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Statutory Interpretation - a 2012 guide

NZ $85.00
incl GST
Ross Carter Jason McHerron
Ross Carter
Parliamentary Counsel
Wellington
Jason McHerron
Barrister
Wellington

Published: 1 October, 2012
Pages: 151

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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.

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 Bill before Parliament proposes to update the law on the drafting, publication, and revision of legislation. So it is no exaggeration to call statutory interpretation, as has Kirby J, lawyers’ “most important task”.[6]

The rest of this booklet is these six chapters:

  • Chapter 1 – Statutory interpretation: What does it mean?

  • Chapter 2 – Text: What text is relevant, and how is text relevant, to finding meaning?

  • Chapter 3 – Purpose: Why is purpose a second key driver of statutory interpretation?

  • Chapter 4 – Context: Why and how does context affect legislation’s legal meaning?

  • Chapter 5 – Values: Why and how do basic principles or values affect legal meaning?

  • Chapter 6 – Conclusion: All the Pieces Matter – a statutory interpretation checklist.

 


[1]     Bennion Statutory Interpretation—A Code (5th ed, 2008) at 512 (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.

[5]     French CJ Litigating in a Statutory Universe (18 February 2012) at 2.

[6]     Hon Justice Michael Kirby AC CMG, “Statutory Interpretation: The Meaning of Meaning” [2011] 35 MULR 113 at 118. Compare Ronald Dworkin (1982) 60 Texas LR 527 at 527 “legal practice is an exercise in interpretation” and Rt Hon Justice Andrew Tipping (Final Sitting Speech, Friday 17 August 2012) “A much higher proportion of civil litigation is now concerned with statutory interpretation”.

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