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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________

I.

Jurisdiction:

The Five Eyes (Safety and Security) Act 2019 (Cth) (‘FEA’) is a Commonwealth Act. It applies to persons, places and things throughout Australia. It is presumed that legislation does not have extraterritorial application, and reference to localities are to localities within the Commonwealth of Australia.



s 21(1)(b) AIA (Cth)



Jumbunna Coal Mine NL v Victorian Coal Miners’Association

Commencement: Most substantive provisions of the Act commenced on 3 September 2019 by proclamation (AIA (Cth) s 3A). AIA (Cth) s 3(a)(2) states the Act commences 28 days after Royal Assent. The Act in its current form was in force at the time of the alleged offence on s 3A(2) AIA (Cth)



This rule does not apply to an Act so far as it provides for commencement:



s 3A(1) AIA (Cth)

Section 5: A person must not possess a prohibited item for any reason whatsoever in a security area.

I.

Person: Person includes an individual and a body corporate:



II.

s 2C AIA (Cth)

Must not: ‘Must’ should be considered a mandatory obligation to do (or not do) something:



Halwood Corp Ltd v Roads Corp.

Contrast ‘may’ which indicates a discretion:



s 33(2A) AIA (Cth).

If the phrase ‘must not’ appears, it is a mandatory requirement not to do that thing.

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________

III.

Possess According to the Oxford dictionary possess is defined as,”Have or belonging to one;own.” 

IV.

King v Philox

Prohibited Item A prohibited item is defined in part 1 section 4 of the act. It is defined as,”Prohibited item means any gun, knife, shanghai, slingshot, sword or other instruments capable of causing harm. 

S4 Five Eyes (S&S)

Reading the Act as a whole so this is applicable. 

Metropolitan Finance Gas Co.

The use of the word ‘or’ suggests a disjunctive reading of the provision. Meaning that only one of the prohibited items is need for this to be satisfied.



Victims Compensation Fund Corporation v Brown.

Prohibited items are defined using “means”. Therefor this is an exhaustive definition and the ordinary meaning will be displaced. 

YZ Finance Co Pty Ltd v Cummings

‘WEAPON USED’ is not captured by any of the specific words in the definition, but are they ‘other instrument capable of causing harm’? Instrument is defined as ‘an object, device, or apparatus designed or used for a particular purpose or task’.



King v Philco



Oxford

The Oxford Dictionary defines ‘harm’ as ‘evil (physical or otherwise) as done to or suffered by some person or thing; hurt, injury, damage, mischief.’ On these definitions, the ‘WEAPON USED’ can be defined as an instrument capable of causing harm. 

Oxford

In the definition, other instruments capable of causing harm are included in the definition. This is a broad definition so Ejusdem generics rule would apply. The rule applies where a list of two or more specific words appear, followed by more general words, the otherwise wide meaning of those words is limited to the same class (if any) of the specific words Page 2 of 14

Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ 

Canwan Coals Pty Ltd v Federal Commissioner of taxation

The ejusdem generis presumption may be rebutted by the general purpose or object of the Act 

Stewart v Lizars

The purpose of the Act identified through the long title and main object section, is to promote and ensure the safety of persons and property. • Should ejusdem generis be rebutted or not. Allows for the use of extrinsic material.



Section 15AB(2)



Saeed

The second reading to may be relied upon to confirm the ordinary meaning of a ‘prohibited item’ having regard to the context and purpose of the Act



Lacey v Attorney-General of Queensland

The words of the Minister refer to prohibited items as broad and he acknowledges that items that usually might be considered benign to be caught under the act. Thus instruments capable of causing harm would include other things. In interpreting a provision of an Act the interpretation that would achieve the purpose of the act or object of the Act. Whether or not that purpose or object is expressly stated in the act is to be preferred to each other interpretation. 

AIA (Cth) s 15AA

The object of the act is stated in section 2 of the act and from that it can be ascertained that object of the act is to protect people and property attending the Five Eyes safety summit. Thus it could also be expanded to include items capable of causing property damage. This idea is reinforced by the extrinsic material of the Act. In the second reading of the speech it was stated that abroad making was intended and meant to capture items that may be safe by conventional means. Extrinsic material can be used to confirm the ordinary meaning of the act. So this is thus applicable. 

V.

s 15 AB(1) AIA (Cth).

For Any Reason Whatsoever These words are intended to be used in their plain ordinary meaning as there is nothing to suggest that that there is a technical meaning.



Fisher v Bell

Reason: A cause, explanation, or justification for an action or event. Page 3 of 14

Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ 

Oxford

Whatsoever: At all. 

Oxford

Whatsoever leaves no room.

VI.

A Security Area A security area is defined inclusively in part 1 section 4, so the plain meaning of the phrase applies, as well as the definition in the Act.



YZ Finance

Security area means an area shown hatched on a map in schedule 1, or an area declared to be a security area by the commissioner as defined in the act.



Five Eyes (Safety and Security) Act 2019. Section 2(1)

Reading the Act as a whole. 

Metropolitan Finance Gas Co.

Security Area is defined using “means”. Therefor this is an exhaustive definition and the ordinary meaning will be displaced. 

YZ Finance Co Pty Ltd v Cummings

Part 1 section 4 refers to a hatched map in schedule 1, or an area declared to be a security area by the commissioner.



Section 13(1)(b) of the AIA (Cth)

States that a schedule is part of an Act. Security area is also defined using the word ‘or’ which suggests a disjunctive reading of the phrase.



Victims Comprehensive Fund

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________

Section 6: A person must not light a fire in a security area without lawful excuse, the onus of proving which is on the person.

I.

Person: Addressed above.

II.

Must not: Addressed above.

III. Light a Fire Not being used in any technical sense.



Fisher v Bell.

These words were intended to receive their plain, ordinary meaning. They can be defined with the aid of a dictionary.



King v Philcox.

Light: Make (something) start burning; ignite. Fire: A process in which substances combine chemically with oxygen from the air and typically give out bright light, heat, and smoke; combustion or burning.

IV.

Without a Lawful Excuse This term is not defined in the act. It must then be determined if these terms have legal or technical meaning. Context and purpose of an Act may make it clear that a word/phrase carries a specific legal or technical meaning, instead of ordinary meaning.



Fisher v Bell

Without: In the absence of. 

Oxford

Lawful: Conforming to, permitted by, or recognised by law or rules. 

Oxford

Excuse: Seek to lessen the blame attaching to (a fault or offence); try to justify. A further explanation of this term is provided for in the legislation where an example has been given. Examples may be used in interpreting a provision and may extend the operation of a Page 5 of 14

Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ provision: s 15AD AIA (Cth). The example provided of a chef at a restaurant lighting a gas barbecue supports that professional use, or use in an everyday activity, can be a lawful excuse of lighting a fire.

V.

Reverse Onus Section 4(3)(d) of the Legislative Standards Act 1992 states that legislation should not reverse the onus of proof in criminal proceedings without adequate justification. The express statement of purpose in the objects clause of the Act may be used in interpretation: s 13(1) AIA (Cth). The object of the act, as stated in s 2 of the Five Eyes Act 2019, is to ensure the safety and security of members of the public, and persons attending the Security Summit. Although this is highly important, is can be argued not to be adequate justification for the reverse of onus, as the burden of proof is heavy.

Section 7: (1)The commissioner may compile a list of persons who should not be permitted entry into any security area (the prohibited persons list).

Section 7(1) I.

The Commissioner Commissioner is defined in the act means the commissioner of the police service in Part 1 s 4 of the Act.



II.

S 4(1) Five Eyes Act

May May is not defined in the act. It has been identified in the AIA (Cth) indicate a discretions. 

s 33(2A) AIA (Cth)

III. Compile a List of Persons Not defined in the act use the plain and ordinary meaning. Compile: produce (a list or book) by assembling information collected from other sources.



Oxford

Persons: Defined above.

IV.

Should not Permitted entry

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ Not defined in the act. Take ordinary and plain meaning. Not allowed to enter the aforementioned area.

V.

Security Area Addressed above.

Section 7(2) (2) The commissioner may place a person’s name on the prohibited persons list if the commissioner is reasonably satisfied the person— (a) may pose a serious threat to the safety or security of persons or property in a security area; or

I.

Commissioner Addressed above

II.

Reasonably Satisfied Reasonably satisfied: means satisfied on grounds that are reasonable in the circumstances.



S 4(1) Five Eyes Act.

Reasonable is inherently subjective.

Section 7(2)(a) III. May Addressed above.

IV.

Serious Threat A serious threat is not defined in the act so the ordinary meaning must be used. Serious is defined as: Significant or worrying because of possible danger or risk; not slight or negligible. 

Oxford

Threat: A person or thing likely to cause damage or danger. 

Oxford

This term is also subjective however and will depend on the situation. Page 7 of 14

Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________

V.

Safety or Security The use of the word ‘or’ suggests a disjunctive reading of the provision. Meaning that only one of the prohibited items is need for this to be satisfied.



Victims Compensation Fund Corporation v Brown.

Safety: the condition of being protected from or unlikely to cause danger, risk, or injury. Security: the state of being free from danger or threat.

VI. Persons or Property The use of the word ‘or’ suggests a disjunctive reading of the provision. Meaning that only one of the prohibited items is need for this to be satisfied.



Victims Compensation Fund Corporation v Brown.

Person is addressed above. Property is not defined in the act and appears to have no technical meaning. Property is defined as: a thing or things belonging to someone; possessions collectively.

VII. Security Area Addressed above

Section 7(2)b) (b) may, by the person’s actions opposing any part of the Five Eyes Security Summit, cause injury to persons or damage to property outside a security area.

I.

May Addressed above

II.

Person Addressed above

III. Actions opposing any part of the FESS Summit Action: the fact or process of doing something, typically to achieve an aim.



Oxford

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ Opposing: in conflict or competition with someone or something. 

Oxford

Be liable to any offence under the act.

IV.

Cause injury to persons or damage to property outside the security area Cause: a person or thing that gives rise to an action, phenomenon, or condition. 

Oxford

Injury: an instance of being injured. 

Oxford

Person: Addressed above. Damage to property: Addressed above. Outside of the security area: Outside of the designated area.

Section 8(1)(a) (1)This section applies if— (a) a person (other than a prohibited person) usually resides in premises that are within a security area; and

Person and security are addressed above. III. Prohibited person This is to be set according to the discretion of the Commissioner with the guidelines set in section 7.

IV.

Resides Resides: have one's permanent home in a particular place. 

V.

Oxford

Premises Premises: a house or building, together with its land and outbuildings, occupied by a business or considered in an official context.

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ And?

Section 8(1)(b) (b) the person does not hold a Commonwealth accreditation or access approval authorising access to the security area.

Person and Security area addressed above. III. Does Not Does: third person singular present of do, do:perform (an action, the precise nature of which is often unspecified).

IV.

Commonwealth Accreditation Expressed permission or or access awaiting approval Or The use of the word ‘or’ suggests a disjunctive reading of the provision. Meaning that only one of the prohibited items is need for this to be satisfied.

V.

Access Approval authorising access Expressed in thee facts?

Section 8(2) (2) The Commonwealth must pay to the person the cost of reasonable accommodation outside the security area for the duration of the security summit period.

Person and outside of the security area are addressed above II.

The Commonwealth ‘Commonwealth’ is defined in s 2B of the AIA (Cth) and includes the Commonwealth of Australia but excludes some external territories.

Commonwealth means the Commonwealth of Australia and, when used in a geographical sense, includes Norfolk Island, the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, but does not include any other external Territory.

III.

Must Pay Must: be obliged to; should (expressing necessity).

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ 

Oxford

Pay: give (someone) money that is due for work done, goods received, or a debt incurred.

IV.

The cost of reasonable accommodation What is reasonable is dependent on the circumstances of the individual case and on the purpose of the provision to which “reasonable” is an exemption. 

Project Blue Sky

It appears that it is not being use in a technical way so thus the plain ordinary meaning will be applicable. 

Fisher v Bell

Reasonable: having sound judgement; fair and sensible.

V.

Duration of the Security Summit period The exact date on which the act is no longer applicable is not mentioned in the act but is discussed the seafood reading of it. This idea is reinforced by the extrinsic material of the Act. In the second reading of the speech it was stated that the act will be in-force between the 17-19th of September. Extrinsic material can be used to confirm the ordinary meaning of the act. So this is thus applicable. 

s 15 AB(1) AIA (Cth).

Section 9(1) (1)This section applies if a prohibited person usually resides in a security area.

Prohibited Person, Resides, security area and must have been Addressed above. Section 9(2) (2)The Commonwealth must direct that a prohibited person obtain alternative accommodation outside the security area for the security summit period.

Commonwealth, Must, Prohibited Person, Security Area, Security Summit period have been addressed above. VI.

Direct

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________ Not defined in the act and does not appear to have a technical meaning to the plain ordinary earning ill apply.



King v Fisher

Direct: 

extending or moving from one place to another without changing direction or stopping.



control the operations of; manage or govern.



Oxford

Since there are multiple definitions that would be applicable the definition that best forfills the acts purpose will apply.



VII.

15AA AIA (Cth)

Obtain Not defined in the act and does not appear to have a technical meaning to the plain ordinary earning ill apply.



King v Fisher

Obtain: get, acquire, or secure (something).

VIII.

Alternative Accommodation Not defined in the act and does not appear to have a technical meaning to the plain ordinary earning ill apply.



King v Fisher

Alternative: (of one or more things) available as another possibility or choice. Accommodation: a room, group of rooms, or building in which someone may live or stay.

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Statutory Interpretation LLB107 Exam Notes ___________________________________________________________________

Penalties a.Penalties provided are maximum penalties: s 4D Crimes Act 1914 (Cth). b.Penalty unit defined in s 4AA of the Crimes Act 1914 (Cth); s 2B AIA (Cth). c.Current value is $210.00...