A drafter’s perspective

June 2011

Outline

The structure of legislation A plain reading A purposive construction The context in which legislation is drafted

The statutory context: The application of the Interpretation of Legislation Act

1984 and other Acts of general application Federal constitution

The common law context: Case law Some interpretive rules and aids to interpretation

The structure of legislation

Make sure you have the correct version of the legislation

Read the Act as a whole

Finding the correct version of an Act www.legislation.vic.gov.au

Statute Book (Acts passed and Regulations made in a designated year) Authorised versions and historic Acts

Law Today (current consolidated versions of principal Acts and Regulations) Authorised versions and version history

Parliamentary Documents (Bills and explanatory memoranda) As sent prints and As passed prints

www.ocpc.vic.gov.auCommencement BookAct and Statutory Rule TablesLists of current Acts and statutory rules

www.parliament.vic.gov.auHansard Information regarding parliamentary process

Read the Act as a whole

Structure and layout of legislation Chapters, Parts, Divisions, Subdivisions, sections,

subsections, paragraphs subparagraphs and sub-subparagraphs

Numbering conventions Definitions Punctuation Notes and examples

Standard or common provisions in ActsPreambleLong title and short titlePurposeObjects/PrinciplesCommencementDefinitionsBinding the CrownRegulation making powersTransitional provisionsSelf repealing provisions in amending Acts

Give the provision a plain reading

Look at the context of the provision

A Purposive construction Section 35(a) of the Interpretation of Legislation

Act 1984

Section 35(a) of the Interpretation of Legislation Act 1984 provides-

In the interpretation of a provision of an Act or subordinate instrument:

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

Extrinsic aids to interpretation:

Interpretation of Legislation Act 1984 section 35(b):

(b) consideration may be given to any matter or document that is relevant including but not limited to—(i) all indications provided by the Act or subordinate

instrument as printed by authority, including punctuation;

(ii) reports of proceedings in any House of the Parliament;

(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and

(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

Statutory context for interpreting legislation - Legislation of general application

Interpretation of Legislation Act 1984Charter of Human Rights and Responsibilities

Act 2006Sentencing Act 1991Criminal Procedure Act 2009Infringements Act 2006Monetary Units Act 2004Constitution Act 1975

Interpretation of Legislation Act 1984

Commencement and repeal of ActsFormal matters relating to ActsRules of construction (interpretation) of ActsDefinitions (s. 38)Saving of Acts and things done under repealed

provisionsDelegation of powersMatters dealing with the exercise of powers and

dutiesSpecial provisions dealing with subordinate

legislation (including regulations, rules of court and other statutory rules)

Charter of Human Rights and Responsibilities Act 2006

Sets out human rights and responsibilities drawn from ICCPR

Statements of compatibilityStatutory interpretationSupreme Court powers to make declarationsDuties of public authorities

Sentencing Act 1991

Creation of offences: s. 111Penalty levels: s. 109

Infringements Act 2006

Issuing and serving of infringement notices and enforcement of infringement penalties for 60 Acts that contain infringement offences

Criminal Procedure Act 2009

Section 72 provides that the defendant bears the evidential burden of proof in relation to any exception or excuse to an offence created by statute

Monetary Units Act 2004

Sets penalty units and fee unitsFixed by the Treasurer by Government Gazette

notice

Constitution Act 1975

Parliament, Executive, Supreme CourtSpecial and absolute majority requirementsSection 85 (jurisdiction of the Supreme Court)Referendum provisions

Common law context for statutory interpretation

Case law

Legal assumptions/rules of construction

Presumption against retrospective operationPresumption of Crown not bound by legislationPresumption against alteration of common law doctrines

Privilege against self incrimination Legal professional privilege / client legal privilege

Acts presumed to be within legislative powers of the StatePresumption against extraterritorialityRule against delegation of legislative power