimbledon Justices, Ex parte Derwent, (1953) 1 All E.R. 390, Lord GODDARD, C.J., said: ‘Although in construing an Act of Parliament the court must always try to give effect to the intention of the Act and must look not only at the remedy provided, but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there, and, if the statute has created a specific offence, it is not for the court to find other offences which do not appear in the statute;’ and in R v Oakes, Lord Parker, C.J., said: ‘Where the literal reading of a statute… produces an intelligible result… there is no ground for reading in words or changing words according to what may be the supposed intention of Parliament’. The Judges may not wrest the language of Parliament even to avoid an obvious mischief’.
In the Solomon Islands case of In re Application by the Minister for Western Provincial Affairs [1983] SILR 141 the court said:
This may be so and may (should it happen) result in a defect being revealed in the structure of the Act. The simple question is, has this court power to remedy that defect on interpretation of the words used? The answer to such a suggestion is contained in the words of Lord Simonds… where he said concerning a proposal that the court should close a gap in an Act:- ‘It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it. If the gap is discovered, the remedy lies in an amending Act.
But, from the Tongan case of Sione Tu’ifua Vaikona v Teisina (No. 2) [1990} TLR 68, it is clear that there is a movement away from these basic rules. The court said:
In any event in recent years the courts have moved away from the strict application of the literal rule, the mischief rule and the golden rule in interpreting statutes. The courts must now decide as a matter of judgment what weight to attach to any rule in the circumstances… But the primary task of the court in normal cases is to give effect to the ordinary meaning of the words in their general context… Not must the judge be overzealous to search for ambiguities or obscurities in words which on the face of them are plain, simply because he is out of sympathy with the policy behind the words…
The teleological or purposive approach too has its origins in England. Lord Denning, Master of the Rolls, propagated this approach very successfully a few years ago in Britain.
Note that a distinction is drawn between two approaches: the ‘ultra-legalistic’ (i.e. applying the literal rule), and the purposive (that is, having regard to the ratio legis or purpose of an Act). (The word ‘teleological’ has as its root the Greek word telos which means purpose.)
This rule to a great extent changes the traditional approach, for instance that courts will not fill a gap in a statute. In other words, this rule moves beyond the literal rule and allows the judge a greater scope when he interprets a statute.
According to this rule, the judge should not so much try to ascertain the intention of the legislature, but should rather establish what the purpose is of the Act, and should then promote that purpose.
In Nothman v London Borough of Barnet (1977) All E.R. 1243, the judge, Lord Lawton, refers to Lord Denning’s views, and says:
…per Lord Denning MR. The literal method of statutory construction has been replaced by the ‘purposive’ approach. The courts should adopt such a construction as will promote the general legislative purpose underlying the statute. Whenever the strict interpretation of a statute gives rise to an absurd or unjust situation, the judges can and should use their good sense to remedy it, by reading words in if necessary, so as to do what Parliament would have done had they had the situation in mind…
Lord Denning addresses the problem of absurd and inequitable/unjust consequences that may arise from applying the literal rule.
This case deals with an appeal from the Employment Appeal Tribunal which refused a woman’s claim for compensation. The woman, a teacher of 61 years of age, was dismissed under sect. 10 (b) of the Trade Union and Labour Relations Act, 1974. The tribunal did not grant her compensation. The tribunal said:
Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament, however absurd, out of date and unfair they may appear to be. The duty of making or altering the law is the function of Parliament and is not, as many mistaken persons seem to imagine, the privilege of the judges or judicial tribunals.
Lord Denning, however, was not satisfied with this state of affairs. On appeal, he said:
I have read that passage at large; because I wish to repudiate it. It sounds to me like a voice from the past. I heard many such words 25 years ago. It is the voice of the strict constructionist. It is the voice of those who adopt the strict literal and grammatical construction of the words, heedless of the consequences. Faced with glaring injustice, the judges are, it is said, impotent, incapable and sterile. Not so with us in this court. The literal method is now completely out-of-date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach’. He said so in Kammins Ballrooms Co. Ltd v Zenith Investments (Torquay) Ltd; and it was recommended by Sir David Renton and his colleagues in their valuable report entitled ‘The Preparation of Legislation’. In all cases now in the interpretation of statutes we adopt such a construction as will ‘promote the general legislative purpose underlying the provision’. It is no longer necessary for the judges to wring their hands and say: ‘There is nothing we can do about it’. Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it - by reading words in, if necessary so as to do what Parliament would have done had they had the situation in mind’.
In Buckoke v Greater London Council (1971) 2 All E.R. 254, it seems that the purpose of an Act and ‘public interest’ greatly influenced Lord Denning’s interpretation. In this case the issue is whether the Fire Brigade, on their way to fight a fire, must also adhere to sect. 14 of the Road Traffic Act which states that all vehicles must stop at a red robot. Denning says:
The law, if taken by the letter of it, says that they are not to shoot the lights when they are red. But the public interest may demand that, when all is clear, they should follow the precedent set by Lord Nelson. If they should do so, no man should condemn them.
In Cole v Director-General of Department of Youth and Community Services and another (1967) NSWLR 541 the court said:
The title of the Act and the heading Div 1 of pt III indicate that the grant of a right of appeal against promotion decisions are one of the two purposes of the Act. On a number of occasions I have emphasised the importance of interpreting legislation with the general purpose of the statute in mind rather than by simply relying on the literal meaning approach to statutory construction.
In Higgins v Nicol and others [1971] 18 FLR 343 the court said:
On many occasions I have heard that great judge, the late Sir Leo Cussen, state that a liberal interpretation should be given to statutes, rules or documents, wherever it is possible to do so. Where they are capable of two or more interpretations that one should be given which would best carry out the intention for which the statute, rule of (or?)document has been formulated.’
In Regina v Sheffield Crown Court, Ex parte Brownlow [1980] 1 QB 530 Lord Denning once again clearly formulates his view on the use of the ratio legis. This following passage is very interesting, and ‘typical Lord Denning’, that is, straight, clear and to the point:
So once again we have here the problem of statutory interpretation. It vexes us daily. Not only us. But also the House of Lords. Even the simplest words give rise to acute differences between us. Half of the judges think the interpretation is clear one way. The other half think it is clear the other way. Notable instances in the House of Lords recently are James Buchanan & Co. Ltd. V Babco Forwarding & Shipping (U.K.) Ltd. [1978] A.C. 141 and Notham v Barnet London Borough Council [1979] 1 W.L.R. 67. In each case three to two. It shows what a gamble it is. Change the constitution by one and you have a different result. No one can say whether the majority were right or wrong. As it happened in those two cases, they were right. They affirmed the unanimous decisions of the Court of Appeal… The same cannot be said of the latest excursion. It is in Newbury District Council v Secretary of State for the Environment [1980] 2 W.L.R. 379. There the five judges in the House of Lords gave a different meaning to the one word ‘repository’ from that given to it by the Secretary of State, and the six judges below, including the Lord Chief Justice, the Master of the Rolls, two lords justices and two High Court judges. The five thought it clear their way. The six thought it clear the other way. The five prevailed. Thus overruling the meaning which had been given to the word ‘repository’ by all the judges over the previous 20 years, and acted on by successive Secretaries of State… To get rid of these continuous conflicts, we should throw aside our traditional approach and adopt a more liberal attitude. We should adopt such a construction as will promote the general legislative purpose. Such as I have advocated for years… and such as Sir David Renton and his colleagues recommended in their valuable report on The Preparation of Legislation (1975)… and such as Lord Scarman inserted in the bill he introduced in the House of Lords a little while ago… Put quite simply, perhaps too simply, whenever you have a choice between two interpretations, the choice is a matter of policy for the law: Which gives the more sensible result? It is not a semantic or linguistic exercise. Nine times out of ten you will find that judges will agree on what is the sensible result, even though they disagree on the semantic or linguistic result… (And then referring to the interpretation of a contract – a liberal approach was applied – Lord Denning)(continues? YES) Just as the Lords there looked for the interpretation which gave good sense – so we should do also in statutes.
In Petranker v Brown and others [1984] 2 NSWLR 177 the court said:
In determining what appears from the enactment as the intention of the legislature, it is, I think, sometimes proper to ask whether, had the suggested intention been spelled out in terms in the legislation, the legislators would have voted for it. And, the purpose of the legislative procedures being to make clear, to the legislators and the public, what it is that is being enacted, surprising results should not be seen to have been intended unless there be no alternative to them.’
In R v Lewis [1991] 1 NZLR 409 the court, in its interpretation had regard to the ‘broad purpose’ and the ‘spirit of the new legislation.’
In Police v B [1990] 2 NZLR 504 the court said;
The starting point on any problem of statutory interpretation is to consider the natural and ordinary meaning of the words used… That meaning must be ascertained in the context of the Act as a whole considered in the light of the objects which the statute as a whole is intended to achieve, what is now referred to as a ‘purpose’ construction.
One of the most detailed discussions on the purposive approach is found in the Australian case of Kingston and another v Keprose Pty Ltd (1987) 11 NSWLR 404, under the heading ‘The purposive approach’:
A purposive and not a literal approach is the method of statutory construction which now prevails… In most cases the grammatical meaning of a provision will give effect to the purpose of the legislation. A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpsoe (sic) of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act. The Acts Interpretation Act 1901 (Cth). S 15AA, and the Interpretation Act 1987 (NSW), s 33, both require this approach to statutory construction. The companies legislation has its own direction to this effect. The Companies Securities (Interpretation and Miscellaneous Provisions) Act 1980. S 5A, enacts:
‘In the interpretation of a provision of a relevant Act, a construction that would promote the purpose or object underlying the relevant Act (whether that purpose or object is expressly stated in the relevant Act or not) shall be preferred to a construction that would not promote that purpose or object.’
But first and last the function of the court remains one of construction and not legislation. As Lord Diplock has pointed out the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it’…
Purposive construction often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgment as to where the boundary of construction ends and legislation begins. But it is the technique best calculated to give effect to the legislative intention and to deal with the detailed and diverse factual patterns which the legislature cannot always foresee but must have intended to be dealt with if the purpose of the legislation was to be achieved. Moreover, it is the technique which may finally induce the draftsmen of statutes to state broad principles rather than to draw the detailed enactments which now emanate from the legislatures. Only then will statute law escape the comment of Sir Carleton Allen that ‘a statute is probably the most repellent form of written expression known to man’…
If the objects and purposes of a statute and the means of their achievements are not declared, they can only be determined by examining the statute as a whole. The ordinary meanings of the individual words together with any statutory definitions will invariably indicate what those objects, purposes and meanings are. The cumulative weight of their core meanings will indicate the general purpose or purposes of the statute. But when the statute has been read as a whole and its purpose determined, the prima facie meaning of a provision must, if necessary, give way to the construction which gives effect to the statutory object or purpose. The meaning of a legislative provision is not necessarily the sum of the meanings of its constituent elements… Words may give colour to each other, modifying their primary meaning, and causing the whole provision to have its own unique meaning. Likewise the general objects and purposes of the statutes will give colour to the individual words, phrases and provisions sometimes modifying their ordinary meaning.
Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. Where the court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose. The days are gone when judges, having identified the purpose of a particular statutory provision, can legitimately say, as Lord Macmillan said… of the means used to achieve the purpose: ‘The legislature has plainly missed fire’. Lord Diplock, in an extra judicial comment on that decision has said, that ‘if… the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed…’.
In the Western Samoan case of The Chief Electoral Officer and The Samoa All People’s Party Incorporation [1995/96] WSLR 1 the court (something missing–"the court"?)said as follows:
‘It was said by the Court of Appeal of New Zealand in its judgment delivered by Cooke P… in Northland Mild Vendors Association Inc. v Northern Milk Ltd [1988] 1 N.Z.L.R 530, 538: ‘… the Courts must try to make the Act work while taking care not themselves to usurp the policy-making function, which rightly belongs to Parliament. The Courts can in a sense will gaps in an Act but only in order to make the Act work as Parliament must have intended.’’
The purposive approach is slowly but surely working its way into the existing body of rules of statutory interpretation.
SUMMARY
In this unit thus far the 3 basic rules of statutory interpretation were discussed, i.e. the literal rule, the golden rule and the mischief rule. In basic terms :
The literal rule means that the court will interpret a statute by giving effect to the ordinary grammatical meaning of the words used in it. It is the primary approach to interpretation
The golden rule is that, where the literal approach produces consequences which are nonsensical or absurd, the courts will look to see if they can find in the statute the guiding intention of parliament and interpret the words of the statute in light of this. This will be applied even if it involves a departure from the ordinary meaning of the relevant words.
If neither of the above rules lead to a satisfactory result, the courts can use the mischief rule. This means trying to ascertain what 'mischief it was that the statute was attempting to overcome or correct
We have also seen that, although the courts will not will a gap in a statute, the application of the purposive approach fundamentally changes the position – the courts are no longer bound to a strict literalist approach, and the intention of the legislature is now replaced by the purpose or object of a statute. The courts look at various indicators to establish what the purpose of a statute is.
CONSTITUTIONS
It has long been the standard view of judges that the constitution of a country is the supreme law. This is known as the principle established by the US Supreme Court in Marbury v Maddison. The constitution is the primary source of the law of the country. Hence the courts have generally interpreted constitutions as if they were in the nature of an ordinary statute. In other words, there is nothing particularly special about the fact that it is a political document. It is not to be interpreted on the basis of some policy which it is taken to acknowledge. It is not to be understood in terms of changing social needs of the community or in light of some social theory. This view is generally known as 'legalism' and sometimes as 'legal positivism'.
This approach has its defenders. For example Sir Owen Dixon, Chief Justice of the High Court of Australia once said :
"Such a function has led us all to believe that close adherence to legal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism" ((1952) 85 CLR xiv)
Note that the approach is justified by reference to the legitimacy of the function of the court and the need to maintain the 'confidence of the parties' or in other words, of the community at large.
Similarly in Attorney-General (Clth.) ; ex rel McKinlay v Commonwealth (1975) 135 CLR 1 at 17 it was said :
"The only true guide and the only course which can produce stability in constitutional law is to read the language of the Constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning in legal reasoning."
There have been several criticism of this view of legalism. Most of the points can be connected directly to challenges to legal positivism.
One of them is that it ignores the idea of a constitution as embodying a political compact. A constitution is a political document and not one which is wholly amenable to understanding in arid legal terms.
Furthermore it ignores the fact that there is an historical gap between the time when a constitution is written and the society which it serves later in time. To interpret the document as if there were some historically and culturally independent meaning hidden behind it is regarded as a fallacy.
Another is that it takes the idea of an independent form of properly legal interpretation to untenable heights. In other words, it constructs the untenable idea of the possibility of a value free and independent legal interpretation. This however is impossible. Legalism promotes the idea of an independent form of legal reasoning which is apolitical and socially remote.
It promotes a needlessly abstract interpretation of a constitution. The form of interpretation involved seeks to interpret the words of a political document in terms of abstract legal concepts pretending to have some form of universal validity. Thus meaning of the constitution becomes even more remote from the population.
Legal reasoning cannot be apolitical in this context or any other because law is politics - as critical theorists inform us.
It is a complex issue and an ongoing debate. You simply need to be aware of the issues. As Zines (speaking of the Australian debate) warns :
"Yet the discussion becomes muddied by persons on each side on occasion exaggerating the position of their opponents. Some suggest that the critics of legalism would have judges decide cases of constitutional validity solely in accordance with whether they decide the proposed legislation to be desirable for the country, thus producing judicial tyranny….Others complain that the judicial supporters of legalism either fool themselves into believing that they are reaching their decisions arriving at them as a result of considerations that they refuse to disclose. Certainly some judicial statements appear to support those who claim that some judges take a very simplistic view of the judicial task." (from Zines L. The High Court and the Constitution, Butterworths, Sydney, 1986, pp. 342, 343)
Review questions
These are general review questions to determine whether you have understood some of the main themes and concepts introduced in the text. If you feel unable to answer these questions you should go back and review the text above. The correct answers should be clear enough from the text itself.
Under what circumstances can the courts have reference to dictionary definitions as an aid to interpretation of statutes?
When are words to be given their technical rather than their common meaning?
What is the significance of general words when they occur in a statute?
Explain the correct operation of the golden rule?
Why do the courts generally refuse to fill up gaps that might occur in a statute?
How does the court establishes the purpose of an Act, and what are the indicators the courts look at to ascertain this purpose?
Reference:
1.
http://www.vanuatu.usp.ac.fj/courses/LA304_Legal_Drafting/LA304_Unit%203.html
