M3L6/L7 Presumptions

Question 1

what is presumptions of law?

Answer 1

• prior to legislatice direction from the Interpretation Act 1999 and the Legislation Act 2019 CL developed tools to aid in the interpretation of legislation
• help interpret ambiguous provisions, where more than one meaning can be ascertained
• intent of parliament taking precedence
• presumptions are made to protect NZBORA rights
• not all explicitly in LA2019

Question 2

What’s the Presumption of no extraterritorial effect?

Answer 2

• Sovereign Parliament can legislate as far and wide as it wants within NZ territory
• this presumption also states that jurisdiction is extended by extraterritorial effect (like Maritime and Crimes Act), acts that have effect on NZ territory, legislative for national abroad, acts that threaten the security of the state, and where the victim of a crime is the national of the state.

Question 3

Presumption against infringement of International Law?

Answer 3

• Monism (direct translation via ratification)/ Dualism (transposition via domestic legislation)
• International law is not automatically a part of domestic law, and therefore does not bind the courts
• the courts interpret statute wherever possible to give effect to our international obligations.
• if given a clash, don’t clash with international law where possible

eg. rights of a child in utero to will payment

Question 4

What’s ratification?

Answer 4

Formal documents are exchanged with the other countries or organisations involved, to bring the treaty into force for New Zealand. These documents confirm domestic procedures have been completed and that the treaty is now in force.

Question 5

What’s the presumption against retrospective/retroactive effect?

Answer 5

• you can’t be prosecuted under a crime created tomorrow for actions done yesterday
• this presumption states that the law should normally be pro-active, and not have a retrospective or retroactive effect
• needs to be certain we need to know what our rights and obligations are

Question 6

What piece of legislation enshrines that legislation does not have retrospective effect?

Answer 6

Section 12 of the Legislation Act 2019.

Question 7

What is Section 12 of the Legislation Act 2019?

Answer 7

legislation does not have retrospective effect

Question 8

What presumption is that the Crown is not bound mean?

Answer 8

• Presumption that Acts do not bind the crown
• unless legislation binding the crown is parliament’s intent.
• usually states “This Act binds the Crown”
• may be specific organ/ part of the crown, “Crown” difficult to define changes in context
• NZ crown; Government, legislative executive and judiciary.
• section 22

Question 9

under which section has the presumption that the crown is not bound?

Answer 9

section 22 of the Legislation Act 2019

Question 10

What is section 22 of the Legislation Act 2019?

Answer 10

the presumption that the crown is not bound

Question 11

For the presumption the crown is not bound, what are the exceptions?

Answer 11

• where the Crown deliberately carves themselves out
• the rationale can be found in Hansard

Question 12

What is the Doctrine of implied repeal of an earlier inconsistent statute?

Answer 12

• this presumption assumes that where there is an inconsistency between two statutes, parliament intended both to have effect.
• the courts will try to read the two enactments consistently, but if not possible the later will prevail.
• imply there’s a repeal of the older stuff, follow modern specific language
• Specific over general rule may apply
• statute can only be expressly repealed by law, this must be clearly stated in legislation
• the role of the court is just to interpret law, therefore cannot declare law repealed.

Question 13

What does section 30-39 of the Legislation Act 2019 cover?

Answer 13

Deal with repeal generally.

Question 14

Contrasting Presumption of Implied Repeal with General/Specific Provisions Rule and Presumption against Retrospectivity.

Answer 14

• Is the specific provision in an EARLIER statute, or the SAME statute as the general provision?
  GENERAL/SPECIFIC RULE APPLIES
  use this to apply the earlier specific provision.
• Is the specific provision in a LATER statute than the general provision?
  PRESUMPTION OF IMPLIED REPEAL APPLIES
  use this to apply the later specific provision.
• Did the law NOT EXIST AT ALL at the time of the offence?
  PRESUMPTION AGAINST RETROACTIVITY APPLIES
  charge likely void

Question 15

What does legal void mean?

Answer 15

No/null legal effect

Question 16

What does Presumption against exclusion of the courts’ jurisdiction- “Ouster” mean?

Answer 16

• Access to justice is considered a fundamental tenant of the rule of law.
• Privative or ouster clauses are clauses in statutes that purport to limit the jurisdiction of the court.
• Where a clause limits access to the courts and judicial review, the courts will narrowly construe the clause.
• Further supported through NZBORA s 27(2) and (3) “Right to justice”
• ouster clauses must be clear
• ouster clauses may also be in contract law
• some laws can’t be contracted out of, like Contract Constructions Act 2002

Question 17

What piece of legislation supports Ouster clauses?

Answer 17

NZBORA s 27(2) and (3) “Right to justice”

Question 18

Presumption that litigants should not benefit from their own wrongdoings?

Answer 18

• no one should benefit from their own crime
• often cited example is often applied with inheritance.
• a strict interpretation of the statute, may result in an inequitable result. Therefore, you must come to court with clean hands.
• An example is where under legislation you are entitled to inherit a deceased estate- however, you unlawfully caused the death of the testator.

eg. Killing mum does not get will.

Question 19

What’s presumptions regarding penal statutes?

Answer 19

Two presumptions operate to inform the approach to interpreting penal statutes:
1. presumption against interference with personal liberty (restricts encroachment of the state on the individual)
2. Presumption against deprivation of property
- interpreted narrowly- accused of receiving the benefit of the doubt.
- if doubt as to which penalty applies, the lesser should be imposed.

(pick against jail..)

Question 20

What are the presumptions regarding tax statutes?

Answer 20

• originally the presumption not to be deprived of property supported a narrow interpretation of taxation statutes.
• courts traditionally gave such a narrow meaning to taxation statutes that the legislative intention was often distorted.