Section 14 of the Motor Traffic Act 1955 provides: 14.
Cancellation of licence Any court before which a person is
convicted for any offence in connection with the driving of a motor
car may, if the person convicted of the offence holds any licence
to drive a motor car under this Act, cancel or suspend the licence.
Zachary was the holder of a drivers licence under the Motor Traffic
Act. When he was driving his car down the street he became annoyed
at the way another motorist, Tina, was driving. Zachary followed
Tina to a shopping centre where Tina parked her car. Zachary
stopped his car and went over to Tina who was still sitting at the
wheel of her parked car. Zachary said to Tina, Youre a fool, an
imbecile and an idiot. Youre not fit to drive a golf ball, let
alone a motor car. Zachary then punched Tina on the nose. Further
violence was prevented by passers by. Zachary was later convicted
of assault in the Local Court, fined $3000, and his licence was
suspended for 12 months under s 14. Advise Zachary as to whether he
has grounds for appeal.
Slide 3
Example of statutory interpretation K-Generation Pty Limited v
Liquor Licensing Court [2009] HCA 4 French CJ
http://www.austlii.edu.au/au/cases/cth/HCA/2009/4. html
http://www.austlii.edu.au/au/cases/cth/HCA/2009/4. html
Slide 4
s28A Liquor Licensing Act LIQUOR LICENSING ACT 1997 - SECT 28A
28ACriminal intelligence (1) Information that is classified by the
Commissioner of Police as criminal intelligence for the purposes of
this Act may not be disclosed to any person other than the
Commissioner, the Minister, a court or a person to whom the
Commissioner of Police authorises its disclosure. (2) If a
licensing authority (a) refuses an application for a licence, the
transfer of a licence or an approval, or takes disciplinary action
against a person, or revokes or proposes to revoke an approval
under Part 4 Division 10A; and (b) the decision to do so is made
because of information that is classified by the Commissioner of
Police as criminal intelligence, the licensing authority is not
required to provide any grounds or reasons for the decision other
than that to grant the application would be contrary to the public
interest, or that it would be contrary to the public interest if
the person were to be or continue to be licensed or approved, or
that it would be contrary to the public interest if the approval
were to continue in force.
Slide 5
(3) If the Commissioner of Police lodges an objection to an
application under Part 4 because of information that is classified
by the Commissioner of Police as criminal intelligence (a) the
Commissioner of Police is not required to serve a copy of the
notice of objection on the applicant; and (b) the licensing
authority must, at least 7 days before the day appointed for the
hearing of the application, advise the applicant in writing that
the Commissioner of Police has objected to the application on the
ground that to grant the application would be contrary to the
public interest. (4) If the Commissioner or the Commissioner of
Police lodges a complaint under Part 8 in respect of a person
because of information that is classified by the Commissioner of
Police as criminal intelligence, the complaint need only state that
it would be contrary to the public interest if the person were to
be or continue to be licensed or approved.
Slide 6
(5) If the Commissioner of Police bars a person from entering
or remaining on licensed premises by order under Part 9 Division 3
because of information that is classified by the Commissioner of
Police as criminal intelligence, the order need only state that it
would be contrary to the public interest if the person were not so
barred. (5a) In any proceedings under this Act to be determined by
the Commissioner, the Commissioner must maintain the
confidentiality of information classified by the Commissioner of
Police as criminal intelligence. (5b) In any proceedings under this
Act to be determined by the Court or the Supreme Court, the
Commissioner or the Commissioner of Police may apply to the court
for a determination that information classified by the Commissioner
of Police as criminal intelligence is criminal intelligence. (5c)
The court must maintain the confidentiality of information that is
the subject of an application under subsection (5b). (5d) If, on an
application under subsection (5b), the court proposes to determine
that the information is not criminal intelligence, the applicant
must be informed of the proposed determination and given the
opportunity to withdraw the information from the proceedings. (5e)
If the court determines that the information is criminal
intelligence or the information is withdrawn, the court must
continue to maintain the confidentiality of the information.
Slide 7
(5f) The confidentiality of information is maintained only if
(a) the information is not used except for the purposes of the
proceedings; and (b) the information is not disclosed to any
parties to the proceedings (other than the Commissioner or the
Commissioner of Police), the representatives of such parties or any
member of the public; and (c) evidence and submissions about the
information are received and heard in private in the absence of any
parties to the proceedings (other than the Commissioner or the
Commissioner of Police) and the representatives of such parties and
are not disclosed to any member of the public; and (d) the
information is not disclosed in any reasons for decision. (5g) The
Commissioner or the court may take any steps it considers
appropriate to maintain the confidentiality of the information.
(5h) The duties imposed by this section on the Court and the
Supreme Court apply to any court dealing (on appeal or otherwise)
with information that has been determined to be criminal
intelligence or with the question of whether information classified
by the Commissioner of Police as criminal intelligence is criminal
intelligence. (6) The Commissioner of Police may not delegate the
function of classifying information as criminal intelligence for
the purposes of this Act except to a Deputy Commissioner or
Assistant Commissioner of Police. (7) A delegation by the
Commissioner of Police under subsection (6) (a) must be by
instrument in writing; and (b) may be absolute or conditional; and
(c) does not derogate from the power of the Commissioner of Police
to act in any matter; and (d) is revocable at will by the
Commissioner of Police.
Slide 8
Common law approaches The Literal Approach Modified by The
Golden Rule, and The Purposive Approach
Slide 9
Literal approach French CJ in K-Generation case at [46]: The
point of departure in that exercise is the ordinary and grammatical
sense of the words having regard to their context and legislative
purpose.
Slide 10
Literal approach Engineers case (Amalgamated Society of
Engineers v Adelaide Steamship (1920) 28 CLR 129 at 161-2 Higgins
J: The fundamental rule of interpretation, to which all others are
subordinate, is that a statute is to be expounded according to the
intent of the Parliament that made it; and that intention has to be
found by an examination of the language used in the statute as a
whole. The question is, what does the language mean; and when we
find what the language means, in its ordinary and natural sense, it
is our duty to obey that meaning, even if we consider the result to
be inconvenient or impolitic or improbable.
Slide 11
Intrinsic materials -context Definitions sections Other
sections around the one in question to get a feel for the way in
which words are used in the contentious section Indices, headings
to parts BUT NOT headings to sections or marginal notes. (Note
differences in Commonwealth interpretation legislation.) Long title
of the Act Preamble (if present)
Slide 12
Natural and ordinary meaning Dictionary Weitman v Katies Ltd
(1977) ATPR 40-041 Oxford Dictionary meaning of misleading and
deceptive in s52 TPA ACCC v Lux. [2004] FCA 926 Dictionary meaning
of unconscionable conduct in s51AB TPA State Chamber of Commerce
and Industry v Commonwealth (1987) 163 CLR 329 Macquarie Dictionary
meaning of fringe benefits within ITAA
Slide 13
Project Blue Sky Inc v Australian Broadcasting Authority (1998)
194 CLR 355, where McHugh, Gummow, Kirby and Hayne JJ at 384 the
duty of the court is to give the words of a statutory provision the
meaning that the legislature is taken to have intended them to
have. Ordinarily, that meaning (the legal meaning) will correspond
with the grammatical meaning of the provision. But not always. The
context of the words, the consequences of a literal or grammatical
construction, the purpose of the statute or the canons of
construction may require the words of a legislative provision to be
read in a way that does not correspond with the literal or
grammatical meaning.
Slide 14
Golden rule Lord Wensleydale in Grey v Pearson (1857) 6HL Cas
61 at 106: I have been long and deeply impressed with the wisdom of
the rule, now I believe universally adopted, at least in the Courts
of Law in Westminster Hall, that in construing wills and indeed
statutes, and all written instruments, 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 that absurdity and
inconsistency, but no farther.
Slide 15
Golden rule A modification of the literal rule To fix drafting
errors Adler v George [1964] 2 QB 7 in the vicinity of any
prohibited place to mean in or in the vicinity of any prohibited
place.
Slide 16
And/or R v Oakes [1959] 2QB 350 Any person who aids or abets
and does any act preparatory to the commission of an offence was a
mistake for or
Slide 17
Purposive approach mischief rule Rule in Heydons case Ambiguity
or inconsistency Purpose of parliament? Refer to intrinsic and
extrinsic materials
Slide 18
Ambiguity Semantic Syntactical Contextual
Slide 19
Semantic ambiguity Use of general words significant? Fallas v
Mourlas Ipp JA at [14]: But what does significant mean in s 5K? I
think it is plain that it means more than trivial and does not
import an undemanding test of foreseeability as laid down in Wyong
Shire Council v Shirt [1980] HCA 12; Words with more than one
meaning light lab tested false
Slide 20
Slide 21
Slide 22
Semantic ambiguity - definitions Statutory definition prevails
COMPETITION AND CONSUMER ACT 2010 - SECT 51ACA Definitions (1) In
this Part: "consumer", in relation to an industry, means a person
to whom goods or services are or may be supplied by participants in
the industry.
Slide 23
ACL (Schedule 2, CCA) 3 Meaning of consumer Acquiring goods as
a consumer (1) A person is taken to have acquired particular goods
as a consumer if, and only if: (a) the amount paid or payable for
the goods, as worked out under subsections (4) to (9), did not
exceed: (i) $40,000; or (ii) if a greater amount is prescribed for
the purposes of this paragraph--that greater amount; or (b) the
goods were of a kind ordinarily acquired for personal, domestic or
household use or consumption; or (c) the goods consisted of a
vehicle or trailer acquired for use principally in the transport of
goods on public roads. (2) However, subsection (1) does not apply
if the person acquired the goods, or held himself or herself out as
acquiring the goods: (a) for the purpose of re-supply; or (b) for
the purpose of using them up or transforming them, in trade or
commerce: (i) in the course of a process of production or
manufacture; or (ii) in the course of repairing or treating other
goods or fixtures on land.
Slide 24
But... Kennon v Spry (2008) 83 ALJR 145 property in FLA Despite
statutory definition, Gummow and Hayne JJ: Attention must still be
paid to: the subject matter, scope and purpose of the relevant
statute to determine its meaning in a way which advances that
purpose.
Slide 25
Syntactical ambiguity Hendiadys? Complete and furnish a return
One idea or two Misleading or deceptive
Slide 26
Gibbs CJ in Parkdale v Puxu: 8. The words of s. 52 require the
Court to consider the nature of the conduct of the corporation
against which proceedings are brought and to decide whether that
conduct was, within the meaning of that section, misleading or
deceptive or likely to mislead or deceive. Those words are on any
view tautologous. One meaning which the words "mislead" and
"deceive" share in common is "to lead into error". If the word
"deceptive" in s. 52 stood alone, it would be a question whether it
was used in a bad sense, with a connotation of craft or
overreaching, but "misleading" carries no such flavour, and the use
of that word appears to render "deceptive" redundant. The words
"likely to mislead or deceive", which were inserted by amendment in
1977, add little to the section; at most they make it clear that it
is unnecessary to prove that the conduct in question actually
deceived or misled anyone.
Slide 27
Contextual Ambiguity Fallas v Mourlas [2006] NSWCA 32
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/32. html
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2006/32. html As Ipp
JA tells us at [44] The matter is essentially one of statutory
construction. In a case of clear ambiguity (as is the case with s
5K and s 5L), a construction that might result in potential
unfairness and injustice should be avoided and a fair and just
construction is to be preferred. There are no other policy factors
involved. Deciding issues under s 5L by reference to all the
circumstances that actually occurred may benefit a plaintiff in one
case and a defendant in another.
Slide 28
Extrinsic materials Use extrinsic materials to answer: What was
the state of the law before the enactment; and What was the
mischief the legislation was trying to cure?
Slide 29
Extrinsic materials Second Reading Speech (Not the rest of the
debate, or any other material in Hansard, just the Second Reading
Speech all the views of every member of Parliament are not relevant
to what Parliament eventually decides to enact.) But Wacando v
Commonwealth of Australia and the State of Queensland (1981) 148
CLR 1 Law Reform Commission reports Reports by Royal
Commissions
Slide 30
Avel Pty Ltd v Attorney-General for NSW (1987) 11 NSWLR 126
Kirby P at 127 The legislation relevant to the present appealdoes
nothing to add to the coherency of this body of law. It is a jumble
of ill-matched and poorly integrated enactments. If there is now to
be found a common thread through it all, it would seem to be
nothing more than revenue raising. The conclusion suggests that the
only safe approach to the construction of the web of applicable
legislation is an attention to the literal words of the
legislation. A purposive approach founders in the shallows of a
multitude of obscure, uncertain and even apparently conflicting
purposes.
Slide 31
Other common law approaches Legislation adopts international
convention or treaty? Interpret consistently with international
principles for reading treaties: Shipping Corp of India Ltd v
Gamlen Chemical Co (Aasia) Pty Ltd (1980) 147 CLR 142 at 159
Legislation incorporates provisions of treaty? Determine meaning in
accordance with the treaty provisions, eg Vienna Convention on
Interpretation of Treaties: Applicant A v Minister for Immigration
and Ethnic Affairs (1997) 190 CLR 225
Slide 32
Vienna Convention on Interpretation of Treaties Article 31
General rule of interpretation 1. A treaty shall be interpreted in
good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its
object and purpose. 2. The context for the purpose of the
interpretation of a treaty shall comprise, in addition to the text,
including its preamble and annexes: (a) any agreement relating to
the treaty which was made between all the parties in connection
with the conclusion of the treaty; (b) any instrument which was
made by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument
related to the treaty.
Slide 33
3. There shall be taken into account, together with the
context: (a) any subsequent agreement between the parties regarding
the interpretation of the treaty or the application of its
provisions; (b) any subsequent practice in the application of the
treaty which establishes the agreement of the parties regarding its
interpretation; (c) any relevant rules of international law
applicable in the relations between the parties. 4. A special
meaning shall be given to a term if it is established that the
parties so intended.
Slide 34
Article 32 Supplementary means of interpretation Recourse may
be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly
absurd or unreasonable.
Slide 35
Brennan CJ at 230: If a statute transposes the text of a treaty
into the statute so as to enact it as part of domestic law, the
prima facie legislative intention is that the transposed text
should bear the same meaning in the domestic statute as it bears in
the treaty. To give it that meaning, the rules applicable to the
interpretation of treaties must be applied to the transposed text
and the rules generally applicable to the interpretation of
domestic statutes give way.
Slide 36
Common law principles General words to be given their primary
and natural significance General words to be given their legal
meaning All words have meaning and effect E.g s13 AIA Words of
limitation to be given effect
Slide 37
Grammatical principles Act to be read as a whole Mason J in K
& S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd
(1985) 60 ALR 509 at 514:...to read the section in isolation from
the enactment of which it forms a part is to offend against the
cardinal rule of statutory interpretation that requires the words
of a statute to be read in their context
Slide 38
Words are assumed to be used consistently Re Castioni [1891] 1
QB 149 at 167-168: It is not enough to attain a degree of precision
which a person reading in good faith can understand; but it is
necessary to attain if possible to a degree of precision which a
person reading in bad faith cannot misunderstand.
Slide 39
Where a word is used consistently in legislation it is assumed
to have the same meaning Where a legislature could have used the
same word but chose not to, using a different word instead, it is
assumed that the legislature intended a different meaning
Slide 40
Hodges J in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR
450 at 452: I think it is a fundamental rule of construction that
any document should be construed as far as possible so as to give
the same meaning to the same words wherever those words occur in
that document, and that that applies especially to an Act of
Parliament, and with especial force to words contained in the same
section of an Act. There ought to be very strong reasons present
before the Court holds that words in one part of a section have a
different meaning from the same words appearing in another part of
the same section.
Slide 41
Intention paramount Higgins J in Commissioner of Taxes (Vic) V
Lennon (1921) 29 CLR 579 at 590: There is sound sense in the
statements contained in Maxwells Interpretation of Statutes, 6 th
ed. Pp 557,564, to the effect that although it is always well to
use the same word for the same thing and not to change the language
unless a change in meaning is intended, the presumption that arises
from variations in language is of very slight force if the words in
themselves are sufficiently clear.
Slide 42
Consistency across legislation ACL Consumer guarantees
commenced 2011 Eg Fitness for purpose s55 Interpreted with? UK Sale
of Goods Act S19(2) Sale of Goods Act 1923 (NSW) s71(1) Trade
Practices Act 1974 (Cth)
Slide 43
Words to be interpreted in accordance with their ordinary and
current meaning Legislation deemed to be always speaking/
contemporanea exposition est optima et fortissimo in lege Chappell
and Co Ltd v Assoc Radio Co of Australia Ltd [1925] VLR 350 De
minimis non curat lex
Slide 44
Syntactical Presumptions Contextual reading Stamp J in Bourne v
Norwich Crematorium Ltd [1967] 1 WLR 691 at 696 : Sentences are not
mere collections of words to be taken out of the sentence, defined
separately by reference to the dictionary or decided cases, and
then put back again into the sentence with the meaning which one
has assigned to them as separate words, so as to give the sentence
or phrase a meaning which as a sentence or phrase it cannot bear
without distortion of the English language
Slide 45
Noscitur a sociis R v Ann Harris (1836) 7C&P 446
Slide 46
Ann Harris case If any person unlawfully and maliciously shall
shoot at any person, or shall, by drawing a trigger, or in any
other manner, attempt to discharge any kind of loaded arms at any
person, or shall unlawfully and maliciously stab, cut, or wound any
person with intent in any of the cases aforesaid to maim, disfigure
or disable such person or to do some other grievous bodily harm to
such person, such offender shall be guilty of a felony.
Slide 47
Ejusdem generis Attorney-General v Brown [1920] 1 KB 773 - the
importation of arms, ammunition, gunpowder, or any other
goods...
Slide 48
Quazi v Quazi as a useful servant but a bad master. [Ejusdem
generis] is, at best, a very secondary guide to the meaning of a
statute. The all important matter is to consider the purpose of the
statute. Scarman LJ
Slide 49
Mahoney JA in Mattison v Multiplo Incubators Pty Ltd [1977] 1
NSWLR 368 at 373: The ejusdem generis approach of reasoning has had
a long but varied history; is based upon a doubtful premise;
operates by a mechanism which is uncertain; and to the extent that
it presently operates, in my opinion, has real effect to determine
the construction of a statute only in a limited area
Slide 50
Expressio unius est exclusio alterius Expressum facit cessare
tacitum Generalia specialibus non derogant Reddendo singular
singulis
Slide 51
The Roads Act 1920 (NSW) contains the following sections: S3:
In this Act traffic sign shall include all signals, warnings,
signposts, direction posts, or devices. S35: Any person who
deliberately obscures any traffic sign or any part of a traffic
sign shall be guilty of an offence. Harry, as a joke, uses
phosphorescent paint to make rude drawings on a number of yellow
diamonds which had been painted on the road to warn motorists that
they were approaching a pedestrian crossing. He is apprehended by
the police and charged under s35 of the Roads Act. Using and
stating the relevant rules of statutory interpretation advise
Harry.