lOMoARcPSD|13097948
Statutory Interpretation
Legal System: Legal Method and Institutions (University of Canterbury)
Studocu is not sponsored or endorsed by any college or university
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, lOMoARcPSD|13097948
STATUTORY INTERPRETATION
Lecture Thirty-Seven: Statutory Interpretation Introduction
Admin:
Next week's tutorial instructions are on Learn, and the topic is in the Tutorial
Manual.
No in-person lecture on Friday this week.
Readings for this week;
o Scragg sections 4.1, 4.3, 4.4 and 4.8, and
o Penk and Russell sections 11.4, 11.5 and 12.1-12.4.2.
Statute Law as a Source of Law:
The recognised sources of law are Common law, Statute law and Customary law. Common
law is judge-made law, developed through cases. Customary law is residual law which refers
to an earlier state of legal affairs, which is generally only successful if there is no Statute or
Common law on the topic. Tikanga Māori is unique to New Zealand and aspects are
increasingly being referred to as authoritative sources of law. It is also being incorporated
into Statute.
Statute law is derived from legislation enacted by Parliament. Statute law and the Common
law are discrete and separate sources of law but often overlap and interact with each other.
They intersect typically in two ways;
It is not uncommon for Statute law to be enacted specifically to do something,
for example Parliament may codify an aspect of the Common law, for example
the 1979 Contractual Remedies Act.
Judges also still play a role in Statute as they must interpret it in the Courts, and
when the judge makes an interpretation, this becomes authoritative as
Common law.
Statute law is the dominant source of law and supersedes any other source. The first reason
for this is an institutional reason; Parliament is the supreme law-making body in New
Zealand due to Parliamentary sovereignty. The effect of this is that when statute law
conflicts with Common law, statute law will prevail. Judges sometimes signal the need for
Parliament to address or amend certain areas of law through codification.
The second reason for the dominance of statute is functional; overtime statutes have taken
over Common law. For example, the 1961 Crimes Act codified and replaced Common law
rules.
It is a myth to say that judges simply discover law which already exists- courts do create law
albeit incrementally rather than in major changes. However, parliament clearly creates
statute, deliberately and prospectively.
Delegated Legislation:
Statutes are created by Parliament, but there are other kinds of legislation. Statutes are
examples of legislation, enacted by Parliament, so are also Acts of Parliament. Not all pieces
Downloaded by Emma Grant ()
, lOMoARcPSD|13097948
of legislation are statutes, for example delegation local council bylaws or Statutory
Regulations. In these cases, Parliament does not directly make law but has granted power to
other governing bodies, secondary or delegated legislation. These kinds of laws are no less
enforceable. It is possible for these bodies to overstep their granted jurisdiction, in which
case courts can strike down laws.
This raises some constitutional questions as the Government is not democratically elected in
the same way that Parliament is.
Statutory Interpretation:
It is essential to ask what the intention of Parliament was. Statutory interpretation principles
apply equally to all other types of legislation, for example regulations, rules, bylaws and
other non-Parliamentary enactments.
Statutory interpretation is the method by which we as students, lawyers, academics and
judges read, analyse and apply legislation to give proper effect to the parliamentary purpose
behind that legislation.
Reading involves understanding how a statute is set out and the relevant parts, including the
jargon. Analysis relates to the statute but also individual provisions. Application involves
considering the context. The 1999 Interpretation Act sets out regulations for the modern
purposive approach, which New Zealand clearly follows. There are several historical
approaches; literal rule, golden rule, and mischief rule.
Statutory Interpretation and Statute Law:
Statute law and statutory interpretation are distinct. Statute law refers to the whole corpus
of law surrounding statutes, including how they are created amended or revoked, as well as
how they are interpretated, and accessed by the public.
Statutory interpretation is therefore a subset of this wider topic. Statutory interpretation
and statutory construction are the same thing.
Literal Rule:
The text of the statute should be interpreted strictly, and the words used should be given
their ordinary meaning. Interpreters should not bring in shades of meaning. Outside
contextual indicators of purpose have no role to play in interpreting the meaning of a
provision. This can lead to a narrow reading which is not consistent with Parliament's
original purpose.
Despite potentially problematic outcomes, the approach has survived. It places primacy on
the actual text used by Parliament- this should always be the starting point for
interpretation. It is important not to abandon clear meanings of words. Sometimes, the
meaning of the words will be all that is required for interpretation.
Golden Rule:
This can be seen as an expansion of the literal rule to prevent interpretations which are
absurd or ambiguous. It permits a 'stretching' of the words' meanings. It represents a limited
Downloaded by Emma Grant ()
, lOMoARcPSD|13097948
acknowledgement of purpose in interpreting a statute, in that Parliament intended that at
the very least, the statutory provision would have clear and operative effect.
Mischief Rule:
This probably has the most in common with the modern purposive approach, to the extent
that it looks at what Parliament sought to remedy by passing the Statute. It comes from
1584 Heydon's Case, a decision of the English Court of Exchequer. It is about avoiding
'mischief', advising that the Court should consider;
The state of the existing Common Law,
The 'mischief' or 'defect' within that state of the law,
The 'remedy' Parliament sought to apply to cure that defect, and
The true reason behind the imposition of that remedy.
The approach is largely remedial, but parts of it remain relevant.
Lecture Thirty-Eight: Statutory Interpretation
The three approaches to statutory interpretation are not necessarily chronological. All three
approaches have been popular simultaneously. Parts of each of them have found their place
in the modern purposive approach.
Reasons for statutory interpretation:
Inability of general language to encompass all potential factual patterns and
situations,
Individuality of human experience- even apparently clear wording means
different things to different people, and
Significant issues with language.
Specific problems with statutory language:
Ambiguity of meaning,
Ellipsis,
Use of legal jargon or terms of art, and
Long sentences and verbosity generally.
Anatomy of a statute:
The format of statutes changed significantly in 2000. Statutes post 2000 tend to have a more
modern format. Post 2000, Acts have a 'purpose' section rather than a long title.
Statutes include;
Date of assent,
Long title- beginning with the words 'an act...',
Short title, and
Commencement (date).
Parliament can specify exactly when the Act comes into force, regardless of the date of the
Royal assent. Interpreting te reo Māori in statutes has specific requirements.
Downloaded by Emma Grant ()
Statutory Interpretation
Legal System: Legal Method and Institutions (University of Canterbury)
Studocu is not sponsored or endorsed by any college or university
Downloaded by Emma Grant ()
, lOMoARcPSD|13097948
STATUTORY INTERPRETATION
Lecture Thirty-Seven: Statutory Interpretation Introduction
Admin:
Next week's tutorial instructions are on Learn, and the topic is in the Tutorial
Manual.
No in-person lecture on Friday this week.
Readings for this week;
o Scragg sections 4.1, 4.3, 4.4 and 4.8, and
o Penk and Russell sections 11.4, 11.5 and 12.1-12.4.2.
Statute Law as a Source of Law:
The recognised sources of law are Common law, Statute law and Customary law. Common
law is judge-made law, developed through cases. Customary law is residual law which refers
to an earlier state of legal affairs, which is generally only successful if there is no Statute or
Common law on the topic. Tikanga Māori is unique to New Zealand and aspects are
increasingly being referred to as authoritative sources of law. It is also being incorporated
into Statute.
Statute law is derived from legislation enacted by Parliament. Statute law and the Common
law are discrete and separate sources of law but often overlap and interact with each other.
They intersect typically in two ways;
It is not uncommon for Statute law to be enacted specifically to do something,
for example Parliament may codify an aspect of the Common law, for example
the 1979 Contractual Remedies Act.
Judges also still play a role in Statute as they must interpret it in the Courts, and
when the judge makes an interpretation, this becomes authoritative as
Common law.
Statute law is the dominant source of law and supersedes any other source. The first reason
for this is an institutional reason; Parliament is the supreme law-making body in New
Zealand due to Parliamentary sovereignty. The effect of this is that when statute law
conflicts with Common law, statute law will prevail. Judges sometimes signal the need for
Parliament to address or amend certain areas of law through codification.
The second reason for the dominance of statute is functional; overtime statutes have taken
over Common law. For example, the 1961 Crimes Act codified and replaced Common law
rules.
It is a myth to say that judges simply discover law which already exists- courts do create law
albeit incrementally rather than in major changes. However, parliament clearly creates
statute, deliberately and prospectively.
Delegated Legislation:
Statutes are created by Parliament, but there are other kinds of legislation. Statutes are
examples of legislation, enacted by Parliament, so are also Acts of Parliament. Not all pieces
Downloaded by Emma Grant ()
, lOMoARcPSD|13097948
of legislation are statutes, for example delegation local council bylaws or Statutory
Regulations. In these cases, Parliament does not directly make law but has granted power to
other governing bodies, secondary or delegated legislation. These kinds of laws are no less
enforceable. It is possible for these bodies to overstep their granted jurisdiction, in which
case courts can strike down laws.
This raises some constitutional questions as the Government is not democratically elected in
the same way that Parliament is.
Statutory Interpretation:
It is essential to ask what the intention of Parliament was. Statutory interpretation principles
apply equally to all other types of legislation, for example regulations, rules, bylaws and
other non-Parliamentary enactments.
Statutory interpretation is the method by which we as students, lawyers, academics and
judges read, analyse and apply legislation to give proper effect to the parliamentary purpose
behind that legislation.
Reading involves understanding how a statute is set out and the relevant parts, including the
jargon. Analysis relates to the statute but also individual provisions. Application involves
considering the context. The 1999 Interpretation Act sets out regulations for the modern
purposive approach, which New Zealand clearly follows. There are several historical
approaches; literal rule, golden rule, and mischief rule.
Statutory Interpretation and Statute Law:
Statute law and statutory interpretation are distinct. Statute law refers to the whole corpus
of law surrounding statutes, including how they are created amended or revoked, as well as
how they are interpretated, and accessed by the public.
Statutory interpretation is therefore a subset of this wider topic. Statutory interpretation
and statutory construction are the same thing.
Literal Rule:
The text of the statute should be interpreted strictly, and the words used should be given
their ordinary meaning. Interpreters should not bring in shades of meaning. Outside
contextual indicators of purpose have no role to play in interpreting the meaning of a
provision. This can lead to a narrow reading which is not consistent with Parliament's
original purpose.
Despite potentially problematic outcomes, the approach has survived. It places primacy on
the actual text used by Parliament- this should always be the starting point for
interpretation. It is important not to abandon clear meanings of words. Sometimes, the
meaning of the words will be all that is required for interpretation.
Golden Rule:
This can be seen as an expansion of the literal rule to prevent interpretations which are
absurd or ambiguous. It permits a 'stretching' of the words' meanings. It represents a limited
Downloaded by Emma Grant ()
, lOMoARcPSD|13097948
acknowledgement of purpose in interpreting a statute, in that Parliament intended that at
the very least, the statutory provision would have clear and operative effect.
Mischief Rule:
This probably has the most in common with the modern purposive approach, to the extent
that it looks at what Parliament sought to remedy by passing the Statute. It comes from
1584 Heydon's Case, a decision of the English Court of Exchequer. It is about avoiding
'mischief', advising that the Court should consider;
The state of the existing Common Law,
The 'mischief' or 'defect' within that state of the law,
The 'remedy' Parliament sought to apply to cure that defect, and
The true reason behind the imposition of that remedy.
The approach is largely remedial, but parts of it remain relevant.
Lecture Thirty-Eight: Statutory Interpretation
The three approaches to statutory interpretation are not necessarily chronological. All three
approaches have been popular simultaneously. Parts of each of them have found their place
in the modern purposive approach.
Reasons for statutory interpretation:
Inability of general language to encompass all potential factual patterns and
situations,
Individuality of human experience- even apparently clear wording means
different things to different people, and
Significant issues with language.
Specific problems with statutory language:
Ambiguity of meaning,
Ellipsis,
Use of legal jargon or terms of art, and
Long sentences and verbosity generally.
Anatomy of a statute:
The format of statutes changed significantly in 2000. Statutes post 2000 tend to have a more
modern format. Post 2000, Acts have a 'purpose' section rather than a long title.
Statutes include;
Date of assent,
Long title- beginning with the words 'an act...',
Short title, and
Commencement (date).
Parliament can specify exactly when the Act comes into force, regardless of the date of the
Royal assent. Interpreting te reo Māori in statutes has specific requirements.
Downloaded by Emma Grant ()
