Background
At the 4 April meeting of the Reference Group officials were asked to provide a “without prejudice” definition of commonly applied expressions used in legislation. Officials understand that amateur fishers wish to use these definitions to assess suggested drafts of proposed amendments to the Fisheries Act 1996.
We have prepared this memorandum to assist you. Please note that this memorandum does not represent an authoritative guide to interpreting statutes or provide the legal definition of the words set out below in all cases where they may appear.
Interpretation
The meaning and intention of words or expressions in legislation is governed by the context in which the words are placed. It can be unwise to consider the meaning of words in isolation. The Courts interpret words by reference to their context and purpose.
It is useful to have an understanding of some of the rules of interpretation that a court will use to interpret legislation where a meaning is unclear.
Noscitur a sociios – this means something like “known by its friends”. Where the meaning of a word is unclear a court will use the context and the words around it to ascertain the meaning.
Ejusdem generis – Where a general “catch all’ word follows a list, or group of words that form a class of some description then the general word will be confined to that class as well.
Purposive approach – A court will generally look to interpret a word/statute so as to give effect to parliaments intentions when enacting the legislation. The intention is set out in the long title to the act.
Some commonly used expressions
“May “ means a power, permission, benefit etc given to someone, can but need not be exercised. The exercise of the power, permission, benefit etc is discretionary.
“Must” means a duty has to be performed.
“Shall” is ambiguous and because of this is no longer used in drafting legislation. It has two meanings
a)It imposes a duty or a prohibition that must be performed; and
b) Can indicate the future tense e.g. a parent shall be entitled to appear at the Family Court.
“Subject to” denotes a conditional relationship with something else.
“In accordance with” denotes a compliant relationship with something else.
“Have regard to” and “must take account of” can be used interchangeably. They indicate the matters that must be specifically and separately be considered by the minister, court or body. The context will dictate whether they are or are not the only relevant considerations to take into account.
“Consult” (consultation) requires that sufficient time and sufficient information be given for a group/minister to make an informed decision.
“Notwithstanding” means in spite of.
“Or any part thereof” refers specifically to the item mentioned before and means that any part is treated the same as if it were the whole item.
Further information
The statute itself often defines specific words or phrases peculiar to the act. These definitions are generally contained in section 2 of any act.
For further definition of what Parliament understood words to mean in a particular context we recommend checking Hansard. Hansard is the written record of parliamentary debate and is available free of charge at the Knowledge basket website (www.knowledge-basket.co.nz)
Sources
Presentation provided by George Tanner, Chief Parliamentary Counsel, at a NZ Law Society seminar in 2001; and
Parliamentary Counsel Office web site: www.pco.parliament.govt.nz
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