BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Section 89. Savings on repeal Page 309 Relevant Index entry: saving:common law and For an observation by Young J of the Supreme Court of New South Wales on the Comment relating to Code s 89(i) see Radin v Vekic Matter No 1891/97 [1997] NSWSC 234. Section 96. Transitional provisions on repeal, amendment etc Pages 314-315 Relevant Index entry: transitional provisions Code s 96 was approved by: (1) Buxton LJ in Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308 at[17]; (2) McGuinness J in Quinlivan v Governor of Portlaoise Prison [1997] IEHC 181, [1998] 2 IR 113; (3) O‟Higgins J in Mullins v Harnett [1998] 4 IR 426. As to Code s 96(2) see: (1) R v Cartwright [2007] EWCA Crim 2581 esp. at [27] (where in error Code s 269 is referred to instead of Code s 96); (2) Quinlivan v Governor of Portlaoise Prison [1997] IEHC 181, [1998] 2 IR 113, at paras. 51, 52. Section 97. Presumption against retrospective operation Page 317 Relevant Index entry: retrospectivity:nature of The presumption does not apply to executive (as opposed to legislative) pronouncements: Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 3 All ER 1061 (Immigration Rules). As to the passage on p. 317 beginning „It is important to grasp the true nature‟ (including Example 97.3) see: (1) MM (Section 8: commencement) Iran [2005] UKAIT 00115 at paras 13, 14, (2) Betterment Properties (Weymouth) Ltd v Dorset County Council [2007] EWHC 365 (Ch), [2007] 2 All ER 1000, at [31], [32] (confirmed [2008] EWCA Civ 22). Page 319 Relevant Index entry: statutory interpretation:public good construction The opening sentences under this heading on page 319 were approved: (1) by McGuinness J (who also approved Code s 264) in Quinlivan v Governor of Portlaoise Prison [1998] 2 IR 113; (2) by O‟Higgins J in Mullins v Harnett [1998] 4 IR 426. They were also referred to in Quinlivan v Governor of Portlaoise Prison [1997] IEHC 181; [1998] 2 IR 113 at paras. 46, 47 Section 98. Retrospective operation: procedural provisions Page 320 Relevant Index entry: retrospectivity:procedural provisions and Code s 98 was applied in Kensington International Ltd. v Republic of the Congo [2007] EWHC 1632 (Comm) at [74]. The wording of Code s 98 was approved by Peart J in DPP v McDermott and Riordan (12 May 2005, unreported: see David Dodd, Statutory Interpretation in Ireland (Tottel, 2008) p. 109). See also the view of New South Wales Court of Criminal Appeal in R v MJR [2002] NSWCCA 129 at [17]. Part V. Extent and Application of Acts Section 103. The ‘extent’ of an Act Page 329Relevant Index entry: territorial extent of Act:basic rule Code s 103 was applied in Financial Times Ltd v Bishop [2003] UKEAT 0147_03_2511 at para. 61. In Serious Fraud Office v [2009] UKHL 17, [2009] 2 All ER 223, at [32] Lord www.francisbennion.com/5th-edn 30
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Phillips of Worth Matravers referred to „the well-established canon of construction that requires clear language if an Act is to be given extra-territorial effect‟. Section 104. Uniform meaning throughout area of extent Page 330 Relevant Index entry: territorial extent of Act:uniform meaning throughout extent As to Code s. 104 see Davidson, Re Application For Judicial Review [2001] ScotCS 293, at [23]. Section 105. Composition of an enactment’s territory Page 335 Relevant Index entry: cujus est solum ejus est usque ad coelum et ad inferos [New entry, not in fifth edition] As to the application of this maxim see Bocardo SA v Star Energy UK Onshore Ltd and another [2008] EWHC 1756 (Ch), [20009] 1 All ER 517, at [47]-[57]. Section 106. Presumption of United Kingdom extent Pages 335-338 Relevant Index entry: territorial extent of Act:United Kingdom, presumption extent limited to This section of the Code was applied by Lord Mance in Masri v Consolidated Contractors International Co SAL and others [2009] UKHL 43, [2009] 4 All ER 847, at [10]. Section 128. General principles as to application Page 360n Relevant Index entry: application of Act:principles governing Add to the authorities cited in footnote 2 on p. 360: Serco Ltd. v Lawson [2004] EWCA Civ 12 at paragraph 16; Faulkner & Ors v BT Northern Ireland & Ors [2005] NIIT 3933_01 (race discrimination provision extending only to Northern Ireland; can comparators in Great Britain be taken into account?); Holis Metal Industries Ltd v GMB & Anor [2007] UKEAT 0171_07_1212 at 34; Transocean International Resources Ltd & Ors v Russell & Ors [2006] UKEAT 0074_05_0410 at paras 20, 26, 52, 54, 71, 72, 79 (application of regulations to continental shelf); Walker v New South Wales [1994] HCA 64 at [5] (claim that Australian Acts do not apply to Aborigines invalid); [1995] Aboriginal Law Bulletin 14, www.austlii.edu.au/cgi-bin/sinodisp/au/journals/AboriginalLB/1995/14.html Page 362 Relevant Index entry: application of Act:principles governing „. . . the words “peace order and good government” have never been construed as words limiting the power of a legislature. Subject to the principle of territoriality implied in the words “of the Territory”, they have always been treated as apt to confer plenary law-making authority.‟ (R (On The Application of Bancoult) v Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61, [2008] 3 WLR 955, per Lord Hoffmann at [50]). Section 129. Application to foreigners and foreign matters within the territory Page 366 Relevant Index entry: application of Act:foreign elements within the territory, and Mason CJ approved the sentence „As well as enjoying the benefits of domestic laws from which they are not expressly excluded, foreigners present in the country must also accept the burdens those laws impose‟: see [1995] Aboriginal Law Bulletin 14, www.austlii.edu.au/cgi-bin/sinodisp/au/journals/AboriginalLB/1995/14.html. www.francisbennion.com/5th-edn 31
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