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Glazebrook, Susan --- "Do they say what they mean and mean what they say? Some issues in statutory interpretation in the 21st century" [2015] OtaLawRw 7; (2015) 14 Otago LR 61

Last Updated: 26 May 2017



Do they say what they mean and mean what they say?

Some issues in statutory interpretation in the

21st century

Justice Susan Glazebrook DNZM*

There are at present over 1080 public statutes in force in New Zealand. There is an average of around 100 new or amendment statutes passed every year.1 These statutes cover a wide range of subject matter, from adoption2 to weights and measures.3

New Zealand has been called “the fastest law maker in the West”4 and Jeremy Waldron has criticised the tendency to legislate for everything and without, he says, due consideration.5 Whether that is the case or not, the sheer number and range of statutes means that the interpretation of statutes is a topic of significance for everyone in New Zealand.

I have divided this paper into six sections. I do not suggest that these cover everything that one could say about statutory interpretation but they provide a convenient framework to discuss some points I find of particular interest. The six headings are:

(i) Statutes are public words; (ii) Purpose is king (or is it?); (iii) The common law pervades; (iv) Presumptions are not dead; (v) Dualism may be sickly; and

(vi) Must statute law stagnate, while the common law develops?

I Statutes are public words

It is important to remember that statutes are public words. So what do I mean by that phrase? The whole point of legislation is that it is designed to bind New Zealanders and other people or entities operating in

* Judge of the New Zealand Supreme Court. This paper elaborates on an address given at the University of Otago, Faculty of Law in Dunedin on

13 August 2014. I am grateful to my clerk, Andrew Row, for his invaluable assistance with this paper. The views expressed in the paper are my own and do not necessarily represent those of the Supreme Court.

1 This figure was reached using the database on <www.legislation.govt.nz> as at 2 June 2015. This figure does not include local, private, provincial and imperial Acts.

2 Adoption Act 1955.

3 Weights and Measures Act 1987.

4 Geoffrey Palmer Unbridled Power: An Interpretation of New Zealand’s

Constitution and Government (Oxford University Press, Wellington, 1979)

at 77.

5 Jeremy Waldron “Parliamentary Recklessness: Why we need to legislate

more carefully” (Inaugural Annual John Graham Lecture, Auckland,

2008).


New Zealand. Everyone is assumed to know the law.6 As this is the case, it follows that legislation must be accessible to those it binds. Statutes must also be understandable and drafted with sufficient precision to allow people to order their affairs according to law and, importantly, to allow those who administer legislation to do so according to law.

The constitutional importance of individuals being able to understand the law, and order their affairs accordingly, is a key tenet of any legitimate legal system. Lord Bingham relates it to the rule of law which he says requires, among other things, that the law be accessible and so far as possible, intelligible, clear and predictable.7

The European Court of Human Rights has made a similar point:8

In the Court’s opinion, the following are two of the requirements that flow from the expression “prescribed by law”. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his [or her] conduct: he [or she] must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

Lord Oliver has also stressed the importance of legislation being expressed in language that can clearly be understood and in a form that makes it readily accessible. He says:9

Edmund Burke observed that bad laws are the worst form of tyranny. But, equally, well-intentioned laws that are badly drafted or not readily accessible are also a form of tyranny.

So how is New Zealand faring against these criteria?

A Accessibility

A major step forward with regard to accessibility has been the legislation online project. This means that legislation is available at any time on any internet capable device.10 Indeed, New Zealand is now moving towards

6 This fundamental principle is encapsulated by the latin maxim ignorantia juris non excusat which means that “ignorance of the law does not excuse”. In the criminal law, this principle is codified by s 25 of the Crimes Act

1961.

7 Thomas Bingham “The Rule of Law” (2007) 66(1) CLJ 67. Professor

Lon Fuller, an American jurist, went so far to say that “law” would not be

law if it was so unclear that it was impossible to understand: Lon Fuller

Morality of Law (Yale University Press, New Haven, 1969). There is an

extended discussion of Fuller ’s eight criteria of law at 46–90.

8 The Sunday Times v United Kingdom [1979] ECHR 1; (1979) 2 EHRR 245 (ECHR) at [49].

9 Lord Oliver of Aylmerton “A Judicial View of Modern Legislation” (1993)

14 Stat Law Review 1 at 2.

10 In 2012, four out of five New Zealand homes had access to the internet:

see Geoff Bascand “Household Use of Information and Communication

Technology: 2012” (22 April 2013) Statistics New Zealand <www.stats.


having official legislation in a purely electronic format.11 There have been concerns expressed in a recent article that this is anti-democratic and that the government is not responding to the needs of the people by insisting that they acquire new habits.12 I suspect that the dinosaurs who cannot yet switch on their computers may agree with this, but I doubt that many current students and young adults have any trouble with technology so this is probably a generational thing.

The second concern expressed in the article was with the rule of law. This stems from the fear that the official website might crash. The author also mentions the possibility of a solar flare making all electronic devices unstable.13 In such a case, it might be thought that having access to up to date legislation may be the least of our worries.

B Drafting style

So moving now on to the requirement for legislation to be understandable. It must be said that judges have had a tendency to be somewhat self- indulgent in the rhetorical flourishes with which they condemn unclear legislation. For example, Edmund Davies LJ said:14

Were bewilderment the legitimate aim of statutes, the Merchant Shipping (Liability of Ship Owners and Others) Act 1958 would clearly be entitled to a high award. Indeed, the deep gloom which its tortuosities induced in me has been lifted only by the happy discovery that my attempts to construe them have led me to the same conclusion as my brethren.

Closer to home and still with a maritime theme, Tipping J said:15

Before I part with this case I respectfully suggest to those responsible that the best way of dispelling the fog which surrounds s 290 [of the Shipping and Seamen Act 1952] is not to rely on whatever judicial radar the Courts may possess, but rather to ground the section itself, take it into dry dock and give it a complete refit from stem to stern.

govt.nz>. I have not been able to find up to date figures but the advent of widely available smart phones has presumably increased this figure.

11 From 6 January 2014, the New Zealand legislation website became an official source of legislation: see Parliamentary Counsel Office “Official online legislation now available through this website” (6 January 2014) Parliamentary Counsel Office News <www.legislation.govt.nz/news>. As to the official status of electronic and printed versions of legislation, see s 17 of the Legislation Act 2012. Section 17(1) states that the Chief Parliamentary Counsel may issue both official electronic legislation and official printed versions of legislation. Section 17(2) states that a “printed version of legislation that is produced directly from an official electronic version is also an official version”.

12 Christopher Gullidge “The rule of law and promulgation” [2014] NZLJ

207. I do recognise that not everyone has a computer or internet access

over smartphones and the like but computers (and assistance with access)

are provided in most public libraries.

13 At 207.

14 Owners etc of the Ship Zenatia v Owners of the Ship Putbus (“The Putbus”)

[1969] 2 All ER 676 (CA) at 680.

15 MacFarlane v Erber [1989] NZHC 621; [1990] 2 NZLR 69 (HC) at 87.


In recent years there has been concerted effort to improve legislative drafting to make statutes more understandable.16 But many examples of the old drafting style still exist. Take s 3(1) of the Charitable Trusts Act 1957:

Section 3 Property to vest in trustees or their successors

(1) Where any real or personal property has been or is hereafter17 ac quired by o r o n be half o f any reli gi o us d eno m inatio n, congregation, or society,18 or any body of persons associated for any charitable purpose, and the conveyance or other assurance of that property has been or is taken to or in favour of trustees to be from time to time appointed, or any parties named in the conveyance or other assurance, or subject to any trust for any such denomination or congregation or society or body of persons, or for the individuals comprising the same, the conveyance or other assurance shall not only vest the property thereby conveyed or otherwise assured in the parties named therein, but shall also effectually vest the same in their successors in office for the time being and the continuing trustees (if any) jointly, or if there are no such continuing trustees, then in their successors in office for the time being chosen and appointed in the manner provided or referred to in the conveyance or other assurance, or in any separate deed or instrument, declaring the trusts thereof; or if no mode of appointment is therein provided or referred to, or if the power of appointment has lapsed, then in such manner as may be agreed upon by such denomination or by a body constituted to represent them, or by such congregation, society, or body of persons.19

That old style of drafting has been much criticised. There was a tendency to try to deal with every conceivable matter in the legislation and thus put in too much detail. That could backfire of course where a situation arose that did not quite fit within the detail. All that detail could also lead to very long sentences. For example, the Charitable Trusts subsection above contains a 232 word sentence.20

There was also a tendency to have too much internal cross referencing


16 See George Tanner “Confronting the Process of Statute-Making” in Rick

Bigwood (ed) The Statute: Making and Meaning (Lexis Nexis, Wellington,

2004) 49 at 66–74 for a history of how legislative drafting has developed

in New Zealand. In addition, see JF Burrows and RI Carter Statute Law in

New Zealand (4th ed, Lexis Nexis, Wellington, 2009) [Burrows and Carter] at

105–140. See also Law Commission “A New Interpretation Act” (NZLC

R17, 1990); Law Commission “The Format of Legislation” (NZLC R27,

1993); and Law Commission “Legislation Manual Structure and Style”

(NZLC R35, 1996).

17 The old style was very fond of hereinbefores and afters.

18 Why use one word when three will do?

19 Are you still with us?

20 As noted by Burrows and Carter, above n 16, at 107, the longest example in

New Zealand may be s 99 of the Customs Ordinance 1841 which contains

a single sentence of 721 words.


to other parts of the statute.21 In addition, where qualifications to a provision were necessary, the old style drafting favoured provisos and sometimes provisos on provisos and even provisos on provisos on provisos.22 There were double and even triple negatives and the use of legal or archaic language was rife.23

Legislation was also often badly structured so that provisions dealing with the same subject matter were scattered, not only across the provisions of one Act but through the provisions of a number of Acts.24

So what’s been happening about this? Well first there has been a move to draft in plain English in simple sentences with the active rather than the passive voice, to put qualifiers near to the words they are qualifying and matters of that kind. Statutes are now drafted in a gender-neutral manner and there is an attempt to have a logical structure for statutes with headings and subheadings.

There are even interpretive aids in some statutes in the form of graphs and flow charts25 and Parliament usually now includes provisions in statutes indicating the purpose for which the legislation was passed.26

Indeed, in some instances, there will be subordinate purpose sections dealing with the purposes of particular parts or sections of the Act.27

I give an example of the new style of drafting in one of the Acts which has been completely redrafted, the Income Tax Act 2007.28 I refer to part of s CB9 which deals with the classification of certain profits from disposing of land:

CB 9 Disposal within 10 years: land dealing business

Income

(1) An amount that a person derives from disposing of land is income of the person if—

(a) they dispose of the land within 10 years of acquiring it; and

(b) at the time they acquired the land, they carried on a business of dealing in land, whether or not the land was acquired for the purpose of the business ...

21 See 108–109.

22 See 110–111.

23 See 111–112.

24 See 114.

25 For example, s BC 5 of the Income Tax Act 2007 provides a flow chart to

illustrate how a person’s taxable income for a tax year is determined.

26 See for example s 5 of the Resource Management Act 1991 and s 6 of the

Evidence Act 2006.

27 For example, see s 39 of the Care of Children Act 2004 and s 50A of the

Employment Relations Act 2000.

28 In 1995, the Rewrite Advisory Panel was established to consider and

advise on issues arising during the rewriting of the Income Tax Act 1994.

Since its inception, it has assisted with the drafting of the Income Tax Act

2004 and the subsequent Income Tax Act 2007. More information about

the panel and its history can be found at <www.rewriteadvisory.govt.

nz>.


...

Exclusions

(3) Subsections (1) and (2) are overridden by the exclusions for residential land in section CB 16 and for business premises in section CB 19.

Defined in this Act: amount, associated person, business, dispose,

income, land, year

As is evident, this section sets out very clearly when the profits from land disposed of within 10 years by those in the business of dealing in land are taxable. Each part of the section has subheadings, and subs 3 clearly identifies the exceptions to the section. Further, the note at the end of the section identifies which words or phrases are defined in the Act.

C New drafting style and interpretation

So does this new drafting style mean our problems are over? Well, hopefully it will eliminate the worst examples of obscure legislation but interpretation issues will remain. Words are symbols of meaning but they are not mathematical symbols so, because words are used in statutes, there may be a number of possible meanings and legitimate arguments over which meaning is the correct one. Further, unexpected situations arise which raise questions as to whether the words in question apply to those situations. One result of the modern style of drafting may be that there are simpler provisions which are more general and therefore there might be more scope for argument as to what they cover.29 All these matters should keep lawyers and judges in business for some time longer.

There is no doubt, however, that the meaning of most statutory provisions is relatively clear and that applies both to the old style Acts and the new style ones. If that were not the case, it would be a recipe for chaos as so many people rely on statutes, including those who administer the legislation. If one looks only at court cases, however, one might be left with rather a distorted view of how difficult the task of interpreting statutes is. As has been noted by Judge Easterbrook, Judge of the United States Court of Appeals for the Seventh Circuit:30

All Judges follow a simple rule: when the statute is clear, apply it. But people rarely come to Court with clear cases. Why waste time and money? People come to Court when the texts are ambiguous, or in conflict, or are so old that a once-clear meaning has been lost because of changes in the language or legal culture.

But, as I have said, the meaning of most legislation is relatively certain. So where does this usual certainty of meaning arise from? Textualists

29 Burrows and Carter, above n 16, at 133–134.

30 FH Eastbrook “Text, History and Structure in Statutory Interpretation”

(1994) 17 Harv J L & Pub Pol’y 61. Lord Bingham made a similar point in

Regina (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003]

2 AC 687 at [7].


like Justice Scalia would say it arises from the text, being the actual words used.31 By contrast, contextualists like Stanley Fish would say that certainty arises from the shared context of the readers, or what he terms “interpretive communities”.32

I do not want to get too much into this debate but it seems to me that words are effectively always used in context and meaning must arise from that context. On the other hand, the relevant context is usually relatively clear from an examination of the words of the statute as a whole. However, misunderstandings can arise if people approach the statute from different perspectives, particularly different cross-cultural perspectives. This last point is illustrated (in another context) by Craig Raine’s poem, “A Martian Sends a Postcard Home” where the Martian misinterprets (rather beautifully) everyday objects.33

II Purpose is king (or is it?)

The Interpretation Act 1999 provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose.34 This enshrines the modern purposive approach to the interpretation of legislation. While s 5(j) of the old Acts Interpretation Act 1924 also mandated a purposive approach to interpretation, it is fair to say that this provision was usually honoured in the breach for most of the life of that Act.35 However, a purposive approach had actually been occurring for about a decade before the new Interpretation Act was passed.

So what is the relationship between purpose and text? I think the clue comes from the wording of s 5(1) of the Interpretation Act, which talks about ascertaining meaning from the text. It is true that the subsection goes on to say that this is done in light of its purpose, but it seems to me that purpose is there to help ascertain the meaning of text and not

31 For an example of the textualist argument, see generally Antonin Scalia and Bryan A Garner Reading the Law: The Interpretation of Legal Texts (West, St Paul (Minnesota), 2012).

32 For example, Stanley Fish argues “Intention/purpose comes first, texts and meanings follow”: Stanley Fish “Intention and the Canons of Legal Interpretation” New York Times (online ed, New York, 16 July 2012). See also Jim Evans “Sketch of a Theory of Statutory Interpretation” [2005] NZ L Rev 449–465. Some statutes may be aimed at specialists and others at the general public; these different interpretive communities may have different understandings.

33 Craig Raine “A Martian Sends a Postcard Home” (1979). A copy of the poem is available at: <www.mit.edu/people/dpolicar/writing/poetry/ poems/martian.html>.

34 Interpretation Act 1999, s 5(1).

35 See further DAS Ward “Trends in the Interpretation of Statutes” (1957)

2 VUWLR 155 at 160 and 168–171. See also my discussion of this trend

in Susan Glazebrook “Statutory Interpretation and Tax Avoidance”

(Paper prepared for the “Tax Avoidance in the 21st Century” Conference,

Melbourne, 17 May 2013) at 2. See also Burrows and Carter, above n 16,

at 199–200.


to override or dominate it.

In my view, this means that the text is the starting point with purpose as a cross-check. As the Supreme Court said in Commerce Commission v Fonterra Co-Operative Group Ltd, “[e]ven if a meaning of the text may appear plain in isolation of purpose, that meaning should always be cross checked against purpose in order to observe the dual requirements of s 5”.36

The other possible approach of reasoning back from purpose to meaning carries the risk of distorting the meaning of the words of the statute to fit in with the view taken of purpose. And to harp back to the first section of the paper, it is the words of the statute that are public.

Purpose and text cannot, however, be divorced from one another. In most cases the purpose of the provision is relatively clear from the text itself, read in the context of the statute as a whole, including any purpose provisions.

A Legislative history

So what about legislative history? Well Lord Denning was a very enthusiastic supporter of the use of legislative history:37

Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view.

For myself, I have no difficulty with using public sources to illuminate the purpose of Parliament, including the social, commercial or other objectives of the enactment.38 I have to say, however, that in practice I have relatively rarely found legislative history helpful, except as a further cross-check. The main reason for this is that the cases that come before court are usually the ones where the situation has not really been anticipated or dealt with in the course of the Parliamentary process or where the Parliamentary history is equivocal. In such cases both parties often seize on different aspects of the Parliamentary materials as supporting their cause.

36 Commerce Commission v Fonterra Co-Operative Group Ltd, [2007] NZSC 36, [2007] 3 NZLR 767 at [22]. The Court also said, however, that text and purpose are the two “drivers” of statutory interpretation, suggesting perhaps a more symbiotic relationship.

37 Davis v Johnson [1978] UKHL 1; [1979] AC 264 (HL) at 276. Contrast the view of Kirby J in

Victorian WorkCover Authority v Esso Australia Ltd [2001] HCA 53, (2001)

207 CLR 520 at [64], where he said that the process of using external

material is “adjunct to the primary duty of the person with the obligation

of interpretation of the statute, to construe its words viewed in their

context and for the purpose for which the provision appears to have been

enacted”.

38 Six reasons why it may be helpful are set out by Burrows and Carter, above

n 16, at 261–262. See also Commerce Commission v Fonterra Co-Operative

Group Ltd, above n 36, at [22].


B Wider context

Legislation is not passed in a vacuum. The general legislative context, as well as the social, economic and cultural background, will be relevant to interpretation. Judges may be mistaken as to purpose, however, if they place too much reliance on sources outside of the words of the legislation and publicly available Parliamentary material. At its worst, purportedly relying on a wider range of sources can be a disguise for imposing the judge’s own views. Again judges, particularly in the United States, can get quite eloquent on this topic. For example one US Judge has said:39

If we are free to make up the law based on our guess as to what Congress may have thought about a case it never thought of, we might as well dispense with statues altogether and rely on Ouija boards instead.

C Intention

This is as good a point as any to mention the debate about whether Parliament can have an intention (being a collection of different individuals with different motivations). In Lacey v Attorney-General of Queensland, the majority of the High Court of Australia said “legislative intention ... is not an objective collective mental state. Such a state is a fiction which serves no useful purpose”.40

On the other hand, Richard Ekins and Jeffrey Goldsworthy believe it possible to attribute intentions to groups of individuals with possibly contrasting subjective intentions.41 Without too much elaboration into their complex theory, they have proposed a unitary model for explaining, through the concept of group agency, how a legislature itself can have an intention. In essence, their theory is that legislatures are “complex purposive institutions, which form and act on intentions that arise from


39 United States of America v Phelps [1990] USCA9 149; 895 F 2d 1281 (9th Cir) per Kozinski J (dissenting).

40 Lacey v Attorney-General of Queensland [2011] HCA 10, (2011) 242 CLR 573 at [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also Certain Lloyd’s Underwriters v Cross [2012] HCA 56, (2012) 248 CLR at [25]; Zheng v Cai [2009] HCA 52, (2009) 239 CLR 436 at [28] per French CJ and Hayne J; and the comments made by French CJ in “The Courts and the Parliament” (2013) 87 ALJ 820 at 825 where he questioned the legitimacy of the concept of Parliamentary intention: he inquired, “[a]re the real intentions of the legislators who voted for a statute to be inquired into and somehow assembled by the court into a collective mental state, which may then inform the interpretation of the statute. In my opinion, the answer to that question is no.” See also generally Kenneth Hayne “Statutes, Intentions and the Courts: What Place Does the Notion of Intention (Legislative or Parliamentary) have in Statutory Construction?” (2013) 13(2) Oxford U Commw LJ 271.

41 See Richard Ekins and Jeffrey Goldsworthy “The Reality and Indispensability of Legislative Intentions” [2014] SydLawRw 2; (2014) 36 Syd LR 39. See also generally Richard Ekins The Nature of Legislative Intent (Oxford University Press, Oxford, 2012).


but are not reducible to the intentions of individual legislators”.42

I do not want to say anything more about this debate, other than to say that, even as a former tax lawyer, I find the distinction between purpose, object, motive and intention a bit contrived.43

D Different views of meaning

There is a related debate as to whether meaning can ever be anything other than what the speaker intends.44 I would rather not get into this in any depth. However, it is clear that communication is two way and this means that what the speaker means and what the listener understands may not always coincide.

Lord Atkin, in his dissenting judgment in the case of Liversidge v Anderson, strongly disagreed with what he called the majority’s “strained construction”45 of the legislative provision at issue. He said:46

I know of only one authority which might justify the [strained] method of construction. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.”

Lord Atkin would thus see Alice’s understanding as key, rather than Humpty Dumpty’s unusual and idiosyncratic meaning. If I had to choose I would, in the context of statutory interpretation, be in Lord Atkin’s (and Alice’s) camp. Sorry to hark back again but the reason I too would prefer Alice’s understanding is because statutes are public words.

But that does not help in situations where different listeners may have differing understandings of a speaker ’s meaning. And, as noted above, it is cases where there can be differences of opinion about meaning and/ or purpose which are likely to come to court.

42 Ekins and Goldsworthy, above n 41, at 40.

43 See for example Plimmer v Commissioner of Inland Revenue [1958] NZLR

147 (SC) at 151; and Davis v Commissioner of Inland Revenue [1959] NZLR

635 (SC) at 638.

44 See Stanley Fish “There is No Textualist Position” (2005) 42 San Diego

L Rev 629.

45 Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 (HL) at 244. The story of Humpty

Dumpty in this context was taken from Lewis Carroll’s Through the

Looking-Glass (Macmillan, London, 1871). The case before the House of

Lords involved the interpretation of a legislative provision during war

time, the particulars of which are of no moment for present purposes.

46 Liversidge v Anderson, above n 45, at 245. On an interesting aside,

Michael Kirby in “On the Writing of Judgments” (1990) 42 ALJ 691 at

699–700 discusses the repercussions of Lord Atkin’s use of the anecdote.

Supposedly, the other Law Lords refused to meet with him, eat with him,

and at one point, even refused to speak with him. Some think that he

never recovered from such treatment: see R Stevens The Law and Politics:

The House of Lords as a Judicial Body 1800–1976 (Weidenfeld and Nicolson,

London, 1979) at 287.


Just to illustrate this point with something totally unrelated, I once went to a dance performance with two friends. I will call them Jane and Mary. One of the pieces we saw had two groups of dancers. One group was dressed in black leotards with black hoods covering their hair and they were wearing black masks. The other group was in white, with white hoods and masks. As I remember it, the two groups started out dancing separately but little by little began to mingle until they were all tangled together. They then separated out again. There were various lighting effects throughout, including flashing red lights at the height of the entanglement of the two groups.

At the interval, Mary asked what we thought it was all about. Jane said she did not think it was about anything; it was just about colour, light and movement. She then left us to talk to another friend. Mary, who you might gather did not have a high opinion of Jane’s intellectual skills, positively hissed: “You have a dance of black and white figures intersecting and she thinks it’s about nothing.”

Anyway, some time later I was talking to the choreographer and I asked her about the piece. “Oh that one,” she said. “It’s all about colour and light and movement. It’s not really about anything.”

All I would say is that, when listeners do have differing opinions as to a speaker ’s meaning, the best approach may be to attempt to choose the meaning which accords with the speaker ’s intention and purpose.

E An example

The approach of starting with the statutory text and cross-checking it against the purpose and Parliamentary materials is exemplified by the Supreme Court’s decision of Worldwide NZ LLC v NZ Venue and Event Management Ltd.47 The case concerned the interpretation of s 87(1) of the Judicature Act 1908 and the power to award interest on judgment sums in any proceeding for the recovery of “debt or damages”.

The Court of Appeal had held that, for a sum to be a debt, it had to be an ascertained or readily ascertainable sum.48 The Supreme Court disagreed. The Supreme Court’s judgment started by examining the wording of s 87(1), noting that the term debt could be one of wide import and that there were no explicit qualifications in the section.49 As to the immediate legislative context, the fact that the word “debt” was coupled with the word “damages” suggested that it was not intended to be interpreted narrowly. By their very nature, damages are not ascertained until judgment.50


47 Worldwide NZ LLC v NZ Venue and Event Management Ltd [2014] NZSC

108[2014] NZSC 108; , [2015] 1 NZLR 1.

48 New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2013]

NZCA 130[2013] NZCA 130; , [2013] 3 NZLR 329.

49 Worldwide NZ LLC v NZ Venue and Event Management Ltd, above

n 47, at [16].

50 At [16].


The Court then examined the legislative history.51 There were two aspects of the legislative history that were of particular importance. The first was that s 87(1) replaced an earlier provision on “debts or sums certain”. That wording had not been carried over into the Judicature Act. The second was that New Zealand had deliberately copied the equivalent United Kingdom provision. The intention behind the United Kingdom reform was to ensure the courts should have the discretion to award interest in all cases. The fact that the New Zealand provision copied the United Kingdom provision meant that the English cases were of particular relevance and the United Kingdom case law favoured a wide interpretation of the word “debt”.52 The same applied to the Australian cases and, to some extent the New Zealand cases, although this particular point had not arisen before.

F Conclusion

Felix Frankfurter, former Associate Justice of the United States Supreme Court, when discussing the general shift from a literal to a purposive interpretation, stated that “[w]hile courts are no longer confined to the language, they are still confined by it. Violence must not be done to the words chosen by the legislature.”53

This means that text should be the starting point (and thus is king). Purpose assists. This approach accords with the idea that a statute’s meaning should be readily ascertainable to the public and to those who have to administer the statute: in other words, it accords with the proposition that statutes are public words.

III The common law pervades

It is fair to say that courts in the old days saw statutes as an alien intruder into the tranquil sea of judge-made common law.54 This attitude led in turn to statutes being construed as narrowly as possible, particularly where the legislation could be seen as having a coercive effect, such as in the case of penal or taxation statutes.55 That is of course no longer the case. The interpretation of all statutes is now subject to a purposive interpretation in accordance with s 5(1) of the Interpretation Act.56

51 [17]–[22].

52 See at [25]–[31].

53 Felix Frankfurter “Some Reflections on Reading Statutes” (1947) 47(4)

Colum Law Rev 527 at 543.

54 Harlan Stone “The Common Law in the United States” (1936) 50 Harv

Law Rev 4. This approach is expressly departed from in the Evidence Act

2006 as s 10(1)(b) states the Act “is not subject to any rule that statutes in

derogation of the common law should be strictly construed”.

55 For an explanation of these rules of construction and presumptions, see

Burrows and Carter, above n 16, at 215–216.

56 For example, in relation to taxation see: Stiassny v Commissioner of Inland

Revenue [2012] NZSC 106, [2013] 1 NZLR 453 at [28]; and Terminals (NZ)

Ltd v Comptroller of Customs [2013] NZSC 139, [2014] 1 NZLR 121 at [30]

[41]. In relation to criminal statutes, see Karpavicius v R [2002] UKPC 59,


The common law and statute law still, however, co-exist.

A Codes and the common law

One obvious issue that arises is the interpretation of statutes that codify the common law, either fully or partially. The classical statement as to the relationship between the common law and codes is found in Bank of England v Vagliano Bros,57 which held that a court should interpret the words of a code “in their natural meaning” without reference to the common law.58 Under the so called “Vagliano principle”, resort can only be had to the common law if a provision is of “doubtful import” or if its words have acquired a “technical meaning”.59 In most cases this approach is very sensible and I have been party to decisions myself where it has been urged on counsel.60

But are there are other cases where resort should be had to the common law when interpreting a code? Of course, where there is only partial codification, there will obviously still need to be recourse to the common law. But this is not the only situation where recourse to the common law may be needed. Most codes are derived from centuries of common law decisions; in the words of Lord Hoffmann, codes do not “spring fully formed from the legislative head”.61 This means that, despite the drafter ’s best efforts, the code, if it is to make sense, may need to be read in the light of its common law history.

The interpretative approach one takes to codes will depend on the context. In some cases, codes are enacted to replace unsatisfactory common law rules; to interpret the code to conform to the common law would therefore frustrate the statutory purpose.62 In other cases, interpreting a code to align with the common law will cause no real problems because the legislature did not intend to depart from the common law; in these situations, the code should not be seen as being “written on a tabula rasa” but rather “on a palimpsest with the old writing [of the common law] still discernible behind”.63

Parliament may even have incorporated the common law into legislation in a way that means the previous case law is intended still to apply. An example of this is Re Greenpeace of New Zealand Inc.64

That case concerned the definition of “charitable purpose” under s 5

[2004] 1 NZLR 156 at [15].

57 Bank of England v Vagliano Bros [1891] AC 107 (HL).

58 At 145.

59 At 145. This principle and the case was cited with approval of the Court

of Appeal in R v Healy [2007] NZCA 451, (2007) 23 CRNZ 923 at [53].

60 See R v Healy, above.

61 Goodes v East Sussex County Council [2000] UKHL 34; [2000] 1 WLR 1356 (HL) at 1360.

62 Burrows and Carter, above n 16, at 547.

63 Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56 at 76. Tabula rasa means a clean

slate, and a palimpsest is a piece of writing material on which later

writings have been imposed on earlier writings and of which there are

still visible traces.

64 Re Greenpeace of New Zealand Inc [2014] NZSC 105, (2014) 26 NZTC 21-088.


of the Charities Act 2005. The legislative history made it clear that the wording of the statute had been deliberately chosen to retain the concepts of charity developed in the case law.65 As a result, to understand the term “charitable purpose”, it was necessary to consider that case law.66

The majority of the Supreme Court held that, in referring to common law concepts, Parliament must have expected the common law to develop and that any statutory definition would develop accordingly.67

In accordance with this approach, the majority rejected a political purposes limitation in determining the extent of “charitable purpose” under the Charities Act.68

B The boundaries

As the relationship between codes and common law demonstrates, statute law and the common law exist side by side. It is therefore often necessary for judges to ascertain the borders of statute law and common law.69 In some cases one may claim exclusive sovereignty. In others the borders may overlap or be hard to ascertain.70

C Māori custom

Since the English legal system was implanted into New Zealand, a particular issue has been the relationship between statutes, the common law and Māori custom.71 Various New Zealand cases have recognised that indigenous customary rights and customary law cannot be extinguished by ambiguous statutory words.72 The same applies in

65 At [16] per Elias CJ, McGrath and Glazebrook JJ.

66 At [12] per Elias CJ, McGrath and Glazebrook JJ. Similarly, the minority

(William Young and Arnold JJ) said at [123] that “[s]ection 5 is very

largely premised on the existing jurisprudence as to charitable status

which subss (2) and (2A) supplement by conferring charitable status in

respect of particular purposes and institutions which would not qualify

in equity.”

67 See [17] per Elias CJ, McGrath and Glazebrook JJ.

68 See at [113]–[118] and [124] per William Young and Arnold JJ (dissenting).

69 For further commentary on this subject, see generally Paul Finn “Statutes

and the Common Law” (1992) 22 UWAL Rev 7.

70 Similarly, Edelman J of the Supreme Court of Western Australia has

stated extra-judicially that “legislation and common law are inextricably

intertwined. A coherent system of law cannot treat of the two ... as ‘oil

and water ’”: James Edelman “Taxonomic Reasoning” (Paper presented

at Conference of Judicial College of Victoria and Melbourne Law School,

Melbourne, 14 March 2014). See also Elise Bant “Statute and common

law: Interaction and influence in light of the principle of coherence” (2015)

38(1) UNSWLJ 367.

71 I note the recent Waitangi Tribunal report that concluded that Māori did

not cede sovereignty of New Zealand: Waitangi Tribunal He Whakaputanga

me te Tiriti The Declaration and the Treaty: The Report on Stage 1 of the Te

Paparahi o Te Raki Inquiry (Wai 1040, 2014). I make no comment, however,

on the report or any implications this report may have on this topic.

72 See Te Runanga O Muriwhenua Inc v Attorney-General [1990] 2 NZLR

641 (CA) at 655; Attorney-General v Ngati Apa [2003] NZCA 117; [2003] 3 NZLR 643 (CA)


other jurisdictions.73

In the Supreme Court case of Takamore v Clarke, a case concerning the recognition of Māori custom with regard to burial, the majority recognised the influence Māori custom has on the common law, stating that the “New Zealand common law can never be in conflict with its statute law, but with that qualification, our common law has always been seen as amenable to development to take account of custom”.74

In this case, the majority of the Supreme Court viewed Māori custom as a relevant consideration to be weighed by the personal representatives of the deceased in deciding on the burial of the deceased.75

By extension, there may well be cases where Māori custom is relevant to the interpretation of statutes. This would particularly be the case where statutes deal specifically with Māori institutions76 or where Māori concepts are incorporated into a statute77 but the approach would not necessarily be confined to such statutes.

D Stare decisis and statutory interpretation

The other aspect of the common law which pervades statutory interpretation is the doctrine of stare decisis.78 This doctrine means that

at [147]–[149] per Keith and Anderson JJ, and at [185] per Tipping J. See also Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [150] per Tipping, McGrath and Blanchard JJ.

73 This has been termed the protective approach, where the onus on proving extinguishment lies on the Crown and the necessary purpose must be plain and clear. For the United States, see for example: Choate v Trapp

[1912] USSC 127; 224 US 665 (1912); for Australia see Mabo v Queensland (1988) 166 CLR

186 and Mabo v Queensland (No 2) (1992) 175 CLR 1; for Canada, see for

example R v Sparrow [1990] 1 SCR 1075.

74 Takamore v Clarke, above n 72, at [150].

75 At [164]. The Chief Justice went further. She said at [94] that “[v]alues

and cultural precepts important in New Zealand society must be weighed

in the common law method used by the Court in exercising its inherent

jurisdiction” and that “Maori custom according to tikanga is therefore

part of the values of the New Zealand common law”. William Young J

said “[t]he final – and I think decisive– consideration is Maori ... custom”

and he commented on the Chief Justice’s and the majority’s approach

but did not endorse either approach. See further Joseph Williams “Lex

Aotearoa: An Heroic Attempt to Map the Maori Dimension in Modern

New Zealand Law” [2013] WkoLawRw 2; (2013) 21 Waikato L Rev 1 at 15–17; and Natalie Coates

“The Recognition of Tikanga in the Common Law of New Zealand” [2015]

1 NZ L Rev 1.

76 See for example the Te Ture Whenua Maori Act 1993 and the recent

Supreme Court case of Fenwick v Naera [2015] NZSC 68 at [135] where

the Supreme Court suggested that Māori custom may have relevance

in interpreting the level of consultation that trustees are required to

conduct with beneficiaries of Maori land trusts governed under the

Te Ture Whenua Maori Act.

77 See for example the Resource Management Act 1991 which incorporates

Māori concepts; such as kaitiakitanga in s 7(a).

78 J Burrows “The Interrelation Between Common Law and Statute” (1973)


courts lower in the hierarchy are bound by the interpretation of a statute by courts that are higher in the hierarchy. It has been said that, once a statute has been in force for a few years, a “cluster of decisions begins to build up around it which bears some resemblance to the common law itself”.79 One of the dangers that has been identified is “that lawyers trained in a common law system will come to attach more weight to the pronouncements of a judge interpreting a statute than to the words of the statute itself”.80 However, any other approach could undermine the certainty that stems from the principle of stare decisis.

This leads to the issue of whether the principles relating to retrospectivity are engaged when courts change their interpretation of a particular statute. In changing a settled interpretation of a statute, there is a tension between two competing interests: the need to assert the correct view of the law and certainty.

This issue is especially present in the criminal context. Section 10A of the Crimes Act 1961 and s 26(1) of the New Zealand Bill of Rights Act 1990 prohibit individuals being held criminally liable for acts or omissions that, at the time of the act or omission, did not constitute an offence. The prohibition on retrospective criminal liability through a court changing its interpretation of a criminal statutory provision was discussed by the Court of Appeal in R v Chilton.81 The Court said that, had it decided that a settled interpretation should be changed, the principle of retroactivity would be engaged and any ruling “could only have been prospective (if this is allowable)” and applied to offences committed after the date of reversal and not before.82

The issue was, however, left open by the Supreme Court in Y (SC 40/2013) v R.83 The Court said that no decision of the Supreme Court or the Privy Council had interpreted the sections at issue in a

3 Otago L Rev 593 at 598. Stare decisis is the legal maxim underlying the doctrine of precedent that “it is necessary to abide by former precedents when the same points arise again in litigation”: Jonathan Law and Elizabeth A Martin (eds) Oxford Dictionary of Law (7th ed, Oxford University Press, New York, 2009).

79 Burrows, above n 78, at 598.

80 At 598.

81 R v Chilton [2005] NZCA 295; [2006] 2 NZLR 341 (CA) at [104]–[106]. By contrast see Regina

v R [1991] UKHL 12; [1992] 1 AC 599 (HL) where the House of Lords abolished spousal

immunity for rape. The issue of criminal retrospectivity in this context

was dealt with by the European Court of Human Rights. The Court

rejected complaints by two applicants (the respondents in Regina v R) who

had been found guilty of raping their wives for rape that occurred prior

to the abolition of spousal immunity: see SW v United Kingdom (1995) 21

IHRR 363 (ECHR) at [43]. The decision of the European Court of Human

Rights has been criticised: see for example, PR Ghandhi and JA James

“Marital Rape and Retrospectivity – the Human Rights Dimensions at

Strasbourg” (1997) 9 CFLQ 17.

82 R v Chilton, above n 81, at [109]–[110].

83 Y (SC 40/2013) v R [2014] NZSC 34, [2014] 1 NZLR 724 at [28].


manner inconsistent with the interpretation in the judgment. At most, the effect of the judgment was to resolve uncertainties of interpretation and therefore the decision did not impose retrospective liability.84

The Court said:85

We leave for another day more general determination of the availability of retrospectivity arguments and, if such arguments are available, the circumstances in which they might succeed.

Tipping J, in the Supreme Court case of Chamberlains v Lai that abolished barristerial immunity for negligence, suggested that some of the concerns about retrospectivity could be overcome by prospective rulings.86

But this proposition remains controversial.87

E Conclusion

Statutes and the common law are not two distinct legal fields and it is often the court’s role to assess the relationship between and the borders of those respective spheres. There can, however, be a symbiotic relationship between the two spheres of law where each can influence the other. Further, the common law method of stare decisis provides a framework by which meanings given to statutes become established through judicial interpretation.

IV Presumptions are not dead

The first point is that some presumptions are dead. For example, as noted above, there is no longer a presumption that taxation and penal statutes are interpreted strictly. These statutes are given a purposive interpretation like all other statutes.88 But, despite this, some presumptions remain.





84 At [27]–[28].

85 At [28].

86 Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [129]–[154] per

Tipping J. See generally In re Spectrum Plus Ltd (in liq) [2005] UKHL 41,

[2005] UKHL 41; [2005] 2 AC 680; and Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC

616 (HL) at 726 where Lord Hope suggested a prospective ruling. The

issue of prospective overruling was not mentioned by the other Judges

in the case.

87 For a discussion on the topic, and for the views of those against such

rulings, see for example W Freidland “Prospective and retrospective

judicial law making” (1974) 29 MLR 593; PJ Mishkin “The Supreme

Court 1964 Term” (1966) 79 Harv L Rev 56; and Lord Devlin’s comments

in The Judge (Oxford University Press, 1979) at 12 where he considered

prospective overrulings to be “the Rubicon that divides the judicial and

legislative powers”. For commentary supporting the use of prospective

overruling, see for example Jesse Wall “Prospective overruling – it’s about

time” [2009] OtaLawRw 7; (2009) 12(1) Otago L Rev 131.

88 See the cases cited above at n 56.


A Legislated presumptions

Let us look first at legislatively endorsed presumptions.89 The most well known is the presumption in our Bill of Rights Act: wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in that Act, that meaning shall be preferred.90

The United Kingdom has a similar, but arguably stronger,91 presumption under s 3 of the Human Rights Act 1998. It is fair to say that the courts in New Zealand have been more conservative than the ones in the United Kingdom in that the courts in the United Kingdom have been prepared, some argue, to change the wording of a statute in order to ensure consistency.92

89 In general, an interpretive presumption may be weak, moderate or strong. For the weak form, a prima facie ambiguity is required before the presumption will come into play. For the moderate form, the interpretive presumption can be used to read down the scope of broad, discretionary statutory powers. In its strong form, a presumption can be used to adopt a strained interpretation and, in the extreme form, ignore contrary statutory indications: Hanna Wilberg in “Judicial Remedies for the Original Breach?” [2007] NZ L Rev 713 at 721.

90 New Zealand Bill of Rights Act 1990, s 6. In determining the strength of the interpretive power of s 6, there was some divergence in the Supreme Court in R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. Elias CJ suggested at [13] that courts may adopt under s 6 interpretations that “linguistically may appear strained”, but ultimately held at [25] that such interpretations must be “tenable on the text and in the light of the purpose of the enactment”. Blanchard J stated at [61] that a meaning arrived at under s 6 must be “genuinely open in light of both its text and its purpose”. McGrath J emphasised at [237] that s 6 is confined to meanings that are “available on the language of the text being interpreted”. Tipping J set out a number of interpretive steps in assessing the Bill of Rights presumption. His approach at [92] appears to have been accepted by McGrath J (at [192]) and by Blanchard J (at [62]).

91 Stronger in the sense that s 3(1) of the Human Rights Act 1998 says “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” (emphasis added).

92 For an analysis of the judicial approach to the compatible construction rule in the Human Rights Act 1998, see Oliver James Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 1167–1175 and Burrows and Carter, above n 16, at 363–365. The contrast in approaches between the United Kingdom and New Zealand can be seen with regards to “reverse onus” provisions. Generally, the onus is on the Crown to prove a defendant’s guilt; however, a reverse onus provision shifts the burden of proof onto the defendant to disprove an element of the offence. In the House of Lords case R v Lambert [2001] 3 ALL ER 577 (HL) and Sheldrake v Director of Public Prosecutions [2004] UKHL 43; [2005] 1 AC 264 (HL), the reverse onus provisions were read down to refer to an evidential onus only; by contrast, this was expressly rejected by the Supreme Court in R v Hansen, above n 90. See also the High Court of Australia case of Momcilovic v The Queen [2011] HCA 34, (2011) 245 CLR 1 where the High Court dealt with a similar provision under the Victorian Charter of Human Rights


Other examples of legislatively endorsed presumptions are statutes with Treaty of Waitangi clauses,93 such as in the State Owned Enterprises Act 1986 where it states that nothing in the Act shall permit the Crown to act in a manner inconsistent with the principles of the Treaty of Waitangi. It is clear from the New Zealand Māori Council v Attorney-General case94 and from the recent Supreme Court case relating to water rights,95 that these types of clauses are taken very seriously by the courts and that they are seen as having what might be called a constitutional import, but still only to the extent this is not consistent with the wording of the statute in question.96

B Other presumptions

So how about other presumptions? I think it is probably fair to say that the courts are likely, to the extent possible, to interpret legislation consistently with the Treaty of Waitangi, even where there is no Treaty of Waitangi clause.97 This is similar to the position relating to New Zealand’s international obligations which I will discuss in the next section.

Moving onto the “principle of legality”: this is the presumption that courts do not impute to the legislature an intention to abrogate or curtail fundamental common law rights or freedoms and will interpret

and Responsibilities Act 2006.

93 In addition to the Treaty of Waitangi clauses being an express manifestation

of the Crown’s obligations in relation to the Treaty, other legislation, such

as statutes providing for Treaty settlements, have extensive preambles

setting out the Crown’s obligations in relation to the Treaty and the

relevant history: see for example Treaty of Waitangi (Fisheries Claims)

Settlement Act 1992. See also the Ngai Tahu Claims Settlement Act 1998

for a preamble and a statutory apology from the Crown.

94 New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA)

(often called the Lands case).

95 New Zealand Maori Council v Attorney-General [2013] NZSC 6, [2013] 3

NZLR 31.

96 New Zealand Maori Council v Attorney-General, above n 94, at 658 per

Cooke P where he said that the relevant Treaty of Waitangi clause was

seen as having “the impact of a constitutional guarantee”. See further my

discussion on the use of Treaty of Waitangi clauses in Susan Glazebrook

“Statutory Interpretation and Tax Avoidance” (Paper prepared for

the “Tax Avoidance in the 21st Century” Conference, Melbourne,

17 May 2013) available at <www.courtsofnz.govt.nz> at 12–14 and Susan

Glazebrook “Statutory Interpretation, Tax Avoidance and the Supreme

Court: Reconciling the Specific and the General” (2014) 20(1) NZ J Tax L

& Policy 9 at 10–16.

97 For a full explanation of the approach, see Wilberg, above n 89, at

719–726. With regards to the cases making use of the Treaty without

direct incorporation, see Huakina Development Trust v Waikato Valley

Authority [1987] NZHC 130; [1987] 2 NZLR 188 (HC); Barton-Prescott v Director-General of

Social Welfare [1997] 3 NZLR 179 (HC); and Ngai Tahu Maori Trust Board

v Director-General of Conservation [1995] 3 NZLR 553 (CA). See also

PG McHugh “What difference a Treaty makes – the pathway of aboriginal

rights jurisprudence in New Zealand public law” (2004) 15 PLR 87.


legislation accordingly.98 The last two decades have seen a resurgence of this common law principle of interpretation and New Zealand and United Kingdom courts have further developed it. This presumption of legality used to be based on pro-democratic, property-based values but is now based on a more modern set of values, including the protection of fundamental human rights, derived in part from New Zealand’s international human rights obligations.99

The presumption can be seen to be compatible with a purposive approach to interpretation: the argument is that the courts should be slow to ascribe to Parliament the intention to contravene established common law rights and principles where that intention is not clearly spelt out.100 Consistently with this idea, Lord Steyn in R v Secretary of State for the Home Dept, ex parte Pierson justified the use of an interpretative presumption on the basis that “Parliament does not legislate in a vacuum. Parliament legislates for a European liberal democracy founded on the principles and traditions of the common law.”101 Looked at in this way, the presumption is not incompatible with my first proposition of statutes being public words. In our society it seems to me legitimate to assume that ordinary citizens would expect statutes to recognise and protect their rights.

While there is no requirement for ambiguity to be found in order for the principle to apply,102 the presumption of consistency with fundamental common law values will be rebutted by express language or by necessary implication. A necessary implication “is one which necessarily follows from the express provisions of the statue construed in their context”.103

There is a link between the principle of legality and the Bill of Rights.

98 The most well-known explanation of the principle of legality is that given by Lord Hoffmann in Regina v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33; [2000] 2 AC 115 (HL) at 131.

99 D Dyzenhaus, M Hunt and M Taggart “The Principles of Legality in

Administrative Law: Internationalisation as Constitutionalisation” (2001)

1 Oxford U Commw LJ 5 at 7 and 32–33. International human rights

instruments contain more rights than our Bill of Rights which does not

incorporate all human rights obligations.

100 Wilberg points out that “[b]efore the advent of the modern focus on

purposive interpretation, the same result was achieved by the simpler

device of ‘rules of strict construction’ of legislation affecting certain

fundamental rights and principles”: Wilberg, above n 89, at 720.

101 Regina v Secretary of State for the Home Dept, ex parte Pierson [1997] UKHL 37; [1998] AC 539

(HL) at 587.

102 See R v Hansen, above n 90, at [13] per Elias CJ. In terms of the United

Kingdom, see B (a minor) v DPP [2000] UKHL 13; [2000] 2 AC 428 (HL) at 470 (Lord Steyn,

with Lord Mackay and Lord Hutton agreeing). As to Australia’s similar

position, see JJ Spigelman “Principle of Legality and the Clear Statement

Principle” (2005) 79 ALJ 769 at 779.

103 R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002]

UKHL 21, [2003] 1 AC 563 at [45] per Lord Hobhouse. The statement of

Lord Hobhouse was cited in the Supreme Court judgment of Cropp v

Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [26].


As Professor Geiringer writes, “[t]he affinity between section 6 of the Bill of Rights and value-oriented interpretation at common law is self-evident”.104 Courts have tended to regard s 6 of the Bill of Rights (a legislatively required presumption) as in essence a continuation of the common law principle of legality (a common law presumption).105

For example, Elias CJ stated in Ngati Apa Ki Te Waipounamu Trust v R:106

Such basic rights cannot be over-ridden by general or ambiguous words in a statute ... This principle of legality, recognised by the common law, has been expressly enacted by s 6 of the New Zealand Bill of Rights Act 1990 ...

C Conclusion

In applying the principle of legality (and indeed the presumption of consistency in the Bill of Rights) the Courts are not shackled by a strict interpretation of the language of an enactment. However, the Courts are not emancipated to the point where they are able to usurp the legislature’s function. If the judiciary were free to choose an interpretation that is clearly not tenable on the text interpreted in light of the enactment’s purpose, then judges would be effectively amending the statute.107 Courts need to be cognisant of the principle that statutes are public words and this cannot be lost sight of when using interpretive presumptions.

V Dualism may be sickly

Now to my second to last proposition: that dualism may be sickly. There are broadly two main groups of states: those where international treaties have immediate domestic effect as soon as they are entered into by the state in question (the monist states); and there are states where treaties only have domestic effect if incorporated into legislation domestically (dualist states). New Zealand comes into this latter category.108

The orthodox starting point for a New Zealand court in relation to


  1. Claudia Geiringer “The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen(2008) 6 NZJPIL 59 at 74.

105 See for example: Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR

667 (CA) at 712 per Gault J (dissenting in part); R v Pora [2001] 2 NZLR

37 (CA) at [53] per Elias CJ and Tipping J; and R v Hansen, above n 90, at

[13] per Elias CJ and at [251] per McGrath J.

106 Ngati Apa Ki Te Waipounamu Trust v R [2000] NZCA 45; [2000] 2 NZLR 659 (CA) at [82] per

Elias CJ.

107 See my chapter “Filling the Gaps” in Rick Bigwood (ed) The Statute:

Making and Meaning (Lexis Nexis, Wellington, 2004) 153 at 159–162 for a

discussion of the judicial (interpretive) and the legislative roles. See also

Stephen Lumb and Sharon Christensen “Reading words into statutes:

when Homer nods” (2014) 88(9) ALJ 661 where, in relation to the issue of

reading words into statutes, the authors consider the boundary between

interpretation and legislating.

108 For more discussion on the concept of monist and dualist states, see

David Sloss “Domestic Application of Treaties” in Duncan B Hollis (ed)

The Oxford Guide to Treaties (Oxford University Press, Oxford, 2012) 367

at 367–379.


unincorporated international instruments is the constitutional maxim set out by Lord Atkin in Attorney-General for Canada v Attorney-General for Ontario that the executive does not, by entering into a treaty, change the domestic law.109 Legislative implementation is required to give the international obligation domestic effect. Thus, the courts cannot give direct effect to unincorporated international instruments.

But is it really that simple? Is international law only relevant where Parliament has incorporated it into legislation? Well the answer is no, which is why I say dualism is sickly. That is for three reasons: the first relates to the way statutes are interpreted in light of international law; the second relates to the influence of international law on the common law; and the third relates to customary international law. The last two reasons do not relate directly to statutory interpretation (except, as discussed above, at the margins between statutes and the common law) but may provide some justification for the effect of international law on interpretation.

A Interpretation

So first to the principles of interpretation. I think it is fair to say that it has become established in recent years that there is a presumption that Parliament intends to legislate consistently with international obligations.110 This means that, to the extent that the words allow, legislation will be interpreted accordingly. It has also become clear in recent years that, if there is a broad based discretion given to the executive, then this discretion must be exercised consistently with international obligations.111

A number of commentators have argued that there are two forms of the interpretative principle related to international law: the presumption of consistency approach and the mandatory relevant considerations approach.112 I do not agree with the distinction. In my view, the

109 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 (PC) at 347–348. The decision was adopted in New Zealand in New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269 (CA).

110 On the traditional view, a prima facie ambiguity was required to trigger the presumption. Thus the New Zealand Court of Appeal originally held that an open-ended administrative discretionary power could not be confined by implied limits derived from international law: see Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) at 229 per Richardson J. This is no longer the case and the courts have read open-ended administrative discretionary powers as being subject to the limits of international law: see for example Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA) and Helu v Immigration and Protection Tribunal [2015] NZSC 28 at [144]. See also Philip A Joseph “Exploratory Questions in Administrative Law” (2012) 25 NZULR 73 at 99–100.

111 See Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA); Tavita v Minister of Immigration, above n 110; Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104; and Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289.

112 Claudia Geiringer “Tavita and All That: Confronting the Confusion


approach taken depends on the nature of the statutory provision at issue, rather than a different approach in principle.113 As Associate Professor Dunworth argues, international law’s influential authority will depend on factors such as the value of the international principle and its need for influence domestically, or the way in which a particular rule fits within the domestic system.114

To give an example of what might be seen as the high-water mark of this approach, I discuss the Court of Appeal’s decision in Sellers v Maritime Safety Inspector.115 That case concerned the Maritime Transport Act 1994. This Act allowed the Director of Maritime Safety to deny a pleasure craft permission to depart from New Zealand if its safety equipment was inadequate. The Director set out some basic requirements for all pleasure craft, including a requirement to carry a radio and an emergency locator beacon. Mr Sellers, whose yacht was registered in Malta, successfully challenged the Director ’s requirement that he carry a radio, after having been convicted of a breach of those rules.

The Court of Appeal held that applying the Director ’s minimum requirements to a vessel that was registered elsewhere contravened the international law freedom of the high seas under the United Nations Convention on the Law of the Sea. The Director ’s powers to make determinations in respect of the adequacy of a ship’s equipment had to be read subject to, and be exercised in conformity with, the relevant rules of international law.116

The reason this case has been seen as the high-water mark of the presumption of consistency approach is that some commentators say that it effectively overrode the purpose of the provision,117 which one commentator has said must have been to reduce the need for wasteful marine search and rescue operations caused by ill-equipped pleasure craft in the large part of the Pacific Ocean for which New Zealand has search and seizure responsibility.118

As an aside, it has recently been suggested that the decision was in fact wrong on another ground and that is that the safety requirements

Surrounding Unincorporated Treaties and Administrative Law” (2004)

21 NZULR 66 at 72–89 and Joseph, above n 110, at 99.

113 See my discussion in Ye v Minister of Immigration [2008] NZCA 291; [2009] 2 NZLR 596 (CA)

at [84]–[90].

114 Treasa Dunworth “Law Made Elsewhere: The Legacy of Sir Ken Keith”

in Claudia Geiringer and Dean R Knight (eds) Seeing the World Whole –

Essays in Honour of Sir Kenneth Keith (Victoria University Press, Wellington,

2008) 126 at 133. This was approach was taken by the Court of Appeal in

New Zealand Air Line Pilots’ Association Inc, above n 109, where the Court

weighed the strength of international principle against the wording of

the statutory provision.

115 Sellers v Maritime Safety Inspector, above n 111.

116 At 62.

117 Paul Myburgh “Shipping Law” [1999] NZ L Rev 387 at 398.

118 Wilberg, above n 89, at 722.


imposed were in fact consistent with international law.119

B Influence on the common law

Let us now move to the influence of New Zealand’s international obligations on the development of the common law. International obligations are binding on New Zealand in its capacity as a State. Arguably therefore, as a branch of the state, the judiciary must respect those international obligations. This applies particularly to human rights obligations and is of course recognised in our Bill of Rights explicitly.120

Possibly a more palatable account of international influences on the common law, for those concerned about the independence of the judiciary, is that international obligations are necessarily part of the values, norms and principles to be taken into account when developing common law.121 If nothing else, it would be particularly churlish if judges, in interpreting legislation took cognisance of international obligations, but refused to do so in the development of the common law.

C Customary international law

Moving to the topic of customary international law. Customary international law arises out of the combination of state practice and opinio juris sive necessitates, a belief by states that the practice is an international legal obligation.122 It has long been accepted that customary international law is automatically a part of the domestic common law as long as it is not inconsistent with an Act of Parliament or with a prior judicial


119 For an articulation of this view see Bevan Marten “Port State Jurisdiction in New Zealand: The Problem With Sellers(2013) 44 VUWLR 559. See also Erik J Molenaar “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007) 38 Ocean Dev & Intl L 225 at 231–

232; and Henrik Ringbom The EU Maritime Safety Policy and International

Law (Martinus Nijhoff Publishers, Leiden, 2008) at 339.

120 See Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.

For a critique of that case, see PA Joseph “Constitutional law” [2012] NZ

L Rev 515 at 519–527.

121 See Mayo Moran “Influential Authority and the Estoppel-Like Effect of

International Law” in Hilary Charlesworth and others (eds) The Fluid

State: International Law and National Legal Systems (The Federation Press,

Annandale, 2005) 156; and Alice Osman “Demanding attention: The roles

of unincorporated international instruments in judicial reasoning” (2014)

12(2) NZJPIL 345. See for example, Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1

(CA).

122 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua

v United States of America) (Merits) [1986] ICJ Rep 14 at [207] where the

International Court of Justice stated: “for a new customary rule to be

formed, not only must the acts concerned ‘amount to a settled practice’,

but they must be accompanied by the opinion juris sive necessitatis. Either

the States taking such action or other States in a position to react to it,

must have behaved so that their conduct is evidence of a belief that this

practice is rendered obligatory by the existence of a rule of law requiring

it”.


decision of final authority.123 As noted by Sir William Blackstone over two hundred years ago, “the law of nations ... is here adopted in its full extent by the common law, and is held to be a part of the law of the land”.124 The fact that this is so further muddies the waters as far as the dualist theory is concerned.

I also note that all of this is complicated further by the fact that evidence of the existence of customary law can often be derived from the existence of widely subscribed multi-lateral treaties. This means that, if in fact something covered by a treaty is actually customary international law, it is (as customary law) automatically part of New Zealand law.

D So should we be worried?

So should we be worried that international law is permeating our domestic law? One concern that has been expressed is that the interpretation principles used by the courts to interpret statutes consistently with international obligations undermine Parliamentary sovereignty, by usurping the Parliamentary law-making function under the guise of interpretation.125 It has also been said that the presumption that Parliament did not intend to legislate contrary to international principles is not warranted because Parliament cannot be assumed to be cognisant of the myriad of international instruments when legislating.126

123 See James Crawford Brownlie’s Principles of Public International Law (8th ed, Oxford University Press, Oxford (UK), 2012) at 67. This so-called doctrine of “incorporation” was explained by Lord Denning MR in Trendtex Trading Corp v Central Bank of Nigeria [1977] QB 529 (CA) at 554 where he said “[s]eeing that the rules of international law have changed – and do change – and that the courts have given effect to the changes without any Act of Parliament, it follows ... inexorably that the rules of international law, as existing from time to time, do form part of our English law.” See also Doug Tennent Immigration and Refugee Law (2nd ed, Lexis Nexis, Wellington, 2014) at 29.

124 William Blackstone Commentaries on the Laws of England (1765–1769).

125 This wording is taken from Lord Simonds in Magor and St Mellons Rural

District Council v Newport Corp [1952] AC 189 (HL) at 191 where, on appeal,

he criticised the lower Court Judge’s approach to statutory interpretation

as a “naked usurpation of the legislative function under the thin guise of

interpretation”.

126 This criticism was outlined by McHugh J in the High Court of Australia

decision Al-Ketab v Godwin [2004] HCA 37, (2004) 219 CLR 562 at

[65] where he said: “Given the widespread nature of the sources of

international law under modern conditions, it is impossible to believe

that, when the Parliament now legislates, it has in mind or is even aware

of all the rules of international law. Legislators intend their enactments

to be given effect according to their natural and ordinary meaning.

Most of them would be surprised to find that an enactment had a

meaning inconsistent with the meaning they thought it had because of

a rule of international law which they did not know and could not find

without the assistance of a lawyer specialising in international law or, in

the case of a treaty, by reference to the proceedings of the Joint Standing

Committee on Treaties. ... when one adds to the rules contained in those


Taking the second criticism first, the Legislative Advisory Committee Guidelines require Parliament when legislating to make sure that it does so consistently with international obligations, including those arising under customary international law.127 So, if these guidelines are followed (and one must assume there is a real attempt to do so), then Parliament should be cognisant of New Zealand’s international obligations when legislating.

As to the issue of usurpation of Parliamentary authority, the interpretation principle does not apply when Parliament has expressly legislated contrary to international obligations. Also the presumption itself can only operate so far as the words of the statute allow. Parliament is always free to legislate in the future to make it clear that it does wish to override international obligations, but then it will be doing so in full knowledge of any consequences (international or otherwise) that might arise from that decision and with input into that process from all of the Parliamentary processes, including the select committee process.

Another criticism of the interpretation principles applied by the courts has related to the constraining of executive authority by requiring the executive to exercise powers consistently with international obligations. Questions have been raised as to the legitimacy of judges restraining executive authority using principles that are derived from sources other than the statute delegating that authority.128

The answer that has been suggested by Professor Geiringer of Victoria University is that what is at stake in this is a compromise between two different constitutional principles.129 On the one hand, the continued importance of the principles of the separation of powers and democratic accountability, while on the other the “growing perception that governments should be held to their international ... obligations and that domestic courts” have a role to play in doing so.130

For myself, I have always taken the view that it was the executive

treaties, the general principles of law recognised by civilised nations and the rules derived from international custom, it becomes obvious that the rationale for the rule that a statute contains an implication that it should be construed to conform with international law bears no relationship to the reality of the modern legislative process.”

127 See Chapter 6 of Legislative Advisory Committee “Legislation Advisory Committee Guidelines” (2001), Legislative Advisory Committee <www. lac.org.nz>. See also Cabinet Office Cabinet Manual 2008 at [7.60].

128 Dyzenhaus, Hunt and Taggart, above n 99, at 5.

129 Geiringer, above n 112, at 72. See also T Dunworth “The Influence of

International Law in New Zealand: Some Reflections” in G Morris,

J Boston, P Butler (eds) Reconstituting the Constitution (Springer Heidelberg

Dordrecht, London, 2011) at 319, and Wendy Lacey “The Judicial Use of

Unincorporated International Conventions in Administrative Law: Back-

Doors, Platitudes and Window-Dressing” in Hilary Charlesworth and

others (eds) The Fluid State: International Law and National Legal Systems

(Federation Press, Sydney, 2005) at 82.

130 Geiringer, above n 112, at 72.


who took on these obligations and there is really nothing wrong in saying that they should be held to them.131 This type of thinking, although more elegantly put, is behind comments that have been made in the cases. Cooke P, as he then was, for example made it clear that the judiciary has a role in ensuring that the ratification of treaties is not “mere window-dressing”.132 Chief Justice Mason and Deane J put it even more strongly in their decision in the High Court of Australia case of Teoh, saying that ratification of a treaty should not be seen as a “platitudinous or ineffectual” act.133 Instead, as Toohey J stated, it was a “solemn undertaking”134 and a “positive statement” by the executive to the world and the public that it would act in accordance with the convention.135

E Conclusion

The practical effect of unincorporated international instruments in judicial reasoning on statutory interpretation136 and the role of customary international law means that the dualist paradigm is inadequate to explain the relationship between international and domestic law (even in the case of legislation). For that reason, I say that dualism may be sickly.

VI Must statute law stagnate, while the common law develops?

The final topic I want to cover is whether statute law must stagnate while

the common law develops.

In the nineteenth century, Lord Esher set out what was already at that time an established principle of statutory interpretation: the words of a statute must be construed as they would have been on the day after the statute was passed, unless some subsequent statute has provided that some other construction to be adopted.137 However, there was also another principle, which at first blush would look to be contrary to this: that interpretation should change with time because statutes must be seen as always speaking.

There have been various attempts to reconcile these two principles. For instance, Lord Bingham said there was no inconsistency between them.138 He said that, if “Parliament, however long ago, passed an Act

131 See Glazebrook, above n 107, at 175–176 where I made the same point.

132 Tavita v Minister for Immigration, above n 111, at 266 per Cooke P.

133 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at

291.

134 At 301 per Toohey J.

135 At 291 per Mason CJ and Deane J.

136 As well as the influence of international law on the common law.

137 Sharpe v Wakefield (1888) 22 QBD 239 (CA), and affirmed in Sharp v Wakefield

[1891] AC 173 (HL). Despite being known as the “Esher principle”, Lord

Esher did not invent this principle. It can be found in the work of Edward

Coke as well as in judicial decisions and textbooks both preceding and

succeeding Lord Esher ’s comments in Sharpe v Wakefield: see further

DJ Hurst “The Problem of the Elderly Statute” (1983) 3 LS 21 at 22.

138 Regina (Quintavalle) v Secretary of State for Health, above n 30, at [9]. In my


applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now”.139 As an example, he said that the meaning of cruel and unusual punishment has not changed over the years. However, many punishments that were earlier not thought to fall within that phrase would now be held to do so.140

The principle that statutes are always speaking has been legislatively endorsed in s 6 of the Interpretation Act which states that “an enactment applies to circumstances as they arise”.141 One example of this principle in action is the interpretation of the term “document” to include computer files.142 Another example, of historical relevance, was the interpretation of the term “person”. The nineteenth century courts in the common law world consistently interpreted the phrase “any person” to deprive women of the right to vote, to be elected to office and to become a member of the professions.143

In 1929, however, the Privy Council, on an appeal from Canada, held that women were indeed persons.144 Lord Sankey LC stated “the word

‘person’ ... may include members of both sexes, and to those who ask why the word should include females the obvious answer is why should it not?”145 Why not indeed? In that case, it was not the statutory wording that had changed, but the approach of the judges and the climate of the times.146 And certainly one can argue that originalism is as much a political position as allowing statutes to move with the times.

To come full circle back to my first proposition that statutes are public words, we need to give due recognition to the meaning legislation would have as read and understood by members of society today. This would mean little scope for Lord Esher ’s principle.

VII Conclusion

So where does all this lead us and how does it all relate to the title of

view his attempt at reconciliation was not very successful.

139 At [9].

140 At [9].

141 This was also the approach under the old Acts Interpretation Act 1924.

Section 5(d) of the Acts Interpretation Act 1924 stated that “The law

shall be considered as always speaking, and whenever any matter or

thing is expressed in the present tense the same shall be applied to the

circumstances as they arise, so that effect may be given to each Act and

every part thereof according to its spirit, true intent, and meaning.”

142 For the New Zealand cases on this point, see for example Snow v

Hawthorn [1969] NZLR 776 (SC); Nicholson v Police HC Napier M148/85,

10 November 1986; and R v Misic [2001] NZCA 128; [2001] 3 NZLR 1 (CA).

143 Michael Zander The Law-Making Process (Cambridge University Press,

Cambridge, 2004) at 201.

144 Edwards v Attorney-General for Canada [1929] UKPC 86; [1930] AC 124 (PC).

145 At 138.

146 Zander, above n 143, at 201.


my paper? Well to sum up. Most of the time they (legislators) do say what they mean and they also mean what they say. And the reader understands what they say and what they mean. But, where that is not the case, it seems to me that we should go with the interpretation that would be put on the words by a well-informed reader of today.147 This is justified by the proposition I started with: that statutes are public words.









































147 And by well-informed reader, I mean one aware of the public Parliamentary background and general influences, including the Bill of Rights and relevant international law. A well-informed reader will also have specialist knowledge if the statute is aimed at specialists.


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