Statutory Interpretation LAWS314 Exam notes

Statutory Interpretation LAWS314 Exam notes

STATUTORY INTERPRETATION LAWS314 Introduction......... 1 Legislation...... 1 The court s role in interpretation.. 1 Interpretation v construction 1 History of statutory interpretation.. 1 Legislative power 1 Drafting styles.. 1 Plain English drafting........... 1 Drafting conventions... 2 Parliamentary procedures.. 2 Interpretation Legislation.. 3 Gender... 3 Age...... 3 Number.................. 3 Distance............... 3 Time.................. 3 Meaning of may and shall............ 4 Commencement............... 4 Amendment................ 4 Repeal.............. 5 Invalidity................ 5 Context and Purpose.... 7 Context and purpose in statutory interpretation. 7 Context....... 7 Purpose... 7 Intention and Interpretative Techniques.. 9 Intention.... 9 Interpretive techniques.. 9 Reading down. 9 Straining............... 9 Reading in............... 10 Reading up.............. 10 Ambulatory or dynamic interpretation........... 10 Intrinsic Materials... 11 Long title. 11 Short title.............. 11 Preamble.............. 11 Objects clause............... 11 1

DeDefinition sections............ 12 Headings............... 12 Schedule............... 12 Notes................. 12 Punctuation............... 13 Examples.............. 13 Penalties.............. 13 All words have meaning... 13 Ordinary and current meaning....... 13 A technical or legal meaning may be used........ 15 Dictionary meaning............. 15 Consistent meaning............. 15 Variants of words................ 15 Limiting words............... 15 Hendiadys.............. 16 Temporal expression............. 16 Common words and expressions........... 16 What if the intrinsic materials are inconsistent, or in conflict with one another?.. 16 Conflicting provisions. 16 Act to be read as a whole. 17 Extrinsic Materials. 18 Using extrinsic materials to interpret text.. 18 Using extrinsic materials for context and purpose.. 18 Common law approach to extrinsic materials. 19 Which extrinsic materials can be used? 19 Law reform commission reports. 19 Explanatory memoranda.. 19 Second reading speeches. 19 Parliamentary debates 20 International treaties and agreements 20 Dictionaries. 20 Prior Acts.. 20 Repealed provisions. 21 Amending Acts. 21 In pari materia. 21 Victorian legislation 21 Common Law Approaches... 22 Common law and statutes. 22 Interpreting a statute which complements the common law. 22 Interpreting a statute which replaces the common law. 22 Interpreting a statute where there was no prior common law. 22 Developing the common law throgh reasoning by analogy to a statutory principle.. 22 Interpreting a statute through reasoning by analogy to a principle in another statute.. 22 Interpreting a statute through reasoning by analogy to a common law principle 22 2

Traditional common law approaches. 22 Literal rule... 22 Golden rule.... 23 Mischief rule..... 23 Latin maxims. 23 Noscitu a sociis. 23 Ejusdem generis.. 23 Expressio unius est exclusio alterius. 24 Generalia specialibus non derogant.. 24 Expressum facit cessare tacitum.. 24 Reddendo Singula Singulis. 25 Statutory Presumptions.. 26 Legislation does not have an extraterritorial effect 26 Legislation does not take jurisdiction away from the courts 26 Legislation does not bind the Crown. 27 Penal provisions are strictly construed 27 Remedial or beneficial provisions are broadly construed.. 27 Taxation provisions construed to the taxpayer s benefit 27 Legislation enacting a word or phrase approves of its common law interpretation 28 Legislation does not operate retrospectively.. 28 Legislation does not remove property rights 28 Other statutory presumptions 29 Fundamental and Human Rights.. 30 Non-interference with fundamental rights. 30 What is a fundamental right? 30 Principle of legality.. 30 Applying the principle of legality.... 31 Human rights... 31 The Victorian Approach. 32 Common law rights..... 32 International Law in Statutory Interpretation.. 34 Legislative conformity with international law. 34 Sources of international law. 35 International treaties.. 35 Customary international law.... 35 General principles of law.. 36 Interpreting Specific Instruments.. 37 Delegated or subordinate legislation. 37 Types of delegated legislation....... 37 Interpretation of delegated legislation....... 37 Codes 38 Quasi-legislative bodies and soft law. 38 3

Constitution......... 38 Other documents...... 38 Contracts........ 38 Wills.. 39 4

INTRODUCTION STATUTORY INTERPRETATION Legislation Legislation is the predominant source of law applied by judges in the common law words. Most law is set down in legislation and cases interpreting their provisions, which is why lawyers need advanced statutory interpretation skills. Through legislation, Parliament communicates what it expects individuals and corporation to do and refrain form doing. The court s role in interpretation Primary responsibility of a court in interpretation is resolving a dispute over the meaning of words. Role of the courts is limited by the separation of powers can only rule on legislation as it stands. A court cannot improve, rewrite or develop a statute. Court must interpret statute in light of its context and purpose. Generally treat statutes as the superior source of law (as opposed to the common law). Modern approach to interpretation is the purposive approach. Interpretation v construction Often used interchangeably. Best to use interpretation to work out the meaning of a single word or phrase and construction to construe the meaning of a whole provision. History of statutory interpretation 14 th century the notion of parliamentary sovereignty giving statute law superiority over common law came about and court s realised statutes were binding and there needed to be guidelines for interpreting them. New South Wales Act 1823 (Imp) established the NSWSC. The first Chief justice had to apply colonial practices and customs, without the benefit of colonial legislation, in light of English statutes and common law. Australian Constitutions Act (No 1) 1842 (Imp): established a representative legislature in Australia. Colonial Laws Validity Act 1865 (Imp): repugnancy doctrine any laws inconsistent with English law were struck down. Repugnancy doctrine applied up until 1942 at Commonwealth level and 1986 at State level. Up until the 1980 s the courts focused on replicating what could be expected from an English court. Interpretation legislation set up path for a coherent body of law relating to statutory interpretation. Legislative power Constitutions are the font of power for the legislature, executive and judicature. Federal legislative powers are limited to the head of power in s 51 of the Constitution. Drafting styles 2 approaches to drafting: Drafting a general provision and leaving the courts to determine the application of a statute and a case by case basis embodying the processes of the common law; Drafting a detailed provision so as to provide a clear and comprehensive law that will minimise the scope for judicial discretion and interpretation. Plain English drafting In a society where ignorance of the law is no excuse and where legal advice costs money to have legislation that is incomprehensible except to those legally trained. Plain English drafting has developed as a result of the view that legislation should be comprehensible to the average person. Plain English drafting favours a simple and straight forward style, using language that is direct and familiar, getting rid of unnecessary words and avoiding long and complicated sentences. In practice, it is extremely difficult to draft legislation in plain English. 1

Drafting conventions Draft legislation takes a standard form. Acts uniformly commence with a long title and the words the Parliament enacts, followed by substantive clauses. The clauses may be grouped using headings such as Chapter or Part. At the end of substantive clauses there may be schedules. Draft legislation must be in the exact form in which it will be passed. Drafters use a variety of expressions to represent the relationship towards different entities, people or things, i.e, with respect, in relation to, by way of etc. Parliamentary procedures Bills may be initiated in the House of Representatives or the Senate. Most bills are government bills, as opposed to private member bills, and are introduced by the Minister responsible for the portfolio covering that subject matter. Bill is accompanied by an explanatory memorandum signed by the Minister, which explains the proposed law and summarises its contents. Bills must be accompanied by a statement of compatibility that assesses the legislation s compliance or interference with key human rights instruments. Various stages involved in the passage of a bill: initiation, first reading, second reading, referral (to committee etc), adoption, third reading, transmission to other house for concurrence, bill may be returned to house in which it originated as is or with amendments, presented by the Attorney-General for assent by the Governor-General. At the time of assent, the bill becomes an Act of Parliament. 2

INTERPRETATION LEGISLATION STATUTORY INTERPRETATION Interpretation Legislation In accordance with the doctrine of parliamentary sovereignty, any rules set down by Parliament prevail over any conflicting common law rules of Statutory Interpretation. Relevant legislation: Acts Interpretation Act 1901 (Cth); Interpretation of Legislation Act 1984 (Vic). Acts apply equally to primary and delegated legislation (Vic s 4 & Cth s 2). Interpretation Acts have two main functions: They contain generic provisions that apply to all legislation unless the legislation specifies otherwise; They contain instructions to the courts to consider the purpose of the legislation and, where relevant, extrinsic materials. Gender Gender-neutral language legislation is addressed equally to people of different genders. Interpretation Acts provide that where legislation uses he includes she and vice versa. Cth Act s 23(a) (Vic s 37(a)): words importing a gender include every other gender. Age S 37A Cth Act: the time at which a person attains a particular age expressed in years is the commencement of the relevant anniversary of the date of birth of that person (i.e turn 18 at 12am on the 18th anniversary of their birth). Number S 23(b) Cth Act (Vic s 37(c)(d)): words in the singular number include the plural and words in the plural number include the singular. Example: if a provision says it is an offence to discharge a/one bomb in a supermarket, it would also cover discharging more than one bomb. Distance Where an Act specified that something must be, for example, 500 kilometres from a certain place, this distance is measured in a single straight line, and not according to driving on roads which may bend etc. S 35 Cth Act (Vic s 43): In the measurement of any distance for the purposes of any Act, that distance shall, unless the contrary intention appears, be measured in a straight line on a horizontal plane. Time Time refers to the standard of legal time in the place where the legislation applies. S 37 Cth Act: any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Cth to mean the legal time in that State or part of the Cth. S 22(1)(a) (Vic s 44): A day means a 24 hour period commencing a midnight; month means a calendar month. If an Act says something applies at a certain date, this means it starts at 12.00.01 on that date. If something applies from a certain date, that date is excluded. S 36(1) Cth Act (Vic s 44): Figure 1 from Statutory Interpretation by Sanson pg 38 3

Meaning of may and shall S 33(2a) Cth Act & S 45(1) Vic Act: May confers a discretion. S 45(2) Vic Act: Shall is mandatory. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [93]: When determining the validity of an act done in breach of a statutory provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. If may is used then it is up to the power holder as to whether to exercise that power or not this is not an absolute rule, only a general rule. Part of the contextual analysis goes to consideration of the consequence of a power not being carried out, in terms of both the individual and the broader public. More likely that a duty to exercise a discretionary power will be found if the failure to do so would be unfair or unjust for the individual, and of some public detriment. Bradley v Commonwealth (1973) 128 CLR 557: Court had to decide whether a statutory power to provide postal and telephonic facilities conferred a duty to provide those services. Majority declined to accept the Cth s argument that the provisions were permissive and directory, not obligator and mandatory, so if someone s mail was not transmitted or delivered, there was no right to any redress. Where a discretionary power is given by a statute, it can be taken that the legislature intended that it be exercised reasonably. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: Li was refused a skilled student residential visa, and applied to the Migration Review Tribunal (MRT) for a review of this decision. The MRT declined Li s request that the proceedings be adjourned to allow for time for the skills assessment body to review its own report, which contained fundamental errors. Three Federal Courts, including the HCA, agreed that the decision was unreasonable. Where a discretionary power is conferred by a statute, it is presumed that the legislature intended that discretion be exercised reasonable, and any use of the discretion that is so unreasonable that no reasonable decision-maker could have done so is invalid. S 25C Cth Act: Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: ABA, in implementing a standard that television must have a certain proportion of local Australian content, failed to comply with obligations under a trade protocol that required NZ producers to be treated no less favourably than Australian producers. The HCA agreed that the standard was in breach of the protocol, but not invalid: (at 91) An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it depends upon whether there can be discerned a legislative purpose to invalidate an act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of that condition. One must consider whether it was a purpose of the legislation that a breach should create invalidity. If a finding of invalidity would create significant individual or public inconvenience, then it is most likely not a purpose of the legislation that a breach should create invalidity. Commencement S 3A Cth Act: An Act commences on the 28 th day after the day on which that Act receives the Royal Assent now don't need such a provision in every Act. S 11 Vic Act: Provides for commence 28 days after assent, but is silent about a default time period now necessary for commencement provision in every Act. Amendment Legislation usually amended through the passage of an Amendment Act e.g Native Title Act 1993 (Cth) was amended by the Native Title Amendment ACT 2007 (Cth). Rights and liabilities accrued under the legislation while it was in force may still be the subject of litigation before the courts, whether or not litigation has commenced prior to the repeal. For minor amendments such as the change of the name of a relevant body, an omnibus Act may be used, in which one Act amends multiple Acts. 4