Interpretive Provisions in Human Rights Legislation: A Comparative Analysis

Research output: ThesisNon-UWA Thesis

Abstract

This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistent
interpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.
Original languageEnglish
QualificationDoctor of Philosophy
Awarding Institution
  • University of Oxford
Supervisors/Advisors
  • Vogenauer, Stefan, Supervisor, External person
Thesis sponsors
Award date9 Jan 2014
Publication statusPublished - 2014
Externally publishedYes

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human rights
legislation
jurisdiction
New Zealand
interpretation
ECHR
methodology
common law
abstraction
remedies
history

Cite this

@phdthesis{2e6fb3d7160248fcb0b945596dc644bd,
title = "Interpretive Provisions in Human Rights Legislation: A Comparative Analysis",
abstract = "This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistentinterpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.",
author = "Benedict Coxon",
year = "2014",
language = "English",
school = "University of Oxford",

}

TY - THES

T1 - Interpretive Provisions in Human Rights Legislation

T2 - A Comparative Analysis

AU - Coxon, Benedict

PY - 2014

Y1 - 2014

N2 - This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistentinterpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.

AB - This thesis considers interpretive provisions in human rights legislation in the United Kingdom (UK), New Zealand and two Australian jurisdictions: the Australian Capital Territory and the State of Victoria. It deals with the relationship between certain common law interpretive principles which protect human rights and the rules under the interpretive provisions. It also considers what effect the interpretive provisions have on the overall approach to statutory interpretation, particularly in terms of their impact on the roles of intention and purpose. One of the themes of the thesis is that it is possible to identify a common methodology for the application of the various interpretive provisions. This is facilitated by an emphasis on the concept of purpose, which is flexible and capable of being identified and applied at higher levels of abstraction than the concept of intention as commonly applied by the courts. Despite this common methodology, the results of attempts at legislative rights-consistentinterpretation in the relevant jurisdictions differ. We shall see that the UK courts have taken a broader interpretive approach than have their New Zealand and Australian counterparts. This will be explained by reference to the respective contexts of the human rights legislation in each jurisdiction, particularly in terms of legislative history. It will be argued that the purpose of the UK legislation to provide remedies in domestic courts for breaches of the European Convention on Human Rights provides the basis for the UK courts’ approach. The absence of this factor is the primary point of distinction between the UK on the one hand, and New Zealand and Australia on the other, though other issues will be explored. Finally, while as a matter of the interpretation of the UK legislation, and especially of the relevant interpretive provision, the approach of the UK courts is defensible, the significant risk to the principle of legal certainty which it poses will be highlighted.

M3 - Non-UWA Thesis

ER -