3.06.2010

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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.



Sunday, May 30, 2010

Difference :Retroactive and Retrospective Statutes

There is a distinct difference between the two terms

1 Retroactive, and
2.Retrospective

As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case.The following brings out a clear difference.[blogger]

The Legislature may enact legislation which has retroactive or prospective effect. Included in the category of prospective application is legislation that is said to be “retrospective”. Much has been written by authors and courts on this subject, and applicable rules continue to evolve. As the terms “retroactive”and “retrospective” have been used interchangeably and have caused some confusion, it is useful to discuss terminology before embarking on a consideration of the relevant issues in this case. The Supreme Court of Canada, in Benner v. Canada (Secretary of State), 1997 CanLII 376 (S.C.C.), [1997] 1 S.C.R. 358 at para. 39, adopted the definitions set out by E.A. Driedger, in “Statutes: Retroactive Retrospective Reflections” (1978), 56 Can. Bar Rev. 264, at 268-69:

A retroactive statute is one that operates as of a time prior to its enactment. A retrospective statute is one that operates for the future only. It is prospective, but it imposes new results in respect of a past event. A retroactive statute operates backwards. A retrospectivestatute operates forwards, but it looks backwards in that it attaches new consequences for the future to an event that took place before the statute was enacted. A retroactive statute changes the law from what it was; a retrospective statute changes the law from what it otherwise would be with respect to a prior event.

In Hornby Island Trust Committee v. Stormwell 1988 CanLII 3143 (BC C.A.), (1988), 53 D.L.R. (4th) 435 at 441 (B.C. C.A.), Lambert J.A. also made the following distinction between the two terms:

A retroactive statute operates forward in time, starting from a point further back in time than the date of its enactment; so it changes the legal consequences of past events as if the law had been different than it really was at the time those events occurred. A retrospectivestatute operates forward in time, starting only from the date of its enactment; but from that time forward it changes the legal consequences of past events.                                                                                                  [Emphasis in original.]

Limitations on construing True meaning

The object of statutory interpretation is to determine what the words of a statutory provision mean. However, what words mean may in some situations depend on who is reading them. Drucilla Cornell makes the following comment about the nature of meaning: "Meaning is not like a dead object which is present for us to grasp and then apply. Meaning only comes to life within a form of life". [Drucilla Cornell "Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal interpretation" (1988) 136 U Pa L Rev 1135, 1136 – 1138.]

Characteristics such as gender, income level and race may all have an effect on interpretation. Judges tend to be privileged, white males and these characteristics can have an impact on the decisions that they make. As one commentator states: [Kent Greenawalt "Variations on Some Themes of a 'Disporting Gazelle' and His Friend: Statutory Interpretation as Seen by Jerome Frank and Felix Frankfurter" (2000) Colum L Rev 176, 210.]

[N]o one who thinks carefully can doubt that social class, race gender, national origin, sexual preference, and more personal factors affect judicial outlooks...When cases are difficult, when good arguments can be made on both sides, the idea that detachment will somehow get judges to the right result seems naive.

Not only can the process of determining the meaning of words be affected by judicial personality, but so too can the implementation of the purposive approach. It will not always be easy to deduce the purpose from the Act and extrinsic materials. In such cases, an inquiry into purpose may not be an objective task and it is possible that different judges might disagree about the purpose of an Act. Indeed it has been said that "Judges giving weight to purposes may implement their own notions of good policy, while attributing them to the legislature". [ Greenawalt, above, 211–212]

The value-based approach to interpretation discussed in Professor Burrow's paper adds a further degree of subjectivity to the interpretation process. In many instances the relevant fundamental value will be clear as it will be contained in the Bill of Rights Act. However, there are many fundamental values not contained in the Bill of Rights Act. It is arguable that judges' personal ideas of policy might sometimes colour their determination of these fundamental values and the relevance of each value in any given case.

The element of subjectivity in interpretation has always existed. What is relatively new is the increasing recognition of this fact. Traditionally the interpretative process has been regarded as objective and neutral. In recent years, however, this assumption has been questioned. Scholars such as feminists and critical legal theorists have argued that the interpretation process is inevitably subjective and political. [ See Margaret Davies Asking the Law Question (Law Book Company, Sydney, 1994), for a discussion of the nature of objectivity. See also Lucinda Finley "Breaking Women's Silence in Law ... the Dilemma of the Gendered Nature of Legal Reasoning" (1989) 64 Notre Dame L Rev 886; Catherine McKinnon Feminism Unmodified: Discourse on Life and Law (Harvard University Press, Cambridge (Mass), 1987) 55.]

F Conclusion

In the majority of cases, the language in statutes communicates effectively and causes no problems. Professor Burrows makes the important point that it is only the difficult cases that come before the courts and that in many situations, statues are clear and applying them presents no problem. [Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561]In those cases where there is some uncertainty, the most ordinary and natural meaning of the words in context should be of central importance. In addition, the courts consider the purposive approach, the Bill of Rights Act and a value-based approach to guide their interpretation of ambiguous provisions.

It is has been said that approaches to statutory interpretation "jostle with each other, and vary from case to case in their relative importance".[Sir Ian McKay "Interpretation Statutes – A Judges' View" (2000) 9 Otago LR 743, 747.] Indeed, to some extent judges will subconsciously or consciously use the statutory interpretation approach that gets the result they want to achieve. In addition, any general trends may be affected by the extent to which purpose can be determined and the importance of the fundamental value at stake. Overlaying all interpretation is the still generally accepted principle that whatever approach is used, the words should only be given meanings which they are reasonably capable of bearing.


Fundamental Rights Based Approach-New ZealandValue

One of the most interesting points that Professor Burrows makes is that fundamental values have become a significant part of the interpretation process and that there is an increasing express recognition of their use.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561, and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.] What is described by Burrows as "value–based interpretation" fringes on the same idea as the golden rule that maintains that where possible the words of a statute should be interpreted to avoid an absurd, unjust or repugnant result. The New Zealand Bill of Rights Act 1990 (Bill of Rights Act) requires a value-based interpretation but there are many other fundamental values not included in the Bill of Rights Act (freedom from slavery, privacy and the sanctity of property are examples given by Professor Burrows).

Value-based interpretation is only applicable where there is some uncertainty over meaning. It is particularly helpful in situations where it is difficult to determine Parliamentary intent and so the purposive approach is of little help. In many cases extrinsic aids are unable to expressly state Parliament's intention in regard to a particular provision. In this situation the courts are able to consider fundamental values that exist outside of the statute when interpreting the statute. In one sense this can be seen as a way of making a presumption about Parliamentary intent. Burrows, however, argues that fundamental values operate as part of our legal system and are independent of Parliamentary intent. In other words, if Parliament intends to enact something that contravenes fundamental values but does not do so with clear enough language then the court can override Parliamentary purpose in favour of preserving a fundamental value. Parliamentary intent is only relevant in that it can exclude values by an express statement.

This type of value-based interpretation shifts the power to create laws away from Parliament and onto the judiciary. The "fundamental" values are outside of the statute and, unless they are rights under the Bill of Rights Act, they are left to be defined by the judges. The values may not always accord with Parliamentary intent. It is arguable that fundamental values "exist" only in so far as they are believed in and applied by the judiciary. Whether or not fundamental values are inherent in the nature of the world or whether they are a subjective human creation is a contentious issue. If they are subjectively defined then the personal morality of each judge may sometimes influence his or her assessment of the relevant fundamental values in any given case. For discussion on subjectivity and the lack of diversity on the Bench see Part I E The Effect of Judicial Personality on Interpretation.

Shift in Interpretation to Purposive and Value Based Approach

A Shift from Strict Literal Meaning to Natural and Ordinary Meaning in Context

Both Professor Burrows and Justice McGrath refer to the old style of interpretation where courts applied the strict literal meaning of statutes as deduced from the words in question, the dictionary meanings, and rules of grammar.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John J McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597. ]

Adoption of Golden Rule when Literal Approach leads to absurdity

The golden rule allowed this approach to be departed from where a literal interpretation would lead to an absurd or unjust result. However, the new meaning given to the words still needed to be one that the words could bear.[ River Wear Commissioners v Adamson [1877] 2 AC 743, 764 (HL). As both Professor Burrows and Justice McGrath explained,[River Water Commission supra ] there has been a shift away from this strict literal approach. The shift includes a move toward a purposive approach and an increasing recognition of an approach described by Professor Burrows as "value-based interpretation".[River Water Commission supra]

Shift from Literal Approach to Natural and Ordinary Meaning in context

There has also been a subtler shift in approach, which is worth considering further since it was not the main focus of Professor Burrow's and Justice McGrath's papers. This is the shift from the strict literal approach to an approach that looks for the natural and ordinary meaning of words in their context.

This relaxation of the strict literal approach involves a wider search for meaning than simply looking at the word in question, its dictionary meaning and rules of grammar. The modern courts are concerned with finding the natural and ordinary meaning of that word or provision in its context. This involves consideration of the natural and ordinary meaning of the word in everyday usage as a more important indicator of meaning than the dictionary definition. More important than both the dictionary and ordinary usage is the internal context of the Act. Professor Burrows refers to this as the "scheme of the Act". The word must be examined in the context of the whole Act rather than limiting the inquiry to the section in question. So, for example if the issue is whether the word "wildlife" includes a dead kiwi in section 63 of an Act [Wildlife Act 1953]. it is relevant that under section 55 of the same Act the drafter refers to "the dead bodies of ... wildlife".[See Police v Johnson (1990) 3 NZLR 211 (HC).] If the word "wildlife" included the dead bodies of such wildlife there would be no need to use the expression "dead bodies of wildlife".

The examination of the internal context of the Act is more than a tool to be used when determining the purpose of the Act, it is firstly and more importantly a method for deducing natural meaning. Jefferies J stated in Arataki Honey Ltd v Minister of Agriculture and Fisheries "[i]n the complex task of wresting the true construction of an Act it cannot be compartmentalised and scrutinised molecularly".[ Arataki Honey Ltd v Minister of Agriculture and Fisheries [1979] 2 NZLR 311, 314 (SC) Jefferies J]

Although the strict literal rule has been relaxed and the purposive approach has been given more emphasis in recent years, the basic rule that prima facie the natural and ordinary meaning of words in their context must be applied still stands. The statutory language is still the starting point and in many cases it also provides the answer. A study conducted at the University of Otago showed that in almost half of the Court of Appeal cases involving statutory interpretation in 1976, 1986 and 1996, the Court reached its decision relying on simply the statutory language itself and any relevant precedent cases.[ See Jane Allen " Statutory Interpretation and the Courts" (1999) 18 NZULR 439, 479. ] Recognition of the importance of the statutory language itself is now contained in section 5(1) of the Acts Interpretation Act 1999, which directs the courts to ascertain meaning from the text of an enactment in light of its purpose.

Ordinarily Meanings : Dictionary as Source of Interpretations

Words that are not terms of art and that are not statutorily defined are customarily given their ordinary meanings, often derived from the dictionary. [In the absence of a statutory definition, “we construe a statutory term in accordance with its ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994).] Thus, the Court has relied on regular dictionary definitions to interpret the word “marketing” as used in the Plant Variety Protection Act, [Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995).] and the word “principal” as used to modify a taxpayer’s place of business for purposes of an income tax deduction,[Commissioner v. Soliman, 506 U.S. 168, 174 (1993).] and relied on Black’s Law Dictionary for the more specialized meaning of the word “cognizable” as used in the Federal Tort Claims Act to identify certain causes of action.[ FDIC v. Meyer, 510 U.S. 471, 476 (1994).]

Of course application of dictionary definitions is not always a clear course;many words have several alternative meanings, and context must guide choice among them. [See, e.g., MCI Tel. Corp. v. American Tel. & Tel. Co., 512 U.S. 218, 226-28 (1994) (FCC’s authority to “modify” requirements does not include the authority to make tariff filing optional; aberrant dictionary meaning “to make a basic or important change” is antithetical to the principal meaning of incremental change and is more than the statute can bear); and Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (preemption of state laws that prohibit “any entity” from providing telecommunications service means, in context, “any private entity,” and does not preempt a state law prohibiting local governments from providing such services). If the court views the issue as one of deference to an administrative interpretation, then the agency’s choice of one alternative dictionary definition over another may indicate sufficient “reasonableness.” Smiley v. Citibank (South Dakota), 517 U.S. 735, 744-47 (1996).]

Order Code 97-589,Statutory Interpretation:General Principles and Recent Trends Updated August 31, 2008,Yule Kim,Legislative Attorney,American Law,Statutory Interpretation: General Principles and Recent Trends

Core Meaning and Real Meaning Concept

The subject of statutory interpretation is important because much of New Zealand law is contained in the statute books and because the majority of legal issues that come before the courts involve statutory interpretation .Professor John Burrows "The Changing Approach to the Interpretation of Statutes"

[In 1996, sixty-four percent of cases in the Court of Appeal involved statutory interpretation . See Jane Allen " Statutory Interpretation and the Courts" (1999) 18 NZULR 439, 440. .] Issues of interpretation arise because the precise meaning of words is often uncertain. There is usually an inner core of meaning that all reasonable people would agree upon and also a vast world of meaning that is clearly not conveyed by the word. However, there is a murky area in between these two spheres where interpretation becomes more difficult. The case of Kecold Ltd v O'Brien [Kecold Ltd v O'Brien [1999] 3 NZLR 261 (CA).] illustrates the uncertainty at the outer edges of meaning. This case involved interpretation of the word "sick". The inner core of meaning of this word is clear. If a person has influenza, cancer or food poisoning, for example, their condition is clearly within the meaning of "sick". The Court of Appeal had to decide whether the word "sick" applied to a person who was injured.[ The Court concluded that the word "sick" in the context of the Holidays Act 1981 could apply to a person who was injured.]

It is thus important to understand that the meaning may or may no be exactly the prdinarily used word. The US Courts use the expressions that are in the Statutes as the following citations would show.[Blogger]

Approach Adopted By US Courts

When the meaning of specific statutory language is at issue, courts often need to consider the meaning of particular words or phrases. If the word or phrase is defined in the statute (federal statutes frequently collect definitions in a “definitions” section), or elsewhere in the United States Code,[The Dictionary Act, ch. 388, 61 Stat. 633 (1947), as amended, 1 U.S.C. §§ 1-6, has definitions of a few common terms used in federal statutes (e.g., “person,” “vessel,” and “vehicle”). These definitions govern in all federal statutes “unless the context indicates otherwise.” See Stewart v. Dutra Constr. Co., 543 U.S. 481, 489 (2005) (relying on Dictionary Act’s definition of “vessel”); Rowland v. California Men’s Colony, 506 U.S. 194 (1993) (context indicates otherwise; the term “person” as used in 28 U.S.C. § 1915(a) refers only to individuals and does not carry its Dictionary Act definition , which includes associations and artificial entities).] then that definition governs if applicable in the context used. [Colautti v. Franklin, 439 U.S. 379, 392 (1979). If the context indicates otherwise, i.e., if a mechanical application of a statutory definition throughout a statute would create an “obvious incongruity” or frustrate an evident statutory purpose for a particular provision, then it is permissible to depart from the definition. Lawson v. Suwannee S.S. Co., 336 U.S. 198, 201 (1949). But, as noted below, a term appearing in several places in a statute is ordinarily interpreted as having the same meaning each time it appears. See section on “Same Phrasing in Same or Related Statutes,] Even if the word or phrase is not defined by statute, it may have an accepted meaning in the area of law addressed by the statute [See, e.g., Sullivan v. Stroop, 496 U.S. 478, 483 (1990) (phrase “child support” as used in Title IV AFDC provisions of Social Security Act). Note also that “where a phrase in a statute appears to have become a term of art . . . , any attempt to break down the term into its constituent words is not apt to illuminate its meaning.”], it may have been borrowed from another statute under which it had an accepted meaning,[ In appropriate circumstances, courts will assume that “adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording.” Carolene Products Co. v. United States, 323 U.S. 18, 26 (1944) (finding, however, that circumstances were inappropriate for reliance on the principle). For the presumption to operate, the previous judicial interpretations must have been “known and settled.” Capital Traction Co. v. Hof, 174 U.S. 1, 36 (1899). See also Yates v. United States, 354 U.S. 298, 310 (1957) (in the absence of legislative history indicating that decisions of lower state courts were called to Congress’ attention, Court “should not assume that Congress was aware of them”). Variations in statutory wording may also refute the suggestion that Congress borrowed an interpretation. Shannon v. United States, 512 U.S. 573, 581 (1994) (Congress did not borrow the terms of the Insanity Defense Reform Act of 1984 from the District of Columbia Code).] or it may have had an accepted and specialized meaning at common law[See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (relying on traditional common law agency principles for meaning of term “employee” as used without definition in the Copyright Act). See also Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992) (following the same course after finding ERISA’s “circular” definition of “employee” to be useless); Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444 (2003) (same construction of similarly “circular” definition of “employee” in ADA).]. In each of these situations the accepted meaning governs[W]here a common law principle is well established, . . . the courts may take it as a given that Congress has legislated with an expectation that the principle will apply except ‘when a statutory purpose to the contrary is evident.’” Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). No clear statement rule is required, however, in order to establish an “evident” contrary purpose. 501 U.S. at 108] and the word or phrase is considered a technical term or “term of art.” Justice Jackson explained why this reliance is appropriate: [Morissette v. United States, 342 U.S. 246, 263 (1952). See also Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation”).]

[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such a case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as departure from them.

Order Code 97-589,Statutory Interpretation:General Principles and Recent Trends ,Updated August 31, 2008,Yule Kim,Legislative Attorney,American Law,Statutory Interpretation:,General Principles and Recent Trends

Purposive approach- New Zealand Constitution

In the following paragraph that have been taken from the Article cited below the learned author has emphasized very important facts and have reached at certain conclusions that are in line with the basic discussion that one should apply liberal approach while interpreting the Constitution as it is a live document and is not static in any manner, it changes as the society changes. It is an important expression of the learned author that I quote below.{blogger]

New Zealand The Bill of Rights Act, 1990

Section 6 of the New Zealand Bill of Rights Act,1990 requires a value-based approach to statutory interpretation . It provides:

6. Interpretation consistent with the Bill of Rights Act to be preferred – Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

The Courts have concluded that section 6 has a significant impact on statutory interpretation . In Ministry of Transport v Noort [Ministry of Transport v Noort [1992] 3 NZLR 260, 272 (CA) Cooke P]Sir Robin Cooke stated that section 6 is "perhaps of even greater importance" than the purposive approach in section 5(j) of the Acts Interpretation Act 1924. Both Professor Burrows and Justice McGrath describe the Bill of Rights Act as a qualification of the purposive approach.[ Professor John Burrows "The Changing Approach to the Interpretation of Statutes" Roles and Perspectives in the Law, 561 and John McGrath "Reading Legislation and Ivor Richardson" Roles and Perspectives in the Law, 597.]

In a recent article Michael Hodge questions the presumed importance of section 6 to statutory interpretation and its purported paramouncy over the purposive approach. [Michael Hodge " Statutory Interpretation and Section 6 of the New Zealand Bill of Rights Act: A blank Cheque or a Return to the Prevailing Doctrine?"(2000) 9 Auckland U LR 1. ]Section 6 allows enactments to be give a "meaning" consistent with the rights in the Act. He argues that the "meaning" of an enactment is determined by the reasonable reader's best estimate of the legislature's meaning taking into account syntax and semantics together with all the pragmatic factors that are available to the hearer. These factors include the "general state of the law and the social concerns that the law addresses". Certainly where the Bill of Rights Act is not in issue this is the prevailing method that the courts use to determine meaning.

Although a provision may at first appear ambiguous, Hodge points out that after a full consideration it is rare that there are two or more best estimate meanings. His concern is that the courts are applying section 6 to allow any "meaning" that is a "tenable" estimate of the legislature's meaning and that this shows a failure to appreciate the nature of meaning. Only the best estimate of meaning should be recognised as the meaning of a provision.

Under this approach, section 6 has a far more limited scope. It does not allow the courts to ignore the purposive approach or the natural meaning of the word in context, in favour of a possible meaning that is consistent with the Bill of Rights. Instead, Hodge argues, the courts are required to determine the true meaning of a provision in light of its purpose and if this meaning is clear then section 6 is irrelevant. It is only on the rare occasions where there is genuine ambiguity that section 6 is applicable.

The approach advocated by Hodge is not presently used by the courts and does not reflect how Professor Burrows and Justice McGrath view section 6. The courts apply section 6 wherever a possible meaning is consistent with the rights in the Act. The word "meaning" is therefore interpreted widely as including all tenable estimates of legislatures' meaning as well as the best estimate of meaning. This is arguably in accordance with the words of section 6, which simply require that the preferred meaning must be "a" meaning that an enactment "can" be given. The broad interpretation of "a meaning" also allows the Bill of Rights Act to best ensure it meets its stated objective of affirming, protecting, and promoting human rights and fundamental freedoms in New Zealand.

One may Like to refer to this important document by the learned author.[Blogger]

Trends In Statutory Interpretation And The Judicial Process,Victoria University of Wellington Law Review, Victoria University of Wellington Law Review, [2002] VUWLRev 41 Kate Tokeley Senior Lecturer in Law, Victoria University of Wellington.