BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

BENNION ON STATUTORY INTERPRETATION
Fifth Edition Updating Notes (Version 24, 25 Mar 2010)
„, , , prescriptive reformulations of the legislative test [by the court] can be dangerous. This is
partly because recasting the legislative test can lead to error, as it runs the inherent risk of
unintentionally inventing a different test from that set out in the legislation. In addition, any
reformulation can lead to problems not thrown up by the statutory wording, in which case it
makes matters worse rather than better. Nonetheless, there are undoubtedly legislative
provisions which, either because they are so obscure or because they must be given some sort
of limitation which is not expressed, may well benefit from judicial exegesis, in order to decide
whether, and if so how, they apply in the particular case, and also to assist in their application
in future occasions.‟ (Smith v Northamptonshire County Council [2009] UKHL 27, per Lord
Neuberger at [77], [78]).
Section 171. Intention distinguished from motive
Page 484 Relevant Index entry: political factors:enactment, behind
With regard to the words preceding Example 171.1 see Schiemann LJ‟s comment that the
Restrictive Trade Practices Act 1976 „clearly represents a compromise between a variety of
commercial and political considerations‟: Dale Farm Dairy Group Ltd (t/a Northern Dairies) v
Akram & Ors [1997] EWCA Civ 2125.
Part IX. Filling in the Textual Detail
Section 172. Nature of a legislative implication
Pages 488-489 Relevant Index entry: ellipsis (the Relevant Index entry should not be italicised)
As to the passage on pp. 488-489 see In re UK Waste Management[1999] NICA 2; [1999] NI
183; at para. 24 and Electricity Supply Assoc of Australia Ltd v Australian Competition and
Consumer Commission [2001] FCA 1296 at [102].
Section 173. Is it legitimate to draw implications?
Pages 491-494 Relevant Index entry: implication:legitimacy of
The Australian Judge Merkel J, citing Code s 173, said: „it has been long accepted that the legal
meaning of an enactment includes what is necessarily or properly implied so as to give effect to
the legislative intention gleaned from the language used (Chun Wang v Minister for
Immigration & Multicultural Affairs [1997] FCA 70). See also Re Application by the Local
Government Auditor [2003] NIQB 21 at [11], [12]. The like ruling was made by the Court of
Appeal of New Zealand in Frucor Beverages Limited v R T Fyers & Ors [2001] NZCA 109 at
[36].
Section 174. When legislative implications are legitimate
Page 494 Relevant Index entry: implication:legitimacy of
In Shantha Karunaratna Jayasinghe v Minister for Immigration & Ethnic Affairs & Anor
[1997] FCA 551 the Federal Court of Australia said: „The threshold of “necessity” has been
rejected in favour of the formulation that the implication be “proper”. In Austereo Ltd v Trade
Practices Commission (1993) 41 FCR 1 French and Beazley JJ accepted as a correct
formulation the following passage in Bennion . . . „ (the FCA went on to cite the passage at
Code p 495 beginning „The question of whether an implication should be found within the
express words of an enactment depends . . .‟ and ending „Where the point is doubtful it will, as
always in interpretation, call for a weighing and balancing of the relevant factors‟). See
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