Legal Research Foundation award winners

2019 Sir Ian Barker Published Article Award - Associate Professor Hanna Wilberg

THE LEGAL RESEARCH FOUNDATION this year awarded the Sir Ian Barker Published Article Award to Associate Professor Hanna Wilberg. The winning article is entitled Interpretive Presumptions Assessed against Legislators’ Understanding and appears in Mark Elliott, Jason NE Varuhas and Shona Wilson-Stark (eds) The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, 2018) at p 193.

The context for the article is the tension between the judicial desire to protect fundamental rights on the one hand, and judicial respect for Parliamentary sovereignty on the other. Whenever legislation appears to operate in a rightsinfringing way, judges have to balance these two competing considerations. The “interpretive presumptions” discussed in this article are the statutory interpretation devices that judges use to avoid rightsinfringing applications — such as s6 of the New Zealand Bill of Rights Act 1990, or presumptions of consistency with rights.

The question is always how far statutory interpretation can be pushed to avoid rights-infringing applications: a topic of much debate.

This article aims to assist with this balancing exercise. It proposes criteria for deciding whether a particular use of an interpretive presumption to avoid an apparent rightsinfringing meaning is “weak”, “moderate” or “assertive”, in terms of how hard it pushes against the apparently intended meaning. The first two categories should be uncontroversial; the last one may still be permissible but will call for some special justification.

A review of the book by Sarah Nason in [2019] Public Law 611 commented that this was among a few chapters that stood out in their “innovative use of comparative law” to shed light on under-explored public law issues. “These contributions are original and should be of great value to scholars, judges and practitioners from a range of jurisdictions.”

Associate Professor Hanna Wilberg