CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb00683.x |
| Date | 01 January 1962 |
| Published date | 01 January 1962 |
CO13RESPONDENCE
THE
E:L)ITOB,
Thr
Modern
Lcw
RezIew.
Sir,
The
Imperial
Pnrliamewt
mid
Comiiioitwsalth
Court8
In an cirticlel Mr.
F.
A.
R.
Bennion has taken issue with tnc over the
provisions
of
the Copyright Act,
1966.
I
am not qualified to challenge his
expert knowledge of this field, but
I
cannot nccept his assumptions in the
field of Constitutional Law.
He
takes the view that section
4
of
the Statute
of
Westminster,
1981.
merely lays down
a
rule
of construction which, like any other, can be
dis-
placed by words in
a
subsequent Act indicating
a
contrary intention. In niy
submission,
this
does not go to the root
of
the problem, which is as follows
:
if
section
4
is law, then (in effect) courts
are
informed that legislation within
the fields specified shall be identified by
a
specific mark-that is, the request
and consent declaration. This requirement can be repealed expressly
or
impliedly, but, until it is repealed, any purported legislation within its scope
will not be enforced by the courts as part of the Inw
of
the Dominion
concerned, unless it
is
prefixed by this declaration.
Simply
to
treat the section
4
declaration as one method whereby legislation
of the United Kingdom Parliament applicable to a Dominion is to be
recognised is not enough.
To
do
so
is
to disregard the express words
of
section
4,
“no
Act of Parliament
. . .
rhall
extend
. .
.
to
tt
Dominion
as
part
of
the law of that Dominion,
unless,
etc.,” to say nothing of the third
recital, in the light of which the section
is
presumably to be construed.
In fact
Mr.
Bennion’s contentions are based throughout upon the supposed
effect
of
section
4
on the Imperial Parliament, the intentions of Parliament,
what Parliament’s meaning was, and the circumstances in which the legislation
came to
be
passed.
But under the common law system
of
jurisprudence, the
intention of Parliament is in application
not
what the draftsman intended
or
the individual le&lators, but is what the court interpreting the Act holds to
be the intention. More specifically, the question
of
what the law of Australia
may be since the Statute
of
Westminster
is
one for the Australian courts and
not
for
the courts
of
the United Kingdom. Hence if the High Court
of
Australia
places
a
particular interpretation upon the application
of
the
Copyright Act,
1956,
to that country, it is not for anyone in the United
Kingdom to say that the intention of the United Kingdom Parliament was
otherwise.
Further,
Mr.
Bennion takes the view that as
a
matter of interpretation
paragraph
41
of
the Seventh Schedule would not apply to Australia (and pre-
sumably that
the
section
4
declaration would be otiose on that account).
Suppose then paragraph
41
prefixed by a section
4
declaration referring to
Australia. In such
a
case the paragraph would become part of Australian
law and
then
the question would arise whether the words as they stood would
be apt to apply to Australia. It is seen that the presence
of
the declaration
is
external too, and docs not resolve the interpretation question; thus,
for
example, paragraph
41
is
part of the
Inw
of
England althou~h it has no
application in that country.
And it is submitted that this accords with the rulings of Dixon C.J. and
Taylor
and Mencies
JJ.
in the
E.M.Z.
case; it is not that the absence of the
section
4
declaration shows that the Imperial Parliament did not intend
1
(im)
ar
M.L.R.
m.
186
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