JAFTA J
statutory provision in order to cure a defect in the provision concerned. But the principle
of separation of powers is a countervailing consideration to the remedy of reading-in.
In National Coalition for Gay and Lesbian Equality,202 this Court cautioned:
“The other consideration a court must keep in mind, is the principle of the separation
of powers and, flowing therefrom, the deference it owes to the legislature in devising a
remedy for a breach of the Constitution in any particular case. It is not possible to
formulate in general terms what such deference must embrace, for this depends on the
facts and circumstances of each case. In essence, however, it involves restraint by the
courts in not trespassing onto that part of the legislative field which has been reserved
by the Constitution, and for good reason, to the legislature.”203
[194] It is always important to remember that the reading-in remedy involves a process
of reading words into a statute. Ordinarily that process entails reading words into the
defective provision. If what is required to cure the defect is to create and add new
sections to the statute, the reading-in is not appropriate. As a guide to reading in, this
Court laid down the following principles:
“In deciding to read words into a statute, a court should also bear in mind that it will
not be appropriate to read words in, unless in so doing a court can define with sufficient
precision how the statute ought to be extended in order to comply with the Constitution.
Moreover, when reading in (as when severing) a court should endeavour to be as
faithful as possible to the legislative scheme within the constraints of the Constitution.
Even where the remedy of reading in is otherwise justified, it ought not to be granted
where it would result in an unsupportable budgetary intrusion.”204
[195] A reading-in that creates a new section intrudes unduly into the domain of
Parliament. This is because the introduction of a new provision or section constitutes
an amendment of the statute. It cannot properly be characterised as reading words into
the statute if an entire section is added. Here the lack of the Minister’s power to
202
National Coalition for Gay and Lesbian Equality above n 173.
203
Id at para 66.
204
Id at para 75.
94
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières