Statutory interpretation- MISCHIEF RULE

Question 1

THE FOUR FACTORS THAT SHOULD BE CONSIDERED BY JUDGES: HAYDON’S CASE?

Answer 1

1. What was the common law (judge made law) before the statute?; and
2. What problem, or ‘mischief’, was the statute trying to remedy?; and
3. What was the remedy proposed by Parliament?; and
4. What was the true reason for that remedy?

The judges should then interpret the statute in such way as to put a stop to the mischief.

Question 2

SMITH V HUGHES?

Answer 2

To enable people to walk on the streets without being harassed by prostitutes, this statute was interpreted to stop this ‘mischief’.

Question 3

ROYAL COLLEGE OF NURSING V DHSS?

Answer 3

Judges interpreted the relevant statute to stop the mischief of illegal abortions where no medical care was available and allow nurses to carry out abortions in hospitals.

Question 4

ADVANTAGE OF THE MISCHIEF RULE?

Answer 4

It promotes flexibility in the interpretation of legislation. Judges can interpret statutes in the light of changing social, economic and technological circumstances.

Question 5

DISADVANTAGE OF THE MISCHIEF RULE?

Answer 5

Its use relies on being able to find out what mischief in the common Lae Parliament was trying to remedy. Given the limited external aids that the judges can use to interpret a statute, this can be a very difficult task for the judges.