When reading overseas decisions, we should keep in mind their approach to interpretation. EU judges, for example, take a ‘teleological’ approach. This translates roughly as ‘purposive’, but not as we know it. Outcomes are driven more by economic policy and political factors than the text. Judges fill gaps in ways we see as activist in the extreme6. Ends justify means, and working backwards from desirable answers attracts far less (if any) stigma.
Lord Denning called it ‘the European way’ 7. Bennion said that the ‘continental version of purposive construction enables the legislative animal to be skinned alive’ 8. All this should make us wary in using ECJ decisions to help solve our statutory problems9.
This case is from Episode 47 of interpretationNOW!
Footnotes:
6 Beck (2017) 36 UQLJ 333 (at 353), cf Zines (1973) 5 FLR 171 (at 199).
7 Bulmer [1974] Ch 401 (at 425), cf James Buchanan [1977] 2 WLR 107 (at 112).
8 Bennion on Statutory Interpretation (at 966).
9 cf Reliance Carpet [2008] HCA 22 (at [30]), Avon [2006] HCA 29 (at [28]).