BENNION ON STATUTORY INTERPRETATION ... - Francis Bennion

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BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) Page 758 Relevant Index entry: incorporation by reference:nature of Code s 259 was applied by the High Court of Fiji in Naduaniwai v Commander, Republic of Fiji Military Forces [2004] FJHC 8; Hbm0032.2004. As to Code s. 259 see also Elizabeth Court (Bournemouth) Ltd v Revenue & Customs [2007] UKSPC SPC00648. See also (in this table) the entry relating to definition, statutory, referential. Section 260. Archival drafting Pages 759-761 Relevant Index entry: incorporation by reference:archival drafting With regard to Code s 260(2), there may be a contrary intention disapplying „freezing‟ in the case of an Act applying a body of law for constitutional purposes. See eg Chamberlains v Lai [2006] NZSC 70 at [86] (application of English law in New Zealand). Division Four. Interpretative Principles Derived from Legal Policy Part XVI. Interpretative Principles (General) Section 263. Nature of legal policy Page 769 Relevant Index entry: legal policy:nature of The passage beginning „No Act can convey . . .‟ was applied by the Court of Appeal of New Zealand to relations between courts and Parliament in Huata v Prebble & Anor [2004] NZCA 147 at [147]. Page 769-786 Relevant Index entry: legal policy:nature of A particular principle of legal policy may form part of some branch of the law, eg the law of defamation: see Curistan v Times Newspapers Ltd [2008] EWCA Civ 432, [2008] 3 All ER 923, at [80]. For a valuable survey of the place of legal policy (otherwise public policy) in the development of the common law see Judicial Activism: Authority, Principle and Policy in the Judicial Method by The Hon. Justice Michael Kirby, Justice of the High Court of Australia (55 th Hamlyn Lectures, Sweet & Maxwell, 2004), pp. 13-43. Pages 777-778 Relevant Index entry: champerty The law of champerty was modified by the Criminal Law Act 1967 ss 14, 15. It may still render a contract unlawful where it interferes with statutory duties, eg of a liquidator: Ruttle Plant Ltd v Secretary of State for Environment, Food and Rural Affairs (No 2) [2008] EWHC 238 (TCC), [2009] 1 All ER 448. Section 264. Law should serve the public interest Pages 792-795 Relevant Index entry: illegality:in bonam partem (in good faith) construction This was applied by the Federal Court of Australia in Mark Anthony Coleman and Director of Public Prosecutions v Kevin James Gray [1994] FCA 1585 at [38]-[40]. Page 793 Relevant Index entry: illegality:fraud The term „fraud‟ may be used in the common law sense or the equitable sense of „unconscionable‟: see Giles v Rhind [2008] EWCA Civ 118, [2008] 3 All ER 697, at [44]. Section 265. Law should be just and fair Page 795-799 Relevant Index entry: justice:law should serve www.francisbennion.com/5th-edn 46
BENNION ON STATUTORY INTERPRETATION Fifth Edition Updating Notes (Version 24, 25 Mar 2010) As to Code s. 265 see Martin, Application for judicial review [2000] NIQB 8 at para. 20. Page 795-799 Relevant Index entry: justice: miscarriage of [New entry, not in fifth edition] It may not be possible for the court to remedy a miscarriage of justice if it involves disturbing an act in law (such as an adoption order) which it is contrary to public policy to upset (see Re Webster (children) [2009] EWCA Civ 59, [2009] 2 All ER 1156). Page 798 Relevant Index entry: state:fairness by [New entry, not in fifth edition] As to lines 4-6 see Donaldson v O’Sullivan (Official Receiver intervening) [2008] EWCA Civ 879, [2009] 1 All ER 1087, at [36], [37]. Section 266. Law should be certain and predictable Page 804 Relevant Index entry: user of legislation This topic is further dealt with in FB‟s 2008 article „Is Law Still A Learned Profession?‟, www.francisbennion.com/2008/016.htm. Section 267. Law should not operate retrospectively Page 807 Relevant Index entry: retrospectivity:presumption against Code s 267 was applied by the Federal Court of Australia in Insurance and Superannuation Commissioner v Wayne Cyril Hiscock [1995] FCA 1510 at [8]. Section 268. Law should be coherent and self-consistent Page 808 Relevant Index entry: legal policy:law should be consistent Code s 268 was applied by the Singapore Court of Appeal in Lee Chez Kee v Public Prosecutor [2008] SGCA 20 at [93]-[94]. Section 269. Law should not be subject to casual change Pages 812-816 Relevant Index entry: legal policy:law should not be changed casually It is to be assumed that Parliament intended the most continuity with the pre-existing law: Re P [2009] EWHC 163 (Ch), [2009] 2 All ER 1198, at [34]. Pages 814-816 Relevant Index entry: common law:presumption as to statutory alteration of For the Federal Court of Australia‟s views see Re Commissioner of Taxation; Deputy Commissioner of Taxation (Melbourne); Douglas Franklin Booth; Norman Rosenbaum and Deputy Commissioner of Taxation (Sydney) v Citibank Limited [1989] FCA 126 at [25]. Section 270. Municipal law should conform to international law Pages 822-823 Relevant Index entry: legality, principle of (constitutional rights) For the application of this principle in relation to the United Nations Act 1946 s 1 see A and others v HM Treasury [2009] 2 All ER 747, [2008] EWCA Civ 1187, at [43]-[46]. For its application in relation to the Terrorism Act 2000 s 58 see R v K [2008] EWCA Crim 185, [2008] 3 All ER 525, at [16]. For its application in relation to the Regulation of Emergency Powers Act 2000 ss 27, 28 see Re McE, Re M , Re C and another [2009] UKHL 5, [2009] 4 All ER 335. For its application in relation to the Nationality, Immigration and Asylum Act 2002 s 85 see AS (Somalia) and another v Secretary of State for the Home Department [2009] UKHL 32, [2009] 4 All ER 711 at [17]. For its application in relation to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s 8 see JT (Cameroon) v Secretary of State for the Home Department [2008] Civ 878, [2009] 2 All ER 1213. www.francisbennion.com/5th-edn 47
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