Interpretation and General Clauses (Amendment) Bill 1999

Amend the Interpretation and General Clauses Ordinance.

Enacted by the Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Interpretation and General Clauses (Amendment) Ordinance 1999.

(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Justice by notice in the Gazette.

2. Marginal notes and section headings

Section 18 of the Interpretation and General Clauses Ordinance (Cap. 1) is amended---

(a) by repealing subsection (1) and substituting---

'(1) Where any provision of any Ordinance is taken verbatim from, is substantially similar to, or is based on, a provision of---

(a) any law of Hong Kong or a place outside Hong Kong;

(b) any treaty; or

(c) any report of the Law Reform Commission of Hong Kong or of a body similar to the Law Reform Commission of Hong Kong in any place outside Hong Kong,

then there may be added as a note to the first-mentioned provision a reference, in abbreviated form, to the second-mentioned provision.';

(b) in subsections (2) and (3), by repealing 'A' and substituting 'Subject to section 19A, a'.

3. Section added

The following is added---

'19A. Use of extrinsic material in the

interpretation of Ordinances

(1) Subject to subsections (5), (6) and (7), in the interpretation of a provision of an Ordinance, if any material not forming part of the Ordinance is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material to determine the meaning of the provision where---

(a) the provision is ambiguous or obscure; or

(b) the ordinary meaning conveyed by the text of the provision taking into account its context in the Ordinance and the object of the Ordinance leads to a result that is absurd or unreasonable.

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Ordinance includes---

(a) all matters not forming part of the Ordinance that are set out in any document---

(i) containing the text of the Ordinance; and

(ii) printed by the Government Printer;

(b) any relevant report of a commission, the Law Reform Commission of Hong Kong, committee of inquiry or other similar body that was published before the enactment of the provision;

(i) established, by whatever means, outside Hong Kong; and

(ii) similar to any body referred to in paragraph (b),

where the provision was modelled on legislation from that place implementing any recommendations of the report;

(d) any relevant treaty or other international agreement that is referred to in the Ordinance or in any material referred to in this subsection;

(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 or on behalf of the presenter of the Bill before the enactment of the provision; (f) the speech made to the Legislative Council by the presenter of the Bill containing the provision on the occasion of the moving by the presenter of a motion that the Bill be read a second time;

(g) any relevant report of a committee of the Legislative Council made before the enactment of the provision;

(h) any document (whether or not a document to which paragraph (a), (b), (c), (d), (e), (f) or (g) applies) that is declared by the Ordinance to be a relevant document for the purposes of this section;

(i) any relevant material in the Official Record of all proceedings in the Legislative Council and in the committee of the whole of the Legislative Council.

(3) Without prejudice to the generality of section 98, a document purporting to be---

(a) a copy of---

(i) any proceedings of the Legislative Council; or

(ii) the votes of the Legislative Council; and

(b) printed by the Government Printer,
shall on its production be admitted as prima facie evidence thereof in all courts for the purposes of this section without any further proof.

(4) There may be added as a note to the provision of an Ordinance a reference to the date on which the Bill containing the provision was read the second time.

(5) The weight, if any, to be given for the purposes of this section to any material referred to in subsection (1) or (2) shall be not more than is appropriate in the circumstances.

(6) The provisions of this section shall apply to an Ordinance whether the Ordinance came or comes into operation before, on or after the commencement of this section.

(7) The provisions of this section shall be in addition to and not in derogation from the common law applicable to the interpretation of a provision of an Ordinance and, without prejudice to the generality of the foregoing, in particular---

(a) any rule of law relating to the use of any material not forming part of an Ordinance in the interpretation of a provision of the Ordinance;

(b) any rule of law that a provision of an Ordinance which is ambiguous or obscure shall not be interpreted to derogate from the rights or privileges of individuals.

[cf. Acts Interpretation Act 1901, s. 15AB(1)(b) and (2), Commonwealth of Australia]'.

Explanatory Memorandum

The principal object of this Bill is to amend the Interpretation and General Clauses Ordinance (Cap. 1) to introduce new section 19A (clause 3) in order to give effect to the recommendations contained in the Report on Extrinsic Materials as an Aid to Statutory Interpretation issued by the Law Reform Commission of Hong Kong.

2. New section 19A(1) provides that, where a provision of an Ordinance is ambiguous or obscure, or its ordinary meaning in the context in which it is used leads to a result that is absurd or unreasonable, then material not forming part of the Ordinance but which is capable of assisting in ascertaining the meaning of the provision ('extrinsic material'), may be considered for the purpose of ascertaining the meaning of the provision.

3. New section 19A(2) sets out a non-exhaustive list of extrinsic material. The extrinsic material listed includes any relevant report of the Law Reform Commission of Hong Kong, any explanatory memorandum relating to the Bill containing the provision concerned, and any second reading speech made to the Legislative Council by the presenter of the Bill containing the provision.

4. New section 19A(3) is evidentiary and facilitates, for the purposes of new section 19A, the introduction into courts of records of proceedings in the Legislative Council.

5. New section 19A(4) enables a note to be added to a provision of an Ordinance stating when the Bill containing the provision was read the second time in the Legislative Council.

6. New section 19A(5) provides that the importance to be attached to any extrinsic material 'shall be not more than is appropriate in the circumstances'.

7. New section 19A(6) provides that new section 19A shall apply to all Ordinances including Ordinances which commenced before new section 19A commenced.

8. New section 19A(7) makes it clear that new section 19A is in addition to and not in derogation from the common law, in particular any rule of law relating to the use of extrinsic material in the interpretation of an Ordinance (new section 19A(7)(a)) and any rule of law that a provision of an Ordinance which is ambiguous or obscure shall not be interpreted 'to derogate from the rights or privileges of individuals' (new section 19A(7)(b)).

9. Clause 2(a) repeals and replaces section 18(1) to enable, inter alia, a note to be added to a provision of an Ordinance to refer to a provision of a law (whether of Hong Kong or a place outside Hong Kong) on which the first-mentioned provision is based. Clause 2(b) makes a consequential amendment to section 18(2) and (3) to enable extrinsic material consisting of references to precedent provisions, or consisting of marginal notes and section headings, to be used to assist in the interpretation of an Ordinance in circumstances where new section 19A applies to a provision of the Ordinance.

10. It should be noted that new section 19A is based to some extent on section 15AB of the Acts Interpretation Act 1901 of the Commonwealth of Australia.