Principles Of Statutory Interpretation Research Articles

COVID-19 Stay at Home Restrictions and the Interpretation of Emergency Powers: A Comparative Analysis

Abstract The COVID-19 pandemic has created immense challenges for governments in their management of the public health response and tested the limits of public law. This article undertakes a comparative analysis of the common law jurisdictions of the United Kingdom, New Zealand, and Australia. It discusses the imposition of ‘stay at home’ restrictions pursuant to public health legislative frameworks, focusing on judicial scrutiny in the context of statutory interpretation. It examines the appellate cases of R (Dolan) v Secretary of State for Health and Social Care [2021] 1 WLR 2326, Borrowdale v Director-General of Health [2022] 2 NZLR 356, and Kassam v Hazzard (2021) 106 NSWLR 520. Using these case studies, this article seeks to reveal key themes and implications for public law. What approaches have the courts adopted to construe public health emergency powers? How have the courts treated ‘rights-based’ principles of statutory interpretation? Have the courts approached interpretation in the usual manner or displayed an unorthodox level of deference to other branches of government? The article concludes on what implications the judicial approaches have for the interpretation of emergency powers in the future.

Where do we belong? The plight of plaintiffs with small maritime claims

Is a claim falling within the definition of a ‘maritime claim’ in terms of s 1 of the Admiralty Jurisdiction Regulation Act 105 of 1983 and also within s 29(1) of the Magistrates’ Courts Act 32 of 1944 capable of being pursued in the magistrates’ courts? In World Net Logistics (Pty) Ltd v Donsantel 133 CC & another 2020 (3) SA 542 (KZP) the full court in KwaZulu-Natal held that such claims must be pursued within the exclusive admiralty jurisdiction of the high court. The article submits that this is incorrect and disregards the history of the Admiralty Jurisdiction Regulation Act, amounts pro tanto to an implied repeal of the relevant section of the Magistrates’ Courts Act, and is inconsistent with the principles of statutory interpretation applied by our courts. It urges the Maritime Law Association urgently to seek an opportunity to challenge the decision, which is prejudicial to claimants with small claims arising out of ship-related contracts or delicts.

Presumptions upon Presumptions: Problems with the Threshold of Materiality

The ‘threshold of materiality’ introduced by the High Court of Australia in Hossain v Minister for Immigration and Border Protection, and confirmed in subsequent cases, is a new presumption of statutory interpretation which universally qualifies the existing implied limitations on executive decision-making power. This article contends that the High Court did not adequately justify the presumption’s creation. It surveys several prior decisions to demonstrate the presumption’s doctrinal precariousness; criticises its lack of justification by reference to principles of statutory interpretation; and compares the Court’s creation of the presumption to other cases which, it is argued, have more persuasively justified the evolution of interpretative presumptions. Finally, the article discusses issues of pragmatism, the presumption’s reversal of the onus of proof, and the problematic residual discretion to refuse relief.

General Anti-Avoidance Rules and Tax Treaties: A South African perspective

The domestic laws of many countries contain statutory general anti-avoidance rules, or ‘GAAR’. As tax avoidance schemes have proliferated, especially in a cross-border context, the relative importance of a country’s GAAR has increased. A question that arises is whether a country’s GAAR can be invoked to deny the benefits granted by a tax treaty. The question is complicated by the fact that, as international agreements, tax treaties are subject to public international law, while at the same time forming part of the domestic laws of the states party to the treaty. While the Organisation for Economic Co-operation and Development has attempted to provide clarity in this regard, the answer remains dependent on the manner in which tax treaties interact with the domestic laws of the specific jurisdictions in question. In terms of South African law, the provisions of a tax treaty rank equally with those of domestic law. As a result, any conflict must be resolved by the application of the principles of statutory interpretation and superseding of legislation. Despite this fact, the South African courts tend to favour an approach whereby the provisions of domestic law and those of a treaty are reconciled, rather than having one prevail over the other. The author argues that the GAAR may be applied in a treaty context, provided that the purpose of a treaty and the GAAR can be reconciled. Ultimately, the author is of the view that certainty in this regard can only be achieved through some form of legislative intervention.

Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin

This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.

THE PRINCIPLE OF LEGALITY

AbstractThis article examines the principle of legality, a principle of statutory interpretation that requires clear statutory words to oust basic common-law norms. The principle is of growing importance in the Supreme Court's public law jurisprudence, yet it has garnered little scholarly attention. This article offers a comprehensive account of the principle, unpacking its core elements and identifying key controversies. The article reveals that lying beyond this apparently straightforward principle is a complex and elaborate jurisprudence, which raises fundamental issues of principle, policy and judicial legitimacy.

The Prospective (Ir)Relevance of Section 3 of the Human Rights Act: A Comparative Perspective

Abstract This article suggests that the power conferred on United Kingdom courts by section 3(1) of the Human Rights Act 1998 (UKHRA) is legitimate as a matter of the interpretation of that provision. It sets out a contextual approach to the interpretation of section 3(1) consistent with general principles of statutory interpretation. This differs from most analyses of this provision, whether comparative or jurisdiction-specific, which tend to use constitutional theory as the framework for analysis. The article adopts a comparative perspective, applying the same approach to section 6 of the New Zealand Bill of Rights Act 1990 (NZBORA). It concludes that the approach of New Zealand courts to section 6 is also correct as a matter of the interpretation of that provision. The different approaches of United Kingdom and New Zealand courts to these equivalent provisions is explained by a number of important differences between the UKHRA and NZBORA; including especially the context in which each statute falls to be interpreted. Some implications of this analysis for the development of the principle of legality in the United Kingdom in the event of repeal of section 3(1) of the UKHRA are briefly identified.

‘Non-Amending’ Provisions in a Constitutional Amendment: A Practical Application to the ‘Transition Period’ under the 101st Constitution Amendment Act, 2016

Abstract Amendments to the constitution and the jurisprudence surrounding the constituent power of Parliament have traditionally dominated the field of Indian constitutional law and constitutionalism. Most debates in this field have been restricted to issues like the source of the amending power of Parliament, express, and implied limits on the power to amend, and so on. In an attempt to revert to the core principles of constituent power, this paper attempts to answer more basic but extremely compelling constitutional questions: to qualify as an amendment to the constitution, how exactly must an amendment affect the text of the constitution? If an amendment does not change the bare text of the constitution in any way, but merely affects the overall constitutional scheme, can it still be accorded the status of a constitutional amendment? Locating this issue in the extension of the compensation period under the GST regime in India, this paper seeks to provide an answer to these questions by using a practical setting. First, the source of parliamentary competence to bring about such an amendment is traced. By the use of constitutional theory and principles of statutory interpretation, is then demonstrated that such ‘non-amending’ provisions are undoubtedly an inherent part of the constitutional regime. Lastly, this paper proposes a model that covers both legislative powers of Parliament, that is, constituent power and ordinary law-making power. In the nature of a walk-through, this model explains the legislative process to be followed to bring about an extension of the compensation period.

Section 32(1) of the Charter: Confining Statutory Discretions Compatibly with Charter Rights?

Parliament frequently enacts legislation which confers broad discretionary powers on decision-makers. Such statutory discretions are not at large — they are confined by principles of statutory interpretation. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) has a role to play in interpreting statutes. Section 32(1) of the Charter provides that so far as it is possible consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. A question therefore arises as to whether discretions conferred by Victorian statutory provisions must be interpreted so that they may only be exercised compatibly with the human rights protected by the Charter. This article explores the issue. The answer is not as straightforward as it might first seem.

International Tax Planning: The Stop-Loss Rules and Corporate Reorganizations—Interpretive Challenges

Tax rules often present interpretive challenges. One such challenge involves the stop-loss rules, which can suspend the recognition of a loss realized on a transfer of shares between affiliated persons. Continuity rules prevent a suspended loss from being released as a result of certain corporate reorganizations. One continuity rule applies to mergers and combinations, while others apply to certain types of windups. The Canada Revenue Agency recently issued a broad interpretation of the former rule, arguing that in this context a "merger or combination" can include a winding up—even if the woundup corporation has multiple shareholders. In this article, the principles of statutory interpretation are applied to the relevant provisions, to determine their true meaning. This analysis indicates that the continuity rule for mergers and combinations does not apply to windups.

Notes Toward a Postmodern Principle

The current approach to statutory interpretation in Canada, viz., the ubiquitous “modern principle,” is an empty rhetorical gesture that masks the contingent, subjective nature of language and naturalizes institutionally sanctioned definitions. Since the late-nineties, virtually every relevant decision cites the same passage as methodology, positing the discoverability of objective textual meaning by looking to things like the “ordinary sense” and “intention of Parliament.” This is theoretically incoherent and incompatible with most credible understandings of language and interpretive subjecthood. This paper begins with a critical reading of each directive in the “modern principle” to demonstrate the normative force of its outdated approach. After discussing the legitimizing function of an ostensibly consistent method that elides the difficulties of linguistic meaning, I conclude with a preliminary discussion on the possibility of progress—or the idea of (literally) a postmodern principle of statutory interpretation.

Wykładnia przepisów prawa stanowionego w anglosaskim porządku prawnym (wybrane zagadnienia)

The understanding and methods of statutory interpretation are influenced predominantly by the relevant legal culture which positions statutory interpretation and public implementing bodies within public government structures and the proper social context. The varied understanding and methods of statutory interpretation also results from different state system solutions adopted by particular countries. This also pertains to statutory interpretation across the member states of the European Union. The key differences in the understanding of the substance, methods and aids of statutory interpretation in Europe stem from the different legal cultures which have shaped the so-called British legal order (in England and Wales) on the one hand and the legal orders of the remaining EU member states on the other. Statutory interpretation in continental Europe is shaped within the framework of statutory law system: the supremacy of Constitution and statutes enacted exclusively by parliament. One of the fundamental principles of statutory interpretation in these countries is a competence-based and – to a large extent – institutional division between legislative processes and their results (i.e. legal acts containing legal norms) and processes of application of law and their outcomes (i.e. legal decisions in individualized cases). That distinction is not observed in common law legal orders because of the precedent activity of courts. An elaborative presentation of statutory interpretation in statutory law systems is the issue of the next point of this article. This point goes on to present the characteristic features of statutory interpretation in Anglo-Saxon legal order, with particular attention paid to the root causes for the differences in the understanding, methods (approaches), rules and aids of statutory interpretation in common law culture.

Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation

The application of s137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of 'probative value' for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of 'probative value' in the uniform evidence legislation.

Resolving the Application of the Christie Discretion in the Uniform Evidence Legislation

The application of s 137 of the uniform evidence legislation, which essentially restates the Christie discretion, has been thrown into confusion with the Supreme Courts of New South Wales and Victoria taking a restrictive and expansive interpretation respectively of the meaning of ‘probative value’ for the purpose of the weighting exercise between probative value and unfair prejudice. Definitive clarification of such an important and well known evidential principle, which could reasonably have been previously regarded as settled law, will most likely be postponed until a suitable case is heard by the High Court. This article seeks to anticipate such a judicial resolution of the application of s 137, by applying well-understood principles of statutory interpretation, to argue in favour of the Victorian expansive approach to the meaning of ‘probative value’ in the uniform evidence legislation.

Fictions of Omniscience

Recent studies of the legislative process have questioned the rationales for many principles of statutory interpretation. One of those traditional rationales is the so-called fiction of legislative omniscience, understood to underpin many judicial approaches to statutory decisions. This Article presents the first comprehensive analysis of judicial assertions about legislative awareness and proposes a new way to understand them. The proposed perspective compares fictions of legislative omniscience with similar but more widely accepted imputations of knowledge in other areas of law; it also draws on recent findings from other disciplines regarding how we use and respond to statements about fictional states of affairs. The comparisons indicate that judges’ imputations of unrealistic knowledge to legislatures are best seen not as unfair demands, but as important parts of the story judges typically tell about the law in our legal system, according to which the legislature and judiciary play complementary roles in pursuit of compatible goals. Rather than impairments of judicial legitimacy, these imputations are descriptions of the necessarily aspirational grounds of legal legitimacy.

Reviving the Modern Rule in the Interpretation of Tax Statutes: Baby Steps Taken in Canada Trustco, Mathew, Placer Dome and Imperial Oil

Canada Trustco, Mathew, Placer Dome and Imperial Oil are landmark decisions of the Supreme Court of Canada in terms of their illumination on the principle of statutory interpretation. In these cases, the Court stated that the Income Tax Act should be interpreted in accordance with a contextual and approach. This amounts to a revival of the of statutory interpretation and a move away from the plain meaning approach previously adopted by the Court. This article argues that the steps taken by the Court in reviving the modern rule are merely baby steps, as many key questions remain inadequately addressed. The article first discusses the rise and fall of the modern rule in Canadian tax jurisprudence. It then analyzes each of the four decisions and highlights the contribution of each case to the development of the textual, contextual and purposive interpretation. The article concludes with some thoughts on the challenges facing the courts in establishing the purpose of provisions of the Act and offers some suggestions for moving forward.

Cali] Fornication by False Pretences—No Penalty for Partner Personation under California's Penal Code

This article considers the recent decision of the Second District Court of Appeal of California in People v Julio Morales. The California Court of Appeal controversially quashed the conviction for rape of the appellant who had had sexual intercourse with the victim seemingly whilst she had initially been asleep. With there being conflicting accounts as to whether the victim had been awake or asleep during the intercourse, the appellant had been convicted of rape by the jury on the alternative bases of her either: (1) having been unconscious (asleep) during the intercourse or; (2) having been awake during the intercourse, but mistaken as to the identity of her sexual partner, believing him to be her boyfriend. In a restrictive judgment, displaying more concern for principles of statutory interpretation than criminal justice, the appeal court quashed the appellant's conviction. The reasoning of the court was that the jury might have convicted on the basis of (2) above and that the California Penal Code recognised the offence of rape as being possible in personation cases only where the person being impersonated is the spouse of the victim. This article suggests a number of ways that were open to the appeal court to avoid this unsatisfactory outcome, both by application of other provisions of the Penal Code itself and by reference to the history of the spousal impersonation rule traceable back to old English common law.

Democracy, Liberty and the Prerogative: The Displacement of Inherent Executive Power by Statute

This article analyses arguments that the prerogative should be readily displaced by statute, where a statute deals with a subject matter similar to a prerogative. It does so by examining the leading cases on displacement of the prerogative in the United Kingdom and the Australian states, and displacement of the Australian Commonwealth's inherent executive power. The cases do not adopt a single rule but the question of whether a statute will be taken to displace a prerogative is highly dependent on the facts and the provisions of the particular statute. This article defends the current approach to displacement, for three reasons. First, the courts do not allow governments to subvert or ignore statutes by using the prerogative. Secondly, the courts have almost always decided in favour of liberty and against the conferral of coercive powers on government. Thirdly, a single rule could not do justice to all the variables involved in displacement cases. Ordinary principles of statutory interpretation are sufficient to deal with questions of displacement.

Jurisdictional Quandaries: A Way Forward

From the founding, the authority of Congress to delineate the jurisdiction of the federal courts occasioned debate. And for good reason. The power to define jurisdiction is the power to determine which categories of cases will or will not be heard by the federal courts. And it turn it is the power to determine which laws will be enforced and which rights protected. It has long been recognized that Congress may regulate jurisdiction, not only by specifying the particular categories of cases that federal courts may hear, but also by regulating the manner and timing in which those cases come before the federal courts. Whether or not Congress intended a particular precondition to suit to operate jurisdictionally is not always clear, however, and the Supreme Court’s method of interpretation has fluctuated wildly. The early Court adopted in effect a presumption in favor of jurisdictional treatment and dismissed nonconforming cases. In a one-hundred-and-eighty-degree shift, the current Court has adopted a presumption against finding a precondition to suit to be jurisdictional. As the Court now has it, a precondition is jurisdictional only where Congress so “clearly states.” This sea-change in approach has led to a sea-change in outcome with the Court finding that it has jurisdiction in nearly every recent case. The Court’s new method for interpreting preconditions to suit has significant practical and theoretical implications. As a practical matter, the single most important question in a lawsuit is whether the court has jurisdiction. For a jurisdictional bar is absolute: It may not be waived, meritorious excuses are irrelevant, and courts must consider the question sua sponte. The theoretical question is just as important, implicating foundational separation of powers issues. The Supreme Court’s current thumb on the scale in favor of federal court jurisdiction results in an expansion of Art. III and intrudes upon Congress’s Art. I power to define jurisdiction. This Article argues for a return to first principles of statutory interpretation. Part I analyzes the Supreme Court’s treatment of preconditions to suit. The approaches taken by the Marshall, Taney, and current Courts are examined in detail. Part II considers the doctrinal and theoretical underpinnings of the Court’s current approach and concludes that the approach is wrong-headed. First, the Court’s use of the claims processing, substantive, and jurisdictional labels are unhelpful and divert the Court from the proper question of congressional intent. Second, the Supreme Court’s occasional application of stare decisis and purpose creates significant tension with the clear statement rule. Finally, the Court’s clear statement rule lacks theoretical justification. Given that such substantive canons alter the ordinary rules of statutory interpretation and impose a clarity tax on Congress, they are ordinarily reserved for weighty constitutional concerns. Yet the only justification proffered for the Court’s current clear statement approach is efficiency. Efficiency is an insufficient ground upon which to expand Article III jurisdiction. Moreover, the constitutional concerns cut in the opposite direction; within constitutional limits, it is for Congress to determine the federal courts’ jurisdiction. The Court’s clear statement approach, however, requires federal courts to load the dice in favor of their own jurisdiction rather than engage in more ordinary statutory interpretation. Part III thus proposes a way forward in interpreting preconditions to suit and identifies key factors in determining whether such preconditions are in fact jurisdictional. Part III also demonstrates that the mode of interpretation matters, applying a proper jurisdictional analysis to recent Supreme Court cases and to the Anti-Injunction Act with surprising results.

Secrecy, Systemic Risk, and the Freedom of Information Act’s ‘Confidentiality’ Exemption

During the financial crisis, the Federal Reserve lent hundreds of billions of dollars to struggling banks and financial institutions. When journalists filed Freedom of Information Act (FOIA) requests seeking information about the loans, the Federal Reserve responded that the information was exempt from FOIA because it was commercial or financial, confidential, and obtained from private parties, thus satisfying the fourth FOIA exemption. Litigation of this question within the Second Circuit emphasized courts’ deep disagreement over the “confidentiality” exemption’s breadth. This paper argues that some courts’ broad interpretation of “confidentiality” is inappropriate given FOIA’s language, purpose, and legislative history. In justifying its decision to withhold the information, the Federal Reserve raised legitimate concerns about systemic risk at the height of the financial crisis – but the currently existing FOIA exemptions, properly construed, do not capture these concerns. Therefore, this paper argues that Congress should enact an additional “safety valve” exemption. The new exemption would allow courts to exempt particular information from disclosure in cases of extreme necessity, while not betraying legislative intent and principles of statutory interpretation by reading an existing exemption in an illogically broad manner.