Summary - lecture 8-13 PDF

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Summary

Summary of all important points in basic case law. - Step by step process of statutory interpretation. - Summary of lecture notes ideal for exam review. (Received an HD overall for this course) merged files: Case Law.docx - Statutory Interpretation.docx - ExamNotes.pdf...

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STATUTORY INTERPRETATION GENERAL INFO Why is legislation hard to apply? - Language ambiguity - Situations not envisioned - Unclear - Overlaps and contradicts - Formality and technicality APPROACHES Literal Approach: words in a statute must be interpreted in the context in which they appear according to their plain and ordinary meaning.  Assumes that one word or phrase in its context has one meaning. - Can result in ridiculous meanings that can’t be avoided. E.g. Higgon v O’Dea – shopkeepers could not longer let children on the premises.

Purposive Approach: words in a statute may be interpreted so that they promote the purpose they were enacted to address – preferred over any other approach.  Must determine the purpose of the Parliament and interpreting it based on its purpose. Mischief Rule: words in a statute may be interpreted with reference to the mischief they were enacted to address, so that the mischief is suppressed. (Heydon’s Case 1584) Questions to ask when applying this rule: 1. What was the common law before the creation of the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy did the Parliament resolve and appoint to cure the disease of the Commonwealth? 4. The true reason of the remedy? E.g. Maritime Services Board of NSW. – purpose of the act was to make the company clean up after an oil spill. Ways to find purpose: - Preamble - Statement of purpose - Look at entire act - Mischief rule principles. Golden Rule: it is permissible to depart from the grammatical and ordinary meaning of words to avoid an absurd result. E.g. Lord Wensleydale (Graham v Peterson) – so as to avoid ‘absurdity or some repugnance or inconsistency with the rest of the instrument.’

PURPOSIVE APPROACH UNDER LEGISLATION In 1981 Parliament enacted S15AA in the Acts Interpretation Act 1901 (applies to all federal legislation) ‘In the interpretation of the provision of an Act, a construction that would promote the purpose or objective underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.’  often a statement of purpose will be included in a statute. - This section does not permit judges to ignore the wording of the statute. - Gleeson CJ: problems arise when there ‘is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose of the Act.’ - Every state and territory has an equivalent. - Applies regardless of ambiguity. - Dawson J: warns not to modify purpose. - Literal meaning can sometime be used to discover purpose. INTERPRETATION OF LEGISLATION IN CONTEXT CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384: a. Context must be considered in the first instance, not at a later stage when ambiguity may arise. b. Uses the context in its widest sense, to include the existing state of the law and the mischief that the act was trying to suppress. Maxims of Interpretation  1. noscitur a sociis: words are known from accompanying words. R v Ann Harris. 2. ejusdem generis: if particular words followed by general, the general are the same kind. Deputy Commissioner of Taxation v Clarke 3. expression unius est exclusion alterius: express reference of a matter excludes another matter. Construction, Forestry, Mining and Energy Union v Hodgkiss. 4. generative specialibus non derogont When not to use maxims  inconsistency, injustice, absurdity, against the purpose. (Deren v Wicsengrund). Deputy Commissioner of Taxation v Clark. – When to use context.

Other Strategies to Find Meaning   Look at words in a section in the context of that section.  Look at the section in the context of the entire text.  Look at historical and legislative context.  Dictionary  Interpretation Legislation. ___________________________________________________________________________

PRESUMPTIONS OF INTERPRETATION  an assumption, capable of being displaced by the words of a statute. All are rebuttable. **Presumption that statutes do not apply retrospectively**  application of a provision to events occurring before the provision commenced operation. E.g. Rodway v The Queen. -

Governed by Legislation Act 2001 S 75B(1) Only substantive rights, not procedural.

**Presumption that Parliament does not interfere with common law rights** E.g. Coco v The Queen. -

Strong presumption

**Presumption that re-enactment constitutes approval of previous judicial interpretation**  Parliament is assumed, the absence of clear intention to the contrary, to accept the legislation. - Weak presumption. Flaherty v Girgis **Presumption that penal provisions are strictly construed** - Gives way to purposive approach - Does not create or extend criminal liability - A provision intended to have a remedial or beneficial effect should be liberally interpreted. - Weak presumption. E.g. Beckwith v The Queen – rule is one of last resort, Smith v Corrective Services Commission NSW (1980) **Presumption that property rights are not taken away without compensation** Durham Holdings Pty v NSW (2011) 205 CLR 399 Presumption that Parliament does not abrogate the privilege against self-incrimination

Crafter v Kelly Parliament does not abrogate legal professional privilege

Daniels Corporation International Pty ltd v Australian Competition and Consumer Commission Parliament does not deprive people of access to courts

Plaintiff S157/2002 v Commonwealth Legislation does not have extra-territorial effect

section 21 (1)(b) of Acts Interpretation Act 1901 Parliament intends to legislate in conformity with international law

Plaintiff S157/2002 v Commonwealth Legislation does not bind the Crown.

Bropho v Western Australia

EXTRINSIC MATERIALS - Second readings - Dictionary - International conventions mentioned in the Act - Reports - Explanatory memorandum In the common law, ambiguity is not needed (CIC Insurance). Use 15AB to…  Confirm ordinary meaning (content and purpose).  Determine the meaning in the statute, if there is ambiguity or obscurity / manifestly absurd or unreasonable result. Must say: ‘I am going to use 15AB because I think the meaning is obscure/absurd etc.’ E.g. Case of Shingles p340 – led to obscure result and so they consulted a second reading.

CONTEXT -

Words should be interpreted with reference to accompanying words Words should be interpreted with reference to other parts of the legislation in which they appear. AIA s.13 Words should be interpreted with reference to the interpretation legislation of the relevant jurisdiction. AIA s.2 Dictionaries may be consulted. State Chamber of Commerce and Industry v Commonwealth. Consistent use of words is assumed. Wilson v Commissioner of Stamp Duties. All words are assumed to carry meaning. Maroondah City Council v Fletcher. Words should be interpreted in accordance with their current meaning, which may change overtime. Deputy Commissioner of Taxation v Clark. The express mention of something may draw attention to the absence of something else. Provisions may be interpreted with reference to the audience. Provisions may be interpreted with reference to prior or other existing law. Russel v Stephen.

STEP BY STEP PROCESS OF STATUTORY INTERPRETATION Interpret statutes with legislation and common law rules. 1. Identify word or phrase Consult Act and AIA. - Definitions within act and AIA (s. 2) - Dictionary 15AA instructs us to look at purpose to find meaning  long title, preamble, entire text. 2. Maxims Only used when meaning is inconsistent or unjust. If it aligns with the purpose, then the problem is solved. When not to use maxims  inconsistency, injustice, absurdity, against the purpose. (Deren v Wicsengrund). 3. Presumptions If there is a contrary intention, then they cannot be used. Strength of presumption is extremely important. 4. Extrinsic Materials Triggers when using 15AB to find context (meaning of words): - Ambiguous - Absurd - Unreasonable - Obscurity Re Australian Federation of Construction Contractors. When using CIC Insurance: - Use in order to find the mischief or purpose of the act. - If there are two purposes, say the outcome for both....