Similar to last week, common law still has a role to play in statutory interpretation. The courts have been quite happy to presume that certain presumptions are made in drafting. The drafter of legislation also assume the courts will make these presumptions too. They are however no more than guidelines. There are a number of presumptions.
They do not however stand in the face of clear words. Some presumptions are on the way out and some on the way in from time to time.
Looking at the Coco case (trespassing) the judge made some observations, statutory presumptions can be displaced where there are clear words used. The court also said that where there is a pretty clear implication that they not be used.
Legislation does not operate retrospectively:
Some retrospective laws can be good and some bad…MV Tampa case.
Remember the Rodway case, retrospectively is Ok if the statute affects mere matters of procedure. You are subject to the rules as they are today.
Maxwell v Murphy – the time limit had expired. Statutes which only deal with how you bring your case to court, do apply.
Legislation does not have extra-territorial effect:
The court takes this position because it is not in the position to hear its own cases. This presumption can be rebutted by the words of the legislation.
Legislation does not take away the jurisdiction of the court.
This is fundamental to the rule of law. People must have access to the courts and providing this is one of the fundamental functions of government. There is a slight exception in that it is okay to insist that people have arbitration first.
Legislation does not bind the Crown:
This relates back to the separation of powers, the legislative arm trying to tell the administrative arm what to do. Interesting case is Bropho v Western Australia where the court found that despite the lack of presence that the legislation should bind the crown the court looked at the purpose and context of the legislation to find that it did bind the Crown.
Legislation approves the common law:
When the court defines a word and then the Legislature approves the definition in legislation they are taken to have approved of the definition.
Penal Provisions are to be strictly construed:
The whole of the resources of the state are bought to bear on the individual. If the government can not get the legislation ‘tight’ and if they can not get a conviction the benefit of the doubt should go towards the accused.
Remedial provisions are broadly construed:
There is a tendency toward the greater benefit to the individual.
Legislation does not intend to remove property rights:
Acquisitions of property, courts may overturn legislation where the intention was to resell to a developer.
Rhys's Statutory Interpretation Site 