LWB145, Exam Notes

Statutory Interpretation

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Aids to the Meaning of Words An Act is to read as a whole (Text pg 102)

An Act cannot be said to be free of ambiguities unless the relevant section is read in the context of the whole Act: Metropolitan Gas Co v Federated Gas Employees Industrial Union (1925) 35 CLR 449. Dictionaries (pg 105) - As in legislation words are usually used in their ordinary sense as distinct from any special or technical sense - the courts are prepared to resort to dictionaries as an aid to interpretation: R v Peters (1886) 16 QBD 636 (bankrupt horse deal)

APPROACHES TO STATUTORY INTERPRETATION (Text pg 132)

The Literal Rule - Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. Re Prince Blucher: Ex parte Debtor [1931] 2 Ch 70 (solicitors signature) The Golden Rule - Grey v Pearson (1857) 6 HLC 61: the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther. Adler v George [1964] 2 QB 7 (in the vicinity of an airforce base) The Mischief Rule Heydons Case: 1st What was the common law before the act? 2nd What was the mischief or defect for which common law did not provide? 3rd What remedy had the parliament resolved and appointed to mend this? 4th The true reason of the remedy. The judges are to make such construction as shall suppress the mischief and advance the remedy and suppress subtle inventions or attempts to avoid the remedy. Acts Interpretation Act 1901 (Cth) s 15AA and Acts Interpretation Act 1954 (Qld) s 14A
15AA (1) the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act (whether expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. (2) Nothing in ss1 shall be constructed as authorising, in the interpretation of a provision of an Act, the consideration of any matter or document not forming part of the Act for any purpose for which that matter or document could not be considered apart from that sunsection. QLD 14A.(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

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Statutory Interpretation

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(2) ss1 applies whether or not the purpose is expressly stated in the Act. Note that s 14A (Qld) by its reference to the interpretation that will best achieve the purposes of the Act is more specific than s 15AA (Cth). Further note that s 14A cannot be used to create or extend criminal liability, see s 14A(2).

Commencement (Text pg 82)

Acts Interpretation Act 1901 (Cth) s5
5 Commencement of Acts (1) Every Act to which the Royal Assent has been given by the Governor-General for and on behalf of the King on or before 31 December 1937, shall be deemed to have come into operation on the day on which that Act received the Royal Assent, unless the contrary intention appears in the Act. (1A) Every Act (other than an Act to alter the Constitution) to which the Royal Assent is given by the Governor-General for and on behalf of the King on or after 1 January 1938, shall come into operation on the twenty-eighth day after the day on which that Act receives the Royal Assent, unless the contrary intention appears in the Act. (1B) Every Act to alter the Constitution to which the Royal Assent is given by the Governor-General for and on behalf of the King on or after 1 January 1938, shall come into operation on the day on which that Act receives the Royal Assent, unless the contrary intention appears in that Act. (2) Every Act reserved for the signification of the Kings pleasure thereon shall come into operation on the day on which His Majestys assent is proclaimed in the Gazette by the Governor-General, unless the contrary intention appears in such Act.

Acts Interpretation Act 1954 (Qld) s 15A

15A Commencement of Acts on date of assent An Act commences on the date of assent except so far as the Act otherwise expressly provides.

Time of Commencement - Common law position is that the Act commences from the beginning of the day of commencement, regardless of the time of assent. Retrospectivity - The power to pass retrospective legislation is within the power of Australian parliaments: Polyukhovich v Commonwealth of Australia (1991) 172 CLR 500 (war crimes). Parliaments are presumed to legislate prospectively, that is there is a strong presumption against retrospective legislation: Maxwell v Murphy (1957) 96 CLR 261 (compensation for dead relative). Exceptions: By an express provision By a necessary implication/intendment If the Act/provision is a declaratory Act/provision If the Act/provision is a validating Act/provision If the Act/provision is a procedural Act/provision

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Statutory Interpretation

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Extrinsic Materials (Text pg 56)

Acts Interpretation Act 1901 (Cth) s15AB
15AB Use of extrinsic material in the interpretation of an Act (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. (2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes: (a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer; (b) any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of the Parliament before the time when the provision was enacted; (c) any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted; (d) any treaty or other international agreement that is referred to in the Act; (e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted; (f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House; (g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and (h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of the Parliament. (3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to: (a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and (b) the need to avoid prolonging legal or other proceedings without compensating advantage.

Acts Interpretation Act 1954 (Qld) s14B

14B Use of extrinsic material in interpretation (1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation

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Statutory Interpretation

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(a) if the provision is ambiguous or obscureto provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonableto provide an interpretation that avoids such a result; or (c) in any other caseto confirm the interpretation conveyed by the ordinary meaning of the provision. (2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to (a) the desirability of a provision being interpreted as having its ordinary meaning; and (b) the undesirability of prolonging proceedings without compensating advantage; and (c) other relevant matters. (3) In this section extrinsic material means relevant material not forming part of the Act concerned, including, for example (a) material that is set out in the document containing the text of the Act as printed by the government printer; and (b) a report of a royal commission, law reform commission, commission or committee of inquiry, or a similar body, that was laid before the Legislative Assembly before the provision concerned was enacted; and (c) a report of a committee of the Legislative Assembly that was made to the Legislative Assembly before the provision was enacted; and (d) a treaty or other international agreement that is mentioned in the Act; and (e) an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and (f) the speech made to the Legislative Assembly by the member in moving a motion that the Bill be read a second time; and (g) material in the Votes and Proceedings of the Legislative Assembly or in any official record of debates in the Legislative Assembly; and (h) a document that is declared by an Act to be a relevant document for the purposes of this section. ordinary meaning means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.

The words of a minister are not conclusive as to meaning - R v Bolton; Ex parte Beane (1987) 162 CLR 514. (AWOL US Marine) Use not mandatory this is mentioned in Senator Evans second reading speech when the AIA (Cth) was introduced.

INTERPRETATION PROVISIONS (Text pg 109)

Definitions of words given in s 22 of the Acts Interpretation Act 1901 (Cth) and s 36 of the Acts Interpretation Act 1954 (Qld). Also dictionaries at the end of Acts.

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Statutory Interpretation

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Contrary Intention: Acts Interpretation Act 1954 (Qld) s14B

32A Definitions to be read in context Definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires.

Duperouzel v Cameron [1973] WAR 181 means and includes means = exhaustive; Includes = not exhaustive: Cohns Industries Pty Ltd v Deputy FCT (1979) 24 ALR 658 (

Intrinsic Materials (Text pg 65)

Acts Interpretation Act 1901 (Cth):
13 Headings, Schedules, Marginal Notes, Footnotes and Endnotes 1. The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act. 2. Every schedule to an Act shall be deemed to form part thereof. 3. No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.

Acts Interpretation Act 1954 (Qld):

14 Material that is, and is not, part of an Act (1) A heading to a chapter, part, division or subdivision of an Act is part of the Act. A heading to a section, subsection or another provision of an Act is part of the Act if (a) (b) (3) (4) the Act is enacted after 30 June 1991; or the heading is amended or inserted after 30 June 1991.

(2)

An example in an Act of the operation of a provision of the Act is part of the Act. A note in an Act to the Act or to a provision of the Act, as opposed to a footnote, an editor's note or an endnote mentioned in subsection (7), is part of the Act. Example of a note-See the note to section 2. Example of a footnote-See the footnote to section 36, definition Acting Governor.

(5) (6) (7)

A schedule or appendix of an Act is part of the Act. Punctuation in an Act is part of the Act. A footnote or editors note to an Act or to a provision of an Act, and an endnote to an Act, are not part of the Act.

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Statutory Interpretation

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Long title - The long title of an Act can be used to resolve any ambiguities in the body of the Act but cannot be used to restrict or extend the otherwise plain meaning: Birch v Allen (1942) 65 CLR 621 (public opinion offence, WWII); Sage v Eicholz [1919] 2 KB 171 (empty water bottles) (cant restrict plain meaning) Preamble - The preamble can be used to resolve any ambiguities in the body of the Act but cannot be used to restrict or extend the otherwise plain meaning. However, before an act can be said to be free of ambiguities it must be read in its context of the Act as a whole including the preamble. Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 (citizenship due to an ancestor) Headings to Parts, Divisions, etc of an Act Ragless v District Council of Prospect [1922] SASR 299 (land on Prospect Rd) 1. If the language of the section is clear and is actually inconsistent with the headings, the headings must give way. 2. If the language of the sections is clear, but, although more general than the headings, is not inconsistent with the headings, the sections must be read subject to the headings. 3. If the language of the sections is doubtful or ambiguous, the meaning that is consistent with the headings must be adopted.

Marginal Notes - Marginal notes (variously referred to as side notes, cite notes, captions, words appearing in and at the beginning of a section, sub section or paragraph) are extrinsic materials in Cth legislation. In Queensland, marginal notes (now called section headings) enacted after 30 June 1991, are part of the Act.

LEGAL ASSUMPTIONS (Text pg 117)

Parliament is presumed not to violate international law Parliament is presumed not to legislate extra-territorially: Jumbunna Coal Mine NL v Victorian Coal Miners Association Parliament is presumed not to alter common law doctrines nor invade common law rights: Baker v Campbell (1983) CLR 52 (seizing on solicitors documents) Parliament is presumed not to bind the Crown. Parliament is presumed not to create offences of strict liability. Mens rea = the acts necessary to establish an offence must be accompanied by a guilty mind.

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Statutory Interpretation

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MISCELLANEOUS ACTS INTERPRETATION ACT PROVISIONS GENDER, NUMBER, BODY CORPORATE AND MEASUREMENT OF TIME (Text pg 112)
Acts Interpretation Act 1901 (Cth):
22 Meaning of Certain Words (1) In any Act, unless the contrary intention appears:

expressions used to denote persons generally (such as person, party, someone, anyone, no-one, one, another and whoever), include a body politic or corporate as well as an individual; 23 Rules as to Gender and Number

(a)

In any Act, unless the contrary intention appears:

(a) (b)

words importing a gender include every other gender; and

words in the singular number include the plural and words in the plural number include the singular. 36 Reckoning of time (1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event. Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on Saturday, on a Sunday or on a which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.

(2)

Acts Interpretation Act 1954 (Qld):

32B Gender In an Act, words indicating a gender include each other gender. 32C Number In an Act

(a) words in the singular include the plural; and (b) words in the plural include the singular. 32D References to Persons Generally
(1) In an Act, a reference to a person generally includes a reference to a corporation as well as an individual.

36 Meaning of Commonly Used Words and Expressions In an Act party includes an individual and a corporation. person includes an individual and a corporation. 38 Reckoning of time

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(1)

Statutory Interpretation

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If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and (a) if the period is expressed to be a specified number of clear days or at least a specified number of days by excluding the day on which the purpose is to be fulfilled; and in any other case by including the day on which the purpose is to be fulfilled.

(b) (2)

If the time, or last day of period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day. If the time, or earliest day of period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day. If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens. In this section excluded day (a) (b) for filing or registering a document means a day on which the office is closed where the filing or registration must or may be done; or otherwise means a day that is not a business day in the place in which the thing must or may be done.

(3)

(4) (5)

36 Meaning of Commonly Used Words and Expressions In an Act Business day means a day that is not (a) (b) a Saturday or Sunday; or a public holiday, special holiday or bank holiday in the place in which any relevant ac is to be or may be done

RULES FOR THE INTERPRETATION OF PARTICULAR TYPES OF ACTS/PROVISIONS (Text pg 131)

Beneficial provisions designed to confer an advantage or benefit on a person or class of persons eg. social security legislation. (interpreted beneficially) Penal provisions impose criminal liability and people contravening them are subject to fines/imprisonment. This includes matters of a regulatory nature. (strictly most favourable to the citizen) Taxing provisions the gathering of taxation revenues in their many forms. (strictly most favourable to the citizen)

Syntactical Presumptions
Ejusdem generis (Text pg 94)

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Statutory Interpretation

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Where there is a list if two or more specific words, and the list is followed by more general words, then the otherwise wide meaning of the general words is restricted to the same class, if any, of the specific words that precede them: Attorney-General v Brown [1920] 1 KB 773. (Acid vials) Rebuttal: o By creating very wide classes: Stewart v Lizars [1965] VR 210 (motor oil spill) o By the general purpose or object of the statute: Stewart v Lizars [1965] VR 210 o By the context in which the words appear: Dean v Attorney General of Queensland [1971] Qd R 391

Noscitur a sociis (Text pg 98) - This syntactical presumption states that words take their meaning from words with which they are associated, sometimes expressed as words of a feather flock together: R v Ann Harris (1836) 7 C & P 446