TY - JOUR
AU - Carter,, Ross
AB - ‘To live is to suffer’, said Max Cleland, ‘to survive is to find meaning in the suffering’. Those are philosophical thoughts of the Army veteran, from an interview for Ken Burns’ and Lynn Novick’s epic documentary The Vietnam War (PBS, 2017). Clinical psychologists, or philosophers, might help find meaning in suffering. But lawyers’ main professional task is to find meaning—or, more precisely, to predict accurately correct legal meaning—in legislation. England exported its common law legal system, via the British Empire, to the Commonwealth of Nations. Judge-made English common law is most probably one of the largest continuous bodies of literature in human history. But common law legal systems have, increasingly, come to be predominated by legislation. Indeed, New Zealand’s English Laws Act 1858 declared the Laws of England, so far as applicable to the circumstances of the Colony of New Zealand, to have been in force in that Colony on and after 14 January 1840. ‘Statute is not so much King as Emperor’, former New Zealand Prime Minister, Sir Geoffrey Palmer QC, opined in 2007.1 After all, and as New Zealand’s Court of Appeal noted recently (Vohra v. R [2018] NZCA 128 at [21]), ‘legislatures make law wholesale, judges retail’.2 The pervasion of ‘legislation . . . more and more defines the law in modern democracies’.3 ‘Rules are of the essence of a society. In our society, legal rules and principles affect and govern everyone, and impose restraints and duties on individuals and groups. They also confer and protect rights, benefits and liberties. They are increasingly set out in legislation; that is, they are embodied in laws enacted by [(or under the authority of)] Parliament’. So observed New Zealand’s Law Commission, an independent, publicly funded, central advisory body (established by statute) to undertake the systematic review, reform, and development of New Zealand law. The Law Commission made that observation in 1996, in issuing guidance on legislative drafting in a Legislation Manual. Rules and legislation are thus also a window into culture and history. A doyen of New Zealand statute lawyers, Professor John Burrows QC, notes that ‘The statute books in some ways constitute a social and economic history of New Zealand’. Legislation must, however, be understood both backwards and forwards. (As legal historian F W (Frederick William) Maitland observed insightfully, ‘All law is history’.) New societies create new legislation. New Zealand and Australia exemplify ‘New World’ jurisdictions. Each continued, but also aimed to improve on, an imperial inheritance. New Zealand’s legal system, from its start, prized accessibility, comprehensibility, and plain drafting. Queen Victoria on 5 December 1840 gave Instructions to her trusty and well-beloved William Hobson, her Governor, and Commander in Chief in and over her colony of New Zealand. One ends with an autonym: that all laws and ordinances that Hobson was to enact, with the advice and consent of the new Legislative Council, were to ‘be drawn up in a simple and compendious form, avoiding so far as may be all prolixity and tautology’.4 ‘William Martin[, the first Chief Justice] was an enthusiastic campaigner for freeing the new courts from the heavy weight of English legal tradition’, says Anthony Wood. Together with Thomas Outhwaite, who became Registrar of the Supreme Court at Auckland, [Martin] had sailed in the same ship as William Swainson the new Attorney-General [(who replaced the first Attorney-General, Francis Fisher)]. All three were in their thirties and comparatively inexperienced in the practice of law. During the long voyage out they drew up a series of ordinances quite daring in their simplicity. As a result the next session of the New Zealand Legislative Council saw a flood of measures designed to create a complete judicial system.5 Australian colonies federated, as the Commonwealth of Australia, in 1901. Sir Robert Garran, head of the Attorney-General’s Department in Canberra, and the first Australian federal legislative drafter, said later (in his autobiography, published in 1958): Parliament having got to work, the first job for my Department was to draft the Bills necessary for a beginning. It was a thrilling experience to open a new Statute Book with the freedom that comes from not being tied to the forms and idioms of a long line of predecessors. We tried to set an example of clear, straightforward language, free from technical jargon.6 The United Kingdom is so ancient that the idea of novelty may be more remote. However, the devolution legislatures are relatively new. And Brexit promises innovation (just as did the European Communities Act 1972). So, even in ancient systems—as the Greek philosopher Heraclitus of Ephesus (c. 535 BC–475 BC) is said to have said—‘everything flows and nothing stays’. Thomas Cromwell, Secretary and Chief Minister to Henry VIII, drew Bills for the king. (Katherine of Aragon: ‘This is Master Cromwell. Who now writes all the laws . . . [N]ow [Master Cromwell] finds he has a talent for legislation too – if you want a new law, just ask him’.7) The Bills were to secure outcomes—some about succession to the Crown. Some helped achieve the break with Papal Rome known as the English Reformation. Parliament endorsed the king’s claim to be Supreme Head of the Church of England, so giving him the authority to annul his own marriage (which in 1534 Pope Clement VII had refused to annul). (Thomas Cromwell: ‘Rome has no legitimate voice in England. In my bill I mean to state a position. It is a modest one. I draft it, it may please Parliament to pass it, it may please the king to sign it. I shall then ask the country to endorse it’.8) Succession to the throne in each of the 16 Commonwealth realms is governed both by common law and by statute. Under common law, the Crown was transmitted by male-preference primogeniture. Statute (the Acts of Union 1706 and 1707, restating the Act of Settlement 1701, and Bill of Rights 1689) restricted succession to legitimate descendants of Sophia, Electress of Hanover (the mother of George I). It also debarred Roman Catholics or those who have married Roman Catholics. Both elements were modified after an agreement made by the Prime Ministers of the 16 Commonwealth realms during the biennial Commonwealth Heads of Government Meeting (CHOGM) in 2011 in Perth, Australia. Commonwealth legislation giving effect to the Perth Agreement includes the Succession to the Crown Act 2013 (UK), the Succession to the Throne Act 2013 (Canada), the Succession to the Crown Act 2015 (Australia), and the Royal Succession Act 2013 (New Zealand). Plus ça change, plus c’est la même chose. Most modern legislation, however, is precision-drafted by cadres of centralized professional legislative counsel. They were pioneered in the London Parliamentary Counsel Office (since 2007 called the Office of Parliamentary Counsel (OPC)) originated by Lord Henry Thring.9 In 1869, Thring was appointed the first parliamentary counsel to the Treasury. (An Office of the Parliamentary Draftsman for Scotland, nowadays called the Office of the Scottish Parliamentary Counsel (OSPC), was established in 1871.10) Bowers’ article on ‘Victorian Reforms in Legislative Drafting’ notes an 1857 Commission was terminated by resolution of the House and so submitted no formal report but many of its recommendations—including establishment in 1869 of the office of Parliamentary Counsel to the Treasury—were implemented in the 18 years that passed before its investigations were resumed by another select committee, in 1875.11 Thring’s office instructions to English legislative drafters were in 1879 published as his landmark text Practical Legislation, a second edition of which appeared in 1902. Sir Courtenay Ilbert, a fellow law drafter and author on legislation, later First Parliamentary Counsel (1901–1917) and Clerk of the House of Commons (1902–1921), said of Thring that he ‘appears to have drawn all the most important measures of his time’. In 1886 Thring retired, replete with years and honours, most notably the peerage which was conferred on him (a distinction probably unique among drafters). Ilbert himself published in 1914 a book entitled The Mechanics of Law Making which, as Cecil Carr points out, was based on Ilbert’s Carpentier Lectures at Columbia University in 1913, and ‘either by sheer coincidence or by some innocent trick of memory’, has the very same title as a little book in 1835 by Arthur Symonds Esq ‘intended for the use of legislators and all other persons concerned in the making and understanding of laws’.12 Ilbert’s 1914 book also notes Jeremy Bentham’s treatise, composed between 1811 and 1831, on Nomography, or the Art of Inditing Laws, a general rule for which is ‘make your meaning known and understood’. Modern drafters’ work can be challenging, but happily occurs in a setting (terrorism threats aside) mostly much safer than that of their predecessors (for example, in the 16th century). The current UK First Parliamentary Counsel, Elizabeth Gardiner, appointed in 2015, is the first ever woman to hold the post. In a recent interview with the BBC, Gardiner said: ‘I think it is the sort of job that you either love or hate, probably – I think it’s a bit Marmitey. People leave very quickly if they don’t like it, but there are a lot of people who come and stay a long time.’ . . . The drafting process, she says, needs consistency, collaboration and the ability to ask searching questions . . . ‘You have to be quite thick skinned. But 999 times out of 1,000, when someone says the bill is not well drafted, they really mean, “I don’t like the policy in the bill”’. ‘If you compare an [Act] from now to one from the late-1980s, it is written far more in everyday English’. ‘I don’t see myself as a role model, but I have to step into that role a bit because it is important to people in the organisation that there are women in senior positions’.13 Another woman (and a New Zealander by birth), Hillary Penfold, became in 1993 the first woman to be appointed Australian Commonwealth First Parliamentary Counsel (and in 2001 achieved the further distinction of becoming the first woman to be appointed as Commonwealth Queen’s Counsel). New Zealand’s current Chief Parliamentary Counsel, Fiona Leonard, appointed in 2016, is also the first woman to hold that office. The First Legislative Counsel for Northern Ireland, since 2012, is Brenda King, who is also the current President of the Commonwealth Association of Legislative Counsel (CALC), which was established by a resolution carried out at a meeting of law drafters held in Hong Kong on 21 September 1983.14 However, CALC’s first ever woman President was Mrs V.S. Rama Devi, of India, elected at CALC’s 1990 meeting in Auckland. Mrs Rama Devi was Secretary of the Legislative Department at the Government of India’s Ministry of Law and Justice, 405 ‘A’ Wing, Shastri Bhawan, New Delhi. Born in 1934 at Chebrolu in Andhra Pradesh, Mrs Rama Devi, who completed her M.A. and LL.M., enrolled as an advocate in the High Court of Andhra Pradesh and later joined the Indian Legal Service. During a distinguished career, Mrs Rama Devi also served as Member-Secretary of the National Law Commission and, for a short period, as Chief Election Commissioner. She was Secretary General of the Rajya Sabha (Council of States), which is the upper house of the Parliament of India, from 1993 to 1997. She served as Governor of Himachal Pradesh from 1997 to 1999, and then as Governor of Karnataka from 1999 to 2002. She died in Bangalore in 2013, aged 79 years. View largeDownload slide View largeDownload slide Speaking about ‘The Importance of Legislative Drafters’ at the CALC Conference in Nicosia, Cyprus, in 1993, Mrs Rama Devi said15: Whatever may be that importance, there is total agreement on the fact that drafting is a thankless job. The drafter very rarely gets the credit for his work. For no fault of his, the choicest abuse will be showered on him for his bad drafting by opposition members whenever they want to embarrass the Government. The late Mr Hiranandani,16 acclaimed as an ace drafter, advised the drafter that ‘if you have a choice to become a draftsman or take up any other job, take up the other job.’ In spite of the soundness of that advice, I would not entirely agree with it. As for myself, when there was a choice to be either an adviser or a drafter, I chose to be a drafter. There is a challenge in the job. There is a sort of pleasure in giving birth to a Bill however strenuous or painful the process may be. No creation can be painless, but the ultimate result may be wonderful. The very formidable nature of the job throws up a challenge with a deadly attraction. So the drafter turns to it as a moth to the flame. ‘A statute is written to entrap meaning, a poem to escape it’.17 In 1536, Thomas Wyatt was imprisoned in the Tower of London for allegedly committing adultery with Anne Boleyn. Wyatt’s sonnet ‘Whoso List To Hunt’ may allude to Anne’s relationship with Henry VIII: ‘Graven in diamonds with letters plain,/There is written her fair neck round about,/’Noli me tangere [Do not touch me], Caesar’s, I am’’.18 (Wriothesley, known as Call-Me-Risley: ‘“If I were Wyatt . . . I would have made sure no one misconstrued me. I would have stayed away from Caesar’s wife.” Cromwell: “That is the wise course”’.) But persecutor, soon enough, became persecuted. In 1540, Cromwell was arrested himself. A Bill of Attainder with a long list of indictments was introduced into the House of Lords a week later, and passed into law. Cromwell was beheaded at Tower Hill and his head set on a spike on London Bridge. Poetry can be designedly ambiguous or illusive. Legislation, in contrast, is designedly unambiguous and precise. As former First Scottish Parliamentary Counsel, John McCluskie CB, QC, says, ‘there can hardly be two [literary forms] that are more unalike than the dry, terse formality of the language of statutes . . . and the emotive, pictorial and expansive word-music of poetry’.19 Even so, ‘Poets are the unacknowledged legislators of the world’, Percy Bysshe Shelley claimed famously.20 The English poet’s argument was that poets help make morality and civil society’s legal norms. If nothing else, the argument shows the ambiguity in the term ‘legislators’. Does it cover all or any of these various contributors to, or ‘framers’ of, legislation: (a) the Minister or other Member of Parliament (MP) in charge; (b) affected parties or interested witnesses; (c) policy or procedural advisers; (d) drafters; and (d) voting MPs? Professional legislative drafters strive to ensure (and, to be fair, mostly succeed in ensuring) that no one misconstrues the legislation they draft. Top of their minds might be a song written (by Bennie Benjamin, Gloria Caldwell, and Sol Marcus) for the jazz singer and pianist Nina Simone, who first recorded it in 1964: ‘[Oh Lord, please] Don’t let me be misunderstood’! They might also recall the Bee Gees’ (Barry, Robin, and Maurice Gibbs’) 1967 song ‘Words’: ‘Its only words, but words are all I have, to take your breath away’. Michael Orpwood QC, a drafter of legislation at New South Wales Parliamentary Counsel’s Office from 1972 to 2004, once called that song ‘[m]y theme song as a drafter’. Orpwood warned of the dangers of fads and fashions in striving for perfect legislative communication. Modern legislation is, however, not made up only of words. Its ‘text’ includes other features. In the United Kingdom, The Solvency 2 Regulations 2015 (SI 2015 No. 575) regulate insurers and reinsurers operating in the European Union. They include flowcharts (Regs 35–40, Schs 3–5) that—as the regulations provide expressly—impose duties, and confer powers, on a regulator. In New Zealand, the Fisheries (Commercial Fishing) Regulations 2001 (SR 2001/253) prohibit commercial fishers from taking or possessing undersize rock lobsters (Jasus edwardsii). They also regulate measurement of tails using diagrams including these diagrams. View largeDownload slide View largeDownload slide Here is how the administering department’s website explains the measurement regulation (which focusses on the second abdominal segment, highlighted by the red arrow above). View largeDownload slide View largeDownload slide This is less the length of the Chancellor’s foot, more the minimum width of the lobster’s tail! But, for the commercial fishers, it is both text and diagram that regulate what is undersize. Charts, diagrams, or drawings are, of course, just as susceptible (as words, figures, or symbols are) to ambiguity or unclarity. An example is Naval Captain James Cook’s chart of New Zealand’s South Island. It mistook ‘Banks’s Peninsula’ as instead ‘Banks’s Island’. An understandable drafting error, circa 1770 (especially given the absence of Google Maps). Another law drafter was Sir James Fitzjames Stephen QC (also an uncle of Virginia Woolf, and a cousin of the jurist A.V. (Albert Venn) Dicey). But Stephen exemplifies (as noted by Sir Kenneth Keith, who himself exemplifies) ‘the changing-of-hats scholar, codifier, and judge’.21 Later, in 1890, as Queen’s Bench Judge, Stephen noted that degree of precision which is essential to everyone who has ever had, as I have had on many occasions, to draft Acts of Parliament, which although they may be easy to understand, people continually try to misunderstand, and in which therefore it is not enough to attain a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible a degree of precision which a person reading in bad faith cannot misunderstand. Stephen interpreted, in the limit on surrender in the Extradition Act 1870, s 3(1), ‘an offence of a political character’. John Stuart Mill had debated, in Parliament, the Bill for the 1870 Act, and expressed a view on the expression’s meaning. But Stephen, in his History of the Criminal Law of England (1883), had expressed a different view, and was a particular expert on extradition, having been a member of the powerful Royal Commission on Extradition, headed by Sir Alexander Cockburn CJ, which reported in 1878. In an 1890 judgment labelled by Sir Stephen Sedley as a ‘low blow’, ‘dripping with condescension’,22 Justice Stephen said ‘I think that my late friend Mr Mill made a mistake upon the subject, probably because he was not accustomed to use language with that degree of precision’ essential to drafters of Acts of Parliament! The Acts of Parliament that Stephen had, ‘on many occasions’, to draft, included the Indian Evidence Act 1872. (It had legislated examples, similar to Illustration (1) of s 32 of the Evidence Ordinance 1893 of the Straits Settlements—discussed by the Judicial Committee of the Privy Council in Mahomed Syedol Ariffin v. Yeoh Ooi Gark [1916] 2 AC 575.) Stephen’s plan to codify criminal law did not succeed in England, but certainly influenced codified criminal law in Canada, New Zealand, and Australia. If nothing else, Re Castioni [1891] 1 QB 149 (QB) shows the influence, in interpretation, of extrinsic context, long before the House of Lords’ decision in Pepper v. Hart [1993] AC 593—a decision about the lawfully permissible use of parliamentary debates (Hansard) in interpreting legislation (rather than just discerning its implicit ‘mischief’, object, or purpose). That episode raises also the issue of the drafter as interpreter. A drafter may also be a commentator or textbook writer, or may later become a judge or other kind of person acting judicially (e.g. an arbitrator or a tribunal adjudicator). ‘[I]n construing a statute’, Lord Chancellor Halsbury remarked, ‘I believe the worst person to construe it is the person who is responsible for its drafting. He is very much disposed to confuse what he intended to do with the effect of the language which in fact has been employed’.23 Lord Halsbury abstained from deciding the meaning of the Companies Act 1900 because he had been ‘largely responsible for [its] language’ and his exceptional stake in the matter as a drafter of it raised a danger specific to the drafter (subjective partiality) that would prevent him from appreciating fully the objective, literal meaning of the words it used. He did, however, endorse the other judges’ unanimous interpretation of it as reflecting not ‘my intention, but the intention of the Legislature’. ‘On close inspection’, Hutton says, ‘[Lord] Halsbury’s statements collapse into contradiction’.24 Law drafter and commentator Francis Bennion, in contrast, said in 1962 that ‘It is obvious that no one can know the structure and mechanism of an Act so well as its author. If a doubt arises he is often able to point to the provisions which will resolve it’.25 Francis Bennion wrote five editions of Bennion on Statutory Interpretation from 1984 to 2008. He was also a consultant editor of the 6th edition, published in 2013, edited by Sydney barrister Oliver Jones. A drafter—as I have noted elsewhere—faces risks in trying to interpret authoritatively an enactment that the drafter has drafted. Risks of that kind arise even if the drafter’s life-long involvement with (zeal for) statute law in general, and special knowledge of the relevant Act in particular, means that his or her views deserve the greatest of respect.26 In the 6th edition, section 201 indicates that the legislator intends a fully informed, not a purely literal, interpretation. Section 237 (Use of Commentaries on Act) elaborates that: The writings of jurists and other learned commentators may be considered by the court in construing an enactment. There is now no requirement that the commentator be deceased before his or her writings can be regarded as authoritative. A commentary by the drafter of the Act may be regarded as particularly helpful on points related to its intended meaning. The ancient legal tradition that no author can be cited as an authority in the author’s lifetime has long been, as Lord Denning asserted in the Law Quarterly Review in 1947, ‘exploded’. As the 6th edition notes, it was anyway contested in practice, and underpinned by little except maturity, ostensible neutrality, and dead authors being unable to change their minds! Notably in international law, treaty interpretation is to be informed by context, including specified extrinsic context, including any relevant rules of international law (which may themselves be informed by the writings of ‘the most highly qualified publicists’).27 Francis Bennion died on 28 January 2015, aged 92 years. An obituary in The Times said28: Bennion, barrister, writer and academic, was renowned as a statute and constitutional lawyer and parliamentary draftsman. . . . Bennion was driven all his life by the need to defend the rule of law in general and the finer points of jurisprudence and statute law in particular. . . . He first came to public prominence in the early 1970s when he took the unusual and expensive step of taking out a private prosecution against Peter Hain for criminal conspiracy. This related to Hain’s activities as chairman of the Stop the Seventy Tour campaign, which disrupted sporting events involving South Africa as a protest against apartheid. It was the first public display of Bennion’s fervent belief in the rule of law. After a lengthy trial Hain was found guilty and fined £200, but the case took its toll on Bennion, costing him his home and his first marriage. . . . Much of his legal career was spent at the Parliamentary Counsel office where he was responsible for drafting legislation, including such important bills as the Consumer Credit Act 1974 and the Sex Discrimination Act 1975. For the rest of his life he worked independently, lecturing and writing books on a range of subjects, the best known of which is Bennion on Statutory Interpretation, the fifth edition of which ran to more than 1800 pages29 and is recognised worldwide as the definitive textbook on this subject. . . . He will be remembered for his work on statutory interpretation and it was a tribute to him that, despite its subject, many commented that it was an enjoyable read. As one friend put it: ‘He had this knack of drawing out the fascinating aspects of jurisprudence, injecting humour and amusing anecdotes. Lawyers throughout the common law world will be reaching for their “Bennion” for many years to come’. (Readers know well that Bennion, ‘despite its subject’, helps reveal statutory interpretation’s many fascinations. ‘Statutory interpretation is at once’, affirmed former Justice of the High Court of Australia, Michael Kirby, in 2011, ‘complex, contestable and fascinating’. A property investor, author, and former politician in New Zealand, Sir Robert Jones, informed me in 2015 that he regarded lawyers who are interested in the law as an oddity since, for some lawyers at least (Sir Robert quoted an Auckland barrister), ‘One word sums up law today . . . and that’s tedium’. However, Sir Robert also informed me, some days later, that ‘randomly opening [the book Statute Law in New Zealand] has surprised me as I’ve found it (unexpectedly) interesting, [e]specially issues of interpretation and plain speaking’!) In the 7th edition of Bennion on Statutory Interpretation, Diggory Bailey and Luke Norbury note (at sections 24.10 and 24.22) that, in R v. Abu Hamza, Lord Phillips CJ said of a commentary written by a drafter of the Offences Against the Person Act 1861 (UK) that: ‘The statement of a parliamentary draftsman as to the meaning words were intended to bear is not a legitimate aid to construction’.30 Bailey and Norbury said This is best viewed as meaning that a commentary written by a drafter has no intrinsic weight by virtue of having been written by a drafter. There is no reason why the opinion of a drafter should not be persuasive in the same way as opinions expressed in a commentary written by any other author. The persuasiveness will depend solely on the cogency of the argument. That view is a welcome one for the many legislative drafters, or former legislative drafters, who write or edit (or co-write or co-edit) books on statutory interpretation. Some examples are Jurisdiction Author(s) Work (current edition) Australia Dennis Pearce31 and Robert Geddes Statutory Interpretation in Australia (8th ed., 2014) Canada Ruth Sullivan Sullivan on the Construction of Statutes (6th ed., 2014) New Zealand Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed., 2015) UK Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed., 2017) Daniel Greenberg Craies on Legislation (11th ed., 2016) Jurisdiction Author(s) Work (current edition) Australia Dennis Pearce31 and Robert Geddes Statutory Interpretation in Australia (8th ed., 2014) Canada Ruth Sullivan Sullivan on the Construction of Statutes (6th ed., 2014) New Zealand Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed., 2015) UK Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed., 2017) Daniel Greenberg Craies on Legislation (11th ed., 2016) View Large Jurisdiction Author(s) Work (current edition) Australia Dennis Pearce31 and Robert Geddes Statutory Interpretation in Australia (8th ed., 2014) Canada Ruth Sullivan Sullivan on the Construction of Statutes (6th ed., 2014) New Zealand Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed., 2015) UK Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed., 2017) Daniel Greenberg Craies on Legislation (11th ed., 2016) Jurisdiction Author(s) Work (current edition) Australia Dennis Pearce31 and Robert Geddes Statutory Interpretation in Australia (8th ed., 2014) Canada Ruth Sullivan Sullivan on the Construction of Statutes (6th ed., 2014) New Zealand Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed., 2015) UK Diggory Bailey and Luke Norbury Bennion on Statutory Interpretation (7th ed., 2017) Daniel Greenberg Craies on Legislation (11th ed., 2016) View Large Sullivan’s book continues Driedger on the Construction of Statutes, first published in 1974, by another Canadian federal legislative drafter, and later Professor of law at the University of Ottawa, Elmer Driedger. As Sullivan explains Driedger was keenly aware of the close and complex interaction between drafting and interpretation. If law-makers are to achieve their desired results, legislation must be drafted having regard to how it will be interpreted by those who will apply it. Conversely, if interpretation is to give effect to the intentions of the law-maker, the legislative text must be read having regard to the conventions of legislative drafting, as well as the contexts in which legislation is conceived, prepared and operates.32 (John Mark Keyes, also a former Canadian Chief Legislative Counsel and adjunct Professor at the University of Ottawa, has similarly written his leading book on Executive Legislation.) American and Canadian books on legislative drafting were published even earlier. Walter Iles, CMG, QC, New Zealand Chief Parliamentary Counsel from 1975 to 1996, and CALC’s second President (1986 to 1990), explains33 The 1960s and 1970s were years in which there was growing interest in legislation and the way in which it was drafted and expressed. There were two landmark publications, The Language of the Law by [UCLA Law] Professor David Mellinkoff, published in 1963, and Legislative Drafting by [New Zealander] Garth [Cecil] Thornton [QC], first published in 1970.34 Garth Thornton first started work on his book in Tanzania in 1967. [He drafted in Africa, Australia, and Hong Kong. The current fifth edition of Thornton’s Legislative Drafting was published in 2013, edited by Professor Helen Xanthaki of UCL.] Other significant books were The Fundamentals of Legal Drafting by [a former Indiana University law professor and Pentagon lawyer who helped codify United States military law in the 1950’s,] Reed Dickerson (published in 1965) and The Composition of Legislation by [Canadian] Elmer Driedger (published in 1957). The Statute Law Society was established in England in 1968. [From 1965 to 1975, Bennion grew increasingly critical, publicly, of the Westminster PCO’s then current legislative drafting techniques and style. He founded the Statute Law Society in 1968, which called unsuccessfully for programmatic consolidation.] The Commonwealth Law Bulletin, first published in 1974 by the Legal Division of the Commonwealth Secretariat, drew attention to a variety of legal matters, including legislation passed in Commonwealth countries. [Bennion gave written evidence to the Renton Committee, which reported in May 1975, on The Preparation of Legislation (Cmnd. 6053, 1975), and whose report led to the creation of the Interpretation Act 1978 (UK).35] Similar developments occurred, but later, in the United Kingdom. First Parliamentary Counsel from 1981 to 1987, and CALC’s first President in 1983, was Sir George Engle, KCB, MA, QC. Engle edited (in 1987, and in 1995, with John Bell (Professor of Public and Comparative Law at the University of Leeds from 1989 to 2001)) two posthumous editions of the famous book by Sir Rupert Cross on Statutory Interpretation (1976). (Rupert Cross, perhaps better known for Cross on Evidence, first published in 1959, was born with cancer of the eyes and was, after an operation at the age of 1 year, completely blind. But that proved little hindrance. Rupert Cross was ultimately elected Vinerian Professor of English Law in the University of Oxford, a position he held from 1964 to 1979. His elder brother, Geoffrey, also became a lawyer and achieved distinction. He was a Prize Fellow at Trinity College, Cambridge and became in succession a Judge of the Chancery Division, a Lord Justice of Appeal, and a Lord of Appeal in Ordinary (Law Lord).) George Engle’s involvement in the second and third editions of Cross on Statutory Interpretation arose as a result of his correspondence with Sir Rupert Cross in relation to the first edition in 1976. Engle’s ‘remarks’ and ‘corrigenda’ covered nine typed pages! Cross was appreciative and wrote ‘I am preserving your every word and will make full use of them should a reprint or second edition ever be called for’ (letter 13 July 1976). Alas, Cross died before a second edition was possible, so George proposed a second edition in 1984 and his friend, Guenter Treitel, enlisted Dr John Bell to assist. Whilst Bell undertook to research the more academic works and some cases, Engle subjected judicial pronouncements to meticulous scrutiny and tried to ensure that the presentation of the legislative process fitted the realities which he knew better than most others. He retained many friendly contacts with judges on these matters. In preparing the third edition in 1994, he wrote that he had been in conversation with Steyn LJ (as he then was) and now considered that the editors should ‘include something on the presumption in favour of a construction in accord with the European Convention on Human Rights . . . this has a considerable effect nowadays’. This was, of course, before the Human Rights Act 1998 (UK) was envisaged. Cross succeeded another holder of the Vinerian chair, William Blackstone. About 200 years earlier (circa 1765 to 1769), he wrote ‘the sole prevailing work on English law for more than a century’: Blackstone’s Commentaries. (The book by Straits Settlements Chief Justice, Sir Peter Benson Maxwell, On the Interpretation of Statutes, was first published in 1875, and its Preface notes two important existing books on the topic, one a quarter of a century old, A General Treatise on Statutes (1830–1, second edition 1848) the work of Sir Fortunatus Dwarris (1786 to 1860), and the other in 1857 by the American jurist, Theodore Sedgwick.36 As William Popkin has noted, Chancellor James Kent in 1826 praised the common law and the advantages of judging over legislating in his observation (quoting Lord Chancellor John Wilmot) that the common law is like a ‘nursing father’, but a ‘statute is like a tyrant’.37) Cross’s 1976 work was, as Bennion noted, a pioneering and welcome elaboration of Blackstone’s 10 paragraphs on what Blackstone called the rules to be observed with regard to the construction of statutes. Cross’s work was also a welcome antidote to Canadian academic John Willis’s over-simple three-rule thesis (literal rule, golden rule, and mischief rule) in his well-known 1938 Canadian Bar Review article ‘Statutory Interpretation in a Nutshell’. Willis, a legal realist, also added mischievously that a court invokes ‘whichever of the [3] rules produces a result which satisfies its sense of justice in the case before it’. Legal realism is a theory of law and legal reasoning. It arose in the early 20th century. It is broadly characterized by the claim that law can be best understood by focusing on what judges actually do in deciding cases, rather than on what Judges say they are doing. Karl Llewellyn, of Columbia and University of Chicago, Law Schools (and a drafter of the Uniform Commercial Code) epitomized the realist view in writing that ‘What these officials do about disputes is, to my mind, the law itself’. (The Bramble Bush (1930), p. 3.) Yet, in 1950, Professor Llewellyn himself said, in retrospect, about that book, It is not the book that I should write today. I feel a lack especially in the failure to get before the reader at the outset the idea of the crafts of law, of their value to the prospective craftsman[or woman], of his [or her] obligation to those crafts. As New Zealand policy adviser, academic lawyer, litigator, and now High Court Judge, Matthew Palmer, argues, the view that the meaning of a law, or a constitution, exists in the understandings and actions of those people involved in the application and interpretation of that law or constitution, is not, or need not be, also the view that law is indeterminate.38 In 2008, Bennion said: Cross confessed that he wrote his little book of a mere 180 pages ‘in order to clarify my own [(ie, Cross’s)] mind as much as anyone else’s’. He intended the book, he tells us, both for students and practitioners. It was a start on a theoretical treatment, but scarcely sufficient considering the extent and complexity of the subject. I [(Bennion)] read it with great interest and took it as a challenge to produce something more comprehensive. The first edition of my own book with the same title was published in 1984 and ran to 904 pages. By the fifth edition, published [in 2008 (and with Assistant Editors Dr Kay Goodall (Reader in Law, University of Stirling) and Geoffrey Morris)], it has grown to 1578 pages.39 As Ruth Sullivan said in 2003, in a welcome attempt to update Willis’s significant, if over-simple, 1938 Canadian Bar Review article: Most contemporary jurists have a broader conception of law and the means by which legal disputes are resolved. They think of law as including not only rules (which are binding) but also principles (which are not) as well as the values, assumptions and practices that contribute to an evolving legal tradition. This post-realist conception permits contemporary jurists to integrate statutory interpretation into law by thinking of it as a principle-governed rather than a rule-governed activity. As [Professor Ronald] Dworkin might say, statutory interpretation is law because it is an activity carried out within a practice-based legal principle. . . . While the modern principle [(in Rizzo v. Rizzo Shoes Ltd [1998] 1 SCR 27)] is not immune from criticism, it must be admired for the way it accommodates the post-realist conception of law as a practice within a tradition. . . . On this approach, judges have considerable discretion, but . . . structured and constrained by a principle-based practice of decision-making.40 Litigators and judges might think it only right that legislative drafters help with interpretation. It is, after all, drafters’ drafting that creates (or at least does not stop) issues of interpretation. As Daniel Greenberg suggested (on 3 November 2010, to the National Assembly for Wales’s Constitutional Affairs Committee), if a statute gets to the courts, you have already failed because, by that time, you will have already driven the litigants, who may not have known what they were obliged to do, to all the expense and trouble of litigation. Warning in 2004 against the dangers of ‘fuzzy law’ or ‘general principles’ law, Michael Orpwood QC said: Imagine the lip-smacking relish of the [Australian Chief Justice (1964–1981) Sir Garfield] Barwick-inspired, intensely legalistic Sydney bar. Already skilled at driving the proverbial coach and four [horses] through the tiniest fissure, they could lead the whole US Army, Navy and Air Force through a fuzzy law precept. It would give undoubted justification to a jibe once directed at me. Every drafter knows and can quote at least the first verse of Poetic Justice by JPC. It begins: I’m the Parliamentary Draftsman, I compose the country’s laws, And of half the litigation I’m undoubtedly the cause. On one occasion, I recited this verse to a group of lawyers. One member immediately interjected. ‘Come, Michael, come. You’re too modest,’ he said. ‘Far too modest. Only half the litigation?’ I have not recited it since.41 Drafters are rightly concerned about unclarity, and do all that they can to remove it. As a former Australian First Parliamentary Counsel, Hilary Penfold QC, said in 2005, If the drafter recognises a potential problem in the Bill, he or she will try to resolve the problem before the Bill is finalised, rather than relying on the courts to solve it by applying a rule of interpretation. . . . Drafters are more inclined to assume that the best that can be hoped for from the courts (and other users) is that they will heed [Australian Chief Justice (1981–1987)] Sir Harry Gibbs’s exhortation to ‘begin with the assumption that words mean what they say’.42 Hilary Penfold’s successor, Peter Quiggin PSM, has said similarly that Drafters will try to write legislation in the clearest way that they can to achieve the intended policy outcome. Therefore the starting point is, from a drafter’s perspective, the natural meaning of the words of the provision. . . . We think most of the rules of statutory interpretation should only apply if the drafters haven’t done a good job, and the meaning is later found to be ambiguous. . . . Drafters are, however, aware of the pronouncements of courts about the way that particular sorts of provisions will be interpreted. For example, we are aware that offence provisions will be read down in favour of the defendant. . . . In such cases drafters are careful to include sufficient material to make sure that it is clear to courts that there is [an intention to take away long established or fundamental rights and freedoms].43 But there are clear limits to drafters’ responsibilities and control. One such limit is the nature of language itself. So, for example, one of the New Zealand’s most famous jurists (and law drafters) Sir John Salmond, speaking to the Bar Association of New York City in 1922, said: For some years I held the official position of parliamentary draughtsman for a colonial government. The experience which I then gained satisfied me that [the drafter] who goes about to express the subtleties and complexities of legal ideas and principles with the aid of no better instrument than popular speech walks with pitfalls and traps on every side44 ‘Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them’. So said Benjamin Hoadley, chaplain to the king, and Bishop of Bangor, famously, in a sermon preached, before George I, in 1717. Hoadley spoke in theological argument in the Church of England. But, as Harvard Law School Professor John Chipman Gray, and Austrian jurist Hans Kelsen, discussed (in 1909 and 1945), it is the court of last resort that alone is competent to interpret in a definitive and authentic manner (via the lower norm: case law) the general norms to be applied to the concrete case (including the higher norm: legislation). On 3 May 1907, Charles Evans Hughes Senior, then Governor of New York, said, in a speech before the Chamber of Commerce, Elmira, New York45: We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. Lord Devlin said similarly in 1962 that46: The law is what the judges say it is. If the House of Lords were to give to an Act of Parliament a meaning which no one else thought it would reasonably bear, it is their [(the Judges’)] construction of the words used in preference to the [(enacted)] words themselves that would become the law. In April 2018, Stephen Gageler, Justice of the High Court of Australia, speaking at a law drafters’ conference dinner in Canberra, noted that Hughes’ 1907 comment was later repeated to Hughes after Hughes became a US Supreme Court Judge (he became US Chief Justice). As Gageler noted, Judges need to be very careful what they say in after dinner speeches! In 2014, Justice Gageler said (attributing this way of putting it to Justice Nye Perram of the Federal Court of Australia): A relationship in which one party [(that is, the Legislature)] is only ever allowed to speak and in which another party [(that is, the Judiciary)] is only ever allowed to interpret is destined to lead to some awkward moments. The working out of the relationship requires common sense and mutual respect.47 This statement helps make clear the inevitably constitutional nature of statutory interpretation. As New Zealand’s Chief Parliamentary Counsel (1996–2007), George Edwin Tanner QC, said in 200648: Interpretation legislation is sometimes perceived as merely technical. It is, however, important constitutional law because it is the legislature’s directive to readers of legislation and to the courts as to how legislation is to be interpreted. For this reason, it ought to be the most accessible of all the statutes. Tanner practised what he preached. He drafted the Interpretation Act 1999 (NZ), replacing the Acts Interpretation Act 1924 (NZ), as one of the New Zealand’s most accessible statutes. In this endeavour, he built on work, at the New Zealand Law Commission, by one of the New Zealand’s most distinguished constitutional and international lawyers and Judges, Sir Kenneth Keith. In the foreword to their 7th edition of Bennion, Bailey and Norbury acknowledge notably that ‘We have rewritten significant parts of the text . . . and have pruned the work of material perhaps better dealt with in other specialist works (for example, those focusing on administrative law, constitutional law or the English legal system)’. This pruning is perhaps inevitable, and is understandable in a work whose focus is statutory interpretation. That is so even if, as R B Cooke (later Lord Cooke of Thorndon) suggested, ‘[T]he whole of judicial review could be seen as an appendix to the law of statutory interpretation’, and, as Bennion said in 2008, ‘statutory interpretation when treated comprehensively and historically . . . forms perhaps the best introduction to, and summary of, a country’s entire legal system’.49 A book can focus on statutory interpretation, or instead be a book on statute law generally, including how legislation is proposed, drafted, and enacted. Even so, the inevitably constitutional nature of statutory interpretation, and the ‘awkward moments’ it creates between branches of Government, is shown by four things. (The four things also confirm Walter Bagehot’s claim that ‘There is a great difficulty in the way of a writer who attempts to sketch a living Constitution—a Constitution that is in actual work and power. The difficulty is that the object is in constant change’.50 That difficulty is only greater without a higher law constitution—as some urge would be best for New Zealand.51) First, a story about a speech in 2010 by US House of Representatives Speaker Nancy Pelosi. Speaker Pelosi said about the healthcare reform (Obamacare) Bill: You’ve heard about the controversies within the bill, the process about the bill, one or the other. . . . But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy. This reminded Toby Dorsey, a legislative lawyer at the Office of the Legislative Counsel, US House of Representatives, from 1998 to 2008, and the author of The Legislative Drafter’s Deskbook (2006), of a quote, in that book, from a classic article by US Supreme Court Justice Felix Frankfurter: Loose judicial reading makes for loose legislative writing. It encourages the practice illustrated in a recent cartoon in which a senator tells his colleagues ‘I admit this new bill is too complicated to understand. We’ll just have to pass it to find out what it means’.52 (emphasis added) Dorsey tried to find the cartoon. He did so, but also discovered that Frankfurter apparently misquoted its caption, changing ‘find out how it works’ to ‘find out what it means’. It was an instalment in a syndicated series of cartoons, ‘Grin and Bear It’, by George Lichty (1905 to 1983). Dorsey found it using Google Books, as it appeared in the 4 April 1947 issue of The Railway Gazette. Google has that in snippet view, so you cannot see the whole thing.53 But Ben Zimmer (a former language columnist in the New York Times) managed to find the same cartoon in the 12 March 1947 issue of the Los Angeles Times. Zimmer also found that Lichty was not being very original in his caption. Zimmer found the same joke appearing in the 14 August 1937 issue of The New Yorker under the heading ‘Of All Things’. The anonymous New Yorker scribe, so Zimmer found, wrote: ‘The wages-and-hours bill has become so complicated that it is a mystery to everybody in Washington. Congress will have to pass it to find out how it works’. As Zimmer concludes: So it was ‘how it works’ in 1937 in The New Yorker and again in 1947 when Lichty lifted the joke, but ‘what it means’ when Justice Frankfurter cited it. Of course, the ‘what it means’ version is more germane in cases [such as King v. Burwell, 135 S. Ct. 2480, 2493 (2015)] where the Supreme Court is interpreting the meaning of statutory language. But it’s a tad ironic that the ‘original intent’ of the joke got warped along the way.54 [Only when the caption is doubtful do you go to the cartoon!] View largeDownload slide View largeDownload slide Secondly, the judicial branch (and other interpreters) need to consider legislation’s context—including extrinsic contextual material such as enactment history and proposed amendments—to help ensure that their interpretation is fully, and so properly, informed. This is affirmed in part by the discussion above of use of Hansard and of Re Castioni [1891] 1 QB 149 (QB). Felix Frankfurter in 1947 attacked the rigid simple formalism of confinement to the words (as shown by Lord Haldane’s remarks in Viscountess Rhondda’s Claim [1922] 2 AC 339 (HL) at 383): ‘If the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded’.55 At the CALC Conference in Nicosia, Cyprus, in 1993, Francis Bennion presented a paper entitled ‘Hansard – Help or Hindrance? A Draftsman’s View of Pepper v. Hart’, concluding Courts should use Hansard sparingly, but noting also that, according to New Zealand’s Law Commission and Professor Burrows, ‘the exclusionary rule has never been clearly established in New Zealand’.56 Use of this ‘context’ does not offend basic constitutional law securing Parliament’s integrity and independence (from judicial interference). The Parliamentary Privilege Act 2014 (NZ) says: View largeDownload slide View largeDownload slide The Act, as stated in section 3, reaffirms and clarifies earlier law—for example, the meaning of ‘proceedings in Parliament’ for the 17th century legislated protection for the freedom of speech and debates or proceedings in Parliament. In doing so, the Act alters the law in the New Zealand Supreme Court’s decision in Attorney-General v. Leigh [2011] NZSC 106, [2012] 2 NZLR 713 (SC). In its report on the Bill for the Act, the Privileges Committee said ‘We consider that advice provided to Ministers in preparation for reasonably expected questions in the House, as occurred in regard to Attorney-General and Gow v. Leigh, are proceedings in Parliament under this [Bill’s] definition’. The Committee also said that: ‘It was always the intention that this legislation would reverse the shift in understanding, and the reduction in the scope of parliamentary privilege, resulting from the decision made in Attorney-General and Gow v. Leigh. Our amendments make this irrefutably clear’. The Act thus reaffirms and clarifies earlier law both by extra new provisions and by altering case law (compare legislative abolition of common law rules, and validations of unlawful action). The amalgam of 17th century constitutional legislation, and 21st century New Zealand elaboration (modelled on an Australian Commonwealth Act of 1987), is a curious one. But the 17th century Bill of Rights is no dead letter. That is shown by the 1970s New Zealand ‘constitutional collision’ in Fitzgerald v. Muldoon [1976] 2 NZLR 615 (HC), discussed so entertainingly, and enlighteningly, by Stephen Kós (now President of the Court of Appeal).57 As Wild CJ said famously (at 622), about the 28-year-old public servant defying Prime Minister Muldoon over his unlawful suspension of compulsory superannuation contributions: It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years. Third is prospective overruling. In Commonwealth v. Randolph Lewis (1980) 381 Mass. 411, the Massachusetts Appeals Court declined to follow the common law rule that a crime could not be prosecuted as homicide if the victim died more than a year and a day after the criminal act. But it did so only for criminal acts after the date of the court’s opinion in an earlier case that first declared the rule vulnerable (Commonwealth v. Golston, 373 Mass. 249 (1977)). This kind of overruling, for future cases only, is possible for changes to common law. (And a Bill before New Zealand’s Parliament would also abolish statutorily, for future cases only, a statutory year-and-a-day rule. Interestingly, the 2016 UK Supreme Court and Privy Council decision that common law joint enterprise liability amounted to the law, in 1984, ‘taking a wrong turn’, seems not to have had future effect only.58) However, if a final appeal court determines earlier court decisions (at the same, or at a lower, level of court) have mistaken the correct legal meaning of legislation, the court generally has no legal power to overrule the earlier court decisions for future cases only, for this would involve the court purporting to deny application, to past cases, of the legislation’s correct legal meaning. Parties’ reliance on the earlier court decisions, now overruled, may make the overruling particularly disadvantageous to them, but this is usually the law. In 2016, New Zealand’s Supreme Court gave judgment on appeals relating to sentence calculation and, in particular, on credits for pre-sentence detention: Booth v. R and Marino v. The Chief Executive of the Department of Corrections [2016] NZSC 127.59 The Court held unanimously that the Parole Act 2002 had been misinterpreted and, as a result, in some instances—including those involving the appellants—parole and release dates had been miscalculated. In a related later proceeding, the Chief Executive of the Department of Corrections asked the High Court to hold that the Supreme Court’s judgment takes effect prospectively only, that is, only from the day it was issued (22 September 2016). The High Court declined: Marino v. Chief Executive of the Department of Corrections [2016] NZHC 3074. The Court of Appeal agreed: Chief Executive of The Department of Corrections v. Shane Aaron Gardiner [2017] NZCA 608. It said: We conclude that the Supreme Court judgment is retrospective in effect and no question arises of giving it effect for the future only. Nor is this one of those exceptional cases in which that course of action might deserve serious consideration. As Bailey and Norbury note (at section 24.20), in MacMillan v. T Leith Developments Limited [2017] CSIH 23, Lord Carloway (with whom other members of the Inner House of the Court of Session concurred) said at [68] that settled practice cannot convert the ordinary legal meaning of the words used into something conveying a different sense. It would be odd indeed if the court considered that [the earlier and overruled decision, which had represented the law for a period of almost 40 years] had been wrongly decided as a matter of law, but declined to overrule it because of subsequent practice. In Knight v. Goulandris [2018] EWCA Civ 237, as Bailey has noted in online commentary, the Court of Appeal also rejected the suggestion that later delegated legislation and settled practice might be used as aids to interpretation. Fourth is declarations of inconsistency (DoIs) with affirmed human rights. If legislation can be given a meaning that is consistent with the rights and freedoms in the New Zealand Bill of Rights Act 1990, section 6 of the Act requires that rights-consistent meaning to be preferred to any other meaning. The Act does not contain a remedies provision. The Act thus does not say that courts can award damages for breaches (as was held possible in Simpson v. Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA)). Nor does it say that courts can declare that legislation is unjustifiably inconsistent with the human rights in and affirmed by that Act. But the High Court and the Court of Appeal have held that senior courts have that power, which, if exercised, does not deprive the inconsistent legislation of validity or effect. The Supreme Court on 6 and 7 March 2018 heard an appeal, and reserved its decision, on this question. Answering this question clearly involves resolving whether that power is conferred on the courts by the Act implicitly, or is instead a common law power that continues because it is not inconsistent with, or precluded by, the Act.60 Meantime, on 26 February 2018, Cabinet approved, in principle, a move by New Zealand’s government to amend the Act to provide a statutory power for the senior courts to make declarations of inconsistency under the Act, and to require New Zealand’s Parliament to respond.61 At the Prime Minister’s post-Cabinet press conference on 26 February 2018, the Attorney-General, Hon David Parker, said:62 we’re doing it in a way that preserves the sovereignty of Parliament in the end to have the final word, but creates the opportunity for Parliament to review whether it’s gone too far at times. We’ve got a wonderfully flexible system in New Zealand; we’re not encumbered by a written constitution or complicated by upper and lower Houses of Parliament. The risk is that when you have a system like that, which serves New Zealand very, very well, we’re at the forefront of recognising human rights and civil liberties around the world, nevertheless the risk is there that at times we can just be a bit pre-emptory in Parliament and with a rush of blood can authorise legislation which is inconsistent with the [New Zealand] Bill of Rights [Act 1990]. This provides a mechanism for Parliament to reconsider that. It was recommended for consideration by the Constitutional Review Committee a couple of years ago63 and we’re picking up that recommendation, which will be achieved by a combination of amendment to the Bill of Rights [Act] to confer the statutory jurisdiction on the courts to make declarations of inconsistency, plus some provisions inside standing orders so that we achieve that outcome, which is reconsideration of the underlying issue. On 27 February 2018, Mr Speaker determined a related general question of privilege arises and was referred to the Privileges Committee. He said: ‘The provision of a statutory basis for the courts to make findings of inconsistency and the way that Parliament might respond to such findings would have an impact on the relationship between courts and Parliament’. So, the so-called ‘dialogue’64 between Judiciary and Legislature is two-way, even if not all the messages conveyed are pleasant ones, or result in agreement, or a legislative change. But the exchanges are often constructive. In LM v. R [2015] 1 NZLR 23 (SCNZ) at [25], for example, the majority said ‘legislative reconsideration of [the Crimes Act 1961] s 144A [(Sexual conduct with children and young people outside New Zealand)] is warranted’. Parliament’s response was section 144AB (Party or accessory liability for sexual acts with children or young people outside New Zealand done by, or involving, foreigner principal parties.) It remains to be seen how New Zealand’s Government and Parliament will respond to the Supreme Court’s 9 November 2018 decision in Attorney-General v. Arthur William Taylor [2018] NZSC 104. In that decision, by the narrowest possible margin, a 3:2 majority of the Supreme Court (Ellen France and Glazebrook JJ, and Elias CJ) held that the High Court does, indeed, already have power to declare legislation inconsistent with a right or freedom in the New Zealand Bill of Rights Act 1990. The power is, so the majority held, part of the courts’ usual judicial functions (under, for example, section 12 of the Senior Courts Act 2016, and the Declaratory Judgments Act 1908). The majority also considered that the power is not limited or affected by (and, indeed, is even a way of meeting the stated objectives of) the New Zealand Bill of Rights Act 1990. The power exists even though section 4 of that Act makes it clear that ‘the scheme of the Bill of Rights preserves Parliament’s ability to legislate inconsistently with rights’ and also that ‘the courts cannot, for example, refuse to apply the voter disqualification only because of inconsistency with the Bill of Rights’. ‘[T]he Bill of Rights remains as the standard or palimpsest albeit Parliament has exercised its power to legislate inconsistently with that standard’. The provision of related ‘mechanics’ for making a declaration (for example, ensuring notice is given to the Attorney-General, enabling referrals to the High Court, and providing for remedial action or compensation) ‘is the usual course in equivalent overseas legislation. But the absence of the mechanics does not mean the absence of a power’. Overseas legislation may, in time, include a Queensland Human Rights Act that results from a Queensland Bill introduced on 31 October 2018 and that enables declarations of incompatibility. The two minority Judges of New Zealand’s Supreme Court (William Young and O’Regan JJ) noted that ‘One [leading] commentator has described the power to make such declarations as “a judicial power to make non-binding declarations of legal non-right”’ (Geiringer (2017) 48 VUWLR 547 at 551). Those two minority Judges also said: ‘we query the extent to which a declaration provides vindication [of the overidden affirmed right of the applicant for the declaration] given that a declaration binds no-one in relation to future actions and has no impact on the victim’s position’. However, the three majority Judges concluded (as had the lower courts) that there is jurisdiction to make a declaration of inconsistency of the kind sought. Mr Taylor also succeeded on his cross-appeal (against the Court of Appeal’s decision that Mr Taylor lacked standing to seek such a declaration). As Elias CJ said: ‘Mr Taylor cannot be treated as a busy-body with no sufficient interest in vindication of the rights of prisoners’. Canadian developments show that, in checking legislation’s consistency with human rights, the meaning of ‘inconsistent’ is, itself, open to interpretation. The Federal Court in 2016 held that the government was only required to inform the House of Commons when no credible argument could be made that proposed legislation complies with Charter of Rights standards. In Schmidt v. Canada (Attorney General) 2018 FCA 55, released on 20 March 2018, the Federal Court of Appeal agreed. Like Francis Bennion, Edgar Schmidt has pursued, at great personal cost, a conviction that, to vindicate the rule of law (ensure law does indeed rule), legislation’s correct legal meaning must be identified and applied. A former Canadian federal Department of Justice senior lawyer, Schmidt headed the section responsible for providing legal advice on proposed Bills, until suspended in 2013, after seeking declaratory relief from the Federal Court about whether the government has properly complied with reporting duties when legislation introduced in Canada’s Parliament contravenes the Charter. Schmidt, who worked as a legislative drafter with New Zealand’s Parliamentary Counsel Office from 2016 to 2018, has also sought leave to appeal to the Supreme Court of Canada.65 Among other things, the Federal Court of Appeal contrasted, with existing law, the breadth of proposed, new examination provisions before Canada’s Parliament: Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, section 73 (requiring the Minister in every case to give to Parliament a statement on the ‘potential effects’ of proposed legislation on Charter rights and freedoms).66 Statutory interpretation, Lord Wilberforce said in 1966 in the House of Lords67: is what is nowadays popularly called a ‘non-subject’. I do not think that law reform can really grapple with it. It is a matter for educating the Judges and [law] practitioners [(lawyers)] and hoping that the work is better done. As Bennion notes, in that same House of Lords debate, another distinguished Law Lord, Lord Reid, said68: Many books are written about statutory interpretation. I always advise young men [and presumably also young women], ‘Don’t read them’ The Law Commissions, in 1969, noted, but were correctly undeterred by, this disparagement. They advanced legislative reforms and helpful expositions of the law. As Sir Kenneth Keith has said: against the doubters and deniers are the efforts over the centuries to state and apply rules or principles or approaches for finding the meaning of legal texts. In a broader sense those efforts must reflect the commitment of those undertaking those tasks to the integrity of the legal process and indeed the very existence of law as an autonomous discipline.69 If, as Bennion asserts, ‘The search is for order’, then Bennion’s ‘Code’ is vital instruction. It is one of, and one of the best of, the books on statutory interpretation that Lord Reid counselled young people not to read. As Bennion notes, Cross’s 1976 book on Statutory Interpretation was, ironically, dedicated ‘To the memory of Lord Reid, one of the great judges of the twentieth century, to whose views on statutory interpretation this book owes so much’. In 2008, Bennion said: ‘I wonder whether Lord Reid, had he lived, would have excepted Cross’s book from those he advised young men not to read. Sadly he died in 1975’.70 Legal textbook writers are ambitious in their expectation of clarity and coherence in legal systems. They can also help achieve them—perhaps more so than others in the systems. So, what have users made of Bennion on Statutory Interpretation? Reviews are instructive (and, thanks to www.francisbennion.com, many are quite easily accessible): Edition Reviewer Notable review comment 1st, 1984 Alec Samuels ‘[Bennion] has produced a code, contained in 396 propositions: statutory interpretation, codified, with a critical commentary, massive, full of history, learning, wide reading, displaying a profound knowledge of our case law and statute law. This is institutional writing of a high order, and one of those indispensable, indispensable books.’ (22 February 1985) New Law Journal 189 at 190. John Bell ‘Apart from being an unusual presentation device, the Code will not, I think, gain much favour as a guide to practice. The subject-matter is not reducible to bland, general statements of law, and the Code lacks fundamental purposive statements of policy familiar in other codes of practice. Given the constitutional framework within which practices are developed, any “code” needs to set out the objectives to be achieved and the place of judiciary in developing statute law. The book reflects the author’s zeal and knowledge of the subject and it is perhaps his laudable ambition to write more than a rule-book which can account for many of the points criticized here. Despite its imperfections, this book has many valuable elements and repays dipping into by readers of many different kinds.’ (1986) 6(2) Oxford Journal of Legal Studies 288 at 298. D G T Williams “Bennion’s blend of old and new and his search for an ‘overall evaluation’ rather than hard and fast rules have resulted in a major work which can be used for purposes of reference (almost as a dictionary of statutory construction) and/or read as an original and challenging analysis. . . . Statutory interpretation will never be the same again.” (1986) 45(1) Cambridge LJ 126 at 128. D R Miers ‘I am not sure that Bennion has produced the sustained level of compelling argument that justifies his claim to have written a code. . . . On the other hand, I have no doubt that the approach he has taken is basically right and that on many specific points his book will be regarded as authoritative. It is an immensely valuable work of reference which eclipses earlier books on statutory interpretation.’ [1986] Public Law 169 at 164. 2nd, 1992 Beverley Lang ‘. . . it has become an indispensable reference book for practitioners . . . The style of the book—codified propositions of law followed by comment—is ideally suited for researching specific topics but it is too disjointed and too detailed for the reader who wishes to acquire a general understanding of the principles of statutory interpretation . . . statutory interpretation will never become a quasi-scientific process in a common law jurisdiction, no matter how much time and analysis is devoted to it.” [1993] Public Law 211. B J Davenport “The worst nightmare of any author of a legal textbook is that just after publication an unexpected change in the law will make a significant part of the book obsolete or wrong. Pepper v. Hart [1993] A.C. 593 was just such a case for Mr. Bennion, but the publication of a supplement stating the law up to July 1, 1993, has not only remedied the situation but enabled the author to make a 50-page critique of the case.’ (1994) 110 LQR 307 at 308. 3rd, 1997 Roderick Munday ‘ . . . Division 7 of the Code is devoted to the increasingly important matter of statutory interpretation and the European Union. . . . This is a welcome addition to the book, even if one knows that it will need to be beefed up further in the next edition. . . . This is a first-rate work, and one that the lawyer can happily dip into for the simple pleasure of seeing how malleable much of our legal language and many of our interpretative principles actually are in practice. Did it not almost cost a king’s ransom, I would be tempted to say that I cannot imagine how any self-respecting lawyer could be without it.’ (1998) 57 Cambridge LJ at 422–423. Stephen Sedley ‘To compose such a work is an act of civility on the part of a professional who, with his fellow drafters, cannot always have been happy about what first legislators and then lawyers and courts made of their texts. . . . Bennion has had the double misfortune of having brought out his second edition just before Pepper v. Hart revolutionised the methodology of statutory interpretation, and now of bringing out his third edition just before the Human Rights Bill revolutionises our canons of statutory construction.’ 2 April 1998. 20(7) LRB 3–6. 4th, 2002 (and Supplement) B H When it first came out in 1984, Bennion on [Statutory] Interpretation was obviously a major contribution to jurisprudence; and it has remained so ever since. . . . One does not have to be an admirer of the codification approach to appreciate the stunning scholarship which has gone into this work. And it is a subject which goes to the heart of the law. . . . There is no field of law whose practitioners could not benefit from a copy of Bennion on their shelves. And because of the writing it is a pleasure simply to drop into it at almost any point. (21 October 2006) 170 JPN 813. 6th, 2013 Juliet Curtin First published in 1984, the sixth edition of Bennion on Statutory Interpretation has recently been released. It is the first edition prepared by someone other than Mr Bennion himself, the editorship having passed to Oliver Jones, a barrister at Seven Wentworth. . . . Such is the level of respect and admiration which this work has garnered in the 20 years since its original publication that many will have a copy of a previous edition and will be asking whether Mr Jones has added anything to the sixth edition to warrant its purchase. The answer to this question is a resounding ‘yes’, both in terms of the additions that have been made and with respect to the material that Mr Jones has seen fit to excise. . . . The challenge in preparing new editions of reference works of this nature is to update the work to ensure its continuing relevance and utility whilst not inflating the work to a size which is either unmanageable or unaffordable. In this respect, Mr Jones is to be commended. . . . Bar News: The Journal of the New South Wales Bar Association—[2014] (Summer) Bar News 95–96. Edition Reviewer Notable review comment 1st, 1984 Alec Samuels ‘[Bennion] has produced a code, contained in 396 propositions: statutory interpretation, codified, with a critical commentary, massive, full of history, learning, wide reading, displaying a profound knowledge of our case law and statute law. This is institutional writing of a high order, and one of those indispensable, indispensable books.’ (22 February 1985) New Law Journal 189 at 190. John Bell ‘Apart from being an unusual presentation device, the Code will not, I think, gain much favour as a guide to practice. The subject-matter is not reducible to bland, general statements of law, and the Code lacks fundamental purposive statements of policy familiar in other codes of practice. Given the constitutional framework within which practices are developed, any “code” needs to set out the objectives to be achieved and the place of judiciary in developing statute law. The book reflects the author’s zeal and knowledge of the subject and it is perhaps his laudable ambition to write more than a rule-book which can account for many of the points criticized here. Despite its imperfections, this book has many valuable elements and repays dipping into by readers of many different kinds.’ (1986) 6(2) Oxford Journal of Legal Studies 288 at 298. D G T Williams “Bennion’s blend of old and new and his search for an ‘overall evaluation’ rather than hard and fast rules have resulted in a major work which can be used for purposes of reference (almost as a dictionary of statutory construction) and/or read as an original and challenging analysis. . . . Statutory interpretation will never be the same again.” (1986) 45(1) Cambridge LJ 126 at 128. D R Miers ‘I am not sure that Bennion has produced the sustained level of compelling argument that justifies his claim to have written a code. . . . On the other hand, I have no doubt that the approach he has taken is basically right and that on many specific points his book will be regarded as authoritative. It is an immensely valuable work of reference which eclipses earlier books on statutory interpretation.’ [1986] Public Law 169 at 164. 2nd, 1992 Beverley Lang ‘. . . it has become an indispensable reference book for practitioners . . . The style of the book—codified propositions of law followed by comment—is ideally suited for researching specific topics but it is too disjointed and too detailed for the reader who wishes to acquire a general understanding of the principles of statutory interpretation . . . statutory interpretation will never become a quasi-scientific process in a common law jurisdiction, no matter how much time and analysis is devoted to it.” [1993] Public Law 211. B J Davenport “The worst nightmare of any author of a legal textbook is that just after publication an unexpected change in the law will make a significant part of the book obsolete or wrong. Pepper v. Hart [1993] A.C. 593 was just such a case for Mr. Bennion, but the publication of a supplement stating the law up to July 1, 1993, has not only remedied the situation but enabled the author to make a 50-page critique of the case.’ (1994) 110 LQR 307 at 308. 3rd, 1997 Roderick Munday ‘ . . . Division 7 of the Code is devoted to the increasingly important matter of statutory interpretation and the European Union. . . . This is a welcome addition to the book, even if one knows that it will need to be beefed up further in the next edition. . . . This is a first-rate work, and one that the lawyer can happily dip into for the simple pleasure of seeing how malleable much of our legal language and many of our interpretative principles actually are in practice. Did it not almost cost a king’s ransom, I would be tempted to say that I cannot imagine how any self-respecting lawyer could be without it.’ (1998) 57 Cambridge LJ at 422–423. Stephen Sedley ‘To compose such a work is an act of civility on the part of a professional who, with his fellow drafters, cannot always have been happy about what first legislators and then lawyers and courts made of their texts. . . . Bennion has had the double misfortune of having brought out his second edition just before Pepper v. Hart revolutionised the methodology of statutory interpretation, and now of bringing out his third edition just before the Human Rights Bill revolutionises our canons of statutory construction.’ 2 April 1998. 20(7) LRB 3–6. 4th, 2002 (and Supplement) B H When it first came out in 1984, Bennion on [Statutory] Interpretation was obviously a major contribution to jurisprudence; and it has remained so ever since. . . . One does not have to be an admirer of the codification approach to appreciate the stunning scholarship which has gone into this work. And it is a subject which goes to the heart of the law. . . . There is no field of law whose practitioners could not benefit from a copy of Bennion on their shelves. And because of the writing it is a pleasure simply to drop into it at almost any point. (21 October 2006) 170 JPN 813. 6th, 2013 Juliet Curtin First published in 1984, the sixth edition of Bennion on Statutory Interpretation has recently been released. It is the first edition prepared by someone other than Mr Bennion himself, the editorship having passed to Oliver Jones, a barrister at Seven Wentworth. . . . Such is the level of respect and admiration which this work has garnered in the 20 years since its original publication that many will have a copy of a previous edition and will be asking whether Mr Jones has added anything to the sixth edition to warrant its purchase. The answer to this question is a resounding ‘yes’, both in terms of the additions that have been made and with respect to the material that Mr Jones has seen fit to excise. . . . The challenge in preparing new editions of reference works of this nature is to update the work to ensure its continuing relevance and utility whilst not inflating the work to a size which is either unmanageable or unaffordable. In this respect, Mr Jones is to be commended. . . . Bar News: The Journal of the New South Wales Bar Association—[2014] (Summer) Bar News 95–96. Edition Reviewer Notable review comment 1st, 1984 Alec Samuels ‘[Bennion] has produced a code, contained in 396 propositions: statutory interpretation, codified, with a critical commentary, massive, full of history, learning, wide reading, displaying a profound knowledge of our case law and statute law. This is institutional writing of a high order, and one of those indispensable, indispensable books.’ (22 February 1985) New Law Journal 189 at 190. John Bell ‘Apart from being an unusual presentation device, the Code will not, I think, gain much favour as a guide to practice. The subject-matter is not reducible to bland, general statements of law, and the Code lacks fundamental purposive statements of policy familiar in other codes of practice. Given the constitutional framework within which practices are developed, any “code” needs to set out the objectives to be achieved and the place of judiciary in developing statute law. The book reflects the author’s zeal and knowledge of the subject and it is perhaps his laudable ambition to write more than a rule-book which can account for many of the points criticized here. Despite its imperfections, this book has many valuable elements and repays dipping into by readers of many different kinds.’ (1986) 6(2) Oxford Journal of Legal Studies 288 at 298. D G T Williams “Bennion’s blend of old and new and his search for an ‘overall evaluation’ rather than hard and fast rules have resulted in a major work which can be used for purposes of reference (almost as a dictionary of statutory construction) and/or read as an original and challenging analysis. . . . Statutory interpretation will never be the same again.” (1986) 45(1) Cambridge LJ 126 at 128. D R Miers ‘I am not sure that Bennion has produced the sustained level of compelling argument that justifies his claim to have written a code. . . . On the other hand, I have no doubt that the approach he has taken is basically right and that on many specific points his book will be regarded as authoritative. It is an immensely valuable work of reference which eclipses earlier books on statutory interpretation.’ [1986] Public Law 169 at 164. 2nd, 1992 Beverley Lang ‘. . . it has become an indispensable reference book for practitioners . . . The style of the book—codified propositions of law followed by comment—is ideally suited for researching specific topics but it is too disjointed and too detailed for the reader who wishes to acquire a general understanding of the principles of statutory interpretation . . . statutory interpretation will never become a quasi-scientific process in a common law jurisdiction, no matter how much time and analysis is devoted to it.” [1993] Public Law 211. B J Davenport “The worst nightmare of any author of a legal textbook is that just after publication an unexpected change in the law will make a significant part of the book obsolete or wrong. Pepper v. Hart [1993] A.C. 593 was just such a case for Mr. Bennion, but the publication of a supplement stating the law up to July 1, 1993, has not only remedied the situation but enabled the author to make a 50-page critique of the case.’ (1994) 110 LQR 307 at 308. 3rd, 1997 Roderick Munday ‘ . . . Division 7 of the Code is devoted to the increasingly important matter of statutory interpretation and the European Union. . . . This is a welcome addition to the book, even if one knows that it will need to be beefed up further in the next edition. . . . This is a first-rate work, and one that the lawyer can happily dip into for the simple pleasure of seeing how malleable much of our legal language and many of our interpretative principles actually are in practice. Did it not almost cost a king’s ransom, I would be tempted to say that I cannot imagine how any self-respecting lawyer could be without it.’ (1998) 57 Cambridge LJ at 422–423. Stephen Sedley ‘To compose such a work is an act of civility on the part of a professional who, with his fellow drafters, cannot always have been happy about what first legislators and then lawyers and courts made of their texts. . . . Bennion has had the double misfortune of having brought out his second edition just before Pepper v. Hart revolutionised the methodology of statutory interpretation, and now of bringing out his third edition just before the Human Rights Bill revolutionises our canons of statutory construction.’ 2 April 1998. 20(7) LRB 3–6. 4th, 2002 (and Supplement) B H When it first came out in 1984, Bennion on [Statutory] Interpretation was obviously a major contribution to jurisprudence; and it has remained so ever since. . . . One does not have to be an admirer of the codification approach to appreciate the stunning scholarship which has gone into this work. And it is a subject which goes to the heart of the law. . . . There is no field of law whose practitioners could not benefit from a copy of Bennion on their shelves. And because of the writing it is a pleasure simply to drop into it at almost any point. (21 October 2006) 170 JPN 813. 6th, 2013 Juliet Curtin First published in 1984, the sixth edition of Bennion on Statutory Interpretation has recently been released. It is the first edition prepared by someone other than Mr Bennion himself, the editorship having passed to Oliver Jones, a barrister at Seven Wentworth. . . . Such is the level of respect and admiration which this work has garnered in the 20 years since its original publication that many will have a copy of a previous edition and will be asking whether Mr Jones has added anything to the sixth edition to warrant its purchase. The answer to this question is a resounding ‘yes’, both in terms of the additions that have been made and with respect to the material that Mr Jones has seen fit to excise. . . . The challenge in preparing new editions of reference works of this nature is to update the work to ensure its continuing relevance and utility whilst not inflating the work to a size which is either unmanageable or unaffordable. In this respect, Mr Jones is to be commended. . . . Bar News: The Journal of the New South Wales Bar Association—[2014] (Summer) Bar News 95–96. Edition Reviewer Notable review comment 1st, 1984 Alec Samuels ‘[Bennion] has produced a code, contained in 396 propositions: statutory interpretation, codified, with a critical commentary, massive, full of history, learning, wide reading, displaying a profound knowledge of our case law and statute law. This is institutional writing of a high order, and one of those indispensable, indispensable books.’ (22 February 1985) New Law Journal 189 at 190. John Bell ‘Apart from being an unusual presentation device, the Code will not, I think, gain much favour as a guide to practice. The subject-matter is not reducible to bland, general statements of law, and the Code lacks fundamental purposive statements of policy familiar in other codes of practice. Given the constitutional framework within which practices are developed, any “code” needs to set out the objectives to be achieved and the place of judiciary in developing statute law. The book reflects the author’s zeal and knowledge of the subject and it is perhaps his laudable ambition to write more than a rule-book which can account for many of the points criticized here. Despite its imperfections, this book has many valuable elements and repays dipping into by readers of many different kinds.’ (1986) 6(2) Oxford Journal of Legal Studies 288 at 298. D G T Williams “Bennion’s blend of old and new and his search for an ‘overall evaluation’ rather than hard and fast rules have resulted in a major work which can be used for purposes of reference (almost as a dictionary of statutory construction) and/or read as an original and challenging analysis. . . . Statutory interpretation will never be the same again.” (1986) 45(1) Cambridge LJ 126 at 128. D R Miers ‘I am not sure that Bennion has produced the sustained level of compelling argument that justifies his claim to have written a code. . . . On the other hand, I have no doubt that the approach he has taken is basically right and that on many specific points his book will be regarded as authoritative. It is an immensely valuable work of reference which eclipses earlier books on statutory interpretation.’ [1986] Public Law 169 at 164. 2nd, 1992 Beverley Lang ‘. . . it has become an indispensable reference book for practitioners . . . The style of the book—codified propositions of law followed by comment—is ideally suited for researching specific topics but it is too disjointed and too detailed for the reader who wishes to acquire a general understanding of the principles of statutory interpretation . . . statutory interpretation will never become a quasi-scientific process in a common law jurisdiction, no matter how much time and analysis is devoted to it.” [1993] Public Law 211. B J Davenport “The worst nightmare of any author of a legal textbook is that just after publication an unexpected change in the law will make a significant part of the book obsolete or wrong. Pepper v. Hart [1993] A.C. 593 was just such a case for Mr. Bennion, but the publication of a supplement stating the law up to July 1, 1993, has not only remedied the situation but enabled the author to make a 50-page critique of the case.’ (1994) 110 LQR 307 at 308. 3rd, 1997 Roderick Munday ‘ . . . Division 7 of the Code is devoted to the increasingly important matter of statutory interpretation and the European Union. . . . This is a welcome addition to the book, even if one knows that it will need to be beefed up further in the next edition. . . . This is a first-rate work, and one that the lawyer can happily dip into for the simple pleasure of seeing how malleable much of our legal language and many of our interpretative principles actually are in practice. Did it not almost cost a king’s ransom, I would be tempted to say that I cannot imagine how any self-respecting lawyer could be without it.’ (1998) 57 Cambridge LJ at 422–423. Stephen Sedley ‘To compose such a work is an act of civility on the part of a professional who, with his fellow drafters, cannot always have been happy about what first legislators and then lawyers and courts made of their texts. . . . Bennion has had the double misfortune of having brought out his second edition just before Pepper v. Hart revolutionised the methodology of statutory interpretation, and now of bringing out his third edition just before the Human Rights Bill revolutionises our canons of statutory construction.’ 2 April 1998. 20(7) LRB 3–6. 4th, 2002 (and Supplement) B H When it first came out in 1984, Bennion on [Statutory] Interpretation was obviously a major contribution to jurisprudence; and it has remained so ever since. . . . One does not have to be an admirer of the codification approach to appreciate the stunning scholarship which has gone into this work. And it is a subject which goes to the heart of the law. . . . There is no field of law whose practitioners could not benefit from a copy of Bennion on their shelves. And because of the writing it is a pleasure simply to drop into it at almost any point. (21 October 2006) 170 JPN 813. 6th, 2013 Juliet Curtin First published in 1984, the sixth edition of Bennion on Statutory Interpretation has recently been released. It is the first edition prepared by someone other than Mr Bennion himself, the editorship having passed to Oliver Jones, a barrister at Seven Wentworth. . . . Such is the level of respect and admiration which this work has garnered in the 20 years since its original publication that many will have a copy of a previous edition and will be asking whether Mr Jones has added anything to the sixth edition to warrant its purchase. The answer to this question is a resounding ‘yes’, both in terms of the additions that have been made and with respect to the material that Mr Jones has seen fit to excise. . . . The challenge in preparing new editions of reference works of this nature is to update the work to ensure its continuing relevance and utility whilst not inflating the work to a size which is either unmanageable or unaffordable. In this respect, Mr Jones is to be commended. . . . Bar News: The Journal of the New South Wales Bar Association—[2014] (Summer) Bar News 95–96. Bennion’s usefulness only grows. So, the 6th edition (presumably before availability of the 7th) was cited in a recent UKSC decision, discussed below: R (on the application of Black) (Appellant) v. Secretary of State for Justice (Respondent) [2017] UKSC 81, [2018] AC 215. New Zealand courts also refer often to statutory interpretation books, including Bennion.71 As Justice Susan Glazebrook, DNZM, of New Zealand’s Supreme Court, has noted72: The importance of statutory interpretation to the [New Zealand Supreme] Court’s workload is evident from empirical research of two Auckland University of Technology Law School academics who found that, in the Court’s first 10 years, at least 60 per cent of all appeals involved the interpretation of a statutory provision. Coupled with this, the Supreme Court’s most commonly cited text is Burrows and Carter Statute Law in New Zealand. Judges interpreting legislation, suggest Professors Ruth Sullivan and Ronald Dworkin, exercise considerable discretion, but also discretion structured and constrained by a principle-based practice of decisionmaking. Interpretation methodology itself is not mechanical or strict—but is, even so, governed by law and practice—and so can also be valid or invalid. (Interpretation law is ‘rules about rules’, exemplifying H. L. A. (Herbert Lionel Adolphus) Hart’s category of ‘secondary rules’—and, in particular, secondary rules of recognition, of change, and of adjudication.73 So provisions of the Interpretation Act 1999 (NZ) apply, as section 4(2) of that Act says, to that Act’s interpretation.) Some uncertainty of meaning is inevitable. However, interpretation is not pure creation.74 It is discovery. It is not invention or manipulation. It is exposition. What Sir Kenneth Keith calls ‘the integrity of the legal process and the very existence of law as an autonomous discipline’ require that legislation has only one correct legal meaning—and that it is one known, knowable, or at least predictable, to all people—and especially to lawyers. ‘[M]any . . . have argued’, Twining and Miers said in How to Do Things with Rules, ‘there are recognisably “right” ways . . . to approach . . . interpretation. . . or . . . should be’.75 And Ireland’s Law Reform Commission in 2000 said that we consider it undesirable that different judges should follow different rules. Clearly, the ideal to be pursued in law should be that a particular legal question will always be resolved in the same way, irrespective of which judge hears the case. Of course, this ideal is not always achievable in practice.76 Palmer J says [T]he combination of making and applying law . . . is contrary to the rule of law – the meaning of law would become that which the maker and applier later deems . . . to be correct – rather than a meaning that resides in the law itself. Law would not rule; it would have no independent meaning. The lawmaker and applier would rule.77 As Palmer J suggests, true meaning that resides in the law itself (as originally written) can be corrupted by ‘additions’: The second aspect of law, as a text in circulation, attracts additions that are liable to interpretation and, hence, to the law’s misuse; in this way the original truth of the law is corrupted. This is basically the message of the priest to Joseph K, in his discussion of the ‘doorkeeper’ legend, when the priest distinguishes the manifold interpretations of the law from what originally stands written—‘scripture,’ die Schrift—and is inalterable.78 As Hillary Penfold asked in 2005: Now that it is generally accepted that judges make law, questions about the form in which judges make law cannot be ignored. Presumably, it would not be acceptable for [law] drafting offices to produce two or three or even seven different versions of each Bill, drafted by different drafters, which could all be enacted by the Parliament and which, taken together, would form the law on the particular subject. Should it remain acceptable for judges to make law in this fashion?79 In this regard, Lady Hale leads admirably (in ‘community outreach’, like appearing on BBC’s Masterchef, but more especially) in leading judgments and presiding more likely to produce unanimity.80 However, as Justice Glazebrook indicates, ‘unanimity on all issues is not always possible’.81 If law is, or aims to be, an autonomous discipline, legislation’s one correct legal meaning should be, if not known or knowable, then at least predictable. When meaning is uncertain, predictable methodological steps should identify key components of that meaning. This raises the prospect of the interpreter taking an algorithmic approach. So, why cannot lawyers interpreting legislation be replaced, or at least helped, by computers doing so? This thought is neither fanciful nor original.82 Perhaps reliance on automated systems will increase as does their capacity to ‘learn’ from their work. Meantime, at least some human involvement continues—perhaps mainly because, as Felix Frankfurter identified, judgment is inescapable, as each relevant factor must be given the authority it deserves in the particular case. So, what do law schools (and so law students) think is the state of the art (or science)? Perhaps, traditionally and understandably, they felt they should duplicate or reflect diversity observable in the courts’ approaches. Happily, however, law schools (at least in Australasia) show growing signs of convergence and uniformity. Some of this stems, doubtless, from recognition of the nature of modern law and lawyering. Criteria for admission to practise law in the United States exclude proficiency in legal interpretation. But research by Fordham Professor of Law James J Brudney indicates nearly 40 law schools currently require some sort of legislation course, almost all of them as a first-year subject. The case law method of teaching is associated with Christopher Columbus Langdell (1826 to 1906), Dean of Harvard Law School (1870 to 1895). It might well still be used widely in teaching law. But it is also clear that analysis of modern cases is mostly analysis of statutory interpretation. As John Burrows QC said in 2010,83 In general, university law schools have not responded well enough. There have been exceptions of course. As early as the 1920’s a few American law schools had innovative courses in legislation, although they tended to be the products of particular professors and did not survive their passing. It was not until 2006 that Harvard Law School introduced a segment on legislation in its first year law course. Dean [(and since 2010, Associate Justice of the US Supreme Court)] Elena Kagan said: ‘When you haven’t changed your curriculum in 150 years, at some point you look around’. Similar observations—about the need to improve the teaching of statutory interpretation—were made in 2007 by Kay Goodall and Oliver Jones.84 Australian law teachers Jacinta Dharmananda and Patricia Lane note Australia, like other common law jurisdictions, has grappled with the issue of whether statutory interpretation should be taught as a discrete and significant area in law schools. Advocates for this in the law school curriculum have, in the last 20 years, struggled. (Even if law teachers who are drafters – including Nick Horn and Dr Daniel Lovric – need no convincing.) Yet in 2007, Victorian Chief Justice Warren and President Maxwell, with the support of Murray Gleeson (then Chief Justice of Australia), placed the issue squarely before the Australian legal admitting authorities when they requested the Law Admissions Consultative Committee (LACC) to review the ‘present Academic requirements . . . to ensure that the teaching of statutory interpretation is given the prominence and priority which its daily importance to modern legal practice warrants’. Launching on 24 October 2014 the 8th, 2014 edition of Statutory Interpretation in Australia by Pearce and Geddes, Australian Chief Justice Robert French AC said also Not for the first time would I urge that the centrality of statutory interpretation in our legal system must be reflected in legal education. For better or for worse, Acts of Parliament, subordinate legislation and various forms of legislative instrument affect most areas of human activity in Australia today. A practising lawyer who does not have a solid grounding in the topic of statutory interpretation is a lawyer whose clients may be at a significant disadvantage.85 In 2015, however, an important step was taken. Australia’s Council of Australian Law Deans (CALD), made up of the Deans of all university law schools, approved formally a Guide that acknowledges the relevance and importance of statutory interpretation in a law degree and outlines learning outcomes to be achieved.86 Dharmananda and Lane note the basic issue is whether statutory interpretation should be a dedicated subject or should instead be embedded throughout the law degree. Ideally, they advocate a dedicated subject. ‘It has the advantage of providing a holistic and clearly systematic approach to the subject’.87 In the United Kingdom, Dharmananda and Lane note, there is no specific academic requirement based on competency in interpretation. The Ormrod report on Legal Education in 1971 led to the identification of three stages in legal education—academic, vocational, and continuing training. A law degree was, subject to some limited exceptions, provided as being a requirement to satisfy the academic component. The academic requirements for admission are governed by the Joint Statement issued by the Law Society and the General Council of the Bar. The Joint Statement does not list legislation or interpretation as one of the ‘Foundations of Legal Knowledge’ nor does it expressly refer to interpretation skills. They also note that the Statute Law Society in 2011 ran a survey of UK Law Schools, led by then Oxford University Professor Stefan Vogenauer, to find out if and how they teach legislation. A report on the survey concluded that there is ‘no single model of teaching legislation: the topic is addressed in very different ways, and there is no clear pattern or standard that emerges’. Giving the Hamlyn Lectures 2017, Professor Andrew Burrows QC confirmed that, despite its central importance, the study of statutes as a coherent whole has been and remains sadly neglected in UK law schools.88 In New Zealand, the academic and vocational subjects of examination prescribed by the Council of Legal Education as required for admission as a barrister and solicitor include ‘selected problems in statutory interpretation’ or ‘an introduction of statutory interpretation’, but only as a part of the academic subject called ‘The Legal System’, which is either ‘An introduction to the New Zealand legal system’ or ‘An historical introduction to, and a descriptive outline of, the legal systems in England and New Zealand’. New Zealand’s law deans have apparently shared and discussed the Australian CALD’s 2015 guide. But it seems clear more can be done, in New Zealand, to foster convergence and uniformity. Canada seems similar. John Mark Keyes (Sessional Professor, Faculty of Law, University of Ottawa) said in October 2017: Legislative interpretation is one of the most widely practised legal skills given that legislation is pervasive, implicated in almost all legal matters. Yet, I am not at all sure is adequately recognised [in Canada] as a legal subject. In the law school where I teach, only about one-sixth of the students take my upper year course in legislative interpretation. For the rest, it is everywhere, yet nowhere in their legal education. The more we can do to establish this topic as a vital subject for legal education, the more we will ensure that legislation operates as an effective tool for advancing the public good. Yet, if law teaching must include more statutory interpretation, how should it be taught? Law teachers say there is much more to legislation than just statutory interpretation. Dharmananda and Lane suggest an adequate course needs also to cover other aspects. One is legislative process (e.g. who drafts legislation). ‘Burrows has pointed out that most students who have not done some legislative study (and even some who do) have no idea who drafts a statute’. Theories of interpretation should also be covered, to help make it clear there is no single ‘right’ way of interpretation, only more or less persuasive analyses. Also key are mindset and method. The answer is not instinctive, but analytical, and (as Detective Lester Freamon said in David Simon’s series The Wire) ‘all the pieces matter’. The best interpretation is, after all, only an answer that is built using, correctly, all the pieces. As Dharmananda and Lane say: Students also often seek from teachers a blueprint of ‘how to interpret a statute’. There is no ‘precise method of statutory interpretation in terms of a universally applicable ‘rule’, ‘approach’, or formula’. Several fairly specific methodologies exist, including those described by Francis Bennion, New Zealand Supreme Court Justice Susan Glazebrook, and Australian academic Dr Jeffrey Barnes. There is also the less structured approach of Twining and Miers, and Joseph and Richard Campbell’s ‘hermeneutic circle’. All these suggested approaches are useful, in that they all articulate the idea that text should be interrogated in a methodical way. But it is important to emphasize that there is no ‘clear prescriptive order’. As Bennion has acknowledged, what the interpreter (student) must learn to do is to ‘figuratively weigh and balance’ the various interpretative factors yielded by the text. In Australia, the three pillars of text, context, and purpose referred to in decisions of the Australian High Court provide the general methodological framework. But the skill to be encouraged by systematic study is the ability to analyse the text, give appropriate weight and assessment to intrinsic and extrinsic aids, and recognize that such aids are our servants not our masters. In New Zealand, legislation makes clear the four main statutory interpretation factors: text, purpose, context, and values. The default main interpretative direction—as to be re-enacted in the Legislation Bill 2017 (275–2) cl 10(1) (how to ascertain meaning of legislation)—says: ‘The meaning of legislation must be ascertained from its text and in the light of its purpose and its context’. The New Zealand Bill of Rights Act 1990, section 6, applies to legislation that can be given a meaning consistent with the rights and freedoms in that Act, and requires that ‘rights-consistent’ meaning to be preferred to any other meaning. A sentence diagram is a tool used in the past by English teachers to help teach grammar. Sentence diagrams can help interpreters follow, and analyse, legislative sentences. Sentence diagramming is also a tool used by some Judges. (For example, a sentence diagram was used in a 2015 decision by a Judge. That Judge is now the second newest member of the US Supreme Court, Associate Justice Neil Gorsuch.89) A sentence diagram for cl 10(1), with highlighting of the main factors of text, purpose, and (now stated clearly) context90: View largeDownload slide View largeDownload slide The four main factors tend, at some point, to blur into one another. (For example, purpose usually embodies values and, if purpose is expressed, purpose is also both text and context.) Even so, those four main factors are, for an adequate analysis, key compass points or guides. But none is simple or straightforward, as is shown by a brief look at just text and purpose. Text, even if we disregard other similar indications (such as diagrams), has its complications. Linguistic uncertainty (such as vagueness) can be resolved by preferring ‘ordinary meaning’. But what meaning is ‘ordinary’? Possible meanings can be found using dictionaries, based on historical usage in particular places and for general, or specialist, purposes. Recently, judges and legal scholars have turned, as Laurence M Solan has noted, to using linguistic corpora to assist in determining ordinary meaning in such cases, as well as legally based ‘tiebreakers’, such as the rule of lenity, which requires courts to resolve ambiguity in favor of the accused in criminal cases.91 Obvious drafting errors or ‘“scriveners” errors’ also present special problems.92 In Ghany v. Attorney General (Trinidad and Tobago) [2015] UKPC 12, for example, the Privy Council read in 44 words to correct, by interpretation, an obvious error—omission of a provision allowing compensation for permanent partial disablement caused by injuries (such as the fracturing of Corporal Ghany’s hip bone) not listed in an Act’s Schedule. To quote, as does Bennion, from the libretto to Gilbert and Sullivan’s The Mikado, Act II: Mikado: That’s the pathetic part of it. Unfortunately, the fool of an Act says ‘compassing the death of the Heir Apparent.’ There’s not a word about a mistake . . . That’s the slovenly way in which these Acts are always drawn. Multi-lingual enacted texts can be presumed to have a shared meaning (‘the shared meaning rule’). EU legislation is authentic in 24 official languages. Multilingual drafting, likely to involve multiple, and different language, drafters, is quite rare in New Zealand. Te Pire mō Te Reo Māori/the Māori Language (Te Reo Māori) Bill (228–2) (NZ) was reported by the Māori Affairs Committee on 26 February 2016. A complete Te Reo Māori translation of the English text was inserted into the Bill. This was only the second time a Bill had been translated this way. It also contained an historic first for the Māori language in legislation. Both the Māori and English texts would be of equal authority. The Te Reo Māori text would prevail in the event of a conflict in meaning between the two language versions. The New Zealand PCO’s Annual Report 2015/16 says (pp. 11 and 12): ‘Te Ture mō Te Reo Māori/the Māori Language Act 2016 was enacted in both Māori and English in April 2016. This is the first Act to give effect to substantive government administrative policy in both Māori and English’. As Tony Yen has noted of Hong Kong’s bilingual (and bijural) legal system, creating Chinese and English texts of legislation with equal status and a presumed shared legal meaning sometimes involves coining a new Chinese expression (owing to the lack of an exact equivalent Chinese expression for the English expression).93 Equally, New Zealand English contains, in everyday use, many loanwords from Te Reo Māori (including whānau: extended family). So, a person’s ‘family member’, in the Domestic Violence Act 1995 (NZ), includes any other person who is a member of the person’s whānau or other culturally recognised family group. Purpose is also interesting. In New Zealand, interpretation in line with purpose (always, or if ‘plain import’ is doubtful) has been required since the Interpretation Ordinance 1851 (NZ). In the UK, however, the Interpretation Act 1978 (UK) contains no equivalent direction, although to similar effect is the common law rule in Heydon’s case (1584) 3 Co Rep 7a (EWHC Exch). ‘Estates for life’ (used to avoid Henry VIII’s seizure of church property) thus included ‘copyholds’ not specified in 31 Hen 8 c 13. Lord Ellesmere’s treatise on statutory interpretation published in 1565 (20 years before Heydon’s case) covered perennial issues such as the focus on the mischief to be remedied.94 The Interpretation and Legislative Reform (Scotland) Act 2010, Interpretation Act (Northern Ireland) 1954, and proposed Welsh interpretation legislation,95 also contain no purposive direction. Canada’s Interpretation Act (R.S.C., 1985, c. I-21) section 12 requires every enactment to be given ‘such fair, large and liberal construction and interpretation as best ensures the attainment of its objects’. Australia’s Acts Interpretation Act 1901 section 15AA says ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’. As long ago as 1969, in the UK, the Law Commissions’ report recommended96 limited statutory intervention to recognise that among the principles to be applied in interpretation are— (a) that a construction which would promote the general legislative purpose underlying the provision in question is to be preferred to a construction which would not; and (b) that a construction which is consistent with the international [legal] obligations of Her Majesty’s Government in the United Kingdom is to be preferred to a construction which is not (compare The Charming Betsy (1804) 2 Cranch 64, 118, where, as Keith notes, Chief Justice Marshall admonished that “an act of congress ought never to be construed to violate the law of nations if any other possible construction remains”97). The second principle (meaning in line with international legal obligations) is, of course, also a subset of the first (meaning in line with purpose). ‘[I]t is uncontroversial to state’, the Welsh Government said in 2017, ‘that the 1978 Act is now relatively outdated and, when compared to other interpretation Acts, quite narrow in its scope’.98 Examples help show how, in practice, the four main factors apply, and explain much, but not all. Text’s ‘ordinary’ meaning is displaced by express definitions (legislated meanings) of terms. ‘Working day’ is presumed to have the meaning given to it by section 29 of the Interpretation Act 1999 (NZ). But legislated definitions are themselves only default meanings, and subject to express provision and context. So ‘working day’ has a special, and different, meaning in section 6(1) of the Customs and Excise Act 1996 (NZ). And a legislated definition, even if it does not say so expressly, applies only ‘unless the context otherwise requires’. That ‘context qualification’ recognizes that a term with a defined meaning is, sometimes, used with a different meaning. Some jurisdictions (e.g. the Commonwealth of Australia) no longer use an express context qualification, on the basis that one is anyway implied. (In Meux v. Jacobs (1875) LR 7 HL 481 at 493, for example, Lord Selborne said (emphasis added): ‘it appears to me that the interpretation clause does no more than say that, where you find these words in the Act, they shall, unless there be something repugnant in the context or in the sense, include fixtures’.) But, as Bailey and Norbury say at section 18.8, if a definition is for the purposes of the whole statute book, it may be useful (as in the Acts Interpretation Act 1901 (Aust), subsection 2(2) and 2B) to acknowledge expressly that the definition applies ‘unless the contrary intention appears’. Affco New Zealand Limited v. New Zealand Meat Workers and Related Trades Union Inc [2017] NZSC 135 involved context qualifications, and when, exceptionally, they displace defined meanings. If the meat workers laid off between seasons were ‘employees’ for the Employment Relations Act 2000 (NZ), section 82(1)(b), then there was an unlawful lockout. The Supreme Court held the meat workers, because of their discontinuous employment, did not fall within the Act’s section 6(1)(b) definition of ‘employee’. But it also agreed with the Court of Appeal that ‘employees’ in section 82(1)(b) has, because of the context qualification, a broader meaning than the definition of ‘employee’ in section 6. So, the broader meaning of ‘employee’ in section 82(1)(b) did cover or apply to the meat workers with their discontinuous employment. Context will only very exceptionally displace the defined meaning (which, ideally, would differ expressly where needed). Affco reiterates earlier New Zealand authority which confirms that strong and exceptional contextual reasons are needed to displace the defined meaning in favour of a different one. But strong contextual reasons existed in Affco. Those reasons included the language of the unlawful lockout provisions and of surrounding provisions, their purpose and underlying policy considerations, and any helpful legislative history. Affco innovates by helping make clear what counts as ‘context’ for this purpose (and perhaps also for other purposes). Context in this connection is broad, including purpose, policy considerations reflected in the legislation, and legislative history. Punctuation and structure can affect interpretation. Lord Scarman noted old UK Acts were not punctuated—except perhaps later, and editorially, only—in speaking on his unsuccessful Interpretation of Legislation Bill 1980 (UK), under which punctuation could be considered for all Acts: ‘Judges cannot help . . . noticing the punctuation. . . . How absurd it is that they must disregard [it]’.99 Sir Roger Casement was charged with high treason under the Treason Act 1351 (Eng), section II, and famously hanged ‘upon a comma’. During World War I, he incited British subjects who were prisoners of war in Germany to renounce their allegiance to the King. The Act declared treason occurred (emphasis added) ‘... if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition: . . . ’. The charge alleged adhering to the King’s enemies elsewhere than in the King’s realm—namely in Germany. The defence submitted, unsuccessfully, that the Crown had failed to prove an offence in law. ‘The contention is that those words “or elsewhere” govern only the words “aid and comfort in the realm” and have no application to the words “be adherent to the King’s enemies in his realm”’.100 That contention failed, prompting Casement to write, ‘God deliver from such antiquaries as these, to hang a man’s life upon a comma and throttle him with a semi-colon’. He was stripped of his knighthood and hanged. But in saying he was ‘hanged upon a comma’, his complaint was less about the law, and more about his lawyer’s (Serjeant Sullivan’s) decision to run (not a defence based on Irish not owing allegiance to the King in War Time, but instead) the above ‘dangling modifier’ defence.101 The principle is that ‘express words or necessary implication is required to achieve exterritorial effect’.102 The drafting issue is that ‘A modifier may be said to be misplaced or to “dangle” when it may be construed as modifying some other element in the sentence in addition to or as an alternative to the element intended to be modified’.103 In R (Buddington) v. Secretary of State for the Home Department [2006] EWCA Civ 280 at [18] and [26], Sir Ivor Judge P said the order construed ‘suffered from [the drafter’s] Homeric exhaustion’. Judge P also supplied a comma omitted—almost certainly due to ‘a third Homeric nod … probably the result of pressure from the legislative cauldron’. Punctuation is relevant, but should not be given excessive weight, as meaning should be plain without it. As O’Regan J noted in Official Bay Heritage Protection Society Inc v. Auckland City Council [2008] NZRMA 245 (CA) at [33], citing the 4th, 2002 edition, of Bennion (at p 640): ‘Punctuation is a device not for making meaning, but for making meaning plain’. Philippe Sands’ remarkable book on genocide and crimes against humanity discusses the governing instrument of the first international criminal tribunal, established to try the German leaders after World War II. An amendment [to the Charter of the International Military Tribunal, Article 6(c),] was quickly agreed on, to bring the English and French versions into line with the Russian text. This was achieved on 6 October [1945], when the semi-colon was removed and replaced with a comma. . . . The consequence could be significant. The semi-colon seemed to allow a crime against humanity that occurred before 1939, when the war began, to come within the jurisdiction of the tribunal; the replacement comma, however, seemed to have the effect of taking events that occurred before the war outside the jurisdiction of the tribunal. There would be no punishment for those actions if crimes against humanity had to be connected to war. Whether this was intended, or would have this effect, would be for the judges to decide.104 Sands completes the tale: “[Maxwell Fyfe’s running with the genocide argument] was potentially significant: unlike the concept of crimes against humanity, which was concerned with responsibility for acts connected to war, the charge of genocide opened the door to all acts, including those that occurred before the war began.” “Lemkin wanted to criminalize all group killings, from 1933 onward, before the war began. Shawcross used the term [genocide] in a more limited sense, as he made clear. ‘Genocide’ was an aggravated ‘crime against humanity’, but only if committed in connection with the war. The restriction was imposed by Article 6(c) of the charter, by the infamous comma introduced into the text in August 1945. For an act to be a crime, it had to be connected with the war. This was ‘a very important qualification’, Shawcross told the judges . . . the consequence, the carving out from the trial of all the acts that occurred in Germany and Austria before September 1939. The acts . . . would be outside the jurisdiction of the tribunal . . . Nevertheless, Shawcross drew much from Lauterpacht. There was no question of retroactivity, because all the acts involved – extermination, enslavement, persecution – were crimes under most national laws. The fact that they were lawful under German law offered no defence because the acts affected the international community. They were ‘crimes against the law of nations’, not matters of mere domestic concern. . . . ‘The individual must transcend the state.’” “The tribunal adopted the essence of the words written by Lauterpacht but spoken by Shawcross, of international crimes ‘committed by men, not abstract entities’. Only by punishing the individuals who committed such crimes, the judges said, could the provisions of international law be enforced. Individuals had international duties that ‘transcend the national obligations of obedience imposed by the individual state. . . . The Soviet judge [Judge Nikitchenko] said that the only acts that could constitute crimes against humanity were those committed after the war began in September 1939. No war, no crime against humanity. In this way, the tribunal excluded from its judgment everything that happened before September 1939, however terrible the acts. Lemkin’s effort to outlaw atrocity at all times, whether committed during peace or war, was cast aside because of the comma inserted late into Article 6(c) of the charter, the afterthought that Lemkin feared. . . . The judges recognized the difficulty this would cause. . . . Yet ‘revolting and horrible’ as these acts were, the comma inserted into the text of the charter excluded them from the tribunal’s jurisdiction. We were powerless to do anything else, the judges said.” Dura lex, sed lex—the law may be hard to observe or difficult to obey, but it remains the law. A few weeks after the end of the trial, the UN General Assembly on 11 December 1946 adopted related resolutions 95 and 96, affirming the principles of international law recognized by the Charter of the Nuremberg Tribunal—including crimes against humanity—were a part of international law, and that genocide is a crime under international law.105 ‘Bamboozling by a comma’ also happens in America. In O’Connor v. Oakhurst Dairy, Circuit Judge Barron said: For want of a comma, we have this case. . . there is no serial comma to be found in the exemption’s list of activities, thus leading to this dispute over whether the drivers fall within the exemption from the overtime law or not. The exemption covers employees whose work involves the ‘packing for shipment or distribution of’ enumerated food products. The drivers argued that these words referred to the single activity of ‘packing’, whether the packing was for ‘shipment’ or for ‘distribution’. The district court granted summary judgment to the dairy company, concluding that ‘distribution’ was a stand-alone exempt activity. The First Circuit reversed, holding that the exemption at issue is ambiguous, and, under Maine law, must be construed in the narrow manner that the drivers favour in order to accomplish the overtime law’s remedial purposes.106 Similarly, in Lockhart v. United States, ‘a classic case of statutory interpretation’, for the majority, ‘the rule of the last antecedent’ beat ‘the series qualifier’ rule in 18 U.S.C. §2252(b)(2).107 A New Zealand equivalent involved the Interpretation Act 1999 (NZ), section 18(1): ‘The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty’. In 2001,108 the Court of Appeal decided whether section 18(1) was two separate rules, the first about the completion of a matter or thing (unqualified) and the second about the bringing or completion of proceedings involving an existing right, interest, title, immunity, or duty. A majority (4–1) held that section 18(1) created 1 rule, and that ‘the completion of a matter or a thing’ related (in a series qualifier way, also) to the enforcement of existing rights or duties. While in agreement, Thomas J added: There has been in this case a surprising focus on grammar and punctuation in seeking to arrive at the correct interpretation. . . . The days when Judges limited themselves to the bare reading of the words of the statute and called in aid grammar or punctuation to arrive at the meaning intended by Parliament have long since gone . . . it seems rather perverse to fix Parliament with an intent based on the grammatical expertise of the draftsperson! . . . the possible failure of agreement between the noun and the verb, or the use of the intransitive verb, and absence of a solitary comma would not have impressed me, even if Keith J had been unable to refute the purported significance of these items. . . . Focusing on grammar and punctuation is possibly the most extreme form of literalism. Speaking extra-judicially, Lord Steyn has proffered some telling comments on this subject.109 Noting the shift away from a black-letter approach to questions of interpretation, Lord Steyn observes that the literalist methods of Lord Simonds are in decline. The purposive approach of Lord Reid and Lord Denning has prevailed. Lord Steyn then poses the question: what is literalism? He finds the answer easy. The tyrant Temures promised the garrison of Sebastia that no blood would be shed if they surrendered to him. They surrendered. And Temures shed no blood. He simply buried them all alive. That, says Lord Steyn, is literalism, and it has no place in modern law . . . dyed-in-the-wool literalism has no place on this Court, and I am pleased to note that the Court is rejecting that approach in this case. The case was decided in the Court of Appeal based on the effect of the Interpretation Act 1999, section 18. But the Privy Council decided the same case based on (Jonathan Sumption QC’s submissions and) a new point: the savings provision in the Commerce Amendment Act 2001, section 26.110 That provision ensured existing proceedings were dealt with as if that Amendment Act had not been enacted. ‘The relevant [savings] sections of the Interpretation Act 1999 apply’, said Tipping J, ‘only if the head enactment does not otherwise provide the answer (s 4(1)(a)). In this case it does’. The Board gave late leave to argue the new point (‘solely one of statutory interpretation’) despite its not being taken below by the appellant (Progressive Enterprises Ltd) or the Commission’s view. Critical was whether ‘proceedings’ covered only court proceedings. Compare the Law Practitioners Act 1982 (NZ) section 127 as construed in ADLS v. B (section 127 applies to the hearing, and not at the investigative stage).111 Happily, the Legislation Bill 2017 (275–2), cl 32(1)(c), is very clear. It provides that the repeal or amendment of legislation does not affect the completion of a proceeding commenced or in progress under the repealed or amended legislation. Clause 32(1)(c) will apply regardless of the nature of the proceeding (as defined in cl 13). (Currently, section 18 of the 1999 Act is limited to a proceeding that relates to an existing right, interest, title, immunity, or duty.) Clause 32(1) is as follows: (1) The repeal or amendment of legislation does not affect— (a) the completion of a matter or thing that relates to an existing right, interest, title, immunity, duty, status, or capacity (a legal position); or (b) the commencing of a proceeding that relates to an existing legal position; or (c) the completion of a proceeding commenced or in progress under the legislation. Concessions, conflict, and chance can also feature. This is shown by Pora,112 a successful appeal in 2000 against a minimum period of imprisonment (MPI) of 13 years. Susan Burdett was a 39-year-old accounts clerk living alone in Papatoetoe, Auckland. On 23 March 1992, after getting home from a night out ten pin bowling, she was raped and murdered. After a trial in June 1994, a 17-year-old car thief and gang prospect, Mr Pora, was convicted. Mr Pora’s conviction was based in part on confessions, although DNA evidence would later show the crimes involved another person. After a successful appeal, Mr Pora was convicted again, and appeared for sentence, in 2000. The sentencing judge in 2000 regarded himself as required to impose an MPI of 13 years by an intervening (and expressly retroactive) 1999 ‘home invasion offending’ amendment, which adjusted MPI powers first enacted in 1993. The Crown conceded that the power to impose MPIs (section 80 of the Criminal Justice Act 1985 (NZ), as amended in 1999 by the Criminal Justice Amendment (No 2) Act 1999 (NZ)) could not apply to crimes before 1 September 1993 (the date on and after which the MPI power first became available under the Criminal Justice Amendment Act 1993). The appeal therefore had to be allowed because the power was unavailable in respect of Pora (who was found to have committed murder on 23 March 1992). Given that result, Richardson P preferred, ‘in the absence of full argument’, to express no other conclusions (para [60]). But the six other Judges went on, anyway, to discuss in more detail the operation of section 2(4) of the Criminal Justice Amendment (No 2) Act 1999. That section 2(4) requires an MPI under section 80, as amended by that 1999 Amendment Act, to be imposed on persons convicted of ‘home invasion offending’, even if the offence was committed before the date in 1999 on which the amended section 80 came into force. Complicating the matter was section 4(2) of the Criminal Justice Act 1985 (NZ) (which precluded the Court from imposing a sentence in the nature of a penalty which could not have been imposed on the offender at the time of the offence (except with the offender’s consent), and which was expressed to apply ‘Notwithstanding any other enactment or rule of law to the contrary’). ‘Since the [mandatory] punishment on conviction for murder is imprisonment for life’, said Keith J ([15]), ‘it may have been incorrectly thought that a change in parole eligibility through imposition of minimum periods of imprisonment was a matter of administration rather than penalty’. In any event, both the Crown and the Court of Appeal accepted that the imposition of an MPI (which is part of the sentencing process, and which on being imposed becomes part of the sentence passed on the offender by the Court) involved the imposition of a penalty.113 Sections 4(2) and 2(4) were therefore seen as conflicting, which made the issue (for the six Judges other than Richardson P) how to resolve that conflict (which should prevail?) and, in resolving it, determine the extent (if any) of the retroactive operation of section 2(4). Keith, Gault, and McGrath JJ would have given section 2(4) effect on and after 1 September 1993, as a later and specific provision overriding and impliedly repealing section 4(2), and a provision whose clear purpose was to impose retroactive penalties. But the Chief Justice and Tipping J (with whom Thomas J concurred) said section 2(4) conflicted with section 4(2) and should, because it is inconsistent with fundamental rights, international obligations, and presumptions against retrospectivity, and does not expressly override or repeal section 4(2), be treated as of no effect. What approach is preferable? Some will think that Parliament’s words and purpose in section 2(4) were so plain that they do not think that any breach of international legal obligations or the principle against retrospectivity could have been removed by judicial interpretation. (‘[T]here comes a point when it is not possible to claim that a decision is interpreting legislation rather than ignoring or rewriting it’.114) Today, three points about Pora seem salient. First, concessions, by any party, cannot be accepted, without close scrutiny, as determinative—as concessions wrong in law are neither acceptable nor binding: R v. Montila [2004] 1 WLR 3141 (HL) at [31]−[40]. Secondly, in Pora, the conflicting analysis of the six judges other than Richardson P was mostly obiter dicta (incidental comment not necessary to decide the case, and so not binding precedent). Thirdly, while not apparent then, Pora was deeply factually unsound. Mr Pora was 39 years old when his conviction was quashed, with no retrial being ordered, by the Privy Council ([2015] UKPC 9, [2016] 1 NZLR 277). In 2015, the Minister of Justice asked Rodney Hansen QC to assess Mr Pora’s eligibility for compensation. Mr Hansen considered Mr Pora was innocent, on the balance of probabilities, of the crimes for which he had been convicted. He considered that Mr Pora ‘could have proved his innocence to an even higher standard’. Mr Hansen’s key findings in support of his conclusion that Mr Pora had established his innocence on the balance of probabilities included that Mr Pora’s confessions to Police, affected by his foetal alcohol spectrum disorder (FASD), were a clear fabrication and cannot be relied upon. On 28 August 2017, Mr Pora’s compensation for wrongful imprisonment was held to have been calculated unlawfully, because failing to inflation-adjust it was treating him unequally.115 In 1996, vaginal swabs taken from Ms Burdett were found to contain another man’s, Malcolm Rewa’s, DNA. Mr Rewa was arrested and charged with Burdett’s rape and murder in May 1996. Mr Rewa stood trial on all charges in from March to May 1998. He was convicted of sexual assaults on multiple complainants but the jury failed to agree with respect to the charges of rape and murder concerning Ms Burdett. A second trial was held in December 1998 concerning the Burdett charges alone. The jury convicted Mr Rewa of rape but failed to agree on the charge of murder. In December 1998, the Solicitor-General entered a stay of proceedings in respect of the murder charge against Mr Rewa under section 378 of the Crimes Act 1961 (NZ). In May 2017, the Police wrote to Mr Rewa to advise him that an application was to be made at the High Court to seek to retry him for the murder of Susan Burdett. In November 2017, the Deputy Solicitor-General, acting under delegated authority from the Attorney-General, directed that the proceedings against Mr Rewa stayed in 1998 were no longer stayed. On 9 May 2018, the High Court dismissed a judicial review of the lifting of the stay.116 Venning J said that The fact [the Criminal Procedure Act 2011 (NZ)] section 176 does not provide for the lifting of a stay is no impediment to the Attorney-General lifting the stay. There is no statutory provision which extinguishes the common law power to reverse a stay or which otherwise limits the operation of the Attorney-General’s prerogative. Mr Rewa’s third trial for Ms Burdett’s murder is scheduled to commence 11 February 2019. A final example is legislation binding the Crown, and what some think ‘a gap made in the “rule of law”’.117 Crown immunity means that the Crown is not bound by legislation that imposes burdens (as opposed to conferring benefits) unless the legislation expressly, or by necessary implication, binds the Crown.118 Application of Westminster Acts (and a considerable amount of other legislation) to the Crown is governed by the common law. In R (Black) v. Secretary of State for Justice [2017] UKSC 81, the UKSC recently declined the Appellant’s invitation to abolish or reverse this presumption. The issue was: is the Crown bound by the ban on smoking, in most enclosed public places and workplaces (including prisons), imposed by Chapter 1 of Part 1 of the Health Act 2006 (UK)? Mr Black was a prisoner serving an indeterminate sentence of imprisonment at HMP Wymott. A non-smoker, with a number of health problems exacerbated by tobacco smoke, Mr Black complained that the smoking ban was not being properly enforced in the common parts of the prison. Mr Black succeeded in the High Court, which held that the smoking ban did bind the Crown. The Secretary of State appealed successfully to the Court of Appeal, which reversed the decision, holding that the Crown was not bound. The Supreme Court agreed unanimously, holding that Parliament must have intended that the Crown should not be bound by the smoking ban, since it would otherwise have made express provision for it in the Act. Among other things, other groups of provisions in the Act expressly bind the Crown. Lady Hale therefore concluded (at [50]): ‘Necessary implication entails that Parliament must have meant to bind the Crown. The fact that where Parliament did mean to do so in this Act, it said so, and made tailored provision accordingly, is to my mind conclusive of the question’. Luke Norbury has noted that, in her judgment, Lady Hale considers (and slightly refines) the principles that apply when determining whether there is a necessary implication, possibly making it easier to find a necessary implication.119 Although declining to abolish or reverse the presumption, Lady Hale nevertheless said ‘I would urge Parliament, perhaps with the assistance of the Law Commission, to give careful consideration to the merits of doing so’. New Zealand’s Law Commission in 1990 recommended such a reversal. Reversal was not adopted in the Interpretation Act 1999, however. That was in part because the effects of reversal were unpredictable. As Lady Hale notes in Black, ‘the presumption . . . is so well established . . . that many, many statutes will have been drafted and passed on the basis that the Crown is not bound except by express words or necessary implication’. The answer may be to reverse the presumption for future legislation only. New Zealand’s Cabinet in 2001 agreed to make explicit decisions about whether a draft Government Bill should include a provision stating that the Act will bind the Crown. The general principle is that the Crown should be bound by Acts unless the application of a particular Act to the Crown would impair the efficient functioning of the Government.120 The Interpretation and Legislative Reform (Scotland) Act 2010 section 20 reverses the presumption of Crown immunity from burdens of Scottish legislation (if it becomes law on or after 4 June 2010). And the application of that default rule in section 20 appears not to be subject to context—only to displacement by express provision: section 1(2)(b) and (3) of that 2010 Act. Section 20(2) of that 2010 Act also abolishes expressly ‘Any rule of law under which the Crown is by necessary implication bound by an Act of the Scottish Parliament or a Scottish instrument’ (emphasis added). New Zealand’s Legislation Bill 2017 (275–2) cl 22 commendably clarifies that the Crown is bound by secondary legislation if the empowering Act binds the Crown or the secondary legislation itself (if authorised to do so) expressly provides that it binds the Crown. But reversal of the presumption for future legislation (a minor change in practice), with related abolition of future legislation binding by necessary implication or not binding because of context alone, can now be achieved only at, or after, the Bill’s committee of the whole House stage. Can 1 theory encompass adequately the interaction in practice of all interpretative factors? Bennion’s idea, as Dharminanda and Lane note, is what the interpreter (student) must learn to do is to ‘figuratively weigh and balance’ the various interpretative factors yielded by the text. Identifying interpretative criteria using Justice Susan Glazebrook’s ‘spiral technique’ has also appealed, as an approach, to (former Legal Officer (drafter) with the New South Wales Parliamentary Counsel’s Office, and) leading Australian academic Dr Jeffrey Barnes.121 So Bennion, Bailey, and Norbury exemplify, and continue a noble tradition of, drafters as explainers. To improve their craft, they seek to unify the legal system. Their counterparts include Judges (including many mentioned in this review122) who ‘reach across’ to other people with different roles in the law. ‘Reaching across’ is less ‘consorting with the enemy’ than it is understanding better ‘the law’ with which any ‘lawyer’ (in any role) must work. Similar ‘reaching across’ and convergence is needed between the academy and the bar,123 and between different legal systems (including those within and outside Europe124). What is ‘law’? A proper answer to that question includes, and has long included, legislation. An attitude that legislation is of lesser, or no, importance is, thus, indefensible. As Australian Chief Justice Robert French has said, ‘It is as pointless for judges and lawyers to complain that statutes have too many words as it was for the Emperor to complain that Mozart’s composition had too many notes. They must just get on with the job of interpretation and application’.125 Related questions include: Who is ‘a lawyer’? What are the different kinds of ‘lawyers’? Court room lawyers—criminal or civil—and before or behind the bench—are fine and prominent lawyers. But they are not the only lawyers. Much law, happily, never gets anywhere near a court. Transactions via the Internet, including ‘Government as a service’, have not reduced the role of the non-court room lawyer in helping ‘the citizen as customer’. A lawyer’s practice (whether public practice or private practice) can take many forms. A lawyer, in that lawyer’s time, can also play many parts. So, in New Zealand’s Sir John Salmond, academic became drafter, who became litigator, who became judge. It would be wrong to argue that any of those different roles was inherently inferior, did not enrich the others, or was incapable of excellence. A legal system requires different kinds of lawyers. Each kind of lawyer is entitled to respect, including (with due humility) basic self-respect126: As Professors Pearce and Geddes observe in the Introduction to [their] book . . . ‘a drafter cannot assume that a reader will approach legislation sympathetically’. Nevertheless, contemporary criticisms of statutes and statute law should elicit a degree of empathy in the hardest heart for parliamentary drafters who must labour, sometimes under great pressure of time, to meet the contemporary demands of legislative production only to see their products routinely denounced for opacity, prolixity or absurdity depending upon the perspectives of those who seek to shape the laws to their own purposes, those who must apply the laws and those who interpret them. Reflecting in 2009 on 55 years of law practice and law drafting, Garth Thornton QC said127: Reflection 1:Law drafting offers an extraordinarily satisfying career to those lawyers who are suited to it. Competent law drafters tend to stick with it as a career. Some might think this surprising because generally speaking it is work that generates no fame, no public profile or acclaim, no wealth, and on occasion unfair criticism. To those who take to it however, the work is interesting, challenging and satisfying. It is also creative and positive. Part of the interest lies in the breadth of the areas both of law and policy which a drafter becomes acquainted with in the course of his or her work. New Zealand’s Attorney-General, David Lange, addressed law drafters in 1990, saying128: The quality of your work bears a direct relationship to the quality of the democratic society in which and for which your work is done. I wish to end with a quote. It has not been easy to find a suitable one. Most of the famous ones are at best derogatory and at worst defamatory. Let those who will, scoff. I take my stand with the psalmist [(Psalm 119:111)]: “I have more insight than all my teachers for I meditate on your statutes. Your statutes are my heritage forever; they are the joy of my heart.” Ross Carter is a law drafter, the Secretary of the Commonwealth Association of Legislative Counsel (CALC), and interested in legislation’s correct legal meaning.129 Footnotes 1 Reflections on the New Zealand Law Commission (Wellington, NZ: LexisNexis, 2007) 159. 2 David McGee QC (1996) 6 Canta LR 195, quoting US Supreme Court Associate Justice Felix Frankfurter, as quoted in Mark Silverstein Constitutional Faiths (Ithaca: Cornell University Press, 1984) 142 and 143. 3 Glazebrook (2017) 48 VUWLR 237 at 247. 4 New Zealand Law Commission A New Interpretation Act – To Avoid ‘Prolixity and Tautology’ (NZLC R17, 1990) at p 4 and para [11], citing British Parliamentary Papers 1841 (311), vol XVII at 37. 5 (1968) 5 VUWLR 1, 2–3. 6 Prosper the Commonwealth (Sydney: Angus and Robertson, 1958) 145 and 146; Carmel Meiklejohn Fitting the Bill – A History of Commonwealth Parliamentary Drafting (Kingston, ACT: Office of Parliamentary Counsel, 2012) 26–52. 7 Hilary Mantel, Wolf Hall (London: Fourth Estate, 2009) 288. See also Stephen Alford ‘Thomas Cromwell: A Life by Diarmaid MacCulloch’, LRB, 8 November 2018. 8 Ibid at 538 and 539. 9 See the sources noted in Carter (2011) 32(2) Stat LR 86–115 at 110 and 111, fn 54. 10 McCluskie (2014) 1(2) Scottish Parliamentary Review. 11 Bowers (1980) 48 Legal Hist Rev 329, especially the Appendix (‘A chronological summary of the principal governmental activity in statutory reform 1796–1889’). George Coode’s landmark pamphlet ‘On legislative expression or the language of the written law’ was first printed in a report to Parliament in 1843. 12 Carr ‘The Mechanics of Law-Making’ (1951) 4(1) Curr Legal Probs 122. 13 Gavin Stamp, ‘Meet Elizabeth Gardiner, the woman who drafts the UK’s laws’, 27 February 2018: http://www.bbc.com/news/uk-politics-42772718 14 Walter Iles CMG, QC, The Loophole, February 2011 (2011.1), p 10. 15 The Loophole, July 1995, p 8 at p 11. 16 SK Hiranandani, ‘Legislative Drafting: An Indian View’ (1964) 27 Mo L Rev 1, 7–8. 17 Hilary Mantel, Bring Up The Bodies (London: Fourth Estate, 2012), 348. 18 Ibid at 348. 19 McCluskie (2014) 1(2) Scottish Parliamentary Review. (McCluskie adds that ‘although drafters might not have poetry in their provisions, they have it in their souls’.) 20 ‘A Defence of Poetry’, an essay written in 1821, and first published posthumously by Edward Moxon in Essays, Letters from Abroad, Translations and Fragments (1840). 21 K J Keith in Dyson and Stark (eds) Fifty Years of the Law Commissions (Oxfort: Hart, 2016) at 400 at p 407. 22 Ashes and Sparks: Essays on Law and Justice (Cambridge: CUP, 2011) at 307, about Re Castioni [1891] 1 QB 149 (QB). 23 Hilder v. Dexter [1902] AC 474, 477 (HL). 24 Language, Meaning and the Law (2009) at 75. 25 Constitutional Law of Ghana (1962) at 346; Bennion on Statute Law (3rd edn, Harlow: Longman 1990) 21. 26 ‘Statutory Interpretation Using Legislated Examples: Bennion on Multiple Consumer Credit Agreements’ (2001) 32(2) Stat LR 86–115. 27 Vienna Convention on the Law of Treaties 1969, Art. 31; Statute of the International Court of Justice, Art. 38. 28 ‘Francis Bennion—Barrister who relentlessly defended the rule of law and took out a private prosecution that cost him his home and marriage’, The Times, 2 April 2015, p 66 (online version, 1 April 2015, 8:23 pm). 29 1579 numbered pages (including an index) + 267 preliminary pages (including tables) = 1846 pages in total. 30 [2006] EWCA Crim 2918; [2007] 3 All ER 451 at [33]–[34] (‘the draftsman … has given his explanation of … “whether he be a subject of Her Majesty or not, and whether he be within the Queen’s dominions or not” in s 4—see Greaves The Criminal Law Consolidation and Amendment Acts (2nd edn, London: VR Stevens, 1862) p 35’). 31 See also Dennis Pearce Interpretation Acts in Australia (Australia: LexisNexis, 2018). 32 Judicial Commission of New South Wales Statutory Interpretation – Principles and Pragmatism for a New Age (Education Monograph 4—June 2007) at 105 (Professor Ruth Sullivan: Statutory Interpretation in Canada). 33 Walter Iles CMG, QC, The Loophole, February 2011 (2011.1), p 10 at p 11. 34 The 1970 first edition of Thornton was reviewed by Duncan Elmslie Berry at [1972] NZLJ 263. Compare J Paul Salembier Legal and Legislative Drafting (2nd ed, Markham, ON: LexisNexis, 2018). 35 Sir Noel Hutton GCB, QC, AB, ‘The British Interpretation Act’ (1979) 6(1) J Legis 15: http://scholarship.law.nd.edu/jleg/vol6/iss1/2 36 A second edition was published in 1874: [2002] 1 NZLR 353 (CA) at [49] per Thomas J. 37 Popkin Statutes in Court: The History and Theory of Statutory Interpretation (Durham, NC: Duke University Press, 1999) ch 3. See also Farah Peterson, ‘Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation’ (2018) 77 Md L Rev 712. 38 Palmer (2006) 17 PLR 133 at 135. 39 Bennion, ‘Statutory Interpretation: Teaching and Practice – Part 1’ (6 December 2008) 172 JPN 802–804. 40 Sullivan ‘Statutory Interpretation in a New Nutshell’ (2003) 82 Can Bar Rev 51 at 53 to 55, citing Dworkin, Law’s Empire (1986), especially chs. 2, 7, and 9. 41 PC News & Views – Australasian Legislative Counsel Newsletter, June 2004 Edition, p 9, citing J.P.C. (James Peter Comyn) Poetic Justice (London: Steven & Sons, 1947), illustrated by Leslie Starke. 42 Judicial Commission of New South Wales, Ibid at 95, quoting Bryson (1992) 13 Stat LR 187 at 188. In Northland Environmental Protection Society Incorporated v. Chief Executive of the Ministry for Primary Industries [2018] NZSC 105 at [41] Glazebrook J said: ‘We also accept NEPS’ submission that the words “without the need for [any] further machining or other modification” [in the Forests Act 1949, s 2(1), definition of finished or manufactured indigenous timber product] mean what they say’. See also Glazebrook (2015) 14 Otago LR 61 at http://www.nzlii.org/nz/journals/OtaLawRw/2015/7.html. 43 Neil Williams SC (ed.) Key Issues in Judicial Review (Annandale, NSW: Federation Press, 2014) at 87 and 88. 44 Salmond ‘The Literature of Law’ (1922) 22(3) Colum L Rev 197–208. 45 Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139. 46 Samples of Law Making (London: Oxford University Press, 1962) at 2, quoted in The Law Commission and Scottish Law Commission, The Interpretation of Statutes (1969) p 48 at [79]. 47 (2015) 41(1) Monash UL Rev 1 at 16. 48 Drafting the Law Wellington District Law Society Seminar 2006. 49 R B Cooke ‘The Rights of Citizens’ in R S Milne (ed) Bureaucracy in New Zealand (Wellington and London: NZIPA, 1957) p 84 at p 96; F Bennion Bennion on Statutory Interpretation (5th ed, London: Butterworths, 2008), Introduction, p 8. 50 Walter Bagehot The English Constitution (2nd ed, Boston: Little, Brown and Company, 1873), Introduction. 51 Sir Geoffrey Palmer and Dr Andrew Butler Towards Democratic Renewal (Wellington: VUP, 2018). Compare Hagen (July 2018) LawTalk 919 60-61 (Paul East QC opposes judicial supremacy under codified constitution). 52 Frankfurter ‘Some Reflections on the Reading of Statutes’ (1947) 47 Colum L Rev 527, 545. 53 periwigsquiggle.wordpress.com/2010/03/12/we-have-to-pass-the-bill-so-that-you-can-find-out-what-is-in-it/ 54 ‘We’ll just have to pass it…’ 25 June 2015 at 10:15 am. Filed by Ben Zimmer under Language and the law http://languagelog.ldc.upenn.edu/nll/?p=19721 55 (1947) 47 Colum L Rev 527, 541. 56 The Loophole, July 1995, p 12. See also (1993) 14(3) Stat LR 149–162. 57 Kós ‘Constitutional Collision: Fitzgerald v. Muldoon v. Wild’ (2014) 13(2) Otago LR 243: http://www.nzlii.org/cgi-bin/download.cgi/cgi-bin/download.cgi/download/nz/journals/OtaLawRw/2014/3.pdf. 58 FitzGibbon, ‘Joint Enterprise’, LRB, 3 March 2016. Elias (2017) 48 VUWLR 217 at 221 (‘New Zealand law, based on a statutory provision, falls to be applied in a way now repudiated for the United Kingdom’). 59 See also Sutherland v. Chief Executive of the Department of Corrections [2018] NZHC 1366 (interplay between Parole Act 2002 and Sentencing Act 2002 in cases of home detention resentencing with new charges). 60 Geiringer (2017) 48 VUWLR 457 (on three narratives in the NZCA’s DoI decision in Taylor). 61 www.beehive.govt.nz/release/government-provide-greater-protection-rights-under-nz-Bill-rights-act-1990 62 Inside Wellington, Transcript: PM’s post Cabinet media conference—26 February 2018. 63 See Constitutional Advisory Panel New Zealand’s Constitution (November 2013) at pp 47–56, especially p 56: www.ourconstitution.org.nz/NZ-Bill-of-Rights-Act-1990 64 See, for example, Peter Hogg and Allison Bushell (1997) 35.1 Osgoode Hall LJ 75–124. 65 http://www.charterdefence.ca/appeal-related.html 66 Compare Strathboss Kiwifruit Limited v. Attorney-General [2018] NZHC 1559 at [1356] and fn 683 per Mallon J (‘these amendments have effectively overruled the [NZSC’s] majority’s interpretation of s 86 because they had incorrectly interpreted Parliament’s intention or should be treated as though they have’). 67 Lord Wilberforce, 277 H.L. Deb. ser. 5, col. 1294, 16 November 1966. 68 Debate on Law Commission’s first annual report, HL Deb. 16 November 1966 vol. 277 cols. 266–1343, as quoted by Bennion (6 December 2008) 172 JPN 802–804. 69 Interpreting Treaties, Statutes and Contracts (Occasional Paper No 19, New Zealand Centre for Public Law, Wellington, 2009) p 2. 70 (6 December 2008) 172 JPN 802–804. 71 Eg, New Health New Zealand Inc v. South Taranaki District Council [2018] NZSC 59 at [282], [292], [293]. 72 ‘Statutory Interpretation in the Supreme Court’ (Address at PCO, 4 September 2015) at pp 3, 4, and 17, available at www.courtsofnz.govt.nz/publications/speeches-and-papers, citing M Russell and M Barber in The Supreme Court of New Zealand: 2004–2013 (2015), pp 19 and 20. 73 HLA Hart The Concept of Law (1961). 74 ‘The idea that there may be a ‘creative’ element in statutory interpretation has always felt vaguely impure’. Brysland and Rizalar (2018) 92 ALJ 81 at 82. ‘[T]he judge’s role is an interpretative one and, however creative a judge may want to be (and most do not), there comes a point when it is not possible to claim that a decision is interpreting legislation rather than ignoring or rewriting it’. Glazebrook (2017) 48 VUWLR 237 at 247 and 248. 75 Twining and Miers How to Do Things with Rules (5th ed, Sydney: Butterworths, 2010) at 242. 76 Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61–2000), [1.09]–[1.10]. 77 Justice Matthew Palmer, ‘The Rule of Law, Judicial Independence and Judicial Discretion’ (Speech at National University of Singapore, 20 January 2016) at 4 and 5. 78 Stanley Corngold, Jack Greenberg, and Benno Wagner (eds) Franz Kakfa—The Office Writings (Princeton, NJ: Princeton UP, 2009) at 188. 79 Judicial Commission of New South Wales Statutory Interpretation – Principles and Pragmatism for a New Age (Education Monograph 4—June 2007) p 81 at p 103. 80 E Rackley and R Hunter, ‘Judicial Leadership, Lady Hale and the UK Supreme Court’, U.K. Const. L. Blog (30 May 2018) (available at https://ukconstitutionallaw.org/). 81 Glazebrook (2017) 48 VUWLR 237 at 248 and 249. 82 For example, Walton, Sartor, and Macagno ‘An Argumentation Framework for Contested Cases of Statutory Interpretation’ (March 2016) 24(1) Artif Intel L 51. Compare Layman E Allen ‘Symbolic Logic: A Razor-Edged Tool for Drafting and Interpreting Legal Documents’ (1956–57) 66 Yale LJ 833. 83 ‘The Difficulties of Teaching Legislation to Students” (Aug. 2010) The Loophole p 24 at p 31, citing William Eskridge “The Three Ages of Legislation Pedagogy” (2004) 7(3) NYU J Legislation and Public Policy 3. 84 K Goodall, “Teaching statutory interpretation: citings of NESSSI in Scotland” (2007) 171(34) Justice of the Peace 604, and Oliver Jones “Statutory Interpretation: The Case for a Core Subject” (2007) 5(2) J Com Law Leg Educ 85. 85 http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frencjhcj24oct2014.pdf 86 Dr J Barnes (La Trobe), Assistant Professor Jacinta Dharmananda (UWA), Professor Jeffrey Goldsworthy (Monash), and Professor Alex Steel (UNSW), The Council of Australian Law Deans Good Practice Guide to Teaching Statutory Interpretation (June 2015) 3. http://www.cald.asn.au/assets/lists/Resources/GPGSI-June15.pdf (accessed 26 May 2018). 87 ‘Teaching Statutory Interpretation in Australia: What’s Next?’ (2018) 39(1) Stat LR 27. 88 Andrew Burrows QC Thinking About Statutes – Hamlyn Lectures 2017 (Cambridge University Press, July 2018). 89 James Durling, ‘Diagramming Interpretation’ (2018) 35 Yale Journal on Regulation 325 (available at https://ssrn.com/abstract=3034227), citing United States v. Rentz 777 F.3d 1105 (10th Cir. 2015). Compare Garth Cecil Thornton QC Legislative Drafting (4th ed, London: Butterworths, 1996) p 20 and 21 (Diagram forms). 90 In Commissioner of Inland Revenue v. Cullen Group Limited [2018] NZCA 166 at [7](b) and [8], French J said the Court agreed that ‘One criterion for admission of extrinsic materials is that the documents should be publicly accessible, which means there is no need for discovery of such documents’. 91 Solan ‘The Interpretation of Legal Language’ (January 2018) 4(1) Ann Rev Linguistics 337. 92 See also Greenberg Laying Down the Law (London, Sweet & Maxwell, 2011), ch. 28 (Mistakes in legislation); Greenberg [2015] PL 96 at 103–105 (Endless bites at the cherry); and Editorial (2018) 39(1) Stat LR v-vii. 93 Tony Yen, ‘Bi-lingual drafting in Hong Kong’, (Aug 2010) The Loophole 65. 94 Spigelman AC (2007) 28 Aust Bar Rev 254, 277; TFT Plucknett ‘Ellesmere on Statutes’ (1944) 60 LQR 242; Max Radin ‘Early Statutory Interpretation in England’ (1943–1944) 38(1) Illinois L Rev 16–40. See also TFT Plucknett Statutes and Their Interpretation in the First Half of the Fourteenth Century (Cambridge: CUP, 1922) at pp 68–70 (‘The fairest gloss that can be put upon [Herle J’s] words [in Tregor’s Case Y.B. Pasch. 8 Edw. III, 26] is that of Lord Ellesmere whose comment [(quoted in 2 Dwarris, 6430)] was: “It is magis congruum [more fit] that Acts of Parliament should be corrected by the same pen that drew them, than be dashed to pieces by the opinion of a few Judges”’). See also Karen Grau (2002) 33 VUWLR 351; Jim Evans (2005) NZ L Rev 453; and Justice A Black [2013] NSW Judicial Scholarship 37. 95 Welsh Government Interpreting Welsh legislation—Considering an interpretation Act for Wales (19 June 2017) https://beta.gov.wales/sites/default/files/consultations/2018-02/170619-consultation-doc-en.pdf 96 The Interpretation of Statutes (Law Com No 21) (SCOT LAW COM No 11) pages 49, 51: https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/LC.-021-SC.-011-THE-INTERPRETATION-OF-STATUTES.pdf 97 Keith Interpreting Treaties, Statutes and Contracts (Occasional Paper No 19, New Zealand Centre for Public Law, Wellington, 2009) citing Lauritzen v. Larsen (1953) 345 US 571 at 577–578 per Jackson J on ‘seaman’ in the Merchant Marine Act 1920 (also known as Jones Act), s 33. 98 Interpreting Welsh legislation—Considering an interpretation Act for Wales (19 June 2017) at p 8. 99 13 February 1980 HL Hansard vol 405, Cols 276–306; and 9 March 1981 HL Hansard vol 418, Cols 64–83, citing Inland Revenue Commissioners v. Hinchy [1960] 1 All ER 505 (HL) at 510 per Lord Reid. 100 R v. Casement [1917] 1 KB 98 at 122 (CCA) per Lord Reading CJ. Cf R v. Joyce [1945] 2 All ER 673 (CCA). 101 Mitchell Roger Casement: 16 Lives (Dublin: The O’Brien Press, 2014) ch 3; Helen Andrews https://www.firstthings.com/blogs/firstthoughts/2011/11/roger-casement-the-gay-irish-humanitarian-who-was-hanged-on-a-comma. 102 Poynter v. Commerce Commission [2010] 3 NZLR 300 (SCNZ) at [45] per Tipping J. 103 GC Thornton above n 89 at 23; Xanthaki Thornton’s Legislative Drafting (5th ed, London: Bloomsbury Professional, 2013) at [2.18]. See also Xanthaki Drafting Legislation—Art and Technology of Rules for Regulation (London: Hart Publishing, 2014) at 98 to 102. 104 East West Street – On the Origins of Genocide and Crimes Against Humanity (2016) chs 47, 48, 138, 144, Epilogue. 105 East West Street – On the Origins of Genocide and Crimes Against Humanity (2016) chs 47, 48, 138, 144, Epilogue. 106 O’Connor v. Oakhurst Dairy, No. 16–1901 (1st Cir. 2017) See alsohttps://www.theguardian.com/books/2017/mar/16/oxford-comma-helps-drivers-win-dispute-about-overtime-pay?CMP=share_btn_link. See also Adams ‘Bamboozled by a Comma: The Second Circuit’s Misdiagnosis of Ambiguity in American International Group, Inc. v. Bank of America Corp. [712 F.3d 775 (2d Cir. 2013)]’ (2014) 16 Scribes J Legal Writing 5. 107 Lockhart v. United States, 577 U.S. ___ (2016) and Evan Lee, ‘Opinion analysis: Battle of statutory interpretation canons ends in defeat for convicted sex offender’, SCOTUSblog (March 1, 2016, 5:49 PM), http://www.scotusblog.com/2016/03/opinion-analysis-battle-of-statutory-interpretation-canons-ends-in-defeat-for-convicted-sex-offender/. 108 Foodstuffs (Auckland) Ltd v. Commerce Commission [2002] 1 NZLR 353 (CA). See also Interpretation Act 1999: A Discussion Paper (NZ PCO, 2013) at [2.43] to [2.54]. 109 J Steyn (1997) 113 LQR 433 at pp 440–441. Although speaking of literalism in interpreting a contract, what the distinguished Law Lord has to say is equally, if not more, applicable to statutory interpretation. 110 Foodstuffs (Auckland) Ltd v. Commerce Commission [2004] 1 NZLR 145 (PC). 111 ADLS v. B [2002] 1 NZLR 721 (CA); [2004] 1 NZLR 326 (PC). 112 [2001] 2 NZLR 37 (CA). 113 See Pora at [82], as well as the earlier case of R v. Poumako [2000] 2 NZLR 695 (CA) at [54]. 114 Glazebrook (2017) 48 VUWLR 237 at 247. 115 Pora v. Attorney-General [2017] 3 NZLR 683 (HC). 116 Rewa v. Attorney-General (NZ) [2018] NZHC 1005. 117 Glanville Williams Crown Proceedings (London, Stevens, 1948) 49. 118 Hogg, Monahan and Wright Liability of the Crown (4th ed, Carswell, Toronto, 2011) Ch 11 (Statutes). See also Guidance for members of the Office of the Parliamentary Counsel (OPC) on Crown application (OPC, 14 February 2018): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/686058/Crown_application__Feb_2018_.pdf 119 https://www.linkedin.com/pulse/application-legislation-crown-luke-norbury/ See also New Health New Zealand Inc. v. South Taranaki District Council [2018] NZSC 59 at [282] and [283] per Elias CJ. 120 Cabinet Office Circular CO (02) 4 (Acts Binding the Crown: Procedures for Cabinet Decision). 121 Dr Jeffrey Barnes ‘Stars Aligned: Statutory Interpretation and Higher Education Theory’ (Paper for Teaching Legislation: Theory and Practice—A Symposium, Centre for Legislation, Its Interpretation and Drafting, La Trobe University, Melbourne, 26 October 2017). 122 See also (the late) Antonin Scalia and Bryan Garner Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson West, 2012); Robert A Katzmann Judging Statutes (New York: Oxford, 2014); and John Paul Stevens’ Foreword to Eskridge Interpreting Law: A Primer on How to Read Statutes and the Constitution (St Paul, MN: Foundation Press, 2016). 123 See, for example, Hon Justice Matthew Palmer, Impressions of Life and Law on the High Court Bench (New Zealand Centre for Public Law, Faculty of Law, Victoria University of Wellington, 27 March 2018). Glazebrook (2017) 48 VUWLR 237 at 249 says ‘dialogue enriches … our judgments and your academic work’. 124 See, for example, Ulrich Karpen and Helen Xanthaki (eds) Legislation in Europe (Oxford/Portland: Hart, 2017), as reviewed by Carter (2015) 3(3) The Theory and Practice of Legislation 373–377. 125 http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frencjhcj24oct2014.pdf 126 http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frencjhcj24oct2014.pdf citing DC Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, Markham: LexisNexis, 2014) at 5. 127 ‘Reflections on a Career in Legislative Drafting’ (New Orleans, LA, 20 June 2009): http://www.law.tulane.edu/uploadedFiles/Institutes_and_Centers/International_Legislative_Drafting_Institute/Garth%20Reflections%20Full%20Text.pdf 128 ‘Speech Notes, Rt. Hon. David Lange CH, Attorney-General’, (November 1990) 3.1 The Loophole 2 at p 4. 129 This review was submitted in July and updated in November 2018. It states the reviewer’s personal views only, and so does not state views of New Zealand’s Parliamentary Counsel Office or Government. © The Author(s) 2019. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Diggory Bailey and Luke Norbury. Bennion on Statutory Interpretation, 7th ed, 2017. LexisNexis Butterworths. ISBN: 9781474307192
JO - Statute Law Review
DO - 10.1093/slr/hmy023
DA - 2019-01-03
UR - https://www.deepdyve.com/lp/oxford-university-press/diggory-bailey-and-luke-norbury-bennion-on-statutory-interpretation-JYYrJDQ2s5
SP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -