Tuesday, August 09, 2005

Purpose and policy

R v Lavender [2005] HCA 37 (4 August 2005) required the High Court of Australia to decide whether malice is an element of manslaughter in legislation dating back over 100 years. While the 7 judges all agreed in the result (that it is not), the case is interesting for its demonstration of how evenly balanced is the nature of statutory interpretation. Kirby J noted this point at para 69.

The only reason Kirby J agreed with the Court’s conclusion was that the consequences of the preferred interpretation were "less unsatisfactory" than the consequences of the rejected interpretation. This was the critical point for him, and it was decisive after an application of the standard approach to statutory interpretation, which involves an analysis of the context of the disputed provision, the legislative history, and an effort to discern the intention of the legislators. A background consideration, as a matter of last resort (para 93) is the rule that penal statutes should, in cases of ambiguity, be construed against the state.

The so-called purpose of the legislators is, on the standard approach, the touchstone. Indeed, it has (unambiguous) statutory force in the form of s 5(1) of the Interpretation Act 1999[NZ] which provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. The Privy Council referred to that in R v Karpavicius [2002] UKPC 59, (2002) 19 CRNZ 609, a case where the opposing arguments were linguistically finely balanced. The Privy Council made it plain that the purposive approach is to take precedence over the strict construction of penal statutes rule.

However, the courts depart from the purposive approach when that conflicts with human rights, giving effect to rights wherever doing so is consistent with the "underlying thrust" or is "with the grain" of the legislation (as opposed to being consistent with the legislative purpose): Ghaidan v Godin-Mendoza [2004] 3 WLR 113, [2004] UKHL 30 (21 June 2004). Plainly, there are some rather fine shades of meaning here.

In considering how best to approach the interpretation of old legislation, it is appropriate to bear in mind the words of Francis Lieber, Legal and Political Hermeneutics (enlarged ed, 1839), at 135, quoted by Richard Posner, The Problems of Jurisprudence (1990) at 298:

"Whether we rejoice in it or not, the world moves on, and no man can run against the movement of his time. Laws must be understood to mean something for the advantage of society; and if obsolete laws are not abolished by the proper authority, practical life itself, that is, the people, will and must abolish them, or alter them in their application …."

Posner argues that the term "interpretation" is so elastic that "it often is a fig leaf covering judicial discretion rather than a guide to decision making" (p 30).

If there is a lesson to be drawn from deconstructionism, it is that the meaning of a text is ascertained by its reader, and is not pre-determined by its author. See JM Balkin, "Deconstructive Practice and Legal Theory" at http://www.yale.edu/lawweb/jbalkin/articles/decprac1.htm

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