Courts not to Usurp Legislative Powers.

The basic principle to be observed in the interpretive exercise is to see that the intent of the legislature is read and implemented and in this process the courts are not to usurp the legislative powers by undertaking an interpretation that would defeat the basic purpose of any sub-ordinate legislations. It is an admitted fact that courts have no expertise in the matter of policy decisions and courts usually do not interfere in these matters. The following paragraphs also sums up the position of Judiciary that it does not intervene in the policy matters of the State and it is a well accepted presumption as well. Courts have little or rather no authority in policy making in a welfare state or free democratic set ups. Courts even do not try to say much in the case of delegated/sub-ordinate legislation. In such cases also the basic premise is that the legislature has delegated its authority on the executive through state Instrumentalities or quasi-judicial bodies.[blogger] 
"The interpreter should it fill the gaps that may have a statute, that is to say, he must supply the omission to provide for certain situations, some cases that the subject of a text logic control for securing?

It is not surprising to note that it is not possible to draw from the jurisprudence general and categorical answer to this question. In the same way that there is no consensus, jurisprudence, the relative importance of the text and purpose, there is, as to fill gaps, two schools of thought, one claiming the Literal Rule and advocating abstention and the other, leaning on the Mischief Rule, that would help to fill gaps. This situation also reflects perfectly the tension between the two main objectives of legal interpretation: the search for legislative history and thought of seeking a reasonable solution to a practical problem. "[  Interpretation of laws, Pierre-André Côté, 3th edition 1999, p. 506]

“….in the presence of a clear text, it need not add that doing it would usurp the rightful role of the legislature.”

Professor Côté interesting remarks on this subject. Speaking of the position of not adding to the clear wording of a law, he writes:

"This position calls for two comments. First, the judge does not legislate it adds under the law to make explicit what it has already implicitly. The problem does not seems to be that of whether the judge may or may not add under the law, but rather whether, first, this idea is implicit in the text enough to justify the judge to make it produce effect and secondly, if some reason does not preclude an element implicit in the law is explained by the judge. I am thinking, for example, certain rules that require the legislature extra clarity when he wants to produce certain effects, such as depriving someone of a property right, for example.

The other point which seems necessary is as follows: the Rule Literal suggests that from the time the judge plays a creative role in resolving a case and ceases to be a strict law administrator, he usurps the functions of the legislature. However, there is no need to show that, by the very nature of things, the judicial function requires a degree of creativity. In the silence of the law, or in its uncertainty, the judge must still determine, and obligation he is to judge may require him to form rules that go beyond the bare text of the law, but remain much as possible in the wake of his mind.

It may be that the judge refused to fill a gap not because of a narrow conception of the judicial function, but because of the general principles of interpretation which require in certain matters, insisting on an explicit formulation of legislative intent. For example, it does not surprise that the For example, it does not surprise that the courts are reluctant to supply the deficiencies of a tax law[1] a retroactive law[2] or a law that severely impair the right of property[3]. "

[1] Rc Compagy British Columbia Railway, [1981] 2 FC 783 (CA): MacMillan Bloedel Ltd.. v  Minister of National Revenue, reflex, (1991) 38 FTR 58 (FC),Dome Petroleum Ltd.. C.             Saskatchewan, (1983) 25 Sask.R. 26 (Sask.QB).

[2]   Re Capital Regional District and Heinrich, 1981 CanLII 482 (BC CA), (1982) 130 DLR (3d) 709 (BCCA).

[3] Colet v. The Queen, 1981 CanLII 11 (SCC), [1981] 1 SCR 2.

...Crown ..II Contd..

The problem of principle in relation to the rule lies in judicial statements of its content and operation which have tended to discount the significance of its character as an aid to statutory construction and to treat it as if it were an inflexible principle which, in the absence of express reference to the Crown, precludes a statute from binding the Crown unless a test of "necessary implication", which "is not easily satisfied", is applied and satisfied (see, e.g., Brisbane City Council v. Groups Projects Pty. Ltd. [1979] HCA 54; (1979) 145 CLR 143, at p 167; Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61). It is true that the phrase "necessary implication" has often been used in this context in the flexible and non-technical sense of requiring little more than that an intention to bind the Crown can be discerned when the words of the statute are construed in the general context of the subject matter, disclosed policy and mischief to be redressed (see, e.g., Roberts v. Ahern [1904] HCA 17; (1904) 1 CLR 406, at p 418; Minister for Works (W.A.) v. Gulson, at pp 358, 367). That use of the phrase "necessary implication" does not, however, conform with the weight of more recent authority which has given the phrase, as used in this context, the character of a formularized test. Thus, it has been authoritatively stated that "necessary implication" means that it "must be manifest, from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound" (see, e.g., Brisbane City Council, at p 167; Province of Bombay, at p 61; Premchand Nathu and Co. Ltd. v. Land Officer (1963) AC 177, at pp 188-189; China Ocean Shipping Co., at pp 199, 221, 240). In determining whether the test of "manifest from the very terms of the statute" is satisfied, it is permissible to take account of the statute's apparent purpose. Even there, however, an eye of the needle test has been applied: it must be possible to affirm "that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound" (Province of Bombay, at p 63, emphasis added; and see, also, Brisbane City Council, at p 169; China Ocean Shipping Co., at p 200). That last-mentioned test is obviously a very stringent one which is likely to be satisfied only in the case of a statute dealing with a special subject which, of its nature, necessarily involves the Crown (e.g. a statute dealing with proceedings for excess of governmental power: cf. Alberta Government Telephones v. Canadian Radio-television and Telecommunications (1989) 61 DLR (4th) 193, at p 233).

 BROPHO v. WESTERN AUSTRALIA [1990] HCA 24; (1990) 171 CLR 1, MASON C.J., DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ.

The common law principle is not in doubt. It is that, as a matter of construction, a statute does not bind the Crown unless an intention that the Crown be bound appears either expressly or by necessary implication from the words of the statute. The test of necessary implication is not easily satisfied. It must be manifest, from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound: Province of Bombay v. Municipal Corporation of Bombay (1947) AC 58, at p 61 ; and see, generally, Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. Ante, p. 107. . (at p167)

It was also observed in the case of Brisbane City that "The mere legislative prescription in s. 4 of the City of Brisbane Town Planning Act that a Town Plan approved by the Governor-in-Council shall have the force of law cannot result in the Crown being bound by the provisions of a Plan unless such an intention appears from the Act itself. In purporting to bind the Crown the present Plan exceeds the authority conferred on the Governor-in-Council to approve Town Plans under the Act. Subordinate legislation cannot validly extend the operation of an Act to persons or objects (in this case, the Crown) that are not within the scope of the Act itself and such legislation will be ultra vires to the extent that it purports to do so notwithstanding that it is given "the force of law": cf. England v. Penfold (1934) St R Qd 125, at p 147 ; Widgee Shire Council v. Bonney [1907] HCA 11; (1907) 4 CLR 977, at p 985 , per Isaacs J.; Morton v. Union Steamship Co. of New Zealand Ltd. [1951] HCA 42; (1951) 83 CLR 402, at p 410 . (at p169) 

Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143 (1 November 1979)

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Presumption against infringement of Fundamental Rights

 A fundamental right is one explicitly or implicitly implied guaranteed by the constitution.” 
[Ballard v. Commonwealth, 228 Va. 216 (1984). See also Marshall v. Northern Virginia Transportation Authority, 275 Va. 419, 657 S.E.2d. 71 (2008)]
One can point to other "rules of construction" which require clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to achieve a particular result. Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g., Benson v. Northern Ireland Road Transport Board (1942) AC 520, at pp 526-527), which would operate retrospectively (see, e.g., Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 267), which would deprive a superior court of power to prevent an unauthorized assumption of jurisdiction (see, e.g., Magrath v. Goldsbrough, Mort and Co. Ltd. [1932] HCA 10; (1932) 47 CLR 121, at p 134) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel [1920] UKHL 1; (1920) AC 508). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear. Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304, and see, also, Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at p 93). If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear.

BROPHO v. WESTERN AUSTRALIA [1990] HCA 24; (1990) 171 CLR 1, MASON C.J., DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ.
Speaking against the right to access the Courts , that is also a fundamental principle it was observed in House of Lord Decisions following was stated in a case:"Of course, it is well known that Courts of Law have always exercised a certain authority to restrain the abuse of statutory powers. Such powers are not conferred for the private advantage of their holders. They are given for certain limited purposes, which the holders are not entitled to depart from : and if the authority that confers them prescribes, explicitly or by implication, certain conditions as to their exercise, those conditions ought to be adhered to. It is, or may be, an abuse of power not to observe the conditions. It is certainly an abuse of power to seek to exercise it when the statute relied upon does not truly confer it, and the invalidity of the act does not depend in any way upon the question whether the person concerned knows or does not know that he is acting ultra vires. It is an abuse of power to exercise it for a purpose different from that for which it is entrusted to the holder, not the less because he may be acting ostensibly for the authorised purpose. Probably most of the recognised grounds of invalidity could be brought under this head: the introduction of illegitimate considerations, the rejection of legitimate ones, manifest unreason ableness, arbitrary or capricious conduct, the motive of personal advantage or the gratification of personal ill-will. However that may be, an exercise of power in bad faith does not seem to me to have any special pre-eminence of its own among the causes that make for invalidity. It is one of several instances of abuse of power and it may or may not be involved in several of the recognised grounds that I have mentioned. Indeed, I think it plain that the Courts have often been content to allow such circumstances, if established, to speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power have actually proceeded in bad faith. [per LORD RADCLIFFE]

Smith (Kathleen Rose) v East Elloe Rural DC [1956] UKHL 2 (26 March 1956) 
URL: http://www.bailii.org/uk/cases/UKHL/1956/2.html 
Cite as: [1956] UKHL 2, [1956] AC 736

Presumption that Statute does not bind the crown

A statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by "necessary implication" in the limited and stringent sense. 


If such a legislative intent appears when the relevant legislative provision is construed in a context which includes the presumption against the Crown and its instrumentalities or agents being so bound, that legislative intent must, as a matter of principle, prevail. 


That being so, earlier judicial statements to the effect that it must be manifest from the very terms of the statute itself that it was the legislative intent that the general words of a statute should bind the Crown, or that it must be apparent that the purposes of the statute would be wholly frustrated unless the Crown were bound, should be read as applying to the context of the particular statutory provisions involved in the cases in which they were made. Such statements should no longer be seen as precluding the identification of such a legislative intent in other circumstances or as warranting the overriding of a legislative intent which can be discerned in the provisions of a statute when construed in context.


For so long as "the Crown" encompassed little more than the Sovereign, his or her direct representatives and the basic organs of government, there may well have been convincing reasons for an assumption that a legislative intent that general statutory provisions should bind the Crown and those who represent it would be either stated in express terms or made "manifest from the very terms of the statute". The basis of an assumption to that effect lay in a mixture of considerations: regard for the dignity and majesty of the Crown; concern to ensure that any proposed statutory derogation from the authority of the Crown was made plain in the legislative provisions submitted for the royal assent; and, the general proposition that, since laws are made by rulers for subjects, a general description of those bound by a statute is not to be read as including the Crown (see The Attorney-General v. Donaldson (1842) 10 M and W 117, at pp 123-124 [1842] EngR 747; (152 ER 406, at pp 408-409); British Broadcasting Corporation v. Johns, at p 78). Thus, Lord Campbell C.J. could, in Moore v. Smith (1859) 5 Jur NS 892, at p 893, speak of the rule of construction as:

"... a sacred maxim that the Crown is not bound by an act of
Parliament, unless it is quite clear, from the language
employed, that the Legislature contemplated including the
Crown, and her Majesty, in giving her royal assent, assented
that the Crown should be bound, and was fully aware that she
was giving her assent to be subject to the provisions of the
statute."

What is Crown
As Diplock L.J. commented in British Broadcasting Corporation v. Johns (1965) Ch 32, at pp 78-79:

"The modern rule of construction of statutes is that the Crown, which today personifies the executive government of the country and is also a party to all legislation, is not bound by a statute which imposes obligations or restraints
on persons or in respect of property unless the statute says so expressly or by necessary implication. ... (T)he executive functions of sovereignty are of necessity performed through the agency of persons other than the Queen
herself. Such persons may be natural persons or, as has been increasingly the tendency over the last hundred years, fictitious persons - corporations."

 The rule that statutory provisions worded in general terms are to be construed as prima facie inapplicable to the Crown was initially confined to provisions which would have derogated from traditional prerogative rights (see, e.g., Street, "The Effect of Statutes upon the Rights and Liabilities of the Crown", University of Toronto Law Journal, vol.7 (1948), 357; Hogg, Liability of the Crown, 2nd ed. (1989), at pp 202, 242-243) or, alternatively, was said to be subject to very broad exceptions in that it did not apply if the intention of the statute was to provide "for the public good", or "the advancement of religion and justice", or "to give a remedy against a wrong" or to prevent fraud or "tortious usurpation" (see, e.g., Sydney Harbour Trust Commissioners v. Ryan [1911] HCA 64; (1911) 13 CLR 358, at pp 365-366). It has, however, been clearly accepted in more recent cases in the Court that the rule is of general application (see, in particular, The Commonwealth v. Rhind [1966] HCA 83; (1966) 119 CLR 584, at p 598; Bradken Consolidated Ltd. v. Broken Hill Proprietary Co. Ltd. (1979) [1979] HCA 15; 145 CLR 107; China Ocean Shipping Co. v. South Australia [1979] HCA 57; (1979) 145 CLR 172; and see also, as to the United Kingdom, Lord Advocate v. Dumbarton District Council (1989) 3 WLR 1346, at p 1366; as to the United States of America, Corpus Juris Secundum, vol.82, p 554; and cf., as to Canada, Interpretation Act, RSC 1985, c.I-21, s.17 and the discussion in the judgment of Stephen J. in the China Ocean Shipping Co. Case, at pp 216-221). In Madras Electric Supply Corporation Ltd. v. Boarland (1955) AC 667, at p 694, Lord Keith of Avonholm expressed the view that the rule is not "just a rule of statutory construction" but reflects a prerogative power of the Crown to override "words in a statute capable of applying" to it. This notion of a prerogative to override the provisions of a duly enacted statute was rejected by Lord MacDermott (at p 685) and Lord Reid (at pp 687-688) in Madras and, as Lord Reid intimated (at p 687), is quite contrary to the whole course of British constitutional development since 1688 (see, also, A. v. Hayden [1984] HCA 67;(1984) 156 CLR 532, at pp 580-581, and Lord Advocate v. Dumbarton District Council, at pp 1357-1360. It certainly has no place in the law of this country where it has been consistently accepted that the rule that legislative provisions worded in general terms are prima facie inapplicable to the Crown is a rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent (see, e.g., R. v. Sutton [1908] HCA 26; (1908) 5 CLR 789, at pp 795, 800, 805-806; Minister for Works (W.A.) v. Gulson [1944] HCA 27; (1944) 69 CLR 338, at pp 347 and 359). Being a judge-made rule of construction, the presumption which the rule embodies may be supplemented, modified or reversed by legislative provision (see, e.g., Acts Interpretation Act 1931 (Tas.), s.6(6); The Acts Interpretation Act of 1954 (Q.), s.13; Acts Interpretation Act 1924 (N.Z.), s.5(k); Interpretation Act, RSBC 1979 (British Columbia), c.206, s.14 ; Interpretation Act 1981 (Prince Edward Island), c.18, s.14). 



Cited from:BROPHO v. WESTERN AUSTRALIA [1990] HCA 24; (1990) 171 CLR 1, MASON C.J., DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ.


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