Purposive limits

Commissioner v CLP Power HK [2017] HKCFA 18

Parliament requires constructional choice by reference to best achievement of legislative purpose11.  Courts sometimes express concern, however, that this may be taken too far.  In this case (at [34]), a HK court warned against an ‘exorbitantly purposive’ approach under which the text was given a meaning it was ‘incapable of bearing’12

Similarly, our High Court in Esso said that you cannot overcome unintended consequences by giving a provision a meaning parliament ‘did not intend it to have’13.  Care needs to be taken in determining (A) what meanings are open on the text, and (B) how statutory purpose is to be characterised.

This case is from Episode 38 of interpretationNOW!


11 Generally – Brysland & Rizalar Constructional choice (2018) 92 ALJ 81.

12 China Field (2) [2009] HKCFA 95 (at [36]), Wai [2006] HKCFA 84 (at [63]).

13 Esso [2017] HCA 54 (at [52]), cf UFUA [2018] VCAT 631 (at [153]).