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Chapter 3: Statutory Interpretation

Table of Contents

[3.0]     Introduction 

Whilst courts interpret statutes, ie., Acts and subsidiary legislation, prosecutors and defence counsel are expected to provide researched sound submissions in that regard. The content of this book is written subject to the principles of 'statutory interpretation' and will therefore assist in providing such submissions. 

Due to its importance, greater emphasis needs to be placed on learning the principles of 'statutory interpretation' so as to achieve a better understanding of the meaning of statutes. When interpreting statutes consideration must be given to: 

·                     the Constitution; 

·                     the Interpretation & General Provisions Act (Ch. 85); 

·                     any definitions and rules of interpretation in specific Acts under consideration. Section 15 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Definitions and rules of interpretation in an Act apply to the provisions containing them as well as to the other provisions of the Act'; and 

·                     common law rules or maxims or cannons of 'statutory interpretation or construction', although not all such rules or maxims or cannons will be examined.

[3.1]                 Constitution 

In Ronald Ziru (on behalf of SIMA Medical Centre) v Attorney – General (Unrep. Civil Case No. 21 of 1993) Muria CJ stated at page 8: 

'Unlike in England, we have a written Constitution here which is the Supreme law. All other laws must conform to it. The starting point must, inevitably, be the Constitution in any construction of legal provisions.' (emphasis added) 

Section 2 of the Constitution states: 

'This Constitution is the supreme law of Solomon Islands and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.' (emphasis added) 

In Walter Folotalu v Attorney – General (Unrep. Civil Case (Constitutional) No. 234 of 2001) Palmer ACJ held that section 2 of the National Parliament Electoral Provisions (Amendment) Act 2001 was inconsistent with section 13 of the Constitution and by virtue of section 2 of the Constitution is void. 

In R v Noel Bowie [1988 – 89] SILR 113 Ward CJ held that the word 'male' should be severed from section 155 of the Penal Code (Ch. 26) in order to ensure that it was not inconsistent with section 15 of the Constitution.

[3.2]                 Long & Short Titles 

Section 18 of the Interpretation & General Provisions Act (Ch. 85) states: 

'(1) An Act may be cited – 

(a)                by its short title; 

(b)               by reference to the year in which it was enacted and its number among the Acts of that year; or 

(c)                by the Chapter number given to it in any revised edition of the Laws of Solomon Islands. 

(2) A reference to an Act in accordance with subsection (1) shall be made according to the short title, number or Chapter number used in copies of the Act printed by the Government Printer.' 

Therefore, as regards the Interpretation & General Provisions Act (Ch. 85): 

·                     a 'short title' is 'Interpretation & General Provisions Act (Ch. 85)'; and 

·                     the 'long title' is 'An Act to make provision for the interpretation of laws; to make certain general provisions with regard to laws; and to provide for matters connected therewith and incidental thereto' which appears immediately above section 1 of that Act. 

Section 9(3) of the Interpretation & General Provisions Act (Ch. 85) states: 

'Each Act shall be deemed to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.' (emphasis added) 

The 'short' and 'long' titles of a statute can be used to interpret and understand its objectives. 

In The State v Danny Sunu, Namarai Walter, Iku Gagoro & Philip Haro [1983] PNGLR 396 Bredmeyer J, sitting alone, stated at page 402: 

'To interpret a statute I am entitled to refer to its objectives and I may look at the short and long title to assist in that task. "… it is the plainest of all guides to the general objectives of a statute," Black – Clawson International Ltd v Papierwerke Waldof – Aschaffenburg A. G. [1975] AC 591 at 647 per Lord Simon.' 

In Birch v Allen (1942) 65 CLR 621 Latham CJ, as a member of the High Court of Australia, stated at page 625: 

'It may be proper to look at the [long] title for the purpose of determining the scope of an Act; it may be referred to, not to contradict any clear and unambiguous language, but if there is any uncertainty it may be referred to for the purpose of resolving the uncertainty.' [word in brackets added] 

See also: Saze v Eicholz [1919] 2 KB 171 & Re Boaler [1915] 1 KB 21. 

[3.3]                 Legislative Intent 

A summary of the principles examined in this section is as follows: 

·                     The purpose of legislation is to rectify an identified mischief [ie., a problem or issue needing or requiring to be addressed] by providing a statutory remedy [ie., solution]; 

·                     Legislation must be interpreted according to the 'perceived intention' of the Parliament; 

·                     The intention of the Parliament is revealed in the words used in the statute; 

·                     A statute must be read as a whole; 

·                     Common law rules or maxims or cannons of statutory interpretation or construction may be used to interpret a statute; 

·                     Plain words must be interpreted according to their natural and ordinary meaning (ie., by applying the 'literal' rule); 

·                     Generally, the literal meaning of a statutory provision will give effect to the purpose of the legislation; and 

·                     If the literal meaning does not coincide with the perceived purpose of the legislation then a court is entitled to give effect to that purpose by including or excluding words for the purpose of interpreting the legislation (ie., by applying the 'purposive' rule).

Section 9 of the Interpretation & General Provisions Act (Ch. 85) states: 

'(1)       An Act speaks from time to time. 

(2)               Each Act is intended to be read as a whole. 

(3)        Each Act shall be deemed to be remedial and shall receive such fair and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.' (emphasis added)

In SCR No. 1 of 1981 [1981] PNGLR 151 the Supreme Court stated at page 155: 

'[T]here is a principle of statutory construction that it is the duty of the court to make such construction of a statute as shall suppress the mischief and advance the remedy.' (emphasis added) 

In Associated Newspapers Group Ltd v Fleming (Inspector of Taxes) [1973] AC 628 Lord Simon of Glaisdale stated at page 646: 

'It is very much part of the duty of the courts, in their task of statutory interpretation, to ascertain as best they can what was the mischief as conceived by Parliament for which a statutory remedy was being provided; nor is it necessary nowadays for courts to affect ignorance of what is notorious.' (emphasis added) 

The intention of the Parliament is revealed in the words used in the statute.  

In Pepper (Inspector of Taxes) v Hart [1993] AC 593 [[1992] 3 WLR 1032; [1993] 1 AllER 42] Lord Browne – Wilkinson commented at page 634: 

'Statute law consists of the words that Parliament has enacted. It is for the courts to construe those words and it is the court's duty in so doing to give effect to the intention of Parliament in using those words. It is an inescapable fact that, despite all the care taken in passing legislation, some statutory provisions when applied to the circumstances under consideration in any specific case are found to be ambiguous. One of the reasons for such ambiguity is that the members of the legislature in enacting the statutory provision may have been told what result those words are intended to achieve. Faced with a given set of words which are capable of conveying that meaning it is not surprising if the words are accepted as having that meaning. Parliament never intends to enact an ambiguity. Contrast with that the position of the courts. The courts are faced simply with a set of words which are in fact capable of bearing two meanings. The courts are ignorant of the underlying Parliamentary purpose. Unless something in other parts of the legislation discloses such purpose, the courts are forced to adopt one of the two possible meanings using highly technical rules of construction.' 

In Chan Ho Cheon v Rok & SI Total Event Limited (Unrep. Civil Case No. 2 of 1998) Muria CJ stated at page 4: 

'The starting point in this process must be words used in the provision themselves. The intention of Parliament is expressed in those words which must be given their natural and ordinary meaning in the context they are used unless it can be shown that the words as used do not have a natural and ordinary meaning or that words are ambiguous. In those situations the Court can resort to one of the "rules of construction" which the courts have developed to give meaning to words used by the draftsman and which have failed to adequately convey the natural and ordinary meaning of the words consistent with the context in which they are used. See In Re Application by the Minister for Western Provincial Affairs [1983] SILR 141.' (emphasis added) 

In Mahabir v Chan Wing Motors Limited [1982] SILR 19 Daly CJ stated at page 21: 

'[T]he statute must be read as a whole and effect be given to the intention of the legislature as discernable from that reading. Where the legislature has chosen to use words in the statute which have a natural and clear meaning then effect must be given to that meaning. As Lord Justice Scott said in Croxford v Universal Insurance Co. (1936) 2 KB 233 at page 281: 

"Where the words of an Act of Parliament are clear, there is no reason for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute."' (emphasis added) 

In David Maesua v Charles Dausabea & James Delemani, Mathias Pepena v David Sitai, Ronnie To'ofilu v Moon Pin Kwan, Brian Saoba v David Vatamana Vouzer, William Gigini v James Trasel Saliga, Sam Semual Iduri v Stephen Tonafalea & Returning Officer, Francis Ordani v Mesach Maebiru Maetoloa & Joe Timothy Ariaria v Alfred Araha Hairui (Unrep. Civil Case Nos. 255, 268, 260, 261, 263, 265, 266 & 276 of 1997) Muria CJ stated at page 6: 

'If the section of an Act is clear and unambiguous a Court should not read words into them to tone down Parliament's intention as clearly demonstrated by those words. The Court may be seen as legislating for itself if it introduces any such qualification in such circumstances.'   

In Eric Fiebig (as Administrator of the Estate of Norleen Liebig deceased) v Solomon Airlines Limited (Unrep. Civil Case No. 374 of 1995) Palmer J stated at page 5: 

'[T]he court must give effect to the plain and clear meaning of the words in the proviso to section 3(2), as intended by Parliament. Those words do not need any elaborate interpretation.' (emphasis added) 

In Re Application by the Minister for Western Provincial Affairs [1983] SILR 141 Daly CJ stated at pages 143 - 148: 

'The simple question is, has this court power to remedy that defect on interpretation of the words used? The answer to such suggestion is contained in the words of Lord Simonds in Magor & St. Mellons R.D.C. v. Newport Corporation (1951) 2 All E.R. 839 at p. 841 where he said concerning a proposal that the court should close a gap in an Act: 

"It appears to me to be a naked usurpation of the legislative function under the thin disguise of interpretation. And it is the less justifiable when it is guesswork with what material the legislature would, if it had discovered the gap, have filled it. If the gap is discovered, the remedy lies in an amending Act." 

In view of what I say later in this judgment, I should observe that this passage is in the course of criticism of a rather wider view of the functions of the court on interpretation of statutes taken by Denning LJ (as he then was). I accept that there may in certain circumstances be practical difficulties in implementing the terms of section 22(2) of the Act. However, in my judgment, this is not a case in which it has been established that there are inconsistencies and absurdities which flow from giving a literal meaning to the subsection in question. Impracticabilities there maybe but, as Lord Simonds says, "the remedy lies in an amending Act". 

The second group of submissions is that a "purposive" approach rather than a literal one should be adopted to the interpretation of section 22(2). In other words I am asked to seek out the purpose of Parliament and apply what I think that purpose may be and thereafter to give the words of the subsection a different meaning from their literal meaning. But where does one start on this search other than with the words themselves? 

 […] 

[…] The "purposive approach" does not mean the words are rejected; it means that read in their context they must be given a certain meaning because the draftsmen has omitted something […]. 

The only proper approach to any problem of construction is first to read the words used in their context. If the words have a natural and ordinary meaning then the words should be given that meaning. If that is to be called a "literal approach" I do not consider it to be outdated; the functions of a court in any case of interpretation is to decide the meaning of words. The intent and purpose of the legislature is expressed in words. What other "approach" can there be but "literal"? There may be scope where the words are ambiguous or where the natural and ordinary meaning reveals that something has been omitted (pace Lord Diplock) for a court to apply one or other of what have been called "rules of construction". But the starting point is always the words themselves and these "rules of construction" are merely common sense and judicial experience (if there is any distinction) applied to the task of giving a meaning to words where the draftsman has, in the view of a court, failed adequately to convey a natural and ordinary meaning that is consistent with the context in which the words are used.' (emphasis added)  

In Anna Wemay & others v Kepas Tumdual [1978] PNGLR Wilson J, sitting alone, stated at page 176: 

'The fundamental rule for the interpretation of a statute applies in this case, viz., that the statute should be construed [ie., interpreted] according to the intention expressed in the Act itself. 

If the words of the statute are themselves precise and unambiguous, then no more is necessary than to expound those words in their ordinary and natural sense. The words themselves are generally the best declaration of the intention of the legislature.' (emphasis added) [word in brackets added] 

If in applying the literal rule of statutory interpretation the mischief is not properly addressed, the court may apply the purposive rule of statutory interpretation which is used to promote the general legislative purpose underlying the statute or section because the intention of the Parliament is ambiguous or unclear. Therefore, the 'purposive rule' is used to interpret the 'true' purpose of the statute or section. 

In John Bare Maetia v R (Unrep. Criminal Appeal Case No. 2 of 1994) Los JA of the Court of Appeal, sitting alone, stated at pages 2 – 3: 

'It is desirable in my view to take a purposive approach to the interpretation of the Act here. [… T]his court must give a fair and liberal meaning of the word […] to attain the object of the Act. Such an interpretation is not unknown in Solomon Islands, see R –v- Kauwai (1980/81) SILR 108. for example.' 

In Club Freeway v Honiara Liquor Licensing Board (Unrep. Civil Case No. 28 of 1998) Kabui J after referring to section 9(3) of the Interpretation & General Provisions Act (Ch. 85) stated at page 6: 

'[T]he Act should be interpreted in such a way that the object of the Act is attained. This is what is called the "purpose approach" in the interpretation of statutes.' 

In Honorable Christopher Columbus Abe v Minister of Finance & Attorney – General (Unrep. Civil Case No. 197 of 1994) Muria CJ stated at pages 9 – 10: 

'The Court must […] construe the words used so as to ascertain what Parliament had intended. But if in so doing the result is an absurdity, as in this case, then the Court is justified in going outside the words used by the statute in order to ascertain the intention of Parliament particularly here where it is plainly obvious that a drafting omission had been made. On this approach of statutory interpretation Lord Scarman had this to say in Stock –v- Frank Jones (Tipton) Ltd [1978] 1 WLR 231 at 238; [1978] 1 All E R 948 at 955: 

"If the words used by Parliament are plain, there is no room for the 'anomalies' test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words 'have been inadvertently used, 'it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated…. This is an acceptable exception to the general rule that plain language excludes a consideration of anomalies, ie mischievous or absurd consequences … but mere 'manifest absurdity' is not enough: it must be an error (of commission of omission) which in its context defeats the intention of the Act." 

Lord Denning robustly put it this way in Camden London Borough Council –v- Post Office [1977] 1 WLR 892 at 897 when construing the words used in paragraph 8(1) of the Schedule to the General Rate Act, 1967: 

"But that gives rise to such an absurd result that there must be some mistake in the drafting. Such mistakes do occur from time to time; and when they occur the courts must do what they can to put things right. I think the courts should correct these words …."' (emphasis added) 

In Solomon Breweries Limited v Controller of Customs & Excise (Unrep. Civil Case No. 218 of 1996) Muria CJ stated at page 14: 

'As such the Court is entitled to prefer the interpretation which grants injustice and avoids anomaly and absurdity since the legislature never intended injustice or absurdity when it made the law in the first place. See Magin –v- Commissioner of Inland Revenue [1971] NZLR 591; Johnson –v- Moreton [1978] 3 WLR 538; Applin –v- Race Relations Board [1974] 2 WLR 541. I need only refer to what Lord Salmon stated in Johnson –v- Moreton where he said: 

"If the words of the statute are capable, without being distorted, of more than one meaning, the Court should refer the meaning which leads to a sensible and just result complying with the statutory objective and reject the meaning which leads to absurdity or injustice and is repugnant to the statutory objective."' 

In SCR No. 6 of 1984: Re Provocation [1985] PNGLR 31 the Supreme Court applied the 'purposive' rule of statutory interpretation. At pages 38 – 39 Amet J stated: 

'I consider the expression of Lord Denning referred to and quoted by Wilson J [in PLAR No. 1 of 1980 [1980] PNGLR 326] applicable and I adopt them also. [… In Northman v Barnet London Borough Council [1978] 1 WLR 220] Lord Denning stated at page 228: 

"[…] The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the 'purposive approach'. … In all cases now in interpretation of statutes we adopt such a construction as will 'promote the general legislative purpose' underlying the provision. It is no longer necessary for the judges to wring their hands and say: 'There is nothing we can do about it.' Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation [by applying the 'literal' rule], the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done, had they had the situation in mind."' (emphasis added) [words in brackets added] 

In SCR No. 1 of 1985; Inakambi Singorom v Klaut [1985] PNGLR 328 Kidu CJ, as a member of the Supreme Court, stated at page 241: 

'Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. […] 

Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts.' (emphasis added)  

In John Bare Maetia v R (Unrep. Criminal Case No. 2 of 1994) Los JA, sitting as the Court of Appeal, stated at page 2: 

'The counsel for appellant has also relied on a tool of statutory interpretation expressio unius exclusio alterius to submit that because the definition of goods specifically enumerates certain things and not birds, the Act specifically excludes any prohibition of exporting birds. I think with respect the maxim is helpful but it may inhibit expansion of thoughts and may obscure the purpose and a legislative scheme.' 

In R v Perfill, McDougall & John Bare Maetia (Unrep. Criminal Case No. 32 of 1992) Muria CJ stated at pages 2 – 3: 

'The maxim "expressio unius exclusio alterius" is no more than an aid to construction and must be watched since its application to the two contrasting statutes here concerned may well lead to a misconception of the rule. The rule is, however, a valuable tool but one which must be watched. As Wills J., stated in Colquhoun -v- Brooks (1887) 19 QBD 400, at 406: 

"I may observe that the method of construction summarized in the maxim 'expressio unius exclusio alterius' is one that certainly to be watched. Perhaps few so – called rules of interpretation have been more frequently misapplied and stretched beyond their due limits. The failure to make the "expressio" complete very often arises from accidents, very often from the act that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind; and the application of this and every other technical rule of construction varies so much under differing circumstances, and is open to so many qualification and exceptions, that is rarely that such rules help one to arrive at what is meant." 

On appeal to the Court of Appeal Lopes, LJ, (1888) 21 QBD 52 at p. 65) said: 

"The maxim 'expressio unius exclusio alterius' has been pressed upon us. I agree with what is said in the Court below by Wills J., about the maxim. It is often a valuable servant, but a dangerous master to follow in the construction of statutes or documents. The exclusio is often the result of inadvertence or accident and the maxim ought not to be applied, when its application, having regard to the subject – matter to which it is to be applied, leads to inconsistency or injustice."' 

In Cooper Brookes (Woollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 Gibbs ACJ of the High Court of Australia stated at page 304: 

'There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the cannons of construction are not so rigid as to prevent a realistic solution in such a case.' 

In JH Rayner (Mincing Lae) Limited v The Chief Collector of Taxes [1993] PNGLR 416 Sheehan J, sitting alone, stated at page 422: 

'When questions arise as to the interpretation of an act, the sole issue for the Court is to ascertain the true construction of a statute. There are, of course, various rules of construction, but these are not rules of law. They are aids only. 

[…] 

All statutes must be construed to give effect to the intention of the legislature. As that intention is to be gathered from the language employed […], courts will always look for express and clear language in statutes which confer or take away legal rights, impose taxes or charges, or alter clearly established principles of law or, indeed, legislate with regards to the jurisdiction of courts. 

The Australian High Court and the English House of Lords have both made very strong statements against interfering with the plain and ordinary meaning of statutory provisions. That injunction is to be held paramount, even if a statutory provision is seen on close examination (and depending on view point) to be "inadequate" or not totally "comprehensive" in some respect or another. 

Both courts, however, have left a door open to enable the judge to find solutions where totally irrational or anomalous results will defeat the statute and the perceived intention of Parliament. […] But it must be remembered that the overriding theme of the many decisions throughout the Commonwealth jurisdictions shows the continuing emphasis on the need for courts (and tribunals for that matter) to be wary of supplying "solutions" to supposed statutory deficiencies, and remind them that that is the function of the legislature. 

The decision to assign additional words or to interfere with the actual wording of a statute is, of course, never lightly taken. The difficulty facing courts is whether the solution to a perceived error, anomaly, or ambiguity is sufficiently clear to warrant the court supplying a solution to ensure the intent of the act is not frustrated, rather than draw attention to it for correction by legislation. 

In the Cooper Brookes case cited […], although confirming the general rule of following the words of an act, the decision was taken to correct what was seen as an anomaly in the statute under review. The court was not unanimous. That, perhaps, illustrates the difficulties in determining the point at which courts should refrain from supplying drafting alterations and leave correction to Parliament.

[…] 

The central theme of rules of interpretation of statutes, […] remains, that words be given their normal and ordinary sense and that the meaning of statutes and their provisions are to be determined from the actual wording of the legislature. For all that this may be hedged around by decisions which permit courts to endeavour to ascertain the intention of Parliament in cases of anomalous or irrational results, these decisions do not in any way derogate from the principle rule. Departure from the clear and unambiguous wording may only be resorted to in plain and obvious cases where, without correction the objectives of the act itself would be totally defeated.' (emphasis added) 

When applying any rule of 'statutory interpretation', the principles relating to 'Penal Statutes' must also be considered. 

See also: Tikoro Muller v Attorney – General [1983] SILR 259; Joyce Tonawane v Kelly Wanefiolo (Unrep. Civil Case No. 247 of 1991; Muria J; at page 4); SCR No. 1 of 1985; Inakambi Singorom v Klaut [1985] PNGLR 238; The State v Danny Sanu, Namarai Walter, Iku Gagoro & Philip Haro [1983] PNGLR 396; Graeme Rundle v Motor Vehicles Insurance (PNG) Trust [1978] PNGLR 44; SCR No. 4 of 1985 [1985] PNGLR 320; Placer Pty Ltd v The Independent State of Papua New Guinea [1982] PNGLR 16; The Minister for Lands v William Robert Frame [1980] PNGLR 433 & Saraswati v R (1990) 172 CLR 1. 

[3.4]     Penal Statutes 

[3.4.1]  Principle Of Interpretation 

A 'penal statute' is a statute that includes offences for which a penalty can be imposed. 

In John Bare Maetia v R (Unrep. Criminal Appeal Case No. 2 of 1994) Los JA, sitting as the Court of Appeal, stated at page 3: 

'I have directed my mind to another aid to interpretation of statutes especially penal statutes. This rule of interpretation says where a meaning of a statute is ambiguous or at least it is susceptible to other meaning, the court must accept the meaning more favourable to the person who is affected.' (emphasis added) 

In William Douglas McCluskey v The Attorney – General & others (Unrep. Civil Case No. 243 of 1993) Palmer J stated at page 6: 

'The second aspect of statutory interpretation drawn to my attention relates to the interpretation of penal provisions. In the same book Statutory Interpretation in Australia, at page 164, the learned authors state: 

"What has been laid down in the modern cases is that the duty of the court is to interpret Acts according to the intent of the Parliament which passed them. While this statement is undoubtedly correct, the courts do nonetheless adopt a slightly different approach in regard to these types of Acts, particularly when they are confronted with a choice between two tenable views as to the meaning of an Act. In regard to penal statutes, as is only proper, the courts are very careful to place the liberty of the subject in jeopardy only where the legislature has clearly so ruled."' (emphasis added) 

In Director of Public Prosecutions Reference (No. 1 of 1992); Director of Public Prosecutions Reference (No. 1 of 1993) (1993) 65 ACrimR 197 Malcolm CJ and Walsh J, in their single judgment, stated at pages 203 – 204: 

'It has long been said that penal statutes must be construed strictly: see Tuck & Sons v Priester [1887] QBD 629 at 638. Today, however, courts are reluctant to place undue emphasis on this principle of construction although the principle still applies. In Craies on Statute Law (7th ed, 1971) the learned author says (at pp 532 – 533): 

"Where an enactment imposes a penalty for a criminal offence, a person charged against whom it is sought to enforce the penalty is entitled to the benefit of any doubt which may arise on the construction of the enactment. 'Where there is an enactment which may entail penal consequences, you ought not to do violence to the language in order to bring people within it who is not brought within it by express language.' On the other hand, as said by A L Smith LJ in Llewellyn v Vale of Glamorgan Ryl Co [1898] 1 QB 473: 'when an Act (imposing a penalty) is open to two constructions, that construction ought to be adopted which is more reasonable and the better calculated to give effect to the expressed intention, which in this case is that the penalty shall be paid'. And while it is probably true that the principles of construction have been somewhat relaxed in formality nowadays, yet at the same time strictness of statement is still valuable, especially in a case where the result may be highly penal: and the procedure indicated by a penal Act must be closely followed." 

In Adams (1935) 53 CLR 563 Rich, Dixon, Evatt and McTiernan JJ said (at 567): 

"[…] No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category." 

In Beckwith (1976) 135 CLR 569, notwithstanding that Gibbs J acknowledged that the rule had diminished in importance in recent times, he emphasized the significance of it where there is real doubt as to the meaning of the enactment. He specifically said (at 567 – 577): 

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences […]. The rule is perhaps of last resort."' (emphasis added) 

See also: R v Evans (1964) 49 CrAppR 10 at page 15; Baiza Tadu Avona v The State [1986] PNGLR 148; SCR No. 6 of 1984: Re Provocation [1985] PNGLR 31, per McDermott J at page 35 & Amet J at page 38; The State v Danny Sunu, Namarai Walter, Iku Gagoro & Phillip Haro [1983] PNGLR 396 at pages 407 & 414; SCR No. 1 of 1981 [1981] PNGLR 151 at page 154; Kelsey v Hill [1995] 1 QdR 182; Carrol v Mijovich (1991) 58 ACrimR 243, per Handley LA at page 257; Murphy v Farmer (1988) 165 CLR 19, per Deane, Dawson & Gaudron JJ at pages 28 - 29; Waugh v Kippen (1986) 160 CLR 156; Davern v Messel (1984) 155 CLR 21, per Gibbs CJ at page 31 & Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134, per Stephen, Mason, Murphy, Aickin & Wilson JJ at page 139. 

[3.4.2]  Mens Rea -- Intention 

In B (A Minor) v Director of Public Prosecutions [2000] 2 CrAppR 65 [[2000] 2 AC 428; [2000] 2 WLR 452; [2000] 1 AllER 833; [2000] CrimLR 402] Lord Steyn, with whom Lord Mackay of Clashfern concurred, stated at page 79: 

'In successive editions of his classic work, Professor Sir Rupert Cross cited as the paradigm of the principle the "presumption" that mens rea is required in the case of statutory crimes": Statutory Interpretation 3rd ed. (1995), p. 166. Sir Rupert explained that such presumptions are of general application and are not dependent on finding an ambiguity in the text.' (emphasis added) 

Lord Nicholls of Birkenhead, with whom Lords Irvine of Lairg LC and Lord Mackay of Clashfern concurred, stated at page 68: 

'[T]he starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpected ingredient of every statutory offence. On this I need do no more than refer to Lord Reid's magisterial statement in the leading case of Sweet v Parsley (1969) 53 CrAppR 221, 224, [1970] AC 132, 148 – 149: 

"… there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea … it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary."' (emphasis added) 

See also: John Maetia Kaliue v R [1990] SILR 23; R v K [2001] 1 CrAppR 493; Harrow London Borough Council v Shah & another [1999] 2 CrAppR 457; R v Coles [1995] 1 CrAppR 157; [1994] CrimLR 820; R v Bezzina, Codling & Elvin (1994) 99 CrAppR 356 & Gammon (Hong Kong) Ltd v Attorney – General of Hong Kong [1985] AC 1; [1984] 3 WLR 437; [1984] 2 AllER 503; [1984] CrimLR 479. 

[3.4.3]  Penal Code Specifically 

The 'long title' of the Penal Code (Ch. 26) is: 

'An Act to Establish a Code of Criminal Law.' 

Section 3 of that Code states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

'The Penal Code is intended to be an exhaustive statement of the law. That is to say, it prescribes not only the elements of offences necessary to find a person guilty, but it also establishes any defences in law', as commented by Kapi JA in Toritelia v R [1987] SILR 4 at page 30. 

'[T]he Penal Code, together with so much of the Common Law as it incorporates, is a complete statement of the law in relation to the offences with which it deals', held per Connolly AJ, with whom Wood CJ concurred, in Loumia v Director of Public Prosecutions [1985 – 86] SILR 158 at page 163. 

In R v Wong Chin Kwee & others [1983] SILR 78 Daly CJ held at pages 80 – 81: 

'[T]he starting point in Solomon Islands in considering questions of general criminal liability must be our own Penal Code ("the Code"). The time has come when we must grapple with the terms of the Code and not rely upon common law doctrines which may have been replaced by it. 

Part IV of the Code deals with General Rules as to Criminal Responsibility. In the codes of Queensland and Western Australia where similar provisions occur, express provision has been made (section 36 in each code) to apply these General Rules "to all persons charged with an offence against the Statute Law". We, in common with Tasmania, have no such provision. However in view of the wide terms of the provisions in Part IV and the fact that the  

word "offence" (earlier defined as "an act, attempt or omission punishable by law": see section 4) is used in a number of sections, the only reasonable interpretation is that Part IV applies to all offences against law. Again there is no provision making the Penal Code exclusive such as in contained in section 2 of the Criminal Code Act 1899 of Queensland. However as this Court held in the preliminary Ruling in R v Ngena [… [1983] SILR 1], the Penal Code is a comprehensive statute of Solomon Islands and Schedule 3 of the Constitution provides that received law shall, in the case of received statute be "subject" to a Solomon Islands statute (Para. 1) and, in the case of principles and rules of common law and equity, shall apply – 

"Save in so far as 

(a)                they are inconsistent with … any Act of Parliament; or 

(b)               they are inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time ….." (Para. 2(1)). 

In my judgment where there is a comprehensive Code of Solomon Islands dealing with matters such as general rules as to criminal responsibility, even if there is no direct inconsistency, it is incumbent on the Court to apply that Code instead of relying on the common law rules on the basis that the common law rules are "inapplicable or inappropriate" […] in the circumstances of Solomon Islands. Adapting what this Court said in Ngena […], it is the intention of the Constitution that the common law rules should "wither away" when the Solomon Islands legislature has legislated for Solomon Islands in relation to every subject. Parliament so legislated comprehensively in relation to the criminal law when it enacted the Penal Code. Thus I also find that the Penal Code is exclusive in relation to matters dealt with therein, including general rules as to criminal responsibility.' (emphasis added) 

The law relating to 'Criminal Responsibility' is examined commencing on page 428. 

[3.5]     Extraterritorial Effect 

Section 7 of the Interpretation & General Provisions Act (Ch. 85) states: 

'An Act extends to the whole of Solomon Islands in its application.' 

In William Douglas McCluskey v The Attorney – General & others (Unrep. Civil Case No. 243 of 1993) Palmer J stated at pages 5 - 6: 

'My attention has been drawn to the writings of D.C. Pearce and R.S. Geddes in their book titled "Statutory Interpretation in Australia" Third Edition, Butterworths, 1988. At chapter 5 of their book they described certain legal assumptions. These are "…. assumptions based on the expectation that certain tenets of our legal system will be followed by the legislature." (Ibid at p.97) 

One of these is the assumption that parliament will not pass legislation that applies to people in other countries, hence a presumption is adopted by courts that legislation will not have extraterritorial effect. (Ibid at p.97).  

A clear statement of this presumption in the Australian jurisdiction can be seen in the judgment of O'Connor J in Jumbunna Coal Mine NL v Victoria Coal Miner's Assoc. (1908) 6 CLR 309 at 363: 

"In the interpretation of general words in a Statute there is always a presumption that the legislature does not intend to exceed its jurisdiction. Most statutes, if their general words were taken literally in their widest sense, would apply to the whole world, but they are always read being prima facie restricted in their operation within territorial limits." 

I do not see why that presumption should not apply in the interpretation of statutes in Solomon Islands especially when the supreme law of the country already has that presumption ingrained in its set – up.' (emphasis added) 

See also: R v Martin & others (1956) 40 CrAppR 68; R v Naylor (1960) 44 CrAppR 69 & sections 5 & 6 of the Penal Code (Ch. 26).

[3.6]     International Obligations 

Section 12 of the Interpretation & General Provisions Act (Ch. 85) states: 

'A construction of an Act which is inconsistent with the international obligations of the Crown is to be preferred to a construction which is not.' 

[3.7]     Use of Bills / Hansard / Explanatory Notes / Earlier Enactments 

Section 59(1) of the Constitution states: 

'Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Solomon Islands.' 

When an Act is initially written it is called a 'Bill' which contains 'clauses' and not 'sections'. However, the appearance of a 'Bill' is similar to an Act. It is drafted by the Office of the Attorney – General, after the writing of it has been approved by the Cabinet. 

During the course of writing a 'Bill' a number of drafts may have been written prior to it receiving the requisite approval for the Cabinet. Such drafts should not be used for the purpose of 'statutory interpretation', see Commissioner for Prices & Consumer Affairs v Charles Moore (Aust) Pty Ltd (1977) 139 CLR 449; (1977) 14 ALR 485. See however: Duggan v Mirror Newspapers Ltd (1978) 142 CLR 583; (1978) 22 ALR 439. After receiving that approval the Office of the Attorney – General arranges for the printing of the 'Bill' with explanatory notes and distributes such material to the Members of Parliament. 

Explanatory notes are issued by the government department responsible for the administration of the 'proposed' Act. Such notes explain what the Minister responsible believes the 'purpose' of the 'proposed' Act. Such notes should not be used for the purpose of 'statutory interpretation', see Re Jauncey [1980] QdR 335 at pages 336 - 342. Furthermore, in Collector of Customs v Savage River Mines (1988) 79 ALR 258 at page 263, the Full Court of the Federal Court of Australia stated:  

'Direct evidence from a public servant as to the policy of legislation is unlikely to be helpful in the process of statutory construction. It is difficult to envisage any circumstances in which evidence could rise above the level of one person's opinion on the matter.' 

The Minister responsible for the 'Bill' will 'formally 'present' it with the explanatory notes to Parliament, which is referred to as the 'First Reading'. 

The Opposition and interested parties are then generally given an opportunity to discuss the 'Bill'. It is then arranged for a suitable time to commence parliamentary debate in respect of the 'Bill'. During the course of such debate the intention of the 'proposed' Act 'should' become clear. 

The Minister responsible in the course of his/her 'Second Reading Speech' will be expected to explain the provisions of the 'Bill' in some 'limited' detail. Amendments may be voted on and passed or rejected at this stage. That process is formally referred to as the 'Second Reading'. 

A 'Second Reading Speech' should not generally be used for the purpose of 'statutory interpretation', see R v Secretary of State for the Environment, Transport & the Regions, Ex parte Spath Holme Ltd [2001] 1 AllER 195; [2001] 2 WLR 15. 

During the course of the parliamentary debate a 'Bill' can be referred to a parliamentary committee, or to Parliament as a 'Committee of the Whole', for further discussion. A report from the parliamentary committee is then made to Parliament. Such reports should not be used to directly interpret an Act, but may be used to ascertain the mischief. ie., purpose, of the Act and its historical background, see Wacol Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 & Totalisator Agency Board v Wagner Cayley [1963] WAR 180. 

During the course of the 'Third Reading' at some later time: 

·                     debate may continue; and 

·                     the 'Bill' is voted on and either passed or rejected. 

Section 59 of the Constitution states (in part): 

'(2)       [W]hen a Bill has been passed by Parliament it shall be presented to the Governor – General who shall assent to it forthwith on behalf of the Head of State, and when such assent is given the Bill shall become law. 

(3)               No law shall come into operation until it has been published in the Gazette but Parliament may postpone the coming into operation of any such law and may make laws, subject to section 10(4) of this Constitution with retrospective effect. 

(4)        All laws made by Parliament shall be styled "Acts of Parliament" and the words of enactment shall be "Enacted by the National Parliament of Solomon Islands".' 

See also: sections 60 to 62 of the Constitution. 

Section 20 of the Interpretation & General Provisions Act (Ch. 85) states: 

'(1)       Every Act made after this Act shall be published in the Gazette.  

(2)               A provision of an Act, made after this Act, comes into operation on the date of the publication of the Act in the Gazette or, if it is provided that the Act (including the provision) or the provision is to come into operation on some other date, on that other date. 

(3)        Any provision of an Act, made after this Act, which makes provision with respect to the coming into operation of all or any of the other provisions of the Act comes into operation on the date of the publication of the Act in the Gazette. 

(4)        When a provision of an Act comes into operation on a particular day, it is in operation as from the beginning of that day.' 

Section 21 of the Interpretation & General Provisions Act (Ch. 85) states: 

'A copy of an Act printed by the Government Printer which includes a date purporting to be the date on which the Act, or any provision of the Act, came or will come into operation is evidence that the Act or provision came, or will come, into operation on that date.' 

Hansard which is kept in bound volumes is the written record of everything said in Parliament, including the 'First, Second and Third Readings'. Such 'parliamentary material' may be used for the purpose of 'statutory interpretation'. In Pepper (Inspector of Taxes) v Hart [1993] AC 593 [[1992] 3 WLR 1032; [1993] 1 AllER 42] the House of Lords held per Lord Browne – Wilkinson at page 634: 

'[P]arliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.' 

As regards the interpretation of 'Subsidiary Legislation', refer to page 63. 

In The State v Danny Sunu, Namarai Walter, Iku Gagoro & Philip Haro [1983] PNGLR 396 Bredmeyer J, sitting alone, stated at page 404: 

'I consider the Minister's second reading speech – where the Bill is a government one – may be read and used where the text of the statute is ambiguous and where the Minister's speech clearly discloses the legislative intention. I believe that the use of Hansard by Murphy J in Sillery v The Queen (1981) 35 ALR 227 at 232 – 233 was an apt and proper use and one which helped determine the issue in dispute. 

I consider it permissible to look at Hansard in this case because the amending Act has created two paradigm ambiguities.' 

In Graeme Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44 Kapi DepCJ, sitting alone, stated at page 47: 

'The intention of the Parliament is revealed in the words used in the statute. It is a well settled principle of interpretation that a court needs only to look at the words and interpret what they mean. A court may not look at Hansard and the reasons for these are stated by Lord Reid in Beswick v Beswick [1968] AC 58. However, there is an exception to this rule which is also stated by Lord Reid in Warner Metropolitan Police Commissioner [1969] 2 AC 256 at 279:  

"And the authorities show that it is generally necessary to go behind the words of the enactment and take other factors into consideration. That being so the layman may well wonder why we do not consult the Parliamentary Debates, for we are much more likely to find the intention of Parliament there than anywhere else … I am bound to say that this case seems to show that there is room for an exception where examining the proceedings in Parliament would almost certainly settle the matter immediately one way or the other." 

I followed this proposition in Minister for Lands v Frame [1980] PNGLR 433 at 462 and also see Pratt J at 488.' (emphasis added) 

In Balou v Kokosi [1982] SILR 94 Daly CJ stated at page 95: 

'As this court said in R v Kauwai (1980/81) SILR 108 at p. 113 the Legislature "must be taken to have known the law at that time and to be using the words in the sense they have at the time (the Act) was enacted". 

It is for this reason that it is permissible to look at earlier enactments dealing with marriage in order to see what was regarded as the law as to marriage when the Affiliation Act was passed.' (emphasis added) 

See also: Re: E & D [1984] PNGLR 278; Owen (1996) 87 ACrimR 213 at page 217; Hoare v R (1989) 86 ALR 361 at pages 369 – 370; Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 56 ALR 265; Kaviridias v Commonwealth Ombudsman (1984) 54 ALR 285; FCT v Whitfords Beach Pty Ltd (1982) 39 ALR 521; Wacando v Commonwealth (1981) 148 CLR 1; (1981) 37 ALR 317 & Duggan v Mirror Newspapers Ltd (1978) 142 CLR 583; (1978) 22 ALR 439. 

[3.8]     Meaning of Words & Phrases 

[3.8.1]  Introduction 

The meaning of 'words' and 'phrases' used in a statute is a 'question of law' and not a question of fact. 

In Pearlman v Keepers & Governors of Harrow School [1979] QB 56 Lord Denning MR stated at page 67: 

'However simple the words, their interpretation is a matter of law.' (emphasis added) 

In John Sogabule v Sonny Maezama & SC Tahili (Unrep. Civil Case No. 383 of 1995) Muria CJ stated at page 3: 

'Words which are ordinary English words must be given their ordinary meaning.' (emphasis added) 

A Court may take 'judicial notice' of the meaning of ordinary words, see Bendixen v Coleman (1943) 68 CLR 451. 

The law relating to 'Judicial Notice' is examined commencing on page 333. 

In Collector of Customs v Agfa – Gevaert Limited (1995 – 96) 186 CLR 389 the High Court of Australia stated at page 396: 

'The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that purpose is bound up in the syntactical construction of the phrase in question. In R v Brown [[1996] 1 AC 543 at page 561], Lord Hoffman said: 

"The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole."' [words in brackets added] 

In Yager v R (1977) 139 CLR 28 Barwick CJ of the High Court of Australia commented at page 34: 

'Once the meaning is assigned, the further question whether some substance or thing in fact falls within the description of the statute properly understood is a matter of fact to be determined by the tribunal of fact.'

[3.8.2]  Read In Context 

In Solomon Sunaone Mamaloni v Attorney – General (First Respondent) & the Governor – General (Second Respondent) (Unrep. Civil Case Nos. 290 & 291 of 1993) Palmer J stated at pages 4 – 5: 

'A certain word used in a statute may have several meanings. However, when that word is considered within the context in which it is found, in the section or within the scheme of the whole Act, then the true or correct meaning should become apparent. A common phrase often heard is that 'words must be read within their context' or the 'Act must be read as a whole' [see section 9(2) of the Interpretation & General Provisions Act (Ch. 85)]. In his book 'Statutory Interpretation', by Donald Gifford at page 61 he made the following statements: 

"No part of an Act can be considered in isolation from its context – the whole must be considered. 'In the complex task of wrestling and true construction of an Act it cannot be compartmentalized and scrutinized molecularly. An Act is not to be read as though each word and phrase was a watertight compartment, and in such a way as to defeat the manifest purpose of the Act. The various provisions must be harmonized and it may be necessary for this purpose to read down general words – but if so they should not be read down any further than is absolutely necessary to achieve that harmony. The words used must be construed having regard to the quality of the Act revealed by a consideration of all its provisions and the meaning of the provision is to be gathered from the statute as a whole. The rule allows the court to avoid absurdity and anomaly as well as repugnancy and inconsistency." 

In Halsbury's Laws of England', 4th Edition Vol. 44 at paragraph 871, the learned author states:  

"Although the words of a statute are normally to be construed in their ordinary meaning, due regard must be had to their subject matter and object, and to the occasion on which and the circumstances with reference to which they are used and they should be construed in the light of their context rather than in what may be either their strict etymological sense or their popular meaning apart from that context. If the sense of a word can not be so determined, then recourse need not be had to its use in other sections of the statute or in other statutes." 

And continuing on para. 872: 

"For the purposes of construction, the context of words which are to be construed includes not only the particular phrase or section in which they occur, but also the other parts of the statute. 

Thus a statute should be construed as a whole so as, so far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute." 

In Attorney General –v- Prince Ernest Augustus of Hanover [1957] AC 436 at 461 quoted in Francis Bennion's book 'Statutory Interpretation' Second Edition at page 430, Viscount Simonds said: 

"… words, and particularly general words, cannot be read in isolation: their colour and context are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense…. Its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those other legitimate means, discern the statute was intended to remedy …… I must admit to a consciousness of inadequacy if I am invited to interpret any part of any statute without a knowledge of its context in the fullest sense of the word."' (emphasis added) 

In K & S Lake Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 Mason J of the High Court of Australia commented at page 514: 

'[T]o read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context.' (emphasis added) 

In Fox v Wade [1978] VR 362 McInerney J stated at page 366: 

'While the maxim noscitur a sociis must not be pushed to any great length, it does express a cannon of construction or an aid to construction, namely, that words may take their colour from their context.' (emphasis added) 

In Lennon v Gibson & Howe Ltd [1919] AC 709 Lord Shaw stated at page 771: 

'In the absence of any context indicating a contrary intention it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.' (emphasis added) 

See also: SCR No. 4 of 1985 [1985] PNGLR 320 at page 324; The State v Danny Sinu, Namarai Walter, Iku Gagoro & Philip Haro [1983] PNGLR 396 at page 414; Taikato v R (1996) 139 ALR 386 (HCA); Boughey v R (1986) 161 CLR 10 per Brennan J at page 30; Ashcroft (1987) 38 ACrimR 327 at page 328 & Attorney – General v Brown [1920] 1 KB 773. 

The importance of ensuring that words and phrases are interpreted according to their context should not be underestimated simply because the context of words or phrases may vary from statute to statute. In some instances a word or phrase may be given a 'deemed' meaning and therefore such word or phrase should not be given its natural and ordinary meaning. The law relating to 'Deemed Meanings' is examined commencing on page 56.

[3.8.3]  Defining Words & Phrases 

'Attention was drawn to various cases and statutes, but cases must be read and statutes must be construed with regard to the evils that they are expected to overt', see R v Collinson (1931) 23 CrAppR 49 at page 50. (emphasis added) 

When trying to define a 'word' or 'phrase' the following procedure should be followed:

1.         Refer to the definition section/s in the statute in question. 

Section 15 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Definitions and rules of interpretation in an Act apply to the provisions containing them as well as to the other provisions of the Act.' 

See for example section 4 of the Penal Code (Ch. 26). 

In Gibb v Commissioner of Taxation (1966) 118 CLR 628 [[1967] ALR 527] Barwick CJ & McTiernan & Taylor JJ, in a single judgment, stated at page 634: 

'The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of the definition are found in the statute under consideration, they are to be understood in the defined sense.'

In Brutus v Cozens [1973] AC 854 Lord Reid stated at page 861: 

'No doubt a statute may contain a definition – which incidentally often creates more problems than it solves – but the purpose of [such] a definition is to limit or modify the ordinary meaning of a word […].' [word in bracket added] 

See also: Gini v University of Technology & Pearce & Papua New Guinea University of Technology & Independent State of Papua New Guinea [1991] PNGLR 201 at page 204. 

Refer also to: 

·                     the section which examines 'Acts In Pari Materia' at page 62; and 

·                     the section which examines 'Deemed Meanings' commencing on page 56.

2.         Refer to section 16 of the Interpretation & General Provisions Act (Ch. 85).

That section provides the definitions of a number of words and phrases. ie., 'Deemed Definitions' and commences with the words, 'In an Act --' 

Section 2 of the Interpretation & General Provisions Act (Ch. 85) states: 

'(1) This Act applies to the interpretation of and otherwise in relation to: 

(a)                this Act; 

(b)               any other Act made before the commencement of this Act, except in so far as a contrary intention appears in this Act or the other Act; and 

(c)                any other Act made after the commencement of this Act, except in so far as a contrary intention appears in the other Act.' 

(2)        Part X applies to subsidiary legislation, whether made before or after the commencement of this Act, except in so far as a contrary intention appears in this Act or in the Act under which the subsidiary legislation is or was made.

(3)        The reference in subsection (1)(b) to "other Act" and in subsection (2) to "the Act" includes a reference to an Ordinance which may, by virtue of section 3 of the Citation of Ordinances Act 1978, be cited as an Act.' (emphasis added) 

3.         Refer to any relevant Solomon Islands case law which may have assigned a definition for the word or phrase in question. 

In R v Chard [1984] AC 279 Lord Scarman stated at page 294: 

'I respectively agree with my noble and learned friend that it would be wrong to extract from the speeches of their Lordships in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 an inflexible rule of construction to the effect that where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts and the legislature has repeated them without alteration in a subsequent statute, the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given them.' (emphasis added) 

See also: SCR No. 6 of 1984; Re Provocation [1985] PNGLR 31, per Los J at page 42; Maxwell Arthur Schliebs v H Singh [1981] PNGLR 364, per Miles J at page 369 & The Geelong Harbour Trust Commissioner v Gibbs, Bright & Co (1970) 122 CLR 504, per Barwick CJ at page 514. 

Therefore, it should not be assumed that the meaning assigned to words and phrases in one statute by courts can be applied to other statutes with the same words or phrases, without caution. 

Refer also to: 

·                     the section which is titled 'Judicial Precedent & Common Law' commencing on page 7; 

·                     the subsection which examines the need for words & phrases to be 'Read In Context' commencing on page 47; and 

·                     the section which examines 'Acts In Pari Materia' commencing on page 62.

4.         Refer to overseas case law with caution. In that regards reference can be made to a 'legal' dictionary and legal textbooks. 

In R v Lennard [1984] 1 QdR 1 Macrossan J commented at page 9: 

'It is, of course, not a permissible exercise in statutory interpretation to look at differently constructed statutes in other jurisdictions and assume that they necessarily provide a guide to the interpretation of our own legislation which may well differ in some of its aims.' (emphasis added) 

That principle obviously applies to Solomon Islands. 

However, as regards the interpretation of the Penal Code (Ch. 26), section 3 of that Code specifically states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in England criminal law and shall be construed in accordance therewith.' (emphasis added)

5.         Refer to a 'respected' dictionary' and / or 'legal dictionary' and / or 'legal textbook', with caution. 

The following rules however apply to the use of a 'dictionary', 'legal dictionary' or 'legal textbook' as an aid in the interpretation of words or phrases: 

·                     Caution must always be observed when defining a phrase because the interpretation of separate words of a phrase may not result in achieving its correct meaning, see Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329; 

·                     Dictionaries and textbooks which are 'respected' should only be used. As there is no 'official' dictionary or textbook a court will resort to a dictionary and / or textbook which it respects. 

In Gini v University of Technology & Pearce New Guinea University of Technology & Independent State of Papua New Guinea [1991] PNGLR 201 Doherty J, sitting alone, stated at page 204: 

'[Since the word …] is not defined in the Papua New Guinea University of Technology Act itself nor in the Interpretation Act, it should be given its normal meaning […] from the Penguin English Dictionary […].' (emphasis added) [words in brackets added] 

See also: Stone v Ross; Ex parte Stone [1976] QdR 219; Falconer v Pederson [1974] VR 185 at pages 185 – 189 & Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1966] 1 WLR 287; and 

• Synonyms, ie., words of a similar meaning, should not be interpreted.

In Brutus v Cozens [1973] AC 854 Lord Reid stated at page 861: 

'When considering the meaning of a word one often goes to a dictionary. There one finds other words set out. And if one wants to pursue the matter and find the meaning of those other words the dictionary will give the meaning of those other words in still further words which often include the word for which meaning one is searching. 

No doubt the court could act as a dictionary. It could direct the tribunal to take some word or phrase other than the word in the statute and consider whether that word or phrase applied to or covered the facts proved. 

But we have been warned time and again not to substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The overtones are almost always different. 

Or the court could frame a definition. But they again the tribunal would be left with words to consider. No doubt a statute may contain a definition – which incidentally often creates more problems than it solves – but the purpose of a definition is to limit or modify the ordinary meaning of a word […].' (emphasis added) 

See also: The State v Alan Bekau [1982] PNGLR 119 at page 121 & Traders Prudent Insurance Co Ltd v The Register of the Worker's Compensation Commission of New South Wales [1971] 2 NSWLR 513 at pages 515 – 516 & 519 – 522. 

It therefore follows by virtue of the abovementioned process that reference should only be made to a 'respected' dictionary, legal dictionary or legal textbook, if: 

·                     the particular word or phrase is not defined in the statute in question or a statute that can be read 'in pari materia' with it. In that regard refer to page 62; 

·                     the particular word or phrase is not defined in the Interpretation & General Provisions Act (Ch. 85); 

·                     there is no appropriate Solomon Islands case law which has interpreted the particular word or phrase; and 

·                     there is no other case law which has interpreted the particular word or phrase that was considered appropriate.

[3.8.4]  Current Meaning & Present Context 

Section 9(1) of the Interpretation & General Provisions Act (Ch. 85) states: 

'An Act speaks from time to time.' 

The modern approach to statutory interpretation is to give words and phrases their current meaning, the so – called 'Act Is Always Speaking' approach. 

In R v Ireland & R v Burstow [1998] 1 CrAppR 177 [[1998] AC 147] Lord Slynn of Hadley, with whom the other Lordships concurred, stated at page 186: 

'Bearing in mind that statutes are usually intended to operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes. Recognising the problem Lord Thring, the great Victorian draftsman of the second half of the last century, exhorted draftsman to draft so that "An Act of Parliament should be deemed to be always speaking": Practical Legislation (1902), p. 83; see also Cross, Statutory Interpretation (3rd ed., 1995), p. 51; Pearce and Geddes, Statutory Interpretation in Australia (4th ed., 1996), pp. 90 – 93. In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the "always speaking" variety: see Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1982] AC 800 for an example of an "always speaking" construction in the House of Lords.' 

[3.8.5]  Consistent Meaning 

Section 11 of the Interpretation & General Provisions Act (Ch. 85) states: 

'Where a word or an expression is defined in an Act for any purpose then for that purpose all grammatical variations and cognate and related expressions are to be understood in the same sense.'

The general rule is that where the same word or phrase appears at different places in a statute its meaning is presumed to be the same, see Khan v Attorney – General & Island Enterprises Limited v Attorney – General [1984] SILR 105 & Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450. 

However, in R v Lynsey [1995] 2 CrAppR 667 [[1995] 3 AllER 654] the Court of Appeal stated at page 672: 

'Draftsmen after all sometimes make mistakes. In Benion Statutory Interpretation (2nd ed., 1992) at p. 417 the following passage occurs: 

"Failure to keep to the definition. The interpreter needs to remember that drafters are fallible. Richard Robertson (Definition (1992) p. 64) said: 

'In stipulating a meaning for a word a writer demands that his read shall understand the word in that sense whenever it occurs in that work. The writer thereby lays upon himself the duty of using the word only in that sense and tacitly promises to do so and tacitly prophesies that he will do so. But sometimes a writer does not use the word only in the sense he has stipulated, then his stipulation implied a false promise and a false prediction.' 

Where it is clear that the drafter has forgotten the definition in a particular place where the defined term occurs, the court may need to give the term its ordinary meaning."' (emphasis added) 

See also: Scott v Commercial Hotel Merbein Pty Ltd [1930] VR 25 & Murphy v Farmer (1988) 79 ALR 1. 

[3.8.6]  Shall & Must

In Re Griffiths [1991] 2 QdR 29 Bryne J commented at page 33: 

'In legislation, "shall" ordinarily signifies must. But like all words, its meaning takes colour from its context. A general disposition in favour of construing "shall" as obligatory cannot prevail over other considerations plainly evidencing a contrary legislative intent.' (emphasis added) 

See also: Ex parte Hinds & others, Re Penboss & others [1972] 2 NSWLR 542, per Stanley J at page 552 & Tasker v Fullwood [1978] 1 NSWLR 20 at page 23.

[3.8.7]  May & May Not 

In Mobil Oil Australia Pty Ltd v Ronnie Kwaeria (Unrep. Civil Appeal Case No. 68 of 2001) Palmer J stated at pages 1 – 2: 

'Whilst it is accepted that the word "may" denotes the exercise of discretionary power there may be circumstances or situations in which that discretionary element is removed. Earl Cairns LC pointed this out in Frederic Guilder Julius v The right Rev. The Lord Bishop of Oxford (1880) 5 App. Cas. 214 at pages 222, 223: 

"But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." 

See also [the] statement of Lopes LJ [in] In re Baker, Nichols v Baker (1890) 44 Ch. D. 262 at p. 273: 

"… the word "may" is beyond all question potential, it implies a power; but, if it is coupled with a duty on the Court or the person to whom it is given to use that power in a certain particular way, it then no doubt becomes imperative."

The word "may" in subsection 6(3) cannot be considered in isolation to the word "not". The use of the word "not" which follows immediately the word "may" in my respectful view, removes any discretionary element associated with the word "may". When used together they denote the denial of a power or permission which otherwise would have been available had the word "not" been added. […] In Black's Law Dictionary, sixth edition, the phrase "may not" is defined as: 

"A phrase used to indicate that a person is not permitted to do or to perform some act."' (emphasis added) [word in brackets added]

[3.8.8]  And & Or 

Words joined by 'and' are regarded as being 'cumulatives', whereas words joined by 'or' are regarded as 'alternatives', unless there is an obvious mistake when interpreting the legislation. 

Therefore, 

·                     if the word 'or' appears in a section as follows: 

'(a)       […]; 

(b)        […]; or 

(c)        […]',

the prima facie assumption is that the section will be satisfied if either subsections (a), (b) or (c) is satisfied; and 

·                     if the word 'and' appears in a section as follows: 

'(a)       […]; 

(b)        […]; and 

(c)        […]',

the prima facie assumption is that the section will be satisfied only if all subsections are satisfied. 

See: Jennings v Pryce (1984) 30 NTR 39 at pages 39 – 42. 

However, mistakes are recognized by the courts and statutes with mistakes are generally interpreted so as to rectify the mistake if possible, thereby applying the 'purposive rule'. 

In Allardyce Lumber Company Limited, Bisili, Roni, Sakiri, Hieli, Sasae, Poza & Zongahite v Attorney – General, Commissioner of Forest Resources, Premier of the Western Province & Paia [1988 – 89] SILR 78 Ward CJ stated at pages 95 – 96: 

'Alternatively, it is suggested this is a case where the word "and" at the end of paragraph (a) should be read as "or". As with all rules of statutory interpretation, it only comes into play if the wording of the act is not clear but it is a clearly accepted rule that in order to carry out the intention of the Legislature, it may be necessary to read one for the other. 

In Green v Premier Glynrhonwy State Co [1928] 1 KB 561, Sumner LJ said at page 568: 

"You do sometimes read 'or' as 'and' in a statute … but you do not do it unless you are obliged because 'or' does not generally mean 'and' and 'and' does not generally mean 'or'."' (emphasis added) 

See also: ET & CT v Director of Child Welfare [1984] PNGLR 25 at page 32; Gillespie v Ford (1978) 19 ALR 102 at pages 106 – 108; Corocraft Ltd v Pan American Airways Inc [1969] 1 QB 616; Ex parte Melvin [1980] QdR 391 at page 393 & Re The Licensing Ordinance (1968) 13 FLR 143, per Blackburn J at page 146.

[3.8.9]  Deemed Meanings 

[A]       Introduction 

When a statute specifically defines the meaning of words or phrases, it applies a 'deemed' meaning because such words and phrases are 'deemed' to have the meaning assigned. Therefore, the natural and ordinary meaning of such words or phrases can not be applied. 

The 'definition' section of a statute applies to the statute as a whole, unless the contrary intention appears. Section 16 of the Interpretation & General Provisions Act (Ch. 85) applies to that Act and all other Acts, unless the contrary intention appears, by virtue of section 2 of that Act. 

In Davinia Boso v Blue Shield (Solomons) Insurance Ltd (Unrep. Civil Case No. 181 of 1996) Palmer J stated at pages 2 – 3: 

'The phrase "unless the contrary intention appears" really means 'except where, and to the extent that, a different intention appears.'

[B]       Means & Includes 

The interpretation of the words 'means' and 'includes' which are used in 'deemed' definitions has caused difficulties for the courts over the years. Clearly the word 'means' as regards a definition indicates an 'exhaustive' or 'restrictive' definition, ie., the word or phrase has no other meaning. However, whilst the word 'includes' is prima facie 'inclusive', it may be interpreted as 'exhaustive' depending on the context of the statute in question. Therefore, a great deal of care is necessary if a definition uses the word 'includes'. 

In R v Harris [1973] PNGLR 382 Prentice J, sitting alone, stated at page 385: 

'[The section] proceeds to provide that "the term 'lottery' shall include [….]". […] the meaning of the word "include" in such a definition as is given in this Act seems to be this. The word interpreted has its ordinary meaning. That meaning it still has in the Act. But then there are other meanings that the legislature wishes it to have in the Act. So the definition is used to enlarge the meaning of the term beyond its ordinary meaning and make it include matters which the ordinary meaning would not include. But this enlargement of meaning is confined to the matters expressly mentioned in such definition. […] In other words such a "definition" section may be not an exhaustive definition – but enlarging one.' (emphasis added) [words in brackets added] 

In Dilworth v Commissioner of Stamps [1899] AC 99 Lord Watson stated at page 105: 

'The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words and phrases occurring in the body of the statute, and when it is so used these words and phrases must be construed as comprehending not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. 

But "include" is susceptible of another construction which may become imperative if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include", and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to those words or expressions.' (emphasis added) 

See also: Khan v Attorney General & Island Enterprises Limited v Attorney – General [1984] SILR 95 at page 106; Mesulam Tomalana v Drug House of Papua New Guinea [1991] PNGLR 45; Chern Jin Fa v Naniura [1990] PNGLR 506 at page 508; Re Collins, Ex parte Official Trustee in Bankruptcy & Bracher (1986) 65 ALR 338 at pages 339 – 342; R v Billick & Starke (1984) 36 SASR 321 at page 328; Mac Farlane v Burke, Ex parte Burke [1983] QdR 584, per Macrossan J at page 594; Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation (1979) 24 ALR 658 at page 660; Mattinson v Multiple Incubators Pty Ltd [1977] 1 NSWLR 368 at page 373; Stewart v Lizars [1965] VR 26 at pages 210 – 212; HZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at pages 398 – 400; Hughes v Winter [1955] SASR 238 at pages 239 – 240; St Aubyn v Attorney – General [1952] AC 15, per Lord Radcliffe at page 53; Attorney – General v Brown [1920] 1 KB 773 at pages 787, 789 – 791 & 797 – 800 & Muller v Dalgety & Co Ltd (1909) 9 CLR 693, per Griffith CJ at pages 695 – 699.

[C]       Class Rule 

In Dean v Attorney – General of Queensland [1971] QdR 391 Stable J outlined the 'ejusdem generis' or 'class rule' as follows at page 403: 

'As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction, must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem generis rule to apply, the specific words must constitute a category, class of genus; if they do constitute such a category, class or genus, then only things which belong to that category, class or genus fall within the general words; for example a superior thing will not be held with a class of inferior things.' (emphasis added)

For example, if a statute provides: 

'The term "motor vehicle" includes motor cars, motor bikes and other vehicles', 

by virtue of this rule, the words 'and other vehicles' would not apply to any other vehicle which did not have a motor.

[D]       Words Of Inclusion & Exclusion 

Some definitions have both 'inclusionary' and 'exclusionary' elements. For example, if a statute provides: 

'The term "motor vehicle" includes motor cars, motor bikes and other vehicles, but does not include motor boats',

the 'words of exclusion' are 'but does not include motor boats'. Therefore, a motor boat although it has a motor has been excluded from the definition of that term.

Such words may however not assist in the interpretation of such terms, see Corporate Affairs Commission v Australian Central Credit Union (1985) 157 CLR 201; (1985) 61 ALR 236 at pages 204 – 206 & 237 – 239 & 242 – 243 respectively. 

[3.8.10]            Notwithstanding 

In Keith Edward Garland Douglas v The Attorney – General (Unrep. Civil Case No. 284 of 1999) Palmer J held at page 5: 

'The word "notwithstanding" in common parlance means "in spite of" or "irrespective". In Re Bread Carters (Cumberland) Board [1922] AR (NSW) 73 it was explained "the purport of a notwithstanding phrase in a statute is to mark and remove an obstacle to the intended legislation". In my respectful view, the phrase "notwithstanding the provisions of any other law to the contrary" has the same effect as a suspension clause.'

[3.9]     Punctuation 

The failure to take account of punctuation disregards the reality that literate people punctuate using grammatical principles and therefore, punctuation should be used in interpretation of statutes, see Hanlon v The Law Society [1981] AC 124; Royal South Australian Yacht Squadron v Attorney – General [1938] SASR 430 at page 432 & Davidson v Board of the Territory Insurance Office (1981) 13 NTR 1. 

Nevertheless, in order to achieve an interpretation according to the perceived intention of the Parliament, punctuation may need to be ignored, therefore, applying the 'purposive rule'. 

In Committee of Direction of Fruit Marketing v Collins (1925) 36 CLR 410 Isaacs J stated at page 421: 

'A comma is one means of expressing intention in a writing, and a Court is entitled to have regard to it, though of course not to be controlled by it if the context nevertheless requires otherwise.' (emphasis added)

[3.10]   Schedules & Tables 

Section 6 of the Interpretation & General Provisions Act (Ch. 85) states (in part): 

'(1) A Schedule to or table in an Act is part of the Act. 

(2) Notes to a Schedule to or table in an Act are part of the Act.' (emphasis added) 

See also: sections 13 and 14 of the Interpretation & General Provisions Act (Ch. 85). 

If however a passage in a schedule is inconsistent to one in the body of the statute the latter would prevail, see Evo v Supa & Returning Officer [1985 – 86] SILR 1 at page 13.

[3.11]   Gender & Number 

Section 10 of the Interpretation & General Provisions Act (Ch. 85) states: 

'In an Act – 

(a)                words imparting the masculine gender include females; and 

(b)        words in the singular include the plural and words in the plural include the singular.' (emphasis added)

[3.12]   Marginal Notes & Headings 

Marginal notes and headings in an Act and references to other Acts in the margin of or at the end of an Act are not part of the Act', see section 6(3) of the Interpretation & General Provisions Act (Ch. 85), and therefore, can not be used to try to interpret the section even if its meaning is unclear or ambiguous. (emphasis added) 

In Rachel Tabo v Commissioner of Police (Unrep. Criminal Appeal No. 1 of 1993) the Court of Appeal held at page 1:

'That offence seems to be commonly referred to as "affray", undoubtedly because that word is used in the marginal note to section 81. However, section 6(3) of the Interpretation and General Provisions Act 1978 provides that a marginal note does not form part of the Act, and in consequence that use of the term affray cannot affect the definition.' 

[3.13]   Repeal Of Statutes

[3.13.1]            Introduction 

A later statute may either: 

·                     expressly, ie., as outlined in the statute in question, in that regard refer to sections 22 to 25 & 68 of the Interpretation & General Provisions Act (Ch. 85); or 

·                     impliedly, ie., by implication, 

repeal another statute or sections of another statute. 

The term 'Repeal' is defined in section 16 of the Interpretation & General Provisions Act (Ch. 85) as including 'rescinding, revoking, cancelling and replacing'. 

In Baiza Tadu Avona v The State [1986] PNGLR 148 the Supreme Court stated at page 152: 

'We take the view that particularly in view of the title of the Act and the use of terminology throughout the Act in relation to the changing of the penalty, ie., that the provision is amended by repealing particular words and replacing those words with other words, amounts to an amendment rather than a repeal. We note the concession by the Acting Public Prosecutor on his interpretation of the law on this question that he adopted the test set out at the end of p. 121 in the 2nd ed. of Statutory Interpretation in Australia (1981) by Pearce where the learned author says as follows: 

"It seems probable that in determining whether a provision should be regarded as 'amending' or 'repealing'; the Courts will continue to have followed the approach in Beaumont v Yeomans (1934) 34 SR (NSW) 562 of looking to the substance of the provision rather than its form." 

In applying this test to the amending Act – it is clear that the provisions that amend the penalty provisions in substance are amendments although the word repeal is one of the words that is used the word amend and replacement are also used. 

It is also appropriate in circumstances such as this to give consideration to what was the intention of the legislature. There was little information or argument put to the Court on this question. However, the terms of the amending Act itself provide us with a clear indication of the Parliament's intention.' (emphasis added) 

See also: R v Yamse Masayuki, Ito Tutomu & Solgreen Enterprises (Unrep. Criminal Case No. 27 of 1999; Muria CJ; at page 7) & Allardyce Lumber Company Limited; Kalena Timber Company Limited; Sylvania Products Limited v The Premier of the Western Province (representing the Western Provincial Executive of the Western Provincial Assembly) (Unrep. Civil Appeal Nos. 10 & 12 of 1996; Court of Appeal; at page 12). 

[3.13.2]            Expressly 

In SCR No. 4 of 1985 [1985] PNGLR 320 the Supreme Court held:

A law which has been repealed by statute, ie., expressly, is to be treated as never having existed. 

Therefore, repealed legislation should not be used to interpret a current statute. 

However, in Balou v Kokosi [1982] SILR 94 Daly CJ held at page 95: 

'As this court said in R v Kauwai (1980/81) SILR 108 at p. 113 the Legislature "must be taken to have known the law at that time and to be using the words in the sense they have at the time (the Act) was enacted". 

It is for this reason that it is permissible to look at earlier enactments dealing with marriage in order to see what was regarded as the law as to marriage when the Affiliation Act was passed.' (emphasis added) 

See also: Commissioner of Police for the Metropolis v Sieneon (1982) 75 CrAppR 359. 

[3.13.3]            Impliedly 

A later statute may impliedly repeal another statute or sections of another statute, if such statute/s or section/s deal with the same issue or mischief. 

In Laho Kerekere v Robin Miria [1983] PNGLR 277 Amet J, sitting alone, stated at page 280: 

'It was submitted that the maximum penalty provision in s 20 of the Summary Offences Act, being a later statute repeals the earlier s 206(2) of the District Courts Act by implication. The approach is summed up in the maxim – lages posteriors priores contrarias abrogant, later Acts repeal earlier inconsistent Acts. 

However, the application of this approach is not automatic. 

"The court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together, before they can from the language of the later imply the repeal of an express prior enactment, ie., the repeal must, if not express, flow from necessary implication" 

per Barton J in Goodwin v Phillips (1908) 7 CLR 1 at 10 referred to in Pearce on Statutory Interpretation at 94 par. 142. 

Whether a later act has taken away a discretionary power given by an earlier act must depend upon a comparison of the actual language of each, to see whether they do not stand together or whether the latter has, impliedly (to that extent) abrogated the former. […] 

It is settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the later are "such as by their necessity to import a contradiction.' (emphasis added)

In The State v Natpalau Tulong [1995] PNGLR 329 Doherty J, sitting alone, stated at page 331: 

'It was argued that the Arrest Act, being a later act than the Criminal Code, impliedly repealed the provisions of the Code relating to arrest with warrant.

It has held that rules of statutory interpretation usually consider where the later of two statutes makes provision that is inconsistent with earlier legislation, the later is to be taken to have impliedly repealed the former. It was considered that the Arrest Act was intended to cover all aspects of arrest and so by implication would repeal the Criminal Code. The Arrest Act makes no reference to repeal of any provisions in any other legislation and limits its provisions to Common Law powers and duties at section 31. 

The general rules of interpretation are that two pieces of legislation should be able to stand together. There might be an implied amendment only if collision between the two laws cannot otherwise be avoided. […] 

It is also considered [at page 191 of the text, Maxwell On Interpretation] that any rule of interpretation providing for "implied repeal" is to be avoided where possible. […] "If therefore earlier and later statutes can reasonably be constructed in such a way that both can be given effect to, this must be done. […] If the later Act contains a list of earlier enactments which expressly repeals then an omission of a particular statute from that list will be a strong indication of an intention not to repeal that statute. 

When a later Act is worded in purely affirmative language, without any negative expressed or implied it is even less likely that it is intended to repeal the earlier law.' (emphasis added) [words in brackets added]

See also: The State v Danny Sunu, Namarai Walter, Iku Gagoro & Phillip Haro [1983] PNGLR 396, per Bredmeyer J at page 404, McDermott J at pages 411 – 412 & Amet J at page 415 & Laho Kerekere v Robin Miria [1983] PNGLR 227 at page 281. 

The following procedure should be applied in order to determine whether an Act, has been 'impliedly repealed': 

·                     determine the dates of commencement of the statutes in question by seeking advice from the Office of the Attorney – General; 

·                     determine whether the statutes are either general or specific in comparison to each other; 

·                     determine the extent of the inconsistency between the statutes or provisions; and 

·                     determine the intent of the Parliament in respective of the latter legislation. 

In applying that procedure the following questions should be asked:

·                     "Are the statutes inconsistent with each other?" 

·                     "Does either of the statutes show plainly an intention that the other shall not operate?" 

·                     "Can it be implied from the language of either statute that the other is not to operate?"; and 

·                     "Does it appear that the latter statute was enacted with any purpose in view of which cannot be carried out consistently with the other?" 

[3.14]               Acts In Pari Materia 

An Act is 'in pari materia' if it:

·                     expressly is; or 

·                     impliedly should be 

read with another statute. 

The Interpretation & General Provisions Act (Ch. 85) is an Act which is read expressly 'in pari materia' with all other Acts, unless the contrary intention appears, see section 2 of that Act. 

As explained by Lockhart J in Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57 at page 62: 

'It is not uncommon to find in an Act a provision that an earlier Act is incorporated and shall be read as one with the later Act. The effect of such a provision is to transpose the earlier into the later Act or to write every provision of the earlier Act into the later Act as if they had been actually printed into it. It is a rule of construction of statutes. […] Sometimes an Act provides that it is incorporated and shall be read as one with an earlier Act. The effect is the same, namely, to transpose the later into the earlier Act.' (emphasis added) 

Refer also to the law relating to the interpretation of the Penal Code (Ch. 26) as examined commencing on page 39. 

See also: Wui – Wapi & seventeen others v Ludwick Kembu [1984] PNGLR 7; Constitutional Reference No 3 of 1978 [1978] PNGLR 421; Agiru Aieni & twelve others v Paul T Tahain [1978] PNGLR 37 & Maxwell Arthur Schliebs v H Singh [1981] PNGLR 364 at page 369.

[3.15]               Subsidiary Legislation 

The term 'Subsidiary Legislation' is defined in section 16 of the Interpretation & General Provisions Act (Ch. 85) as meaning:

'any legislative provision (including a delegation of powers or duties) made in exercise of any power in that behalf conferred by any Act, by way of by – law, notice, order, proclamation, regulation [defined in section 16], rule, rule of court [defined in section 16] or other instrument.' [words in brackets added] 

As regards 'subsidiary legislation' generally refer to sections 61 to 68 of the Interpretation & General Provisions Act (Ch. 85). 

In NTN Pty Limited & NBN Limited v The State [1986] PNGLR 167 Kidu CJ, sitting alone, stated at page 178: 

'When an Act of Parliament authorizes an authority to make regulations or rules or bylaws then the authority must act within the powers given to it. If it goes beyond those powers then it exercises powers that are not given to it by the relevant Act or Parliament.' (emphasis added) 

Therefore, 'subsidiary legislation' must be interpreted according to the relevant Act and if the 'subsidiary legislation' is inconsistent with the relevant Act, the latter must prevail. 

See also: Chambers v Mayos [1969 – 70] P&NGLR 46.

[3.16]   Retrospectivity 

Section 59(3) of the Constitution states: 

'No law shall come into operation until it has been published in the Gazette but Parliament may postpone the coming into operation of any such law and may make laws, subject to section 10(4) of the Constitution with retrospective effect.' (emphasis added) 

Section 10(4) of the Constitution states: 

'No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.' (emphasis added) 

Therefore, by virtue of section 10(4) of the Constitution the Parliament of Solomon Islands can not validly enact 'penal statutes' that have 'retrospective effect'.

In Club Freeway v Honiara Liquor Licensing Board (Unrep. Civil Case No. 28 of 1998) Kabui J after referring to section 9 of the Interpretation & General Provisions Act (Ch. 85) stated at page 6: 

'[A]n Act is always speaking in the present tense. It does speak retrospectively per se or by validation unless by expressed or implicit terms in the Act itself.' 

In Mark Ourusu & another v Attorney – General & others (Unrep. Civil Case No. 4 of 1993) Palmer J stated at pages 6 – 7: 

'On the submissions of the presumption against retrospective operation by Mr. Lavery, I find that they do not apply here. Mr. Lavery did refer to the works of Francis Bennlous on 'Statutory Interpretation', a code, second edition, Butterworths 1992 at page 215. I will quote that passage because it does point out the exception that applies in this case: 

"So it follows that the courts apply the general presumption that an enactment is not intended to have retrospective effect. As always, the power of Parliament to produce such an effect where it wishes to do so is nevertheless undoubted (sovereignty of Parliament). The general presumption, which therefore applies only unless the contrary intention appears, is stated in 'Maxwell on the Interpretation of Statutes' in the following terms: It is a fundamental rule of English law that no statute shall be construed to have retrospective operation unless a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implications." 

There are several important points to note from this quotation. First, the presumption against retrospective operation is a general one. Secondly, it does not deny the power of Parliament to enact legislation that will have that effect. And thirdly, where the construction of the terms of one Act make it clear and distinct.' (emphasis added) 

However, there is a further exception to the assumption against retrospectivity. 

In Rodway v R (1990) 169 CLR 515 the High Court of Australia stated at page 518: 

'The rule at common law is that a statute ought not be given a retrospective operation where to do so would effect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking where procedure alone is involved, a statute will invariably operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon past events.'

 In Milne Bay Provincial Government v The Honourable Roy Evara MP Minister for Primary Industry & The Independent State of PNG [1981] PNGLR 63 Andrew J, sitting alone, stated at page 66:

 'It is true that there is a presumption against a statute having retrospective operation and no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct application […]. But that presumption has no application to enactments which effect only procedure and practice and no person has a vested right in any course of procedure […].' (emphasis added)

 See also: R v Austin (1913) 8 CrAppR 169 at 170; Supreme Court Review No. 5 of 1987: Re Central Banking (Foreign Exchange & Gold) Regulations (Ch. No. 138) [1987] PNGLR 433; The Director – Division of District Administration & others v The Sacred Heart Mission (New Britain) Property Trust [1974] PNGLR 312; Polyukhovich v Commonwealth of Australia (1990 – 91) 172 CLR 500; (1990 – 91) 101 ALR 545; La Machia v Minister for Primary Industry (1986) 72 ALR 23; Ex parte Lawrence (1972) 3 SASR 361; Brown Pty Ltd v Metropolitan Meat Industry Board (1971) 92 WN (NSW) 823; Maxwell v Murphy (1957) 96 CLR 261; Taylor v Anstis [1940] VLR 300; Re Gardiner [1938] SASR 6; Worrall v Commercial Banking of Sydney Ltd (1917) 24 CLR 28 at page 32 & R v Kidman (1915) 20 CLR 425.