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sufficiently clear. And that opportunity is reserved to those cases where important interests are at stake, which might have been overlooked and which deserve specific attention.
Considering its importance, there has been insufficient discussion in the casebooks or elsewhere of the functions served by this technique
of statutory construction
But looked at in this light, the asserted role of the courts is not an undemocratic usurpation of Parliament's role.
Still less is it the deliberate frustration of the achievement of the purpose of Parliament, as found in the words of an enactment. Instead, it is the performance by the courts, by way of the techniques of statutory construction, of a role auxiliary to Parliament and defensive of basic rights. In the end (constitutional considerations apart) Parliament's will
will must be done. basic rights are repealed, that will should be spelt out in clear terms. Parliaments both in this country and in other countries of the common law accept this beneficial relationship with the courts.
It reflects the shared assumptions of all the lawmakers in our society.
On not a few occasions, it has prevented the unintended operation of words of generality in a statute to diminish basic rights as Parliament would never have epacted, had the point been properly considered. "36
But before
In the foregoing decision, the question was raised whether
legislation, designed to provide for a special investigation
into a company's affairs, should be construed to take away
the common law right to legal professional privilege. The
importance of that common law right had been emphasised in a
37 number of decisions of the High Court of Australia.
Similar questions had arisen in New Zealand 38 and in
Analogous questions had arisen in respect of the
common law privilege against self-incrimination.40
recently, like questions had arisen concerning the powers of
a local Independent Commission Against Corruption where its
statutory charter appeared to infringe fundamental common law
rights."
Canada.
39
41
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I mention these cases because they suggest that the
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