Statutory Interpretation Flashcards
- Issue
- Identify statute and individual sections to interpret.
- Identify problematic words/phrases.
- Relevant Law
- Statute given
- Legislation Act 2019, section 10 (1): “The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.”
- In order to ascertain the meaning, I will consider the indications provided by the enactment using firstly, a textual analysis and secondly, a purposive and contextual analysis of the statute.
- Textual Analysis
- Defined in Act?
- Plain and ordinary meaning (Dictionary)?
- Technical, trade, and alternative meaning?
Internal Context:
- Look at the rest of the section?
- Grammar:
“Or” = Distinctive, separates items that precede and follow it.
“And” = Conjunctive, combines two things.
“Shall” = Implies, imposes an obligation or duty which must be complied with.
“May” = Conditional (discretionary), it is a choice to do or not to do something.
- Canons of construction? Apply to text.
- Presumptions? Apply to text.
External context:
- Committee/Commission Reports, Explanatory Notes, Society at the time, Changes during legislative Process, Parliamentary Debate, Case law, Act’s predecessors, Other statutes?
NB: You can note if there wasn’t anything.
- Conclude from textual analysis.
- Purposive/Contextual analysis
Internal Context:
- Purpose section, Preamble, Long Title, other parts of the Act, look at scheme of the Act (i.e. what does it target?)
External Context:
- Other statutes, acts predecessors, Case law.
- If case law, remember to look at level of Court (binding or persuasive?)
Only relevant if the case concerned has the meaning of the words or phrases in the same, or substantially similar, enactment.
- Conclude from purposive\contextual analysis.
NB: Victim/plaintiff speech or viewpoint: Has absolutely no weight and you should practically dismiss it.
- Conclusion
- Conclude Overall on the particular issue.
Rules:
Literal rule: Words in a statute are given their ordinary meaning.
Golden Rule: Words could be given extraordinary meaning to avoid ambiguity and absurdity.
Mischief rule: Words could be given extraordinary meaning to suppress mischief and advance a remedy. But this is updated to the purposive/contextual approach.
Canons of construction: Latin
- Noscitur a sociis = “It is known by the company it keeps”.
Word must be read in the context of the other words of the section in which it appears.
- Ejusdem generis = “Of the same kind or nature”.
Specific words in the list are of the same class, the general word following them is construed as also limited to that class.
- Expressio unius est exclusion alterius = “The mention of one is the exclusion of another”.
Where some things are mentioned individually but others are not, those not mentioned are intended to be excluded.
- Generalia specialibus non derogant = “General things do not derogate from specific things”.
General provisions in a later enactment do not affect specific provisions in an earlier enactment.
- Redendo singular singulis = Various sections of the statute to be joined to their respective counterparts i.e. the first noun belongs with the first adjective. Red and green, stop and go [respectively].
Presumptions:
- Presumption against extra-territorial effect (New Zealand law is only applied inside New Zealand unless it is clearly stated to be otherwise).
- Presumption against infringement of international law (NZ consistent with international obligations).
- Presumption that the Crown, is not bound.
- Presumption against implied repeal of an earlier statute.
- Presumption against criminal liability without intent (mens rea).
- Presumption against interference with a person’s property.
- Presumption of reasonable doubt against the imposition of a tax or charge.
- Presumption of conformity with the Treaty of Waitangi/Te Tiriti of Waitangi.
- Presumption against alteration of the common law (legislation does not intend to remove common law, but stand beside).
- Presumption of conformity with NZBORA 1990.
- Presumption that same word in same Act means the same.
- Presumption that statutes do not have retrospective effect.
