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Statutory Interpretation Update
Published: 24-06-2016
Authors: Ross Carter, Jason McHerron
Pages: 190
Price From
NZ $140.00
This book is only available in PDF format
Authors: Ross Carter, Jason McHerron
Published: 15 June 2016
Pages: 190
Introduction
Statutory interpretation is central to the modern private and public practice of law. It is
critical to every case affected by legislation. And nearly all cases today involve legislation.
“Statute law in its practical application is not what the Act says”, Francis Bennion reminds
us, “but what a court says (or would say) the Act means.”1 This makes studying statutory
interpretation, as Sir Kenneth Keith has noted, at least as important as studying legislative
texts: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he
who is truly the Law-giver to all intents and purposes, and not the person who first wrote
or spoke them.”2 An authoritative interpretation is therefore determinative – the last word.
us, “but what a court says (or would say) the Act means.”1 This makes studying statutory
interpretation, as Sir Kenneth Keith has noted, at least as important as studying legislative
texts: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he
who is truly the Law-giver to all intents and purposes, and not the person who first wrote
or spoke them.”2 An authoritative interpretation is therefore determinative – the last word.
Few cases today involve no legislation. Justice Kirby, in common with many other judges,
has said: “If the interpretation of contractual documents is an important part of the modern
judge’s vocation, the construction of statutes is now, probably, the single most important
aspect of legal and judicial work.”3 “[T]he whole of judicial review”, for example, “could be
seen as an appendix to the law of statutory interpretation”.4 Chief Justice French in 2012
called Australia’s legal system “a statutory universe”: “it is difficult to find any legal
problem which is able to be defined and resolved solely by resort to the common law. On the other hand, it is not easy to find a statute which does not depend for its interpretation on
principles derived from the common law”.5 And the Legislation Amendment Bill introduced
in 2014 − and still awaiting a first reading before Parliament in 20166 − proposes to update
the law on the interpretation of legislation.
[Continued...]
_____________________________
1 Jones (ed) Bennion on Statutory Interpretation—A Code (6th ed, 2013) at 478 (Comment on Code s 180).
2 Bishop Benjamin Hoadley (an 18th century divine), quoted in J C Gray Nature and Sources of the Law (1916) at 102, 125, and 172 (original emphasis), quoted by Sir Kenneth Keith in “Sources of Law, Especially in Statutory Interpretation” in Bigwood (ed) Legal Method in New Zealand (Butterworths, 2001) at 77 and 78.
3 Hon Justice Michael Kirby (2003) 24(2) Stat LR 95 at 96; JJ Spigelman CJ (2010) 84 ALJ 822 (judiciary’s dominant task).
4 KJ Keith Interpreting Treaties, Statutes and Contracts (OP No 19, NZCPL, Wellington, 2009) (“Interpreting T, S and C”) at v, citing RB Cooke “The Rights of Citizens” in RS Milne (ed) Bureaucracy in New Zealand (NZIPA, 1957) 84 at 96. “Determining the nature and extent of a statutory decision-maker’s obligation to consult is primarily an exercise in
statutory interpretation.”: NZ Pork Industry Board v D-G of MAF (HC, WN, CIV-2011-485-719, 3 May 2012) at [228] per Joseph Williams J. [Q]uestions of vires are ultimately questions of statutory interpretation.”: Berachan Investments Ltd v Body Corporate 164205 [2012] NZCA 256 at [31] per Arnold J ”The …submissions…rest on statutory interpretation, as does much of the law of judicial review in practice”: Royal Forest and Bird Protection Society of NZ Inc v Minister of Conservation [2016] NZHC 220 at [50], Palmer J. See also Deliu v Connell [2016] NZHC 361 at [6].
5 French CJ Litigating in a Statutory Universe (18 February 2012) at 2.
Content outline
- Introduction – statutory interpretation: why does it matter (now as much as ever)?
- Statutory interpretation: what does it mean?
- Text – what text is relevant, and how is text relevant, to finding legal meaning?
- Purpose – why is purpose a second key driver of statutory interpretation?
- Context – why and how does context affect legislation’s preferred meaning?
- Values – why and how do basic principles or values affect legal meaning?
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| Ross Carter Parliamentary Counsel Wellington |
Jason McHerron Barrister Wellington |