Statutes and interpretation

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