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Wednesday, May 26, 2010

Presumption against Implicit changes in Law

There is also a presumption, which derives from the era when the primacy of the common law was only marginally impinged upon by statute law, that a provision which is ambiguous as to whether or not it effects a change in the law shall be regarded as not effecting any such change. In Minister for Industry and Commerce v Hales, Henchy J endorsed this presumption, citing Maxwell. The case related to the Holidays (Employees) Act, 1961 , and the validity of ministerial regulations made under the Act . Henchy J held that, since the clear intention of the legislature was to confine the Act to those employed under a contract of service or apprenticeship, it could be assumed that the use of very general words to define "worker" in section 3(3) of the Act - "any person ... who is employed" - should not be read as allowing the Minister to broaden the scope of the Act in regulations, to grant a range of important rights to those working as independent contractors, and to make these rights implied terms of the employment contract, with their breach resulting in criminal liability. Henchy J observed:

"I cannot believe that the power to effect such radical and far-reaching changes in the law of contract was intended, or should be deemed to have been intended, by a loosely drafted sub-section in an Act that has declared its purpose and scope to be otherwise."
The question of the application of the principle to criminal law
statutes was raised before the Supreme Court in DPP v Gray. The Supreme Court reiterated the general principle that general words in a later Act should not be presumed to repeal or amend earlier legislation, so long as they were capable of reasonable construction without effecting any such amendment. However, McCarthy J, dissenting, noted that there was no authority regarding the application of this principle to criminal law statutes . The principle that criminal statutes should be strictly construed for the benefit of the individual could have an impact on the operation in this area of the presumption against unclear changes. The Court applied the principle and found that the two statutes which were at issue in the case could stand together and operate separately and individually, without one being considered to have implicitly repealed another.

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