Question!

[Smeegen999]

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When you are reading a staute, and there is an exception to a provision, which says 'except is such circumstances as are prescribed' and there are no regulations to the Act which list the prescribed circumstances, does this mean they do not exist?

eg. in the Public Sector Management Act 1994

(2) A person to whom this sector applies must no, directly or indirectly, record, disclose or make use of any information obtained in the course of duty except-
(a) for the purpose of performing functions under this Act or anothere written law;
(b) as required or allowed by this Act or under another written law;
(c) with the written consent of the person to whom the information relates; or
(d) in other prescribed circumstances.

[circusmind]

My legal dictionary and stat interpretation textbook (Pearce and Geddes) give me no love on the meaning of 'prescribed'. However, I'm confident that it refers only to delegated legislation. Certainly, the judiciary doesn't 'prescribe' new provisions into legislation--they only interpret such legislation as is already on foot.

If Parliament had intended to leave wiggle room for the courts to devise new exceptions, they would not have chosen the format they did here. A normal way of giving the courts power to come up with exceptions to the rule would be like this:

(1) No animals shall be allowed in the city, except for small domestic animals.
(a) without limiting the generality of Section 1, the meaning of 'small domestic animal'
includes, but is not limited to:
(i) cat
(ii) dog
(iii) etc etc etc

So yes, until such time as Parliament makes regulations under the Act, there is no substance to paragraph (d) in your example.

[melsc]

Originally Posted by Tabris

I think that it is an uncapped list, soemtimes statutes leaves room for the common law......

In this case, "in other prescribed circumstances", leaves room for Judges to decide what circumstances will constitute an exception - so the law is more flexible rather than just confined to the exceptions in (a),(b) and (c).

Yeah, I think it basically means it isn't an exhaustive list, thus the courts MAY decide other circumstances that will be an exception.

[circusmind]

Originally Posted by melsc

Yeah, I think it basically means it isn't an exhaustive list, thus the courts MAY decide other circumstances that will be an exception.

You're probably a lot further on in your degree than I am, but surely 'prescribe' refers to delegated legislation? Legislation normally doesn't give the courts carte blanche to develop positive rules....

[Strawbaby]

I put my hand up for referring to as-yet-unmade delegated legislation only. It's legislative - the court can't just prescribe completely new exceptions of its own accord.

[melsc]

Originally Posted by circusmind

You're probably a lot further on in your degree than I am, but surely 'prescribe' refers to delegated legislation? Legislation normally doesn't give the courts carte blanche to develop positive rules....

Do forgive me, I haven't done much stat interpretation in a while since I have been doing stuff like equity and remedies etc not very statutory based.

I'm really not sure, its not common to see something like that. To be safe I would say that there can be other circumstances but they are not as of yet prescribed.

[circusmind]

Originally Posted by melsc

Do forgive me, I haven't done much stat interpretation in a while since I have been doing stuff like equity and remedies etc not very statutory based.

Yeah, me too. My gut instinct is kicking in mainly from Constitutional and Theory lol.

[Strawbaby]

My head is getting kicked in by Admin, but that's probably because I have an exam on it on Tuesday.

[Tabris]

Originally Posted by circusmind

My legal dictionary and stat interpretation textbook (Pearce and Geddes) give me no love on the meaning of 'prescribed'. However, I'm confident that it refers only to delegated legislation. Certainly, the judiciary doesn't 'prescribe' new provisions into legislation--they only interpret such legislation as is already on foot.

If Parliament had intended to leave wiggle room for the courts to devise new exceptions, they would not have chosen the format they did here. A normal way of giving the courts power to come up with exceptions to the rule would be like this:

(1) No animals shall be allowed in the city, except for small domestic animals.
(a) without limiting the generality of Section 1, the meaning of 'small domestic animal'
includes, but is not limited to:
(i) cat
(ii) dog
(iii) etc etc etc

So yes, until such time as Parliament makes regulations under the Act, there is no substance to paragraph (d) in your example.

Its been a long time since admin law..... but on its face, its a non-exhaustive list.... similar to many common law examples

[Strawbaby]

But it's not adding more by implication, reading into it and finding what's already there - it's adding more exceptions by prescription, literally directing what extra is to be added onto above and beyond what's there already.

[Lara1986]

I would think that the fact that it says "prescribed circumstances" refers to those prescribed by legislation etc and not by the judiciary.


You'll notice that statutes that allow the court to determine what relevant factors/conditions/circumstances etc are seem to say "as the Court may see fit" or "any other circumstances as the Court may consider relevant" etc.

The absence of any reference to a Court and the use of the word 'prescribed' to me indicates some form of legislative, written law such as in delegated legislation or another related piece of legislation.

[circusmind]

Originally Posted by Strawbaby

But it's not adding more by implication, reading into it and finding what's already there - it's adding more exceptions by prescription, literally directing what extra is to be added onto above and beyond what's there already.

Precisely. It's a legislative power to insert exceptions. Hell, giving power to the courts to 'prescribe' something smells unconstitutional to me.