Sketch of a Theory of Statutory Interpretation
Jim Evans |
In this article I argue that statutory interpretation is not, and should not be, determined only by the interpreter’s understanding of the meaning of the legislature. It should also be shaped by the interpreter’s understanding of the will of the legislature. The will of the legislature is defined as the practical judgment that led the legislature to approve a particular meaning. Often understanding the will of the legislature merely assists the understanding of its meaning, but sometimes these two sources of understanding pull in different directions. Although caution is needed, in some cases in which this occurs interpreters ought to prefer acting consistently with the will of the legislature to applying its meaning.
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Wisdom Advice
Virginia Grainer |
In their traditional role, as anticipated by professional rules and common law, solicitors explain to clients the legal implications of past and proposed conduct and assist in giving effect to transactions. However, many clients, both commercial and non-commercial ones, are also concerned to obtain “wisdom advice”, that is, advice on whether a transaction is in their best interests under the circumstances. This article investigates the place of wisdom advice with respect to: (1) the solicitor’s general obligation of reasonable skill and care; (2) the Consumer Guarantees Act 1993; (3) conflict of interest situations; and (4) statutory and common law requirements for independent legal advice. While still uncertain in scope and limitability, the duty to provide wisdom advice, along with the related “know your client” obligation, emerges as a challenging component of legal-professional responsibility.
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New Dawn to Cold Light: Courts and Common Law Aboriginal Rights
PG McHugh |
This article records the journey of the “legalisation” of aboriginal rights in the common law jurisdictions of North America and Australasia. By this process of legalisation, the aboriginal peoples of those jurisdictions became rights-bearing inhabitants of the host common law legal systems, and this was largely the result of public interest litigation that took place during the last quarter of the twentieth century in the relevant host legal systems. The article explains how such aboriginal peoples were jolted into the common law “rights-place” through various landmark judgments in which courts heralded the replacement of the previous pattern of juridical exclusion and marginalisation with a new national jurisprudence of rights and inclusion. Although the transformative effects of the landmark judgments were somewhat delayed, they were nonetheless seismic in the procedural and substantive affects that they eventually did produce for tribal nations and lawmakers further down the track. In their afterlife, the article explains, they have given to aboriginal peoples a rights-based politics that has enabled them to participate more fully in the legal system/society of which they are a part. Still, work remains to be done, and for aboriginal communities the experience of this busy, often frantic, new legalism (“lawfare”) has been fraught. |
The Shareholder’s Right to Fair Value and the Reform of the Minority Buy-Out Provisions of the Companies Act 1993
Carl Schnackenberg |
This article advocates reform of the Companies Act’s minority buy-out rights regime as it relates to the availability and determination of fair value, analysing the rights’ history, their justifications, and the Law Commission’s proposals for their reform in its report, Minority Buy-Outs (NZLC R74: 2001). It notes the criticism of the rights’ present form (including in Natural Gas Corporation Holdings Ltd v Infratil 1998 Ltd [2000] 3 NZLR 727) and determines that the Act’s laissez-faire approach to calculating fair value requires tightening. It then outlines the rights’ United States and Canadian history. It analyses the Companies Act’s buy-out triggering transactions (including through a contractual analysis), and argues that the rights should not be available for major transactions other than sales of all, or substantially all, of a company’s assets, unless the company opts-in in its constitution. It assesses the Law Commission’s recommendations regarding the fair value determination. Agreeing with the Commission, it concludes that fair value must insulate shareholders from the transaction’s effects (except in squeeze-out amalgamations), despite the (somewhat combatable) arbitrage risk, and that the valuation date be the date that the company gives the shareholder notice of the shares’ fair value. Disagreeing with the Commission’s proposal for a pro-rata valuation, the article concludes that the law should continue to allow valuers to use any valuation method. The article ends with proposed replacement Companies Act provisions.
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Reviews |
Employment Law: Paul Roth
The Treaty of Waitangi: Kerensa Johnston |
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2005 PART IV
