Module 2: Section 3
Is an auxiliary required in every principal predicate?
The nature of the action described in the principal predicate is a critical element. It indicates whether a legal person is to perform the action or not or whether they have a choice about performing it. The nature of the action can be indicated by using a compound verb with an auxiliary. The choice of the auxiliary is particularly important in differentiating the nature of the action.
The auxiliaries most often used are:
Reserve these auxiliaries for use in the principal predicate only. They are generally recognised as words of command and authorisation (although there is ambiguity about “shall”). This may be reinforced by the meanings attached by your Interpretation Act to “shall” and “may”.
- (1) When in a written law the word “may” is used in conferring a power, that word is to be interpreted to imply that the power may be exercised or not, at discretion.
- (2) When in a written law the word “shall” is used in conferring a function, that word is to be interpreted to mean that the function so conferred must be performed.
Another, wider, definition of these terms is to be found in section 24 of the model Interpretation Act in the Resource Materials.
Confirm whether the Interpretation Act in your jurisdiction contains definitions of these terms.
Legislative Counsel now recognise that these terms are not necessarily the most suitable for sentences that do not command or authorise. They dispense with an auxiliary or use other auxiliaries in the principal predicate to state or declare a legal position or consequence. The following are now in common use in some jurisdictions as auxiliary to other verbs:
- is [not] liable to,
- is [not] entitled to,
- is [not] eligible to,
- is [not] to,
- is [not] required to.
Not all legislative provisions state actions in relation to legal subjects. Some of them:
- state a legal consequence or effect;
- declare a legal status.
These provisions state a legal result after some occurrence or action, or the legal position that is created by the provision. The language of command or permission is inappropriate for making a statement.
A member of the Council ceases to be a member if convicted of an offence punishable by imprisonment.
A fund, to be known as the Motor Accidents Fund, is established by this Act.
The functions of the Benefits Authority are as prescribed in this section.
This section has effect despite the rules against hearsay.