A Part 2 - Leah Flashcards
what are the 4 steps to find the meaning of an ambiguous word?
- isolate the ambiguous word.
- see if the word is defined in the interpretative section.
- if not, use word tools to create arguments that the Prosecution and Defence would use to advocate for a particular interpretation of the word.
- conclude on what argument the court is more likely to be satisfied with.
what does “unless the context otherwise requires” mean if said in
a statute about the definition of a word?
it means that the court is not bound to that decision.
why does the interpreter must stick to a definition of a word if it is defined in a statute?
because the definition shows clearly what Parliament means to encompass with that word.
what is the definition of “means” in stat interp?
means is an exhaustive term, which is closed, meaning that what follows in the statute is all the possibilities that Parliament meant to cover.
why will Parliament use the word “includes” to frame a sentence in a statute?
in case Parliament missed something on the list, or to allow words that have not been considered (or even invented yet) to be added in the future.
what is the definition of “includes” in stat interp?
includes is a non-exhaustive term, which is open, meaning that what follows in the statute is simply an indication of what Parliament but more can be added to the list.
what does the word “and” mean in stat interp?
“and” is conjunctive”, meaning both X and Y are necessary to establish liability under the statute
what does the word “or” mean in stat interp?
“or” is dis-conjunctive, meaning either X or Y is necessary to establish liability under the statute
what is the definition of the words “shall” and “must” in stat interp?
“shall” and “must” are mandatory, meaning that the duty must be performed
what is the definition of the word “may” in stat interp?
“may” is directory, meaning that the power or permission may be exercised, but it need not be.
what does Noscitur a Sociis mean?
words are known by the company they keep e.g. a word can take its meaning from the other words that surround it.
noscitur a sociis acts to ________ wider words, and therefore moves away from a ______________ interpretation of the words. however the word needs to carry its own _______________.
Limit, Literal, meaning
the words “shoot, stab, cut or wound” mean what in regards to the word “wound”?
“wound” is potentially quite an expansive word, but it could be covered
by the preceding words to describe actions that cause physical harm or injury.
what does Ejusdem Generis mean?
a general word is of the same kind as surround specific words
how does Ejusdem Generis narrow the literal meaning?
Ejusedem Generis is used when there is a “catch-all” phrase e.g. other appliance… at the end of a list of specific words. it created a “class” of the other words to exclude the word. need to provide an example.
what are the 4 requirements for the use of ejusedem generis?
- specific words must belong to an identifiable class.
- the specific words cannot exhaust the class.
- there must be more than one specific word.
- the purpose of the legislation must not be defeated.
how could ejusdem generis be used for the words “banner, placard, poster or other sign”
“other sign” is a potentially quite an expansive term, but it could be representing a class of written communication.
what does Expressio unius est exclusio alterius mean?
the expression of one thing is another express inclusions are implied exclusions
the statement “children under 12 admitted free” when using Expresso units, shows a clear inference that:
children above the age of 12 must pay
how could expresso units be used in a list of words? think mine example…
“any land, houses and coal mines” could [arguabley] imply that gold mines are excluded, because al- though gold mines can be included in “land”, the argument is that Parliament clearly considered the concept of mining, so gold mines should there- fore be excluded.
what does Generalia Specialibus non Derogant mean?
the general shall not detract from the particular - when there is a new general statute enacted, but an earlier statute has specific provisions that are now conflicted, you generally ignore the new general statute due to the specificity of the previous statute for that specific thing.
Parliament has specifically stated in s ___ of the Legislation Act 2019 that
“the meaning of legislation must be ascertained from its text and in light of its ______________ and context.”
10, purpose
what is the plain/literal approach?
giving words their plain and ordinary meaning, is often a wide definition used by the prosecution to generally encompasses the actions of the defendant. judges will look at the dictionary of these words definition.
why do courts like to use the literal approach?
It means that the law is certain and predictable to the layman which up- holds the ROL.
what is the Golden Rule?
judges can depart from the plain meaning if doing so would create an absurd result, or inconsistency with the rest of the statute. state the inconsistency it creates!
what is the purposive approach?
focuses on the purpose of the Statute. sometimes found in the purpose section or long title in older statutes. other times the facts may hint to why Parliament enacted the legislation. think about what Parliament was trying to achieve with this piece of legislation!! what were they trying to prevent from happening?
what is the mischief approach and its history? and was was assumed that Parliament would do?
essentially the purposive approach. when the common law (judge made law) was the dominant source of law (as opposed to Parliament made legislation) it was thought that the common law was the laws proper source so should be able to develop on its own terms. the only place for Parliament made law was to remedy a clear problem/mischief in the way the common law was developing in a particular area. it was assumed that Parliament would only legislate to correct this error of the common law.
the society our legal system serves is committed to certain outcomes in the interests of justice and ______________, and it will take a compelling argument for a judge
to give an interpretation of an ________________ word or phrase that is inconsistent with the wider legal _________ that underpin our society.
Fairness, Ambiguous, Values
in terms of democratic legitimacy, what does legitimacy mean?
acceptance of authority
In terms of democratic legitimacy, what does democracy mean?
rule by people
what does democratic legitimacy mean?
the idea that the authority of the Govt is accepted if it acts in a way that reflects the will of the people.
how does Parliament have democratic legitimacy?
because they are an elected body
are the courts democratically legitimate?
no - because they are appointed from an elite pool (not elected).
the courts will try and do certain things when interpreting legislation in order to appear more _________________ (and thus legitimate)
Democratic
statutory interpretation can affect the rights, liberties, ________ and obligations of _________________ in society.
Duties, Individuals
2 ways the courts can make their interpretive task appear more democratically legitimate
- by following certain interpretive techniques that are designed to give effect to what Parliament meant when it enacted the legislation (e.g. adhering to the literal/purposive approach when giving meaning to an ambiguous word).
- adhering to the wider legal values that underpin our legal system.
what are the 2 ways that TOW can influence statutory interpretation?
- directly (statute expressly refers to the TOW by referencing principles of the Treaty).
- indirectly (if there is a treaty or Te ao Maori dimension to the issue before the judge they should try to give the interpretation to be treaty consistent)
Tikanga Mãori is the ________ law in Aotearoa. it denotes the right way to behave and can be described as Maori lore and law.
First
Tikanga is a complete _________ system on its own.
Legal
What did the Ellis v R case state?
the SC recognised that Tikanga is part of the common law of NZ.
why is a legal interpretation that is consistent with Tikanga likely to be preferred by the Courts?
it shows respect to the wider legal values in our system.
as per s ___ of NZBORA, the courts will try give meaning to a word/phrase that is consistent with the ________ in NZBORA.
6, Rights
where possible, courts will interpret legislation in a way that is consistent with NZ’s __________________ obligations, whether or not the ___________________ law is directly enforceable in our domestic law.
International, International
just because the statute
or provision does not
say anything specific about the Treaty/Tikanga/____________/international treaties etc does not mean that these things are ________________ to the judges interpretive task.
NZBORA, Irrelevent
If the statute itself is not enough to resolve the issue, the court can look at wider _____________ factors to try and figure out what the meaning of a provision is.
Contextual
what are the 2 categories of context?
- wider legal context. 2. wider societal context
what are the sources of wider legal context?
- legislative history.
- analogous statutes from NZ or other jurisdiction.
- analogous cases from NZ or other jurisdictions.
- NZBORA.
- Treaty of Waitangi.
- international law.
As per s __ of the Legislation Act ______, an enactment applies to circumstances as they arrive.
11, 2019
what is the ambulatory approach?
we should be interpreting words in accordance with the modern understanding of that word, rather than restricting words to the meaning they would have had the day the legislation was enacted.
the word “document”, using the Ambulatory approach, when legislation was created in the olden days might mean a piece of paper. how could we use the approach to give it a different meaning?
In a modern context, a document can mean emails, messages etc. the meaning of the word document has been expanded to include these new technological developments, but not through legislation, just interpretation. otherwise Parliament would have had to constantly amend legislation to keep up with the times.
case law can be treated as part of the wider __________. it is an indicative meaning from an _________________ source. the importance of case law may have more or less _________________ depend- ing on the facts of the case, the precise legal question addressed, and even the style of the legal reasoning adopted by the court.
Context, Authoritative, Relevance
stat interp: step 1?
does the Act apply, and is it in force?
stat interp: step 2
what elements need to be satisfied, and address the non-contentious elements.
stat interp: step 3
what are the contentious elements - identify the issue words; if words are different in the facts and legislation they probably need analysis.
stat interp: step 4
Marshall the arguments for 1 side
stat interp: step 5
marshall the elements for the other side
stat interp: step 6
identify the stronger element and think of penalties! (e.g. liability imposed would be too harsh because of the penalty, or too low etc)
at the end of the discussion for each element, you need to make a judgement call on what interpretation appears to be the most ______________.
Convincing
good ____________ argument > good ____________ argument > good _________ approach argument
Purpose, Context, Literal
a weak purpose argument may not be ____________ than a weak literal approach argument
Stronger
stat interp: step 7
overall conclusion
what relationship has human rights changed?
the relationship between the citizen and the state, began post WW2.
what is the purpose of human rights?
they purport that the citizen has certain freedoms which the state has a duty to protect
why are they called human rights?
because we enjoy the protection of human rights because of our shared humanity
what is the idea behind human rights?
he Government authority is NOT unlimited
in NZ, Parliament is supreme and we do not have a supreme ________________________
Constitution
3 ways the authority of the Govt is limited in NZ (human rights sit alongside these features)
- The need for a democratic basis for legislative authority.
- the principle of the separation of powers (which holds that each branch of Govt acts to check and balance the power used by the others).
- the independence of the judiciary
human rights are an expression of ________________ govt and protecting citizens from _________ by the govt.
Limiting, Abuse
Rights are political _________ that the legal system responds to
Claims
Certain interests that someone has, should be ________________ in the ongoing political practice of Govt.
Privileged
sometimes, rights are so important that they present an absolute __________ to Govt action. but usually, the existence of these rights just means that they are important interests which should be taken into account and not unduly ______________ by the Govt unless there is a good ____________ to do so.
Barrier, Compromised, Reason
what sort of pressure attaches to the Parliament or Executive if they do something that breaches a right?
political pressure - no political party will take an anti-rights stance (this would be politically damaging) but some parties will indirectly do this. rights arguments can often be used on both sides of the same debate.
when rights (as political claims) are embedded in ________________, this makes the argument for them _____________ in the political debate.
Legislation, Stronger
rights are just political claims which have been put into _________________ - therefore there is a _____________ aspect when the courts are looking at it, even though the courts will often frame their thinking to appear in __________________ terms.
Legislation, Political, Legislative
3 ways the courts engage with rights?
- they strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting.
- they insist any Govt action
that breaches rights is PROPORTIONAL to the aims of that Govt action. - they have taken responsibility for CRAFTING APPROPRIATE REMEDIES where rights have been breached.
explain: the courts strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting…what principle is this known as?
at common law - this is known as the principle of legality. if there is an ambiguous/unclear piece of legislation, the courts will prefer the most rights-consistent meaning.
what is the principle of legality?
the courts strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting: at common law - this is known as the principle of legality. if there is an ambiguous/unclear piece of legislation, the courts will prefer the most rights-consistent meaning.
Lord Hoffman on the principle
of legality: “Parliament can, if it chooses, legislate _________ to fundamental principles of human _______. but the principle of legality means that parliament must squarely _________ what it is doing and accept the political cost….the courts therefore, presume that even the most general words were in- tended to be subject to the basic rights of the individual”
Contrary, rights, Confront
Why might a particularly bad breach of rights be justified?
if there is a significant and widespread benefit of the law that Parliament has enacted.
if a more rights-consistent course of action is reasonably available but was not adopted the courts may…
…intervene on the basis that the interference with the right was disproportional
what happens when the Executive (Govt) breaches rights? (Baigent)
financial compensation may be available
what happens when legislation breaches rights? (Taylor - what can the courts do and cannot do)
the courts cannot refuse to apply such legislation, but they can issue a declaration of rights that have been breached.
does NZBORA create or affirm rights?
Affirm
NZBORA has a part where it states how the court should discharge
its __________________ task when legislation touches upon such basic values
Interpretive
what is in Part 1 of NZBORA?
a list of instructions for how we should think about rights
