legal method Flashcards
Deeming provisions
defines the meaning of a word or phrase for the purpose of an Act, or section of an Act.
Mandatory and Discretionary provisions
Mandatory: shall, must, or is required all impose an obligation or duty that must be complied with.
Discretionary: may, it is lawful, if he or she thinks fit indicate that there is a choice to do or not do something.
“means” and “includes”
“means” - exhaustive i.e. all the possible meanings of the term or phrase under the Act are as set out in the statute.
“includes” - indicates the sort of things covered by the section or Act but is not exhaustive
Provisos
prefaced by words such as “provided that” and usually follow a section/subsection and limits its application in some way. However, they can also be used to introduce an additional piece of text.
Punctuation
Use of grammatical indicators to assist in deciphering Parliament’s intention
“And” or “Or”
and - conjunctive - serves to link and unites preceding and following terms
or - disjunctive - separates the items which precede and follow it
“Subject to”
Where one section is made subject to another - named section prevails in the case of inconsistency
Hendiadys
where one idea is expressed by two words or phrases joined by “and”
Statutory interpretation
Identify the problematic phrases in the Act
s5 Interpretation Act 1999 requires you to take the meaning of the words in a statute “from its text and in the light of its purpose, in doing this, you are permitted to use all the “indications provided in the enactment”
Carry out a textual analysis, which should include the following
Any definition from the act
Ordinary and natural meanings
Any technical, trade or obvious alternative meaning
Does the rest of the section and other sections assist in determining the meaning of the term?
Grammar - do words like “or” or “and”, mandatory or discretionary provisions or punctuation assist in word/phrase clarification?
Is there a need to employ presumptions of law?
Is there a need to look at extrinsic material to assist with the meaning?
Purposive Interpretation: check the meaning you have attributed to the words or phrases being interpreted against the purpose for which the statute was enacted. Purpose can be ascertained by having regard to the statute as a whole, looking to the scheme of the Act, the long title, or purpose section.
Case Law: any relevant case law which discusses the meaning of the words or phrases should also be considered
Conclusion: once you have worked out the correct meaning for the words and phrases, apply the section as a whole to the fact situation you are trying to resolve and reach a conclusion
Traditional statutory interpretation
The Literal rule: that words be strictly interpreted according to their ordinary meaning
The Golden rule: That words can take extraordinary meaning to avoid absurdity
The Mischief rule: that words be given a meaning that allows courts to overcome the problem Parliament was trying to remedy
Modern statutory interpretation
Context: setting the words to be interpreted are situated
Purposive approach: the notion that legislation should work as Parliament intended it to work
Applying the purposive approach: statutory basis from s5 of the Interpretation Act 1999
Begin with plain words of the statute: if words are clear as to their meaning, there is no need to look further; if they are not clear, look to purpose; in the event of absurdity, look to purpose
noscitur a sociis
“known by its associates” - words, particularly groups or lists of words, should be read together and will take meaning from one another
Reddendo singula slngulis
different words in one part of a section or statute be applied respectively to their appropriate corresponding objects in another part
Generalia specialibus
specific provisions prevail over the general
Ejusdem generis
“of the same kind” - a general catch all term following a list of specific words will be limited to the same ‘class’ of objects constituted by the specifics