LC Paper No. LS111/98-99
Paper for the House Committee Meeting
of the Legislative Council
on 12 March 1999
Object(s) of the Bill
Legal Service Division Report on
Interpretation and General Clauses
(Amendment) Bill 1999
To amend the Interpretation and General Clauses Ordinance (Cap. 1) ("the Ordinance").
LegCo Brief Reference
2. LP 5019/6 issued by the Department of Justice in February 1999.
Date of First Reading
3. 10 March 1999.
4. The general rule at Common Law was that in the interpretation of statutes the courts should not go beyond the language of an enactment itself to look at the related parliamentary materials in order to ascertain the intention of the Parliament. This rule has been modified by the House of Lord's decision in Pepper v Hart ( All ER 42) which permits reference to parliamentary materials where (a) the legislation is ambiguous or obscure or leads to absurdity; (b) the material relied on consists of one or more statements by the promoter of a Bill together with, if necessary, such other parliamentary material as is necessary to understand such statements and their effect; and (c) the statements relied on are clear. This decision is applicable in the Hong Kong Special Administrative Region.
5. The Law Reform Commission ("the Commission") had studied the use of extrinsic materials as an aid to statutory interpretation and a Consultation Paper was issued in February 1996 ("the Consultation Paper"). Taking into account the views of the consultees, the Commission issued its "Report on Extrinsic Materials as an Aid to Statutory Interpretation" ("the Report") in March 1997. The Report recommended, inter alia, that the common law principles relating to the use of extrinsic materials in statutory interpretation be codified and modified by legislation. This was to be done by appropriate amendments to the Ordinance with section 15AB (enacted in 1984) of the Australian Acts Interpretation Act 1901 as model. The pros and cons of such amendment as well as the legal and significant policy issues involved were discussed in detail in the Report.
6. This Bill is to implement substantially the legislative recommendation of the Report.
7. The original section 18(1) of the Ordinance is amended to allow the addition of notes indicating the specific source on which a provision of any Ordinance is based.
8. The proposed section 19A allows the use of extrinsic materials in statutory interpretation when the provision concerned is ambiguous or obscure or the ordinary meaning of the text of the provision concerned in its context leads to absurdity or unreasonable result (proposed section 19A(1)).
9. Nine categories of extrinsic materials are specifically included (proposed section 19A(2)). Apart from the records of all proceedings in the Legislative Council and Reports of local Law Reform Commission, treaties and international agreements referred to in any Ordinance and reports of foreign Law Commission and of similar bodies on legislation which is model for the Hong Kong Ordinance may be used.
10. The proposed section 19A would be applicable to all Ordinances whether they came or comes into operation before, on or after the commencement of the section but the provisions of the section shall not be applied in derogation from the rights and privileges of individuals. Since the Ordinance does not apply to the Basic Law, the new section will also not apply to it.
11. The proposal to introduce provisions similar to the proposed section 19A in other jurisdictions has raised concern about the effect of increasing costs of litigation and prolongation of trial time. The Australian experience seems not to have borne this out. Whether that is due more to judicial control or to section 15AB(3) (not adopted in the proposed section 19A) of the Acts Interpretation Act 1901 is an open question. Section 15AB(3) of that Act requires regard to be had to (i) the desirability of being able to rely on the ordinary meaning of the provision and (ii) the need to avoid prolonging legal or other proceedings without compensating advantage in determining whether any extrinsic material should be considered and in considering the weight to be given to any such material.
12. According to the LegCo Brief, the Law Reform Commission has consulted the Bar Association, the Law Society, the Judiciary, the Legislative Council and members of the Legislative Council Panel on Administration of Justice and Legal Services ("AJLS Panel"). The records of the AJLS Panel showed that the Consultation Paper issued by the Commission on the subject was discussed at the Panel Meeting on 6 May 1996 and members did not then wish to draw any conclusion as to whether the intended legislative reform was desirable.
13. The Administration have sought comments on the Bill from the Bar Association, the Law Society, a law professor of the University of Hong Kong and the Judiciary Administrator. Only the Bar Association expressed reservation.
Consultation with LegCo Panel
14. The members of the AJLS Panel have been briefed on this Bill on 22 January 1999.
15. This Bill is a significant legislative initiative in modifying common law principles. The precedent case is Australia which has been followed by Singapore. Members may wish to set up a Bills Committee to study the Bill in detail. The Legal Service Division is seeking clarification from the Administration on certain legal and technical aspects of the Bill.
Assistant Legal Adviser
Legislative Council Secretariat
10 March 1999