LLB107 Exam Notes PDF

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Summary

These are the basic notes I took into my exam . It is set out in order of how to approach stat interpretation. Would recommend preemptively personalising it to the legislation and material they provide prior to the exam. ...

Description

Acts Interpretation Act - Definitions 

Gender: AIA (Cth) s 23A (a)

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Number (singular/plural): AIA (Cth) s 23 (b)

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Person: AIA (Cth) s 2C

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Calculating time: AIA (Cth) s 36

Statutory Interpretation - Word/Phrase Rules Annoyance 

Held the term was too subjective and therefore too 'all encapsulating' to work there was no objective criterion to assist the judgement of an 'authorised person' in deciding whether to issue a direction o Evans

Must not/ shall not: “Must” and “shall” is judicially considered to be a mandatory obligation to do, or



not to do something o Halwood Corp Ltd v Roads Corp

In the vicinity of 

To avoid absurd result, words should be read into or section, so it read, 'in', or 'in vicinity of' 

Alder v George; Newcastle City Council v GIO general Ltd and Taylor v Owner - Strata Plan No 11564

May Indicates a discretion

 

s33(2A)

Applied Statutory Interpretation Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ) ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning’.

The Task of Statutory Interpretation 1. Read the statute and other relevant materials. 2. Interpret the statute. 3. Apply the statute to a set of facts.

Step 1: Read the Statute Jurisdiction? 

There is a presumption that legislation does not have extraterritorial operation

o s 21(1)(b) AIA (Cth); Jumbunna Coal Mine NL v Victorian Coal Miners’ 

The presumption can be rebutted by express words or by reading the Act as a whole.

Commencement? 

Cth commences on the 28th day after the date of royal assent: s 3A(2) AIA (Cth).  This rule does not apply if stated otherwise: s 3A(1) AIA (Cth): o A specific start date is given in the Act. o The Act comes into force on a date to be proclaimed.

Rule: Time - s 3 AIA o

If expressed to be a particular day, comes into operation at the start of the day

Rule: Retrospectivity 

Parliament is presumed to enact legislation prospectively o

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Maxwell v Murphy (1957)

Parliament has power to enact legislation having retrospective operation in some circumstances o



Polyukhovich v Commonwealth of Australia (1991)

Usually Parliament does this through express words.

Key Provision? 

Are there any provisions, the breach of which will result in a penalty?

How do the various provisions in the statute interact with each other?



Step 2: Interpretation of the Statute Elements of the operative provision? Start and end with the text  Commissioner of Taxation v Consolidated Media All words have meaning  Project Blue Sky, 71 Are any key words or phrases defined in the Act or AIA (Cth)? Meaning of a word in a provision must be determined by reference to the Act as a

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whole o

Metropolitan Gas (‘Gas Case’).

Means = exhaustive - ordinary meaning is displaced Includes = inclusive - the words in the act apply as well as ordinary meaning o YZ Finance

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Legal or technical meaning that differs from their ordinary meaning?

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o Fisher v Bell

Words are given their current (ordinary) meaning

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Coleman v Power Ordinary natural through authorised dictionary? o King v Philcox

Presumptions? Rebuttal? 

Ejusdem generis (class rule): general words are limited by the specific words that come before them:

Canwan Coals

o 

If no genus or class can be formed from the specific words Stewart v Lizars

o 

Through express words or other indications in the statute Mattinson v Multiplo

o 

By the general purpose or object of the statute Stewart v Lizars

o

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Noscitur a sociis: the meaning of an ambiguous word is known from the accompanying words surrounding it: R v Ann Harris.

o 

Expressio unius est exclusio alterius: the express mention of a matter suggests that other matters are excluded.

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Generalia specialibus non derogant: general words do not derogate from specific words. Where there is a conflict between general and specific provisions, the specific provisions prevail.

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Consider intrinsic (immediate) context first: s 13 AIA (Cth) o Intrinsic Material in order of:

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Headings (marginal note, division, part, chapter)

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Object section

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Long title

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Preamble

Extrinsic (broader) context second: s 15AB(2) AIA (Cth).

Intrinsic Material in order of:

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Headings: s 13(2)(d) AIA (Cth) o Rules - Ragless v District Council of Prospect:

1. If the language of the section is clear, and is actually inconsistent with the headings, headings must give way; 2. If the language of the section is clear, but, although more general, is not inconsistent with the headings, the section must be read subject to the headings; 3. If the language of the section is doubtful or ambiguous, the meaning consistent with the headings must be adopted.

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Objects clause/section: s 13(1) AIA (Cth) o Resolve ambiguity, not control clear stat language o

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Minister for Urban Affairs

Long title: s 13(2)(a) AIA (Cth) o Long title cannot be used to cut down or extend the otherwise plain meaning

of a provision of an Act 



Birch v Allen.

Preamble: s 13(2)(b) AIA (Cth) o Can be used to ascertain the meaning of words in a provision 



Wacando v The Commonwealth

Notes are part of an Act: s 13(1) AIA (Cth).

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Examples may be used in interpreting a provision and may extend the operation of the provision: s 15AD AIA (Cth).

Extrinsic Material 

Extrinsic materials can be used to interpret Commonwealth legislation in accordance with s 15AB(1) AIA (Cth): o

to confirm the ordinary meaning of the provision: s 15AB(1)(a) AIA (Cth);

o

to determine the meaning of a provision where it is ambiguous, or where the ordinary meaning leads to an absurd or unreasonable result: s 15AB(1)(b) AIA (Cth).

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Types of extrinsic materials are inclusively set out in s 15AB(2) AIA (Cth). Extrinsic materials do not displace the clear meaning of statutory text, read in its context: o Re Australian Federation of Construction Contractors; Ex Parte Billing. Extrinsic material is not necessarily conclusive as to meaning:

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o Re Bolton; Ex Parte Beane.

Purpose The purpose of the Act is found from: 

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Intrinsic material: 

Long title

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Object section

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Preamble

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Act read as a whole

Extrinsic material 

Explanatory memoranda / notes

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Explanatory speech / second reading speech and parliamentary debates

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From these materials, and the text as a whole, what would you say is the purpose of the Act? o

Interpretation that best achieves purpose or object of the Act: s 15AA AIA (Cth).

o

Does the relevant extrinsic material confirm your assessment of the Act’s purpose or offer a different view? 

Lacey v Attorney-General (Qld).

Does the Act engage with any of the presumptions of statutory interpretation? 

Eg, presumption that legislation does not have extraterritorial application; legislation does not bind the Crown; legislation does not have retrospective application.

Do you think that the relevant presumption has been rebutted? Are there any cases that you can draw on to support your conclusion?

Principle of legality Does the Act affect a fundamental right? 

Fundamental right must be present and affected  See rights

Does the Act evidence a clear intention to infringe on fundamental rights? 

Law-very strong presumption

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Authority - Coco v R

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Apply - there are not express words to curtail the freedom of speech

Constructional choice

Law - court should choose an interpretation that minimised the interference of

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a fundamental right 

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Fazzolari Pty Ltd v Parammat city; Al-kateb v godwin

Therefore, the provision be interpreted in a right-respecting way o

Fazzolari v parammat; Al-kateb v Godwin

Fundamental Rights 

Private property: Fazzolari Pty Ltd v Parramatta

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Right to prevent trespass: Coco v The Queen

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Liberty: Re Bolton; Ex parte Beane

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Fair trial: Malika Holdings Pty Ltd v Stretton

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Natural justice: Saeed v Minister for Immigration

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Procedural fairness: Gypsy Jokers Motorcycle v Commissioner of Police

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Presumption of innocence: Momcilovic v The Queen

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Privilege against self-incrimination: X7 v Australian Crime Commission

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‘double jeopardy’ rule: Corporate Affairs Commission v Yuill

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Freedom of speech and expression: Coleman v Power; Hogan v Hinch

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Freedom of movement: Commonwealth v Progress Advertising & Press Agency

Return to the Text 

Commissioner of Taxation v Consolidated Media Holdings Ltd

Penalties

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Penalties provided are maximum penalties: s 4D Crimes Act 1914 (Cth).

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Penalty unit defined in s 4AA of the Crimes Act 1914 (Cth); s 2B AIA (Cth).

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Current value is $210.00: s 4AA(1) Crimes Act 1914 (Cth).

Step 3: Application to Facts 

In perusal, read the question/s carefully. o

What are you being instructed to do by the question/s?

o

Who are you being asked to advise?

o

What are the relevant provisions of the legislation that are engaged by the facts?

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

Some threshold questions: o

Where did the alleged offence take place?

o

When did the alleged offence take place?

o

Was the Act in force at the time of the alleged offence?

o

Who committed the alleged offence? Who is your client?

Some (more) questions: o

What is the relevant provision engaged by the facts?

o

What are the elements of the provision? Which elements are controversial?

o

Are the facts similar to any decided cases?

o

What are the consequences of breach? Is there a penalty?...