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Page 1

THE LAW REFORM COMMISSION OF HONG KONG

REPORT

EXTRINSIC MATERIALS AS AN AID TO
STATUTORY INTERPRETATION

This report can be found on the Internet at:

MARCH 1997

Page 2

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: [email protected]


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



Miss Paula Scully

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129


8.15 Gifford commented that section 15AB does not specifically deal
with the question whether it is to apply to Acts prior to its insertion in the 1901
statute. "It would appear that extrinsic material irrelevant at the time when
such Acts were passed and never expected to be used in statutory
interpretation may now be looked at to determine the meaning of statutory
provisions".37 Deane J, in ,38 cautioned that:



8.16 However, section 2 of the Acts Interpretation Act 1984, 39
provided that section 15AB was applicable to all Acts whether passed before
or after the commencement of the Act. It reads:


40


8.17 Bennion,41 also referred to a comment by Gifford,42 which said
that the wisdom of section 15AB was "highly controversial". Gifford also
suggested that the judiciary are seriously divided internally on the subject.43

8.18 Beckman and Phang44 pointed out that Article 32 of the Vienna
Convention on the Law of Treaties, which inspired the drafting of section
15AB, included reference to confirmation of the meaning. They also draw
attention to the use of the word "manifestly" in section 15AB(2)(b). They
argued that it must have been intended that there was a relatively strong case
before a case met that threshold. They interpret section 15AB(3) as a guide
to the court as to whether it should consider the material in the first place or, if
it does, the weight it should be given.45 Beckman and Phang stated that
subsection (3)(a) would seem to include the admissibility of long titles,
preambles, and marginal notes.

8.19 Section 15AB also applies to subsidiary legislation, though this
is not stated in the section. Section 46 of the Acts Interpretation Act 1901
provides that the principles set out in the Interpretation Act are, where
applicable, to apply to delegated legislation. However, Western Australia46


37 at 129.
38 (1987) 70 ALR 225, at 238.
39 This Act inserted section 15AB into the Acts Interpretation Act 1901.
40 There is a similar provision in section 4(1) of the Interpretation of Legislation Act 1984

(Victoria).
41 at 156.
42 at 130.
43 at 139.
44 "Beyond : The Legislative Reform of Statutory Interpretation in Singapore", 15

Stat LR 69, at 84. (1994).
45 at 86.
46 Section 19 of the Interpretation Act 1984.

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and Singapore47 use the term "written law" instead of Act. This includes
subsidiary legislation in its definition.

Judicial interpretation

8.20 Despite section 15AB, and similar provisions in other Australian
States allowing reference to reports of official bodies,48 most of the judgments
on extrinsic aids seem to focus on Hansard, rather than on official reports.
The judiciary have resisted attempts to persuade them to refer to extrinsic
aids when the text appears to them to be clear. In Re Coleman; Ex parte
Billing,49 the High Court held that:-


"Section 15AB does not permit recourse to that speech, for the
purpose of departing from the ordinary meaning of the text,
unless, either the meaning of the provision to be construed is
ambiguous or obscure, or, in its ordinary meaning leads to a
result that is manifestly absurd or unreasonable."50


In any event, the court concluded that the Minister's speech did not purport to
be an exhaustive description of the legislation. It should be read in the
context of the Bill itself, and the explanatory memorandum.

8.21 In Hunter Resources Ltd v Melville,51 Mason C J (dissenting)
stated that extrinsic aids should not be taken into account, where they merely
gave an opinion as to the meaning of legislation. In any event, the materials
did not relate to the legislative history of the 1978 Act, which was before the
court. The materials were a second reading speech of the Minister in 1985
when he amended the 1978 Act. In contrast Danson J held that it was
possible to draw a conclusion as to the intention of the legislature from these
extrinsic aids even though this was not contained in the amendments.52

Weight

8.22 The judiciary have relied more on the second reading speech of
the Minister as an extrinsic aid than the speeches of members of Parliament.
In Commissioner of Police v Curran,53 Wilcox J stated that: "if the purpose of
a reference to a parliamentary debate is to determine what was the intention
of those who framed the draft, assistance is not likely to be gained outside the
speech of the responsible Minister or other informed proponent of that draft".
A further check on the use of speeches by individual members was placed by
Kirby P in Flaherty v Girgis.54 He rejected observations by such members in

47 Section 9A(2) of the Interpretation Act 1985.
48 Subsection 2(b).
49 (1986) 61 ALJR 37, at 39. The court was referring to one sentence of the Minister's second

reading speech.
50 As summarised by Brazil, supra at 505.
51 (1988) 77 ALR 8, at 11.
52 At 21-2. He relied on Grain Elevators Board (Vic) v Dun Munkle Corp (1946) 73 CLR 70, at 86,

where it was held that an amending Act might be taken into account in the interpretation of the
prior legislation.

53 (1984) 55 ALR 697, at 707.
54 (1985) 4 NSWLR 248.

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Annex 2



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



19A.

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267


(e) any explanatory memorandum relating to the Bill
containing the provision, or any other relevant
document, that was laid before, or furnished to the
members of the Legislative Council by the policy
Secretary or other promoter before the time when
the provision was enacted;


(f) the speech made to the Legislative Council by a

policy Secretary or other promoter on the occasion
of the moving by that policy Secretary or other
promoter of a motion that the Bill containing the
provision be read a second time in the Council;


(g) any document (whether or not a document to

which a preceding paragraph applies) that is
declared by the Ordinance to be a relevant
document for the purposes of this section;


(h) any relevant report of a committee of the

Legislative Council before the time when the
provision was enacted.


(i) "any relevant material in the official record of

debates in the Legislative Council."

(3) The weight to be given for the purposes of this section to

any such matter as is mentioned in subsection (1) or (2)
shall be no more than is appropriate in the circumstances.


(4) "For the avoidance of doubt, the amendments made by

this Ordinance shall apply in relation to all Ordinances in
force whether such an Ordinance came or comes into
operation before or after the commencement of this
Ordinance."


(5) "Nothing in this section shall prejudice any right to rely on

extrinsic materials as provided for under common law."

(6) "Nothing in this section shall prejudice the common law

rule that ambiguous legislation cannot be construed to
derogate from the rights of individuals.""


This Draft Bill is subject to final drafting and approval of the Law Drafting
Division of the Attorney General's Chambers.

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