natural meaning would include those matters. The natural meaning of the
original term, however, still operates to include within its ambit whatever else
the natural meaning will bear.
762
Thus when the definition says that X includes
Y it means that wherever there is X there is both X and Y. For example, if a
definition says “motor vehicle includes aeroplane” then we know that an
aeroplane is a motor vehicle for the purposes of the statute, but the natural
meaning and scope of “motor vehicle” are not otherwise interfered with.
Shall Be Held If
Where “shall be held” is used in the phrase “shall be held to be established if,”
it is equivalent to “includes”. This is in contrast to the version discussed
above, namely “shall be held if and only if,” which is equivalent to “means”.
Evidentiary Provisions
An evidentiary provisions can function as an “includes’ definition. If a statute
says that X can be proved or established by proving Y that is the equivalent of
saying that X includes Y.
Oblique Incorporation
A
definition may obliquely include one term with another. The structure of this
definition is in the following form: “If A is C then B is C”.
Superficially the
definition is defining when B is C, but in reality it is defining B, by providing
that B incorporates
A for the purposes of determining when B is C. An
example is s46 of the Trade Practices Act 1974 (Cth). Section 46 prohibits a
corporation (the ‘original corporation’
as we
call it) from improperly
exercising its market power. Section 46(2) provides that when corporations
related to the original corporation
(‘related corporations’), together, and with
or without the
original corporation, have a substantial degree of power in a
market then the original corporation has a substantial degree of power in that
market. On the surface s46(2) is defining “substantial degree of power in a
market,” but it is really defining ‘original corporation’
for the purpose of
assessing the degree of power that the original corporation
has in a market.
Basically it provides when related corporations possess market power then the
762
Sherrin Gordon Mines v FCT
(1976) 10 ALR 441, 445, Douglas v Minister for
Aboriginal Affairs
(1994) 34 ALD 192, 203. There is, however, a possible
qualification. Sometimes a court will construe the items in an “includes”
definition of a term as exhaustive, despite the logic of not doing so. A passage in
the Privy Council decision in Dilworth v Stamps Commissioner [1899] AC 99, 106 is at
the root of the problem. It points out that the items included may in fact be
exhaustive, in which case “includes” really signifies “means and includes”. This
is not very rational but has been followed in some subsequent cases –
see YZ
Finance Co v Cummings
[1964] 667 and R v McN
(1963) 63 SR (NSW) 186 per
Brereton J, Lamont v Commissioner for Railways (1963) 80 WN (NSW) 1242, GC Wood
& Son v Cullen [1991] 2 VR 214, 224.
 |
 |
 |