BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 at [8]; Re Ralph Phillip Sloane v the Minister of Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 (1992) 28 ALD 480, at [32]; David John Beatty & Anor v Brashs Pty Ltd & Ors [1998] FCA 128. And see Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 at [109]; Burgess v Minister for Immigration & Multicultural Affairs [2000] FCA 926 at [13]-[17]. Page 497 Relevant Index entry: Attorney General v Great Eastern Railway Co., rule in See Re Application by Local Government Auditor [2005] NIQB 52. As to the Local Government Act 1972 s 111(1) see Brent London Borough Council v Risk Management Partners Ltd [2009] EWCA Civ 490. As to the powers of local authorities see further dicta in that case regarding the Local Government Act 2000 s 2. Severance The rule was applied by the Federal Court of Australia in Nguyen v Minister for Health & Ageing [2002] FCA 1241 at [65] to authorise severance of a licence granted to a group of pharmacists where one had misbehaved. Pages 498-499 Relevant Index entry: implication:limitation on express words, of In Aiden Shipping Co v Interbulk [1986] AC 965 at 981 Lord Goff said: „Courts of first instance are, I believe, well capable of exercising their discretion under [the Supreme Court Act 1981 s 51] in accordance with reason and justice. I cannot imagine any case arising in which some order for costs is made, in the exercise of the court‟s discretion, against some person who has no connection with the proceedings in question. If any problem arises, the Court of Appeal can lay down principles for the guidance of judges of first instance, or the Supreme Court Rule Committee can propose amendments of the Rules of the Supreme Court for the purpose of controlling the exercise of the statutory power vested in [a] judge subject to rules of court‟. On the above dictum see Dolphin Quays Development Ltd v Mills and others [2008] EWCA Civ 385, [2008] 4 All ER 56, at [3]. Section 175. When legislative implications affect related law Page 499 Relevant Index entry: implication:related law, affecting As to Code s. 175 see Davidson, Re Application For Judicial Review [2001] ScotCS 293, at [24]. Page 500 Relevant Index entry: implication:related law, affecting As to the passage headed Where courts follow statutory analogy see South Pacific Air Motive Pty Ltd & Anor v Kenneth Magnus & Ors [1998] FCA 1107. Section 176. Dynamic processing by the court (stare decisis) Page 502 Relevant Index entry: criminal procedure:sentencing The common law rule referred to in the Criminal Justice Act 2003 s 166(3)(b) (rule of law as to the totality of sentences) is an example of the further processing referred to by Donaldson J (as he then was) in the passage cited on p 502: see R v Raza [2009] EWCA Crim 1413; [2009] Crim LR 820. Section 177. Interstitial articulation (general) Page 504 Relevant Index entry: interstitial articulation:meaning of www.francisbennion.com/5th-edn 36
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) It should be noted that an interstitial articulation is not concerned with improving the drafting of the enactment in question. It keeps to the official wording except so far as is needed to express clearly the rival legal meanings. Defects in that wording, such as unnecessary repetition, should therefore be ignored. An interstitial articulation is directed solely to bringing out a possible operative legal meaning of the enactment. Section 179. Interstitial articulation by the court Page 505 Relevant Index entry: interstitial articulation:examples of Lord Bingham of Cornhill gave a striking example of interstitial articulation by the court when he spelt out a restrictive addition to the power of the Secretary of State under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s. 19(3)(b) (permission to marry): R (on the application of Baiai and another v Secretary of State for the Home Department (Nos 1 and 2) [2008] UKHL 53, [2008] 3 All ER 1094, at [32]. For another example under the same Act see JT (Cameroon) v Secretary of State for the Home Department [2008] Civ 878, [2009] 2 All ER 1213, at [24]. Another example of interstitial articulation by the court is found in Perrin and another v Northampton Borough Council and others [2008] EWCA Civ 1353, [2008] 4 All ER 673, at [56]. Part X. Interpretative Criteria and Interpretative Factors Section 182. Strict and liberal construction Page 517 Relevant Index entry: strict and liberal construction The passage on mixed consequences at the foot of p. 517 was approved by O‟Higgins J in Mullins v Harnett [1998] 4 IR 426. Section 185. Interpretative factors all pointing one way Page 521 Relevant Index entry: interpretative factors:consistent result from, effect of Code s. 185 was applied in Nangles Nurseries v Commissioners of Valuation [2008] IEHC 73 at para. 41. Division Three. Rules of Construction Part XI. Rules of Construction (General) Section 192. Nature of rules of construction Pages 543-544 Relevant Index entry: children:welfare of Since 2002 there has been a rule that a child, even one on the verge of adulthood, is considered and treated by Parliament as a vulnerable person to whom the state, in the form of the relevant local authority, owes a duty which goes wider than the mere provision of accommodation: see R (on the application of G) v London Borough of Southwark [2009] UKHL 26, [2009] 3 All ER 189. Page 544 Relevant Index entry: legislation:remedial [New entry, not in fifth edition] It is sometimes suggested that there is a rule of construction relating to so-called remedial legislation. Thus in Du Toit v Minister for the Safety and Security of the Republic of South www.francisbennion.com/5th-edn 37
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