Why Do Statutes Have to Be Interpreted?
n Words are the only way in which
parliament (the legislature) can express the laws that they have made
n The problem with words
n Words can change meaning over time
n Words can mean different things to
different people
n Words can have a wide or narrow
application
n Some words have vague meanings
n The meaning of words can be governed
by their context
n Words do not have one meaning
n Some words have specific meanings,
some general
n General approaches
n a. The
literal approach
n Examples,
n
Re Prince Blucher; Ex Parte Debtor [1931] 2 Ch 70
n
Fisher v Bell (1961)
1 QB 394
b. The ‘Golden Rule’ Approach
–
The
golden rule approach
–
Examples
•
Adler v George
[1964] 2 QB 7, what does ‘in the vicinity of any prohibited place’ mean?
•
Lee v Knapp
[1967] 2 QB 442
c. The Mischief (Purpose) Rule
n The mischief rule approach,
–
Example
•
Smith v Hughes
[1960] 2 All ER 589, what does ‘solicit in a street’ mean?
d. S. 15AA Acts Interpretation Act 1901 (Commonwealth)
n Purpose Approach
–
‘In
the interpretation of a provision of an Act, a construction that would promote
the purpose or object underlying the Act (Whether that purpose is expressly
stated in the Act or not) shall be preferred to a construction that would not
promote that purpose or object.’
–
N.B.
that does not mean that the literal approach will no longer be used
Rules of Interpretation
n a. The act must be read as a whole, Metropolitan
Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449
n b. Regard must be had to the section
of the community to whom the legislation is directed, e.g. Fisher v Bell
[1961] 1 QB 394, meaning of ‘offer for sale’
n c. Ejusdem generis - the
meaning of general words are limited to the category created by the particular
words that precede it, e.g. Hughes v Winter [1955] 3 SASR 238, meaning
of ‘or doing anything whatsoever’
n d. Noscitur a sociis - words
of a feather flock together,
n e.g. R v Ann Harris (1836)
173 ER 198, meaning of ‘wounding’,
n Prior v Sherwood (1906) 3 CLR 1054 (textbook)
n e. Expressio unius est exclusio
alterius - the express mention of one thing is the exclusion of another,
e.g. Dean v Weisengrund [1955] 2 QB 120, n.b. a negative example
n f. Generalia specialibus non
derogant - earlier statutory provisions which deal with a particular matter
may not be impliedly repealed by a later, more general, provision, e.g. White
v Mason [1958] VR 79
Presumptions
n a. Words are used consistently
throughout the legislation
n b. Words have their current meaning,
e.g Chappell & Co v Associated Radio Co of Australia, meaning of
‘broadcast’
n c. Acts creating criminal offences
must be construed narrowly
n d. Acts creating taxes, rates or
charges must be read narrowly
n e. Parliament did not mean to alter
fundamental common law principles
n f. Statutes do not operate
retrospectively
n g. The re-enactment of a provision
or word constitutes approval of a previous judicial interpretation of the
provision or word
n h. Legislation does not bind the
Crown
n i. Legislation does not take away
the jurisdiction of the courts
n j. Property rights cannot be taken
away without compensation
n k. Legislation does not have
extraterritorial effect
Extrinsic Material
n Traditionally, Australian courts
have rejected the suggestion that records of parliamentary debate could be used
to discover the meaning of an Act.
n In South Australia v Commonwealth
(1941) Latham CJ of the HC stated: “the intention of Parliament, as
expressed in the statute cannot be modified or controlled in a court by
reference to any such material….the court takes the word of Parliament itself,
formally enacted in the statute, as expressing the intention of Parliament.”
n “Parliamentary debate may be
considered in interpreting an act if there is ambiguity or in very exceptional
circumstances, but should be disregarded unless it clearly discloses the
legislative intention.” – Sillery v R (1981)
What Use Can Be Made of Extrinsic Materials?
n Section 15AB Acts Interpretation
Act 1901 (Cth)
–
Example,
•
Re Shingles and Director-General of Social Security (1984) 6 ALD 568, meaning of
‘constant care and attention of that child’
n Parliament does not want the Acts
Interpretation Act to turn into a ‘picnic’ for lawyers
Acts Interpretation Act 1901 (Cth)
n This view is supported by the courts
and limitations on the use of extrinsic materials was well expressed by the HC
who in a joint judgement stated: “Section 15AB… does not permit recourse to
[extrinsic material] for the purpose of departing from the ordinary meaning of
the text unless the meaning is ambiguous or obscure or its ordinary meaning
leads to a result that is manifestly absurd or is unreasonable”
Drafting Conventions
n a. ‘A,b and c’ contrasted
with ‘a, b or c’
Jennings
v Pryce (1984)
n b. ‘May’ contrasted with ‘shall’,
i.e. discretionary as against mandatory
n c. Deeming provisions
n e. Male v female
n f. Singular v plural
Delegated Legislation
n 1. What is Delegated Legislation?
n Definition:
–
Laws
not made by Parliament but by persons or bodies authorised by Parliament to
make laws, i.e. these persons or bodies are making laws under delegated
authority and when doing so they must operate within their authority or the law
will be ultra vires (beyond power)
n Such laws can have various names,
e.g. regulations, rules, statutory rules, by-laws, ordinances, proclamations,
etc
Who Can Make Delegated Legislation (DL)?
n The executive arm of government in
the form of:
–
Ministers
–
Statutory
authorities, e.g.
•
ABC
•
University
of Newcastle
•
Local
Government Councils
Advantages
n It saves parliamentary time
n Parliament does not have the
technical expertise
n Laws can be made quickly to deal
with recent circumstances
n Flexibility
n Local knowledge is best
Disadvantages
n Abdication of law making power to an
inferior body (Non-elected, non-democratic)
n Delegated legislation is difficult
to find (Government Gazette)
n Too much law creates uncertainty
How Is DL Made?
n 1. Proposal stage
n 2. Formalisation Stage (Within the
body or by the responsible person)
n 3. Notification Stage (All DL must
be laid before parliament within 15 sitting days of its making)
n 4. Disallowance Stage (parliament
has 15 days within which to decide whether to disallow the DL)
How Is DL Scrutinised?
n Through question time in Parliament
n Ministers are responsible for their
departments
n Parliament has the opportunity to
scrutinise the legislation, e.g. Senate Standing Committee on Regulations and
Ordinances
n Judicial Review, court can declare
the DL ultra vires
How Is DL Interpreted?
n By using the same approaches and rules as for
legislation made by Parliament
The Legal Process
n 1. Players in the Legal Process
–
a.
Solicitors
•
The
‘general practitioners’ of law
–
b.
Barristers
•
Generally
solicitors refer clients to barristers for specialist advice and/or court
representation
–
c.
Judges
•
Neutral
umpire
•
Control
their court
•
Independence
assured
Legal Proceedings
n a. Adversarial System
–
i.e.
a contest between the parties through their advocates
n b. Inquisitorial System
–
i.e.
the judge or investigator actively seeks out the facts
n c. What is the Role of the Jury?
–
Judgment
of an individual by their peers
–
Only
decide questions of fact
Burden and Standard of Proof
–
Burden
of proof, i.e. the onus of proving one’s case lies on person asserting the case
–
Standard
of proof, i.e. degree of proof required
•
In
Criminal cases – beyond a reasonable doubt
•
In
Civil Cases – on the balance of probabilities
The Process in Court
n Prior to Court
–
Negotiated
settlement
n Pleadings
–
To
Start Legal Action
•
Civil
Actions – summons or statements of claim by plaintiff, defence by defendant
•
Criminal
actions – prosecution by summons or arrest and charge, n.b. committal
proceedings for serious crimes
Pleadings
n Interrogatories
–
A
series of questions requiring written answers on oath
n Discovery
–
Requires
a named person to declare on oath all relevant documents in his or her
possession and to state the whereabouts of other documents not in possession
The Trial
n Plaintiff begins case by explanation
and foreshadowing evidence
–
Evidence
in chief
–
Cross-examination
–
Re-examination
Evidence
n The establishment of facts must be
achieved in a way such that the information is of value and testable
n Hence, rules of evidence, e.g.
Hearsay
Appeals
n Allowed on questions of law not
questions of fact
n Special leave needed to appeal to
the High Court
Alternative Dispute Resolution (ADR)
n Definition:
–
An
additional range of mechanisms for the resolution of disputes characterised by
structured negotiation and consensus
Advantages of ADR
n Less cost
n Less time
n Many cases resolved
n Expertise of facilitators
n Preservation of ongoing relations
Examples of ADR
n Facilitated negotiation
–
Mediation
•
Independent
third party helps parties to resolve the issues themselves
–
Conciliation
•
Mediator
takes a more active role, i.e. attempts to invent solutions to the dispute
Examples of ADR
n Arbitration
A
more formal dispute resolution process where the determination is usually
binding on the parties and is enforceable in the same manner as a court
judgment
n Expert appraisal
–
Expert
advises on dispute resolution by means of a non-binding opinion or
recommendation
Contracts
n A. Introduction to Contract
n What Is a Contract?
–
A
simple definition is: A contract is a legally enforceable agreement between two
or more people
–
The
crucial element of a contract is that it can be enforced by a court of law
–
Note:
the importance of contract to society and business
Two Types of Contract
n Formal Contract?
–
A
deed
–
Deed
poll
–
Power
of attorney
Requirements of a Formal Contract
n Must be in writing
n Must be signed by the party or
parties to be bound
n Must be independently witnessed
n Formerly had to be sealed and
delivered
n N.b. They do not require
consideration
Other Types of Contract
n Bilateral contract:
–
A
contract in which two parties assume obligations, e.g. one party promises to
pay, the other party promises to deliver
n Unilateral contract:
–
A
contract in which only one party assumes obligations, e.g. Carlill v
Carbolic Smokeball Company [1892] 2 QB 484
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