Week 5 – Intention and Interpretive Techniques
This weeks material has been focusing on the purpose and intention of legislation, and the techniques used by courts to resolve interpretation. There has also been some discussion as to how changing circumstances are accommodated in statutory interpretation.
Following on from last weeks discussion as the purpose of legislation, this time we look at how we determine the purpose. Some legislation has a purpose provision. For other legislation, the purpose can be determined from its long title. And some legislation have Objects provisions. The question that then arises is what is the difference between purpose and intention. This controversial term had been defined as identifying what the intent of the words used by Parliament was – rather than what it intended to say. And since Parliament cannot consider every single circumstance and possibility, what is to be done if the intent of Parliament is not apparent? This is where the interpretive techniques used by the courts comes in.
If when reading a piece of legislation, the court determines that the ordinary meaning of a word or phrase is too broad, they will use the process of ‘reading down’ to constrain the meaning of words. This may be because the knowledge of the Parliament at the time the legislation was created was limited, and the literal interpretation of the provisions in question (in light of present day knowledge) too narrow. If it is believed that a drafting error has occurred, or inadvertent gap in the legislation due to the ordinary meaning of the vocabulary used, a process of ‘reading in’ may be used, to strain the meaning of the provision. Both of these processes rely on examining the purpose, context, history and language of the legislation, to determine what the intent of Parliament was.
As the process of creating and changing legislation is slow, there must be some process that allows the legislation to accommodate for changes in societal values and policy changes. Statutory interpretation allows for this also by away of ambulatory interpretation, dynamic interpretation and ‘spirit of the law’. By using ambulatory formulations in creating legislation, broad provisions are used which then provides the judiciary the scope to take into account changing circumstances. Dynamic interpretation takes a different approach – which is to interpret provisions in the current context – such as looking up the meaning of a word in a current dictionary, rather than in one that was published at the time the legislation was drafted. And in the equitable interpretation – the provision may be shrunk or expanded as needed to achieve the ‘spirit and reason of the law’. However, these techniques to function, a mature legal system is needed, as the Parliament must be confident in how the judiciary will interpret the legislature that it creates.