BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Citing Code s 199, the Chancellor of the High Court referred in Revenue & Customs v Premier Foods Ltd. [2007] EWHC 3134 (Ch) at [18] to „the well recognised canon of construction that an enlarging definition does not normally affect the width of the term being enlarged‟. In Moweno Pty Ltd v Stratis Promotions Pty Ltd [2003] NSWCA 376 at [61] a definition in the form „means and includes‟ was classified as an enlarging definition. An example of an enlarging definition (see pp 573-574) which gives an unexpected meaning for a term is provided by the Female Genital Mutilation Act 2003 s 6(1). This bleakly says „Girl includes woman‟. The practice dealt with by the Act is commonly inflicted on girls around the age of seven, so the drafter uses „girl‟ rather than „woman‟ throughout the Act. This overlooks the potency of the term defined (see pp 562-564), which could give the defence an argument if the victim were a woman of advanced years. Section 200. The Interpretation Act 1978 Page 576 Relevant Index entry: Interpretation Act 1978:general Commenting on the sentence on p. 576 „An Interpretation Act does not operate in such a way as to change the essential effect of an enactment to which it applies.‟ David Dodd says in Statutory Interpretation in Ireland (Tottel, 2008) p. 254: „That holds weight in respect of Interpretation Acts where the purpose is to collect generally applicable definitions and terms. Provisions of the [Irish] Interpretation Act 2005, however, go much further than this “traditional” function of Interpretation Acts.‟ Page 576 Relevant Index entry: unincorporated association As to unincorporated associations see generally R v L and another [2008] EWCA Crim 1970, [2009] 1 All ER 786. Page 579 Relevant Index entry: person As to the reference to a corpse in line 3, see Yearworth and others v North Bristol NHS Trust [2009] EWCA Civ 37, [2009] 2 All ER 986 (parts etc of a human body). Pages 579-581 Relevant Index entry: singular and plural For a detailed discussion on when the contrary intention appears see Cranston J in East Devon District Council v Electoral Commission (The Boundary Committee for England) [2009] EWHC 4 (Admin) at [35]-[40] and F A R Bennion, „“Never On The Cards”: Fighting For Two- Tier Local Government‟, 173 CL&J (31 Jan 2009) pp 72-75, www.francisbennion.com/2009/005.htm at paras 15-23. For a discussion by the Supreme Court of Queensland of when the singular includes the plural see C & E P/L v CMC Brisbane P/L (Administrators Appointed) [2004] QCA 60 at [18]-[22]. Part XIII. The Informed Interpretation Rule (General) Section 201. Statement of the rule Pages 585-588 Relevant Index entry: informed interpretation:rule Code s. 201 was applied in Johnston Publishing (North) Ltd & Ors v Revenue & Customs [2006] UKSPC SPC00564 at [74]; Etame v Secretary of State for the Home Department & Anor [2008] EWHC 1140 (Admin) at [53]. See also David Dodd, Statutory Interpretation in Ireland (Tottel, 2008) pp. 206-207 (n. 9). Page 587 Relevant Index entry: fact:ascertainment of Where a statutory function is exercisable only if a certain fact exists, it is for the person exercising the function to judge whether or not the fact exists, „subject to the scrutiny of the www.francisbennion.com/5th-edn 40
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) courts on the ordinary principles of judicial review‟ (R (on the application of A) v London Borough of Croydon [2009] UKSC 8, per Lady Hale at [23]). „But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer . . . [It is a question] for the courts rather than for other kinds of decision makers.‟ (Ibid at [27]) Section 202 The ‘context’ of an enactment Pages 588-590 Relevant Index entry: informed interpretation:context As Lord Steyn said „in law, context is everything‟: see JF & Anor (on the application of R) v Secretary of State for the Home Department [2009] EWCA Civ 792 at [47]. Section 205. Interpreter’s need for legal knowledge Page 593 Relevant Index entry: interpreter of enactment:legal knowledge, need for Code s 205 was applied by the High Court of New Zealand in Transpower New Zealand Limited v Taupo District Council [2007] NZHC 999 at [13] and in Avowal Administrative Attorneys Limited and Ors v The District Court at North Shore and Anor [2007] NZHC 714 at [7]. Section 210. The pre-Act law Pages 599-604 Section 210(3) Relevant Index entry: Barras principle The Barras principle as explained here was applied in BBC Scotland v Souster [2001] IRLR 150, [2000] ScotCS 308, at [28]. For an application of the Barras principle where Parliament had „adopted‟ an erroneous decision see A v Hoare and other appeals [2008] UKHL 6, [2008] 2 All ER 1, at [15]; R (on the application of Etame) v Secretary of State for the Home Department and another [2008] EWHC 1140 (Admin) , at [53]. Page 599 Relevant Index entry: pre-Act law, the [New entry, not in fifth edition] Code s 210 was followed by Peter Gibson LJ in Ward v Chief Adjudication Officer [1998] EWCA Civ 1552. Page 601 Section 210(3) Relevant Index entry: Barras principle The dictum at the top of this page was applied by the High Court of New Zealand in Commissioner of Inland Revenue v N Evans [2008] NZHC 1017 at [34]; Pages 603-604 Section 210(3) Relevant Index entry: in pari materia, Acts The words „if two Acts are in pari materia it will be assumed that universality of language and meaning was intended‟ (see p. 603) were approved by Costello P. in Action Aid Ltd v Revenue Commissioners [1997] IEHC 196. This discussion was described as „illuminating‟ by Cranston J in R (on the application of Mahamed) v Secretary of State for the Home Department [2008] EWHC 1312 (Admin) at [27]. See also DPP v Power [2007] IESC 31. Section 211. Consolidation Acts Page 606 Relevant Index entry: legislative history:consolidation Acts and The passage beginning „It does not import parliamentary approval of judicial decisions‟ was followed in The Staff Side of the Police Negotiating Board & Anor v Secretary of State for the Home Department [2008] EWHC 1173 (Admin) at [44]. www.francisbennion.com/5th-edn 41
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