- Section Preview
- 1. General considerations
- 2. Judicial Approaches to Interpretation
- 3. Interpretive Assumptions and Presumptions
- 4. Aids to interpretation
- 5. Conclusion
Module 3: Section 1
Legislative counsel must have a sound understanding of how legislation is interpreted and applied, particularly by courts. This understanding is required to anticipate and avoid uncertainty as to meaning or application - the very situation that you will be setting out to prevent. If we understand how legislation is likely to be interpreted and applied, we can be forearmed when drafting legislative texts. You will be better equipped to draft legislation that meets these expectations if you understand how judges and other legal interpreters approach the interpretation and application of legislation and how they are likely to treat particular linguistic practices and expressions.
By the end of this Section, you should be able to take into account interpretive approaches and unwritten rules of legislative interpretation applied by common law judges, including the important linguistic assumptions and presumptions of intent they rely on.
This Section assumes that you already have a basic knowledge of the ways in which legislation is interpreted and applied and that you are familiar with the approaches judges tend to follow when a question of interpretation arises before them. If you need to refresh your memory, read one of the basic texts on the subject listed in the Bibliography.
In this Section, we consider interpretive approaches and rules from the standpoint of the legislative counsel (who draft the legislation to be interpreted), rather than the more common standpoint of someone faced with a problem as to the meaning or application of legislation in particular circumstances. Although these two standpoints have much in common, there are some subtle differences that will be discussed.
This Section is divided into five subsections organised in terms of the following questions:
The principal aim of this Section is to enable you to develop your knowledge of legislative interpretation and adapt it to legislative drafting. This Section is designed to encourage you to look for the relevance of the interpretive approaches and rules to the composition of legislation. Throughout this Section you should ask yourself when and how the particular matter under discussion might affect the drafting of legislation. The examples, activities and exercises should all be approached in that way.
In studying Section 1 and 2, you will need to refer from time to time to the Interpretation legislation of your jurisdiction and to the model Interpretation Act in the Resource Materials).