Tip:
Highlight text to annotate it
X
[MUSIC]. The point I want to touch upon now though
is, I think, another issue which relates to the, the how, the tools of Statutory
Interpretation. Now, there are complex rules I'm not
going to go into. That relate to how particulary, how
particular the words in statues are to be interpreted.
I do want to talk about is the role of presumptions in statutory interpretation.
Now, these presumptions to me tell us more about the reality of statutory
interpretation. The way the common law works than any
attempt to generally abstract. Such talk such as the the way that
scholars and commentators strangest it was literal rule a golden rule etcetera.
So lets focus on the presumptions of Statutory Interpretation.
Now there are certain presumptions that have grown up around how a statute is to
be interrupted, and the presumptions are as follows.
First presumption there is a presumption against the alteration of the Common Law.
Second presumption that mens rails in mental element should be a part of the
criminal offense. Next, there is a presumption against the
retrospective application of a statute. There is also a presumption against the
deprivation of an individual's liberty, property or rights.
There is a presumption that legislation doesn't apply to the crown.
Presumption against breach of international law, and a presumption
that's words take their meaning from their context.
Now let's just, I just want to say a couple of words, not about all of those
presumptions but about some of them. The presumption that words take their
meaning from their context. I think if you read any number of modern
statutory interpretations cases you'll see that this is the, what informs
judicial practice. Obviously one will read within context
and to a large extent this is a common sensical idea when you read context
that's important. To the creation of the meaning of the
thing that you are reading. And that context in legal interpretation
is often the context of the law. So I think if one wants a, a basic guide,
a basic understanding of what, what is going on here.
Then the context is all important as the guide to interpretation.
Now, in a more specific sense, this a presumption that judges make in areas of
ambiguity that words will take that meaning from their context.
But what, what strikes me as interesting about these presumptions of statutory
interpretation. Is that there are certain if you like,
substantive values within them, which will be used in the event of ambiguity in
a statutory provision. For instance there is a presumption
against the retrospective application of a statue.
Which is fundamental to the rule of law, that, the, the, that the law cannot have
a retrospective application. It can only have an application in
relation to the future. If you think about it, the retrospective
application of law is fundamentally a bad idea.
The other interesting thing here is that we make a presumption in statutory
interpretation. Against the deprivation of an
individual's liberty or property or rights.
In other words, the spirit of interpretation of common law is one that
stresses individual liberty, property and rights.
A great deal more could be said about those presumptions.
But my most minimal point here is, I think, to understand the contemporary
practice. Is these presumptions that really take us
to where the action is, rather than all the more abstract understandings of what
is what is going on in this area. [MUSIC].