Working with Statutes

Transcription

1 Working with Statutes INTRODUCTION There are three tasks in working with statutes: (1) Detecting ambiguity. (2) Touring a statute. (3) Analysing a statute. DETECTING AMBIGUITY The Task The task in each of these questions is to find the ambiguity, understand its cause or nature, and identify the possible meanings of the ambiguous sentence. The Object The prime object of this exercise is to focus on seeing possibilities. Accordingly, do not ignore questions on the ground that some possible meanings of the ambiguity are implausible in the context of the question; complete each question fully. Answering questions in this way should sensitise students to the possibility of ambiguity and have them always on the alert for it. The secondary object of these questions is to counter the strategy, common to some lawyers confronted by an ambiguity, of launching straight in to arguments as to what it means or, worse, making assertions. Instead, appreciate that an ambiguous provision cannot be interpreted properly until the ambiguity has been detected, analysed and understood. The Legal Relevance Around half of these questions involve provisions of the Constitution and a few other statutes. A number, however, involve a type of ambiguity which is unlikely to be found in law. However, it may be found in evidence by a witness in court. Question 1 Questions There is a constitutional maxim: The King can do no wrong. 1

2 Question 2 Working with Statutes Detecting Ambiguity There is a classification for films shown on television: Viewing recommended by mature audiences. Question 3 A sign outside an exclusive gentlemen s club says Entry to this club is restricted to members and their invited and accompanied guests. Question 4 There is a film called Witness. The ambiguity is in the title of the film. [You need to have seen the film to answer the question.] Question 5 The cook was a good cook, as good cooks go; and as cooks go she went (Saki (HH Munro) Reginald on Besetting Sins). Question 6 Dorothy Parker sent a telegram to her friend who retired to the country and gave birth to a baby: Congratulations: we all knew you had it in you. Question 7 The sign outside a motel says Little Charm Motel. Question 8 The motto of a school is We believe in doing what we do well. Question 9 Some persons, after consuming alcohol, want to fight and become hard to manage. Question 10 We are less under the influence of reason than our ancestors. Question 11 There is a famous World War II headline Macarthur Flies Back To Front. Question 12 It s the last scene from that final exquisite study in the ambiguity that attends all human relationships (Peter Redgrove The Arse and the Elbow). Question 13 Much conversation was going on about him. Question 14 The case will be reheard before a full bench. Counsel will argue both the merits and the jurisdiction of the court. 2

3 Question 15 Working with Statutes Detecting Ambiguity The letter was not sent because of information received. Question 16 Paint or varnish may be dissolved by turpentine or kerosene. Question 17 Section 7(2) of the Acts Interpretation Act 1958 (Vic) provided that any such investigation legal proceeding or remedy may be instituted continued or enforced. Question 18 Section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) provides: The Tribunal has power to review any decision in respect of which application is made to it under any enactment. Question 19 In the Treason Act 1351 (UK) treason was defined as follows: If a man do levy war against our Lord the King in his realm, or be adherent to the King s enemies in his realm, giving to them aid and comfort, in the realm, or elsewhere. Question 20 There is a maxim: Necessity has no law (in Latin the maxim is necessitas non habet legem). Question 21 John and Tom are burglars who have just done an armed robbery. Tom has a pistol. The police chase John and Tom who flee on to a roof top. John is captured. The police shout to Tom who is hiding behind a chimney to throw out his gun and give himself up. John who is being held on the roof top yells out to Tom: Let him have it. Tom then fires the pistol killing a policeman. He is subsequently captured. John is tried for murder based on what he said to Tom. Question 22 Does s 128 of the Constitution authorise amendment to covering clause 6? Question 23 What is the ambiguity when s 2 of the Constitution is read with s 61? Question 24 What is the ambiguity when s 7 of the Constitution is read with s 122? Question 25 What is the ambiguity when s 51(xx) of the Constitution is read with s 51(xiii)? Question 26 What is the ambiguity when s 51(i) of the Constitution is read with s 92? 3

4 Question 27 Working with Statutes Detecting Ambiguity What is the ambiguity when s 51(xxvii) of the Constitution is read with s 51(xxviii)? Question 28 What is the ambiguity when s 51(xxx) of the Constitution is read with s 51(xxix)? Question 29 What words or phrases in s 52(i) of the Constitution appear to be ambiguous? Question 30 What is the ambiguity in s 72(ii) of the Constitution? Question 31 What is the ambiguity in the phrase after an interval of three months in s 57 of the Constitution? Question 32 What is the ambiguity in s 51(i) of the Constitution? Question 33 What words or phrases in s 52(xxxi) of the Constitution appear to be ambiguous? Question 34 What is the ambiguity in s 51(vi) of the Constitution? Question 35 What is the ambiguity in s 92 of the Constitution? Question 36 What is the ambiguity in s 81 when it is read with s 83 of the Constitution? Question 37 (1) What is the ambiguity in s 116 of the Constitution? (2) Would it authorise grants of money to religious schools? (3) Would it allow a government to establish and run state schools? Question 38 What is the ambiguity in s 51(v) of the Constitution? Question 39 Is there any word or phrase in s 51(xx) of the Constitution which is used proleptically? 4

5 Answer to Question 1 Working with Statutes Detecting Ambiguity Answers The maxim, the King can do no wrong, can either mean that the King is immune if he does wrong, or that he is not allowed to do wrong and must, therefore, make restitution if he does. Answer to Question 2 The classification for films, viewing recommended by mature audiences, has ambiguity of implied qualification. It is meant to mean that those who want to watch it should be mature. It can possibly mean also that the film is recommended for all mature people. Answer to Question 3 In the sign, Entry to this club is restricted to members and their invited and accompanied guests, the ambiguity is over the second use of and. Is it used conjunctively and disjunctively? Do guests have to be both invited and accompanied (the most sensible meaning in context), or one or the other, ie either invited or accompanied. Answer to Question 4 The film Witness is about a child, a member of the Amish sect, who witnessed a murder. This is one sense of witness. During the film the mother of the child is tempted to betray her religious principles and have an affair with the detective investigating the murder. This is challenging her duty to live her life in a way which witnesses the Christian faith. This is another meaning of witness. Answer to Question 5 The ambiguity here is in the word go. Usually it means leave, but in the form it is used in the phrase, as good cooks go, it means something like measure up. Hence the statement is a pun on the two meanings of go. Answer to Question 6 To say you had it in you may be meant literally, as a pregnant woman has a child in her, or it may be meant metaphorically in the sense that you were capable of doing what you had to do. Answer to Question 7 The Little Charm Motel obvious means a little motel which is charming. It could, though, mean a motel which has only a little charm. Answer to Question 8 The motto, We believe in doing what we do well, can mean that we believe in doing well whatever we do, or that believe in doing only the things that we do well. It is obviously meant in the first sense. 5

6 Answer to Question 9 Working with Statutes Detecting Ambiguity Sometimes words are not repeated because they are understood. Here there is the possibility that the words want to are not repeated before become. This is syntactically possible although it is not the obvious sense of the statements. On this meaning the person wants to fight and wants to become hard to manage. On the other, more plausible meaning, the person wants to fight, and in addition (and in consequence), they become hard to manage. Answer to Question 10 This statement can mean: We are less under the influence of reason than our ancestors were under the influence of reason. Or it can mean: We are less under the influence of reason than we are under the influence of our ancestors. Answer to Question 11 The World War II headline, Macarthur Flies Back To Front, is a pun on the phrase back to front involving the famous US general, General Douglas Macarthur. Back to front can mean backwards. Or it can mean that Macarthur flew back to the front line of the war, which is clearly the intended meaning. Answer to Question 12 The ambiguity which attends all human relationships is more a matter for poets and novelists. To hazard a guess, the line between love and hate is often a fine one, something reflected in the words of Oscar Wilde in his poem, the Ballad of Reading Gaol, that each man kills the thing he loves. Answer to Question 13 In the sentence, Much conversation was going on about him, the word about can mean that he was the subject of a conversation, or it can mean that people near and around him were having conversations. Answer to Question 14 In the sentence, Counsel will argue both the merits and the jurisdiction of the court, there is relational ambiguity over the concluding phrase of the court. Does it go just with jurisdiction or does it go with merits as well. On one interpretation counsel is arguing the jurisdiction of the court and the merits (of the case). On the other, counsel is arguing two things about the court, its merits and its jurisdiction. Answer to Question 15 In the sentence The letter was not sent because of information received the use of not is ambiguous. It is not clear what part of the sentence not goes with. Does it go with sent meaning that the letter was not sent? Or does it go with because of information received meaning that the letter was sent, but the reason that it was sent had nothing to do with the information which had been received? 6

7 Answer to Question 16 Working with Statutes Detecting Ambiguity The statement, Paint or varnish may be dissolved by turpentine or kerosene, raises the ambiguity covered by the maxim reddendo singula singulis. Does it mean that paint is dissolved by turpentine and varnish is dissolved by kerosene, which applies the maxim? Or does it mean that either turpentine or kerosene will dissolve both paint and varnish? Answer to Question 17 Section 7(2) of the Acts Interpretation Act 1958 (Vic) provided that any such investigation legal proceeding or remedy may be instituted continued or enforced. This phrase also involves the maxim reddendo singula singulis. Do we read investigation with instituted, legal proceedings with continued and remedy with enforced, or do we take each of the three nouns, investigation, legal proceeding or remedy, with all three verbs, instituted, continued or enforced? Answer to Question 18 In s 25(4) the ambiguity is whether the phrase, under any enactment, goes with in respect of which application is made to it or with decision. If it goes with decision, then it means that the Tribunal can review a decision (made) under any enactment provided that application is made to it. If it goes with in respect of which application is made to it then it means that for the Tribunal to have power to review a decision an enactment must provide that an application can be made to the Tribunal for review of the decision. (This ambiguity was discussed in Re Qantas (1979) 2 ALD 291.) Answer to Question 19 The Treason Act 1351 (UK) defined treason in the following way: If a man do levy war against our Lord the King in his realm, or be adherent to the King s enemies in his realm, giving to them aid and comfort, in the realm, or elsewhere. Treason involves any of three actions: (1) Levy[ing] war against our Lord the King. (2) Be[ing] adherent to the King s enemies. (3) Giving to them [the King s enemies] aid and comfort. Each of these three actions is specifically defined to be treason if it takes place in the realm. At the end of the description of the three actions the Act has the phrase or elsewhere. The question is whether this applies just to the third action, giving aid and comfort to the King s enemies, or to all three actions. There is, we need to note here, a constitutional presumption that a statute operates in the realm anyway, and not beyond it. This will weigh the argument that it attaches only to the third action. (Roger Casement was convicted of treason and hanged during World War I when he lost this argument on the interpretation of the provision. See R v Casement [1917] 1 KB 98, although the judgment of the Court of Appeal is incoherent.) 7

8 Answer to Question 20 Working with Statutes Detecting Ambiguity The maxim, Necessity has no law, can mean that necessity is an exception to most legal rules (which is the accepted meaning), or it can mean that necessity has no legal recognition. Answer to Question 21 The words, Let him have it, can have either of two meanings. It can mean let the police have the gun, ie to hand it over. This is a literal meaning of the phrase. Or it can mean shoot the policeman, a colloquial meaning of the phrase. Answer to Question 22 The ambiguity in s 128 is that it refers to an amendment to the Constitution. On the face of it this refers to the provisions authorised by covering clause 9 of the Commonwealth of Australia Constitution Act, but does not authorise amendment to the other covering clauses. It is possible, however, to read an implied extension into s 128 to the effect that of necessity it allows amendments to all covering clauses. The ambiguity, of course, is whether this extension is permissible. Answer to Question 23 When s 2 is read with s 61 the ambiguity is that they are potentially inconsistent in conferring power on the Governor General. This is ambiguity of competing rules. Answer to Question 24 When s 7 is read with s 122 the ambiguity is that they are potentially inconsistent. Is the Senate composed just of State Senators (s 7) or can there be Senators from the Territories as well (s 122)? This is ambiguity of competing rules. Answer to Question 25 When s 51(xx) is read with s 51(xiii) there is ambiguity because the provisions overlap. Does s 51(xx) authorise legislation on the item which is specifically excluded from s 51(xiii), State banking? This is ambiguity of competing rules. There is a similar ambiguity regarding State insurance when s 51(xx) is read with s 51(xiv). Answer to Question 26 Section 51(i) authorises laws on trade and commerce between the States, while s 92 effectively forbids laws on interstate trade and commerce which make it not absolutely free. This is ambiguity of competing rules. Answer to Question 27 Section 51(xxvii), authorising legislation on immigration and emigration, seems to swallow up s 51(xxviii) to the extent that the influx of criminal arises from immigration. This is ambiguity of competing rules. Answer to Question 28 Section 51(xxix), authorising legislation on external affairs, seems to completely swallow up s 51(xxx) authorising legislation on the relations of the Commonwealth with the islands of the Pacific. This is ambiguity of competing rules. 8

9 Answer to Question 29 Working with Statutes Detecting Ambiguity Section 52(i) refers to the seat of government. Where does this begin and end? What institutions does it take in? How widely does it cover them, eg for Parliament House does it allow legislation just on the building and grounds of Parliament, or does it extend to a zone around them? This is ambiguity of involving a vague and subjective term. Answer to Question 30 Section 72(ii) authorises the Governor General in Council to dismiss a federal judge for misbehaviour. Does this involve committing a crime, behaving in an unethical but not illegal fashion, or behaving without decorum, to give some of the possibilities? And how severe does this behaviour have to be? For example, if committing a crime is included, does it extend to serious crime or to any crime? This is ambiguity involving a vague and subjective term. Answer to Question 31 In s 57, dealing with resolution of deadlock between the Senate and the House of Representatives, the phrase, after an interval of three months, is ambiguous because it is not clear when the three-month period commences. There are two possibilities. (1) It commences when the House of Representatives passes any proposed law. (2) It commences when the Senate rejects or fails to pass it [the proposed law], or passes it with amendments to which the House of Representatives will not agree. This is syntactic ambiguity. It was discussed in Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81). Answer to Question 32 In s 51(i) the ambiguity is in the expression trade and commerce, but is amplified by the reference to trade and commerce being with other countries and among the States. At the centre of trade and commerce is the exchange of goods and services. But there are activities both before and after this exchange, and the contract of exchange has several stages. Putting this together there is a chain which often involves the following steps (and perhaps more) manufacture of a product, advertising the product, discussing the product with a would be purchaser, negotiating a contract with the purchaser, entering this contract, payment of the price by the purchaser, delivery of the product by the seller (and where a service is sold, performance of the service) and after sales service. Section 51(i) requires that there is an interstate or international character to trade and commerce to involve the power in s 51(i). In other words it is necessary to be able to draw an interstate or international boundary through the trade and commerce. This involves an ambiguity: where does this boundary line have to run? Is it only through the central acts of contracting and performing, or can it be through any of the more peripheral, but still necessary, activities before and after these? Answer to Question 33 In s 52(xxxi) the major ambiguity is just terms (which sets the constitutionally decreed price for a compulsory acquisition of property). How do we calculate what is a just price? 9

10 Answer to Question 34 Working with Statutes Detecting Ambiguity Section 51(vi) authorises the Commonwealth to legislate for a purpose, namely defence. How do we gauge when a law is for this purpose? Answer to Question 35 Section 92 requires that interstate trade, commerce and intercourse be absolutely free. It does not, however, say what it is that trade, commerce and intercourse must be free from. Weevils? Taxes? Protection rackets? Safety regulations? This is ambiguity of omission, the casus omissus. It is worth noting here that an alert High Court could readily find s 92 void for vagueness on the basis that it vests an impermissible amount of legislative power in a court which has to interpret it. Answer to Question 36 Section 81 requires that revenues and moneys raised or received shall form one Consolidated Revenue Fund. Section 83 provides for appropriation of this money [and revenue] from the Treasury. Does Treasury refer to the Consolidated Revenue Fund? Logically it has to, or s 83 is meaningless. Answer to Question 37 (1) In s 116 the term religion and cognate expressions are ambiguous. Is religion just confined, for example, to organised and institutionalised religions, or does it also include a set of ethical or spiritual beliefs? (2) Making grants of money to religious schools might be construed as establishing a religion, although this view is a bit strained. (3) Section 116 forbids any law prohibiting the free exercise of any religion. If parents have deeply held religious views which compel them to send their child to a religious school, expenditure by a government of taxpayers revenue on state schools without providing an equivalent benefit to these parents inhibits their ability to exercise their religion freely. Hence, according to this argument, it offends s 116. Answer to Question 38 Section 51(v) gives the Commonwealth power to legislate over Postal, telegraphic, telephonic and other like services. With the phrase other like services there is ambiguity as to how like postal, telegraphic and telephonic service these other services have to be. Answer to Question 39 Section 51(xx) gives the Commonwealth power to legislate over three types of corporations foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. The participle formed, which attaches to both trading and financial corporations, could be used in either of two senses. It could be used in its literal sense of meaning already formed, with the result that the Commonwealth has power over these corporations only once they are formed. Alternatively, it could be used as a contracted form of the future perfect tense, meaning which will have been formed. This usage is proleptic. 10

11 TOURING A STATUTE THE CONSTITUTION Why Tour a Statute? It is essential to become acquainted with a statute s provisions and its layout before starting to work with it, for example by analysing it or answering problem questions on it. A straightforward way of becoming acquainted is to answer a series of simple questions directed to finding specific provisions in the statute. The questions involve walking through the provisions of the statute. The questions below are based on the Commonwealth of Australia Constitution Act and the Constitution. THE MODEL ANSWERS The model answers are given by reference to the section of the Commonwealth of Australia Constitution Act or the Constitution which contains the answer. To avoid confusion, sections of the Commonwealth of Australia Constitution Act are called covering clauses, and sections of the Constitution are called sections. As far as possible the answers stick to these sections and do not mention the existence of relevant conventions: this is an exercise in touring a statute, not in constitutional law. In any event, seeing a raw constitutional power untrammelled by convention is a good background against which to illustrate the effect of convention. (The obvious convention is that the Governor General exercises her power on the advice of the institutions of government. Executive powers of the Governor General should be exercised on the advice of the executive government. Logically, legislative powers should be exercised on the advice of the parliament, although this logic is not often expressed indeed, many observers say that the power should also be exercised on the advice of the executive government.) Questions Question 1 What is the legal connection between the Commonwealth of Australia and the United Kingdom? Question 2 Who enacted the Commonwealth of Australia Constitution Act? 11

12 Question 3 Touring a Statute The Constitution (1) What are the major institutions of government? (2) Which provisions of the Constitution establish these institutions? (3) Which provisions of the Constitution confer power on these institutions? Question 4 (1) Briefly, what form of government was there in Australia before federation? (2) This questions concerns the position after federation of New South Wales, Victoria, South Australia, Queensland, Western Australia and Tasmania? Did their Constitutions continue? Their powers? The laws that they made before federation? (3) What does the term States mean in the Constitution? (4) What effect did the Constitution have when it commenced? Question 5 What action commenced the Commonwealth of Australia? Question 6 Look at each of the provisions indicated below and say whether it is (a) a power, (b) a prohibition, (c) a procedure. Some will be a mixture and fall within more than one category. These provisions are ss 51(ii), 51(iii), 51(xiii), 51(xiv), 51(xxiiiA), 58, 61, 71, 73, 75, 76, 80, 81, 83, 90, 92, 96, 109, 114, 115, 116, 117, 119. Question 7 What powers does the Governor General have under the Constitution? Question 8 Is there any one to advise the Governor General? Question 9 (1) What is the composition of the Commonwealth Parliament? (2) What is the Senate composed of? The House of Representatives? (3) If a Bill passes both houses of Parliament does it become law? Question 10 What part of the Constitution deals with legislative power? Question 11 (1) What powers does the Commonwealth Parliament have? (2) Can the Commonwealth make any law that it likes? Question 12 (1) Name five sections of the Constitution which confer legislative power on the Commonwealth Parliament. (2) Can the Commonwealth Parliament make laws about bankruptcy? 12

13 Touring a Statute The Constitution (3) Can the Commonwealth Parliament make laws about beacons and buoys? (4) Can the Commonwealth Parliament legislate to prohibit the import of manufactured clothing into Australia from China? (5) If the Commonwealth does not have specific power to deal with a subject, does this mean it has no power at all? (6) Can the Commonwealth Parliament legislate to regulate the conduct of the accounting profession? Question 13 What do the following provisions have in common (a) s 51(vi) read with s 114; (b) s 52; (c) s 51(ii) read with s 90; and (d) s 51(iii) read with s 90? Question 14 Can the Commonwealth Parliament pass a Crimes Act making a comprehensive code of criminal law for the whole of Australia? (By a comprehensive code we mean a statute that deals with all major crimes, eg murder, manslaughter, rape, aggravated assault, assault, larceny, fraud, arson etc.) Question 15 What part of the Constitution deals with executive government? Question 16 Who questions the executive power of the Commonwealth? Question 17 What section of the Constitution established the Executive Council? Ministers of state? Government departments? Question 18 Can the Governor General go onto a ship of the Royal Australian Navy and tell the captain what to do? Question 19 What are the functions of Ministers? Question 20 Can the Governor-General appoint the captain of the Australian cricket team as a Minister? Question 21 What part of the Constitution deals with the judicature? Question 22 What is the Federal Supreme Court called? 13

14 Question 23 Touring a Statute The Constitution Which provisions of the Constitution vest jurisdiction in Commonwealth Courts? Question 24 Who appoints justices of the High Court? Question 25 Can the Prime Minister remove a judge because she does not like his decision in a case? Question 26 Jenny was born on 1 January Could she be appointed to the High Court? Question 27 Can the High Court hear the following matters: (1) An appeal from the Supreme Court of Victoria? (2) A matter arising under a treaty? (3) An action for debt by Fred who lives in Queensland against Mary who lives in Victoria? (4) A matter involving a collision between two ships? Question 28 What is the combined effect of the following provisions s 51(vi) (just the part about defence, not the police power), s 114 (just the part about naval and military forces, not taxation), and s 119. Question 29 A girl drinking next to you in the saloon bar of your local hotel tells you that she does not have a copy of the New South Wales Constitution. She adds: That went out the window with federation. Is she right? Question 30 A fellow drinking next to you in the saloon bar of your local hotel (the older brother of the girl in Question 29) says to you: At school I learnt the names of the six States. I am pleased that there cannot be any more because I do not want to go to the bother of learning more names. Is he right? Question 31 Australia, says your friend Feddy, is made up of six States and the Commonwealth. These are the only constitutional entities. Is Feddy correct? 14

15 Answer to Question 1 Touring a Statute The Constitution Answers The Constitution is contained in an Act of the United Kingdom, the Commonwealth of Australia Constitution Act. This means that, in a formal sense, all constitutional power of the Commonwealth derives from the United Kingdom. Answer to Question 2 The United Kingdom Parliament. This is indicated by the words of enactment which are located just before s 1. Answer to Question 3 (1) Major institutions of government are: (a) The Crown, ie the Queen (ss 1, 2 and 61). (b) The Parliament (Chapter I). (c) The executive government (Chapter II). (d) The judicature, ie courts (Chapter III). (2) Provisions establishing these institutions are: (a) Crown s 2 (Governor General). (b) Parliament s 1. (c) Executive government s 2 (Governor General). See also s 62 (Executive Council) and s 64 (Ministers). (d) High Court and other courts s 71 (3) Major provisions conferring power are: (a) Crown s 2. (b) Parliament. Section 1 provides that the legislative power of the Commonwealth is vested in Parliament. Specific powers are conferred on Parliament by a number of sections of which the main ones are ss 51 and 52. (c) Executive government. Section 61 provides that the executive power of the Commonwealth is vested in the Queen but is exercisable by the Governor-General as the Queen s representative. Section 61 defines this power in broad terms. It extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Other provisions of the Constitution confer specific powers on the Governor General. Examples are ss 62, 64 and 68. (d) Courts. Section 71 says that the judicial power of the Commonwealth shall vest in three sets of courts (i) the High Court of Australia, (ii) such other federal courts as the Parliament creates, and (iii) such other courts as the Parliament invests with federal jurisdiction. Other provisions define the extent of this judicial power. These are ss 73, 75, 76 and

16 Answer to Question 4 Touring a Statute The Constitution (1) Before federation Australia consisted of six self-governing colonies, Queensland, New South Wales, Victoria, Tasmania, South Australia and Western Australia. (2) Constitution ss 106, 107, 108. (3) Constitution covering clause 6. (4) The Constitution did two major things. (a) It established a new national government called the Commonwealth government. It did this by establishing institutions of government. This is covered in the answers to Question 3. (b) It created a federation consisting of the six colonies and the Commonwealth. The principal way it did this was by covering clause 6 which renamed the colonies as States, and by ss 106, 107 and 108 which preserved their Constitutions, powers and laws. Answer to Question 5 Covering clause 3. Answer to Question 6 (1) Powers Constitution ss 51(ii), 51(iii), 51(xiii), 51(xiv), 51(xxiiiA), 61, 71, 73, 75, 76, 83, 119 (which imposes a duty which implicitly confers a power). (2) Prohibitions Constitution ss 51(ii), 51(iii), 51(xiii), 51(xiv), 51(xxiiiA), 83, 90, 92, 109, 114, 115, 116, 117. (3) Procedures Constitution ss 58, 80, 81, 83, 114, 119. Answer to Question 7 Section 61 confers general power, s 2 authorises the Queen to assign powers, and some sections confer specific power, eg ss 5, 62, 64, 68 and 72. Answer to Question 8 Constitution s 62. Answer to Question 9 (1) Constitution s 1. (2) Constitution ss 7 and 24. (3) Constitution ss 1, 23, 40 and 58 for ordinary cases. Constitution ss 57, 59 and 60, and 128 for special cases. Answer to Question 10 Constitution Chapter I, Part V and also s 1. Answer to Question 11 (1) Power to make law is conferred on the Commonwealth Parliament in specific terms. The main provisions conferring power are ss 51 and 52. Other sections confer specific powers. Examples are ss 71, 72, 73, 76 and 77. (2) There is a general principle, called ultra vires (meaning literally beyond power), that a body, including a parliament, can exercise only the power which is conferred on it. Hence the Commonwealth Parliament cannot make any law that it likes. It is a Parliament of limited power. 16

17 Answer to Question 12 Touring a Statute The Constitution (1) Examples are Constitution ss 51, 52, 71, 72, 73, 7 and 77. (2) Constitution s 51(xvii). (3) Constitution s 51(vii). (4) Constitution s 51(i). (5) Power to regulate something generally includes power to regulate any aspect of it. Hence, indirectly, the Commonwealth may be able to use one or more provisions of the Constitution to enable to cover, usually not completely, an area for which it does not have direct or specific power. A good example of this is the Trade Practices Act 1974 (Cth). There is no direct or specific power for the Commonwealth to legislate on trade practices, but there is power from s 51(xx) of the Constitution to legislate on corporations. Hence the Commonwealth can use the corporations power to legislate on trade practices which involve corporations. (6) This question applies the principle that we just discussed. There is no direct or specific power to regulate the accounting profession but a number of provisions give some aspects of the power. For example, s 51(xx), the corporations power, would allow the Commonwealth to regulate accountants with respect to work done for corporations. And s 51(xvii), the bankruptcy and insolvency power, would allow the Commonwealth to regulate accountants with respect to work done in bankruptcy and insolvency. Answer to Question 13 These all make power exclusive to the Commonwealth government. Answer to Question 14 The basic principle is that the Commonwealth Parliament can enact legislation only when the subject falls within its specific powers. There are two applicable comments in relation to the power of the Commonwealth to enact a comprehensive criminal code. First, there is no specific or direct power which allows it to pass a general criminal code for the whole of Australia. This power as a whole, therefore, is exclusive to the State Parliaments. Second, the Commonwealth has a limited power to create criminal offences. It can do this when creation of the criminal offence is part of its exercise of some other power. Indeed, it can use most of its powers to create criminal offences relevant to those powers. For example, it can use the bankruptcy power in s 51(xvii) to make it an offence for a bankrupt not to disclose all of their assets to the court. Answer to Question 15 Constitution Chapter II. Answer to Question 16 Constitution s 61. Answer to Question 17 Constitution ss 62 and

18 Answer to Question 18 Constitution s 68. Answer to Question 19 Constitution ss Answer to Question 20 Constitution s 64. Answer to Question 21 Constitution Chapter III. Answer to Question 22 Constitution s 71. Answer to Question 23 Touring a Statute The Constitution Constitution ss 71, 73, 75, 76, and see also s 77. Answer to Question 24 Constitution s 72. Answer to Question 25 Constitution s 72. Answer to Question 26 Constitution s 72. Answer to Question 27 (1) Constitution s 73. (2) Constitution s 75(i). (3) Constitution s 75(iv). (4) Constitution s 76(iii). Answer to Question 28 We have to see the effect of reading together three sections s 51(vi) (just the part about defence not the police power), s 114 (just the part about naval and military forces, not the taxation power) and s 119. Section 51(vi) provides that the Commonwealth Parliament can legislate on the naval and military defence of the Commonwealth. Section 114 provides that a State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force. Section 119 provides that the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. The first major point arises from looking at s 114 and s 51(vi) together. Section 114 forbids a State to raise or maintain any naval or military force. Section 51(vi) 18

19 Touring a Statute The Constitution allows the Commonwealth to legislate on the naval and military defence of the Commonwealth. Using this power the Commonwealth can raise and maintain a naval and military force. Taken together, these provisions confer a defence power on the Commonwealth and make most of that power, and the part that counts, exclusive to the Commonwealth. The second point is a question. Since the States lack a defence power, how are they protected against invasion or domestic violence? There are two means. (1) Under s 114 they can ask the Commonwealth for permission to raise and maintain their own naval or military force. (2) Section 119 requires the Commonwealth to protect a State against invasion. It also requires the Commonwealth to protect a State against domestic violence if the Executive Government of the State requests it. Answer to Question 29 Constitution s 106 (although it does not deal with defenestration). Answer to Question 30 Constitution s 121. Answer to Question 31 Constitution s 52(i) (places and the seat of government), and s 122 (Territories). 19

20 ANALYSING A STATUTE INTRODUCTION Techniques for Analysing a Statute Analysing a statute involves dividing its specific provisions into elements and consequences. Generally this is done by sticking faithfully to the provisions which are broken into bite size pieces and set out in a structured way according to their elements and consequences. In some cases, though, it may be necessary to rearrange a provision and add bits that are not stated but are implicit (Legal Technique Chapter 34, [34.78] [34.89]). Two examples illustrated in the Model Answers to questions involving the Constitution are: A provision such as s 117 which asserts that something (including someone) shall be free from something else. (See Model Answer to Question 5.) A provision such as s 92 which says that something (including someone) shall not be subject to something. This amounts to saying that something shall be free. (See Model Answer to Question 14.) In other cases, some provisions, typically establishment provisions, are all consequences. They have no elements. Examples are ss 1, 2, 61 and 71 of the Constitution which are the subjects of Questions 2, 1, 3 and 4 respectively. The Trade Practices Act The Model Answers to questions on the Trade Practices Act 1974 (Cth) are based upon the Act as amended to Act No 101 of 1998 (Gas Pipelines (Country of Origin) Act 1998). 20

21 Question 1 Analysing a Statute The Constitution THE CONSTITUTION Questions Break s 2 into its elements and their consequences. Question 2 Break s 1 into its elements and their consequences. Question 3 Break s 61 into its elements and their consequences. Question 4 Break s 71 into its elements and their consequences. Question 5 Break s 117 into a check list of its elements and their consequences. Question 6 Break s 116 into a check list of its elements and their consequences. Question 7 Break s 90 into a check list of its elements and their consequences. Question 8 Break s 115 into a check list of its elements and their consequences. Question 9 Break s 114 into a check list of its elements and their consequences. Question 10 Break s 109 into a check list of its elements and their consequences. Question 11 Break s 119 into a check list of its elements and their consequences. Question 12 Break s 81 and s 83 taken together into a check list of elements and their consequences. Question 13 Break s 80 into a check list of its elements and their consequences. Question 14 Break s 92 into a check list of its elements and their consequences. 21

22 Analysing a Statute The Constitution Answers Answer to Question 1: Section 2 Section 2 performs several functions: (1) It establishes the office of Governor General. It does this indirectly in saying that a Governor-General appointed by the Queen shall be Her Majesty s representative in the Commonwealth. (2) It prescribes the function of the Governor General. She is Her Majesty s representative in the Commonwealth. (3) It prescribes the method of appointment of the Governor General. She is appointed by the Queen. (4) It prescribes the powers of the Governor General. He shall have and may exercise in the Commonwealth... such powers and functions of the Queen as Her Majesty may be pleased to assign to him. This power is subject to two qualifications. (a) It is exercisable during the Queen s pleasure. (b) It is subject to this Constitution. Answer to Question 2: Section 1 Section 1 performs four functions: (1) It creates, even if indirectly, the Federal Parliament. Section 1 does this via the other three functions described below (a) by naming it, (b) by determining its composition, and (c) by vesting legislative power in it. (2) It gives the Parliament three names. It is the Federal Parliament, The Parliament, or The Parliament of the Commonwealth. (3) It determines the composition of the Federal Parliament. It is to consist of the Queen, a Senate, and a House of Representatives. (4) It vests the legislative power of the Commonwealth in the Parliament. Answer to Question 3: Section 61 Section 61 performs several functions: (1) It vests the executive power of the Commonwealth in the Queen. (2) It delegates the executive power of the Commonwealth it is exercisable by the Governor-General as the Queen s representative. (3) It defines the executive power. It extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. Answer to Question 4: Section 71 Section 71 performs several functions: (1) It establishes, even if indirectly, the High Court of Australia. It provides that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia. (2) It names the High Court. It is a Federal Supreme Court which is also to be called the High Court of Australia. (3) It determines the composition of the High Court. It shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes. 22

23 Analysing a Statute The Constitution (4) It indicates that the judicial power of the Commonwealth shall vest in three sets of courts (a) the High Court of Australia, (b) such other federal courts as the Parliament creates, and (c) such other courts as the Parliament invests with federal jurisdiction. Answer to Question 5: Section 117 Section 117 has to be broken into a check list of its elements and their consequences. Element (1) There is a subject of the Queen. Element (2) The subject of the Queen is resident in one State. Element (3) The subject of the Queen is subject, in a second State, to a disability or discrimination. Element (4) The disability or discrimination would not be equally applicable to the subject if they were a subject of the Queen resident in the second State. Element (5) The disability or discrimination is imposed by some action taken by some person (This requirement is implicit in s 117 but not explicit). Element (6) The person who takes this action falls into one of three categories (this requirement is implicit in s 117 but not explicit): (a) The Commonwealth government. (b) A State government. (c) A private citizen. Element (7) This action is one of the following (this requirement is implicit in s 117 but not explicit): (a) If the action is taken by the Commonwealth, or a State government, the action is one of the following kinds: (i) Legislative action. (ii) Executive action. (iii) Judicial action. (b) If the action is taken by a citizen, the action is either of the following: (i) Action which involves using law. (ii) Action which does not involve using law. Consequences The action is unconstitutional and invalid. Answer to Question 6: Section 116 Section 116 has to be broken into a check list of its elements and their consequences. There are four components. Establishing a Religion Element (1) The Commonwealth makes a law. Element (2) The law establishes a religion. 23

24 Consequences The law is unconstitutional and invalid. Imposing Religious Observance Analysing a Statute The Constitution Element (1) The Commonwealth makes a law. Element (2) The law imposes a religious observance. Consequences The law is unconstitutional and invalid. Prohibiting Exercise of Religion Element (1) The Commonwealth makes a law. Element (2) The law prohibits the free exercise of any religion. Consequences The law is unconstitutional and invalid. Imposing a Religious Test Element (1) The Commonwealth makes a law, or takes executive or judicial action. Element (2) The law or action requires something. Element (3) The something is a religious test. Element (4) The religious test is a qualification. Element (5) The qualification is for either of the following: (a) An office under the Commonwealth. (b) A public trust under the Commonwealth. Consequences The law or action is unconstitutional and invalid. Answer to Question 7: Section 90 Section 90 has to be broken into a check list of its elements and their consequences. As it reads, s 90 is broken up in the following way: Element (1) Uniform duties of customs have been imposed. (Uniform duties of customs were imposed when the Commonwealth Parliament enacted the Customs Act 1901.) Element (2) Parliament has power to do two things: (a) Impose duties of customs and excise. (This power is conferred by s 51(ii). Customs and excise duties are forms of tax. Section 51(ii) gives the Commonwealth Parliament power to impose any form of tax that it likes.) (b) Grant bounties on the production or export of goods. (This power is conferred by s 51(iii).) 24

25 Consequences Analysing a Statute The Constitution The power of Parliament (a) to impose duties of customs and excise, and (b) to grant bounties on the production or export of goods, is exclusive. Looking at s 90 with regard to both its content and function, it can be arranged in another way which is more practical that the one above. This arrangement is as follows: Element (1) Uniform duties of customs have been imposed. (Uniform duties of customs were imposed when the Commonwealth Parliament enacted the Customs Act 1901.) Element (2) A government of a State or Territory takes action. Element (3) This action does either of two things: (a) It imposes duties of customs and excise. (This power is conferred by s 51(ii). Customs and excise duties are forms of tax. Section 51(ii) gives the Commonwealth Parliament power to impose any form of tax that it likes.) (b) It grants bounties on the production or export of goods. (This power is conferred by s 51(iii).) Consequences The action of the State or Territory is unconstitutional and invalid. (This is a consequence of s 90 making power to take this action exclusive to the Commonwealth. If it is exclusive to the Commonwealth, no one else can legally do it.) Answer to Question 8: Section 115 Section 115 has to be broken into a check list of its elements and their consequences. There are two parts. Coining Money Element (1) There is a State. Element (2) The State coins money. Consequences The action is unconstitutional and invalid. Legal Tender Element (1) There is a State. Element (2) There is a debt. Element (3) The State makes something legal tender in payment of the debt. Element (4) The something is not gold or silver coin. Consequences The action is unconstitutional and invalid. 25

26 Analysing a Statute The Constitution Answer to Question 9: Section 114 Section 114 has to be broken into a check list of its elements and their consequences. Section 114 has three components. Naval or Military Force Element (1) There is a State. Element (2) The State raises or maintains a naval or military force. Element (3) The State does not have the consent of the Parliament of the Commonwealth. Consequences The action is unconstitutional and invalid. State Taxing Commonwealth Element (1) There is a State. Element (2) The State imposes a tax. Element (3) The tax is a tax on property of any kind. Element (4) The property belongs to the Commonwealth Element (5) The State does not have the consent of the Parliament of the Commonwealth. Consequences The action is unconstitutional and invalid. Commonwealth Taxing a State Element (1) The Commonwealth imposes a tax. Element (2) The tax is a tax on property of any kind. Element (3) The property belongs to a State. Consequences The action is unconstitutional and invalid. Answer to Question 10: Section 109 Section 109 has to be broken into a check list of its elements and their consequences. Element (1) There is a law of a State. Element (2) There is a law of the Commonwealth. Element (3) The State law and the Commonwealth law are inconsistent. Consequences (1) The Commonwealth law prevails. (2) The State law is, to the extent of the inconsistency, invalid. 26

27 Analysing a Statute The Constitution Answer to Question 11: Section 119 Section 119 has to be broken into a check list of its elements and their consequences. There are two parts. Invasion of a State Element (1) There is a State. Element (2) The State is invaded, or is threatened with invasion. (Section 119 merely used the word invasion and does not mention a threat of invasion. Nevertheless, it is not hard to read the duty imposed by s 119 to protect a State against invasion as being a duty to protect it against a threatened invasion.) Consequences The Commonwealth is under a duty to protect the State against the invasion. Domestic Violence in a State Element (1) There is a State. Element (2) There is domestic violence in the State or the threat of domestic violence. (Section 119 merely used the term domestic violence and does not mention a threat of domestic violence. Nevertheless, it is not hard to read the duty imposed by s 119 to protect a State against domestic violence as being a duty to protect it against threatened domestic violence.) Element (3) The Executive Government of the State applies to the Commonwealth for protection against the domestic violence. Consequences The Commonwealth is under a duty to protect the State against the domestic violence. Answer to Question 12: Sections 81 and 83 Sections 81 and 83 have to be broken into a check list of their elements and consequences. These sections have to be read together. Revenue into Consolidated Revenue: Section 81 Element (1) There are revenues or moneys. Element (2) Either of two things happens: (a) The revenues are raised. (In this regard s 81 is badly drafted. This provision most logically means that a statute imposed liability on a person to pay money. An obvious example is a tax.) (b) The moneys are received by the Executive Government of the Commonwealth. Consequence The revenues or moneys shall form one Consolidated Revenue Fund. 27