The Interpretative Rule

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The Interpretative Rule Under section 32 of the
Charter
Your speakers
Dr Karin EmertonCrown Counsel (Advisings) Sky
Mykyta Senior Solicitor
2
The Interpretative Rule

• Background
• The elements of s 32
• Possible approaches to s 32
• Case law from other jurisdictions
• Step-by-step approach
• Declarations of inconsistent interpretation

3
Origins of s 32

• Consultative Committee report
• Dialogue between the 3 arms of government
• Parliamentary sovereignty no invalidation of
  legislation
• Distinct from US Bill of Rights model
• Explanatory Memorandum and Second Reading Speech
• Compare
• UK Human Rights Act, s 3
• NZ Bill of Rights Act, s 6
• ACT Human Rights Act, s 30

4
Section 32 approaches to interpretation

• Overcomes limitations of common law presumptions
• No need for ambiguity
• must be interpreted in a way that is compatible
  with human rights
• A new rule of statutory interpretation

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The limits of interpretation

• (1) So far as it is possible to do so
  consistently with their purpose, all statutory
  provisions must be interpreted in a way that is
  compatible with human rights.
• So far as it is possible
• consistently with their purpose
• Interpretation vs legislation

6
R v A (No 2) 2002 1 AC 45

• Lord Steyn
• OK to adopt a linguistically strained
  interpretation
• OK to imply provisions
• Declaration of incompatibility is a measure of
  last resort
• Lord Hope
• Interpretation, not legislation
• Compatibility is only to be achieved as far as
  possible.
• Compatibility is not possible if there are
  provisions that are not consistent with the
  meaning that the enactment would have to be given
  to make it compatible.

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Approaches in other jurisdictions

• United Kingdom
• Poplar Housing Association v Donoghue 2002 QB
  48.
• Re S (Care Order Implementation of Care Plan)
  2002 2 AC 291.
• Ghaidan v Godin-Mendoza 2004 2 AC 557.

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Approaches in other jurisdictions

• New Zealand
• R v Hansen 2007 3 NZLR 1.
• Moonen v Film and Literature Board of Review
  2000 2 NZLR 9.
• Victoria see latest VGSO Charter Newsletter
  http//www.vgso.vic.gov.au/

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Step-by-Step approach

• Step 1 Apply ordinary statutory interpretation
  principles.
• Step 2 Does the ordinary meaning appear to limit
  any protected rights?
• Step 3 Is the limitation justified? Section 7(2)
  analysis. If justified, stop here.

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Step-by-Step approach

• Step 4 Is a rights-compatible interpretation
  possible? If yes, adopt that meaning.
• Step 5 If not capable of rights-compatible
  interpretation, adopt ordinary meaning.
• Supreme Court may make Declaration of
  Inconsistent Interpretation.

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Declarations of inconsistent interpretation

• Section 36 of Charter.
• Only by Supreme Court/Court of Appeal
• Cannot be made if override declaration.
• Does not affect validity of statute.
• Triggers dialogue with Parliament.
• Section 37 Minister must respond.

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Conclusion

• Summing up s 32
• Preferred approach to interpretation
• Practical significance of s 32
• Likelihood of incompatibility