On extrinsic materials as an aid to

THE LAW REFORM COMMISSION

OF HONG KONG

REPORT

ON

EXTRINSIC MATERIALS AS AN AID TO

STATUTORY INTERPRETATION

MARCH 1997

The Law Reform Commission was established by His Excellency the Governor in Council in January 1980. The Commission considers such reforms of the laws of Hong Kong as may be referred to it by the Attorney General or the Chief Justice.

The members of the Commission at present are:

The Hon Mr J F Mathews, CMG, JP (Attorney General) (Chairman)

Mr Tony Yen (Law Draftsman)

The Hon Mr Justice J Chan

Mr Eric Cheung

Professor Yash Ghai, CBE

Professor Kuan Hsin-chi

Dr Lawrence Lai

Mr Andrew Liao, QC

Mr Gage McAfee

Mr Alasdair G Morrison

Mr Robert Ribeiro, QC

Professor Derek Roebuck

Professor Peter Wesley-Smith

Mr Justein Wong Chun, JP

The Secretary of the Commission is Mr Stuart M I Stoker and its offices are at:

20/F Harcourt House,

39 Gloucester Road,

Wanchai,

Hong Kong.

Telephone: 2528 0472

Fax: 2865 2902

E-mail: reform@legal.gcn.gov.hk

A summary of this report can be found on the Internet at: .gov.hk

Miss Paula Scully, Senior Crown Counsel, was principally responsible for the writing of this Commission report.

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

ON

EXTRINSIC MATERIALS AS AN AID TO

STATUTORY INTERPRETATION

CONTENTS

Chapter

Introduction

Terms of reference

Background Paper

Membership and method of work

What is the importance of statutory interpretation?

What are extrinsic aids to interpretation?

Scope of report

1. The Role of the Courts

Introduction

Background : constitutional theory

The “mischief” rule

The “literal” rule

The “golden” rule

Criticism of the rules

The present rule

  1. Extrinsic Aids and Judicial Interpretation

Introduction

Purpose of extrinsic aids

Categories of extrinsic aids

  1. Historical setting

  2. Parliamentary history and debates

  3. Official Reports and Law Reform Commission Reports

  4. Explanatory memoranda

  5. Textbooks and dictionaries

  6. International conventions or treaties

  7. Travaux preparatoires

  8. Other statutes

  9. Conveyancing and administrative practice

  10. Uniform court decisions and usage

  11. Delegated legislation

Conclusion

3. The Rationale of the Courts in Excluding Extrinsic Aids

Introduction

Constitutional balance between parliament and the courts

Parliamentary intention

Parliamentary privilege

Judicial Bill of Rights argument

The need for legal certainty

Practical aspects

Lack of availability

Unreliability of extrinsic aids

Conclusion

4. Rationale of the Courts in Allowing Extrinsic Aids

Official reports

Parliamentary materials

Conclusion

5. Analysis of Pepper v Hart

Introduction

The facts of Pepper v Hart

Parliamentary privilege

Constitutional balance between parliament and the courts

Parliamentary history of the Finance Act 1976

Parliamentary materials

Reliance on the ministerial statement

What is the impact of taking Hansard into account, in construing section 63?

Rationale for allowing parliamentary materials as extrinsic aids

Rationale for objecting to Hansard

Response

Rules of construction

Conclusion

6. Judicial Developments since Pepper v Hart

Introduction

Parliamentary intention and the rule in Pepper v Hart

(1) First limb of the rule

(i) Legislation

(ii) Official reports

(iii) Other extrinsic aids

(2) Second limb of the rule

(i) Parliamentary materials

(ii) Weight to be attached to Hansard

(3) Third limb of the rule

Taxing statutes

Criminal statutes

Use of parliamentary materials to confirm the statutory meaning

Reference to earlier legislation

Reference to later legislation

Legitimate expectation

Parliamentary privilege

7. Comparative Law

Part I : Non statutory approaches to reform

Introduction

The United Kingdom

(i) The Law Commissions’ Report

(ii) The Renton Committee Report

(iii) Interpretation Bills

(iv) Hansard Society’s Report

Europe

Ghana

Sri Lanka

New Zealand

Canada

United States

Republic of Ireland

8. Comparative Law

Part II : Statutory approaches to reform

Australia

  1. Federal provisions

Symposium

Judicial developments

Federal legislation on extrinsic aids

Application of section 15AB to prior legislation

Judicial interpretation

Weight

Taxing statutes

Confirming the ordinary meaning

Rights of the citizen

Recent judicial developments

Access to extrinsic materials

Practical implications

Practice directions

A judicial perspective

  1. Victoria

  2. New South Wales

Practice Note

(iv) Queensland

  1. South Australia

  2. Northern Territory

  3. Tasmania

  4. Western Australia

  5. Australian Capital Territory

Explanatory memoranda

Singapore

Conclusion

9. The Legislative Process

Introduction

The drafting process

General or specific intent

The language of the statute

The format of legislation

Preamble and objects clause

Explanatory memoranda

Specially prepared explanatory memoranda

The Parliamentary process

The United Kingdom

Hong Kong

Applicability of Pepper v Hart to Hong Kong

Status of government circulars

Subsidiary legislation

Access to Parliamentary materials

Australia

United Kingdom

Hong Kong

Conclusion

Practice Direction

10. Collateral Matters

Introduction

The impact of the Bill of Rights on statutory interpretation

Sources of law in Hong Kong : pre-1997 and post-1997

Extrinsic aids post-1997

Precedent and stare decisis

Reports from foreign Law Commissions

Treaties

11. Conclusions and Recommendations

Introduction

Part 1 - Issues unresolved by Pepper v Hart or subsequent judicial developments

First limb of Pepper v Hart

Second limb of Pepper v Hart

Impact on other extrinsic aids

Administrative practices

Third limb of Pepper v Hart - The statements relied on must be clear

Weight

Per incuriam decisions

Disadvantages of the criteria in Pepper v Hart

The rights of the citizen

Lawyers and Costs

The courts

Advantages of the criteria in Pepper v Hart

Part II - Recommendations

Statutory basis for extrinsic aids

Relaxation of the exclusionary rules

Extension of Pepper v Hart by legislation

Advantages
Disadvantages

Proposed Statutory Provisions

Section 15AB, Acts Interpretation Act 1901

Confirming the meaning: s15 AB(1)(a)

Section 15AB(1)(b)(i) and (ii)

Listing extrinsic materials: s 15AB(2)

Matters not forming part of the Act: subsection 2(a)

Law reform reports : subsection 2(b)

Other common law reports

Reports of legislative committees: subsection 2(c)

Explanatory memoranda: subsection 2(e)

Second reading speech: subsection 2(f)

Relevant material in official record of debates: subsection 2(h)

Weight: s 15AB(3)

Treaties

Subsidiary legislation

Application of section 15AB to prior legislation

Interaction between the legislation and the common law

The rights of the individual

Additional and non-statutory reform

Drafting
Specially prepared explanatory memoranda
Explanatory material

Accessibility

Practice Direction

Other extrinsic aids

Conclusion

12. Summary of Report on Extrinsic Materials as an aid to Statutory

Interpretation

Part I

Introduction

What is the importance of statutory interpretation?

What are extrinsic aids to interpretation?

Background : constitutional theory

Parliamentary intention

Rules of construction

Purpose of extrinsic aids

Admissibility

Rationale of the courts in excluding extrinsic aids

Rationale of the courts in allowing extrinsic aids

Official reports

Purposive construction

Pepper v Hart

Arguments in favour of admissibility

Arguments against admissibility

Response

Impact of Pepper v Hart in Hong Kong

Draft Clauses

New Zealand

North America

Australia

Singapore

The drafting process

Sources of law post handover 1997

Part II

Recommendations

Per incuriam

Legislating for extrinsic aids

Advantages

Disadvantages

Federal Australian model

Confirming the meaning

List of extrinsic aids

Internal aids

Law Reform reports

Other common law reports

Reports of legislative committees

Explanatory materials

Second reading speech: subsection 2(f)

Any document declared by the ordinance to be relevant: subsection 2(g)

Relevant material in official record of debates: subsection 2(h)

Weight

Treaties

Application of section 15 AB to prior legislation

Interaction between the legislation and the common law

Rights of the individual

Non-statutory reform

Objects clause

Specially prepared explanatory memoranda

Explanatory material

Explanatory memorandum

Accessibility

Status of government circulars

Practice Direction

Other extrinsic aids

Conclusion

Annexures

Annex I - Section 15AB of the Australian Acts Interpretation Act 1901 as amended)

Annex II - Draft proposed section 19A to be inserted into the Interpretation and General Clauses Ordinance (Cap 1)

Introduction

Terms of reference

1. The request for a study of extrinsic aids to statutory interpretation arose from a discussion by the Law Reform Commission of a recommendation in the Sub-Committee Report on the Adoption of the UNCITRAL Model Law of Arbitration, that the Courts should be permitted to refer to the report of the Commission as an aid to interpretation.

2. That request was made in May 1987. A preliminary background paper was prepared and was sent to certain interested parties to canvass their views on whether the present law was satisfactory, or whether it required further study.

3. As a result of the views expressed, it was decided that the subject merited further study, and that there should be a formal reference to the Commission for consideration and report.

4. The formal terms of reference are as follows:

Should the law governing the use of extrinsic materials in relation to the interpretation of statutes be changed and, if so, in what way?”

5. These were signed by the Acting Chief Justice and the Acting Attorney General on the 3rd and 4th June 1992 respectively.

Background Paper

6. Since the many judicial developments that have taken place over the years, particularly the seminal judgment of Pepper v Hart, the Secretariat decided that the subject merited a more detailed and updated Background Paper. This was tabled before the Commission in March 1995. The Commission decided to establish a sub-group to consider the recommendations contained in the Background Paper.

Membership and method of work

7. The membership of the sub-group was as follows :

Professor Peter Wesley-Smith

(Chairman)

Dean of the Law Faculty

University of Hong Kong

Mr Eric Cheung

Solicitor

Johnston Stokes & Master

Mr Andrew Liao QC

Queens Counsel

The Hon Mr Justice Nazareth

Court of Appeal

Mr Tony Yen

Law Draftsman

Miss Paula Scully

(Secretary)

Senior Crown Counsel

Law Reform Commission

8. The sub-group met on six occasions. A report was prepared, summarising the sub-group’s deliberations, which was submitted to the Commission in November 1995. In the light of the views of the sub-group and the Commission itself, the original Background paper was amended and a Consultation Paper issued in February 1996. Because of the nature of the subject the Commission solicited views directly only from the Bar Association, the Law Society, the Judiciary, the Universities, the Legislative Council Secretariat and the Legislative Council’s Panel on Legal Services. The paper was of course also made publicly available to anyone else who wished to express a view. The Commission considered the submissions made by the consultees at its meeting in July 1996. This Report is the culmination of the work of the Commission, having taken account of the submissions made to it by the consultees. The Commission expresses its gratitude to all those who made submissions.

What is the importance of statutory interpretation?

9. “Legislation constitutes the single most important source of law in our society. There is hardly any aspect of the education, welfare, health, employment, housing, income and public conduct of the citizen that is not regulated by statute”. Every day, officials, private individuals, and professional advisers interpret legislation, in order to carry out their functions. However, it is only where there is a doubt about the meaning or scope of a statutory provision, or about its relationship with other provisions that recourse to judicial interpretation is made.

10. The interpretation of statutes is not only a matter to be considered by reference to the decisions of the courts. A statute is directed according to its subject matter, to audiences of varying extent. The intelligibility of statutes from the point of view of ordinary citizens or their advisers, cannot be dissociated from the rules of interpretation followed by the courts, for the ability to understand a statute depends on intelligent anticipation of the way in which it would be interpreted by the courts.

11. The United Kingdom Law Commissions in their joint Report stressed the importance of rules of interpretation of legislation being workable rules of communication between the legislator and the legislative audience as a whole. This consideration is particularly important in any assessment of the value of the aids to interpretation extraneous to the statute itself.

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