Topic 10 – Statutory Presumptions

Similar to last week, common law still has a role to play in statutory interpretation. The courts have been quite happy to presume that certain presumptions are made in drafting. The drafter of legislation also assume the courts will make these presumptions too. They are however no more than guidelines. There are a number of presumptions.

They do not however stand in the face of clear words. Some presumptions are on the way out and some on the way in from time to time.

Looking at the Coco case (trespassing) the judge made some observations, statutory presumptions can be displaced where there are clear words used. The court also said that where there is a pretty clear implication that they not be used.

Legislation does not operate retrospectively:

Some retrospective laws can be good and some bad…MV Tampa case.

Remember the Rodway case, retrospectively is Ok if the statute affects mere matters of procedure. You are subject to the rules as they are today.

Maxwell v Murphy – the time limit had expired. Statutes which only deal with how you bring your case to court, do apply.

Legislation does not have extra-territorial effect:

The court takes this position because it is not in the position to hear its own cases. This presumption can be rebutted by the words of the legislation.

Legislation does not take away the jurisdiction of the court.

This is fundamental to the rule of law.  People must have access to the courts and providing this is one of the fundamental functions of government. There is a slight exception in that it is okay to insist that people have arbitration first.

Legislation does not bind the Crown:

This relates back to the separation of powers, the legislative arm trying to tell the administrative arm what to do. Interesting case is Bropho v Western Australia where the court found that despite the lack of presence that the legislation should bind the crown the court looked at the purpose and context of the legislation to find that it did bind the Crown.

Legislation approves the common law:

When the court defines a word and then the Legislature approves the definition in legislation they are taken to have approved of the definition.

Penal Provisions are to be strictly construed:

The whole of the resources of the state are bought to bear on the individual. If the government can not get the  legislation ‘tight’ and if they can not get a conviction the benefit of the doubt should go towards the accused.

Remedial provisions are broadly construed:

There is a tendency toward the greater benefit to the individual.

Legislation does not intend to remove property rights:

Acquisitions of property, courts may overturn legislation where the intention was to resell to a developer.

MEDIA—Do You Have a Right to Anything?

Law & Justice Institute (Qld) Inc.

On 2 July 2014,Peter Callaghan SC, President of LJIQ, discussed civil liberties and Constitutional rights with 612 ABC Afternoons presenter Kelly Higgins-Devine and other guests, Michael Cope, President of the Qld Council for Civil Liberties and Professor Anne Twomey, Professor of Constitutional Law at the University of Sydney.

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Topic 9 – Traditional Common Law Approaches

Traditional Common Law Approaches

Where more than one interpretation is open, it may be appropriate to select the one that is consonant with the common law and/or equity.

The common law approaches are:

• textualism –the literal rule
• contextualism –the golden rule
• purposivism –the mischief rule

Latin maxims may be used but care should be taken to ensure they do not override a contextual and purposive approach.

Noscitur a sociis

The meaning of a word of phrase can be determined by surrounding words.

Based on the general philosophy of reading a statute as a whole, this is essentially the modern contextual approach: that the meaning of a word or expression can be established through a consideration of its context.

Ejusdem gerenis

The meaning of a general phrase is limited by proceeding specific words.

Listing a number of specifics followed by a general phrase is common in legislation..

Identify the commality between the specific words in the phrase (known as the ‘class’ or ‘genus’), and then decide whether the word you have comes within the identified class.

CAUTION: Situations where there is only one word before a general phrase may be reasoned in the negative, in the sense that the general phrase must cover something different from the specific word.

See DPP v Williams (1998) 104 A Crim R 65 for an example of one specific word in front of a general word.

Expressio unius est exclusio alterius

The express mention of one thing is to the exclusion of another.

See FAI Properties Pty Limited v John & Evangelia Apostopoulos [2002] ACTSC 58 which considered the Tenancy Tribunal Act 1994 (ACT) which conferred the right to appeal on questions of law. Using the maxim the right to appeal excludes questions of fact (or questions of fact and law).

Expressum facit cessare tacitum

If a procedure has been designated that procedure should be followed to the exclusion of other procedures.

CAUTION: the question for the courts is not whether the maxim applies but whether Parliament intended the maxim to apply.

Generalia specialibus non derogant

General things do not derogate from special things.

If two provisions are in conflict, the more specific one will prevail of the more general one.

CAUTION: If the two provisions deal with different topics when the maxim can not be applied. See Sue v Hill (1999) 199 CLR 462, where Gaudron J said at {128} “{the maxim] applies only when the general provision would otherwise encompass the matter dealt with by the special or more limited provision”.

Topic 8 – Extrinsic Materials

What are extrinsic Materials – they are those things outside of the Act itself. Outside the piece of legislation.

Why should we consider extrinsic materials?

Remember in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 – the modern approach requires the context to be considered in the first instance, not later. Context is to be given its widest meaning, this includes things like ethe history of the legislation itself.

Another reason is that the Statutory rules themselves like s 15AB of the Commonwealth Interpretation Act says we can ise extrinsic materials in these circumstances:

1. To confirm the meaning is the ordinary meaning.
2. To work out the meaning when the provision is ambiguous or obscure.
3. The ordinary meaning of the text leads to a result that is manifestly absurd or unreasonable.

The list of the materials in the legislation is not exhaustive. Not mentioned in the legislation is previous case-law or reference to using a dictionary.

Explanatory memorandum – this is the document which accompanies the bill.  Whereas Hansard is the record of proceedings in the parliament itself. Edwards v Santos Ltd [2011] HCA 8. the court looked at the explanatory memorandum to put into context the use of indigenous lan Use Agreements.

When we refer Second Reading Speech we are talking about Hansard. The proceedings of Parliament are all recorded. See Re Bolton; Ex parte Beane (1987) 162 CLR 514. This is the deserter case, the court read the second reading speech.

Law Reform Commission Reports: The commissions themselves are not part of the court system, they are part of the executive arm of government.  You can look at a Law reform Commission report to see what the commission had in mind in terms of changes to the Legislation. Spencer v Commonwealth of Australia (2010) 241 CLR 118: The ALRC made some recommendations on how to conduct migration cases. Due to a huge load of cases of people delaying their repatriation the  legislation sought to put into effect ‘summary judgements’. this was also an example of using the Second reading speech to see what was on the Minister’s mind.

International Treaties – there is a database of these ion the DFAT website. when legislation gives effect to International treaties, a court may look at the treaty to resolve ambiguity.

LIMITATIONS ON THE USE OF EXTRINSIC MATERIALS

Re Bolton: If the speech is at odds with the legislation, Extrinsic materials can not redeem a failure to translate that intention. You can not use the extrinsic materials to give a very unnatural meaning to the words. if the meaning is very clear, from the legislation, then the extrinsic material can not cure that problem.

The interpretation Act itself says

• extrinsic material is there to firstly confirm the ordinary meaning
• Ambiguous or obscure – there is a couple of possible meanings
• Manifestly unreasonable – absurd result

Section 15 AB(3), assuming the evidence is allowed, what weight should we be giving to the evidence? These rules are just possibilities, what weight should they be given?  if you do try to throw up arguments that really aren’t ever going to succeed, you might end up with a costs order against you!

These days all of these materials are much more readily accessible by the court; see Vanity v R, as per Kirby J “As is usual nowadays, the court was taken to the second reading speech…”. he seems to be comfortable that there will be a fairly broad range to look at. It is a rare case that there is no obscurity in the ordinary meaning, especially when it comes to court.

ANother case to follow is Insurance Commission of Western Australian Container Handlers Pty Ltd (2004) 218 CLR 89.

Topic 7 – Intrinsic Materials – The Text

We are looking at context, this is what we do when we are trying to determine the purpose and the intention of the parliament.

From last week – remember be on the look out for a definitions section and also look at the objects clause – if there is one.

This week we follow on and look at the text itself. Every word is meant to have a meaning. Why? Separation of powers, the courts are duty bound to say the parliament  intended meaning to be given to every word. Ordinarily the ordinary meaning is the meaning but remember to give consideration to the sense in which it is used.

The Hummer case is a great example of how the ordinary meaning of the word limousine was adopted. There was not a technical meaning.  They just used the ordinary meaning.

Some words do have a technical or legal meaning. An example of this is the flick knife case, an offer has a more technical meaning and putting something in the shop window is actually an invitation to treat.

Pawn shop has a legal or technical meaning. Somewhere you bail property as security for a debt. Clearly the lender was trying to establish a chattel mortgage and hold onto the mortgage.The technical meaning of pawn shop was applied.

Statutes are always speaking – 1991, internet was not huge then but an act that talked about say communication technology. connotation – using technology to commit a crime, denotation:

Where the judge can stretch out the meaning, although there was no internet in 1991 the connotation that any means of communication can be comfortably used.

Always use an objective test to think about the parliament’s intent.

Dictionaries are allowed to be used. There is no rule as to what dictionary to use, sometimes multiple dictionaries are used and specialist dictionaries can be used too – especially when the word is a specialist word.

A word once it is designated it is generic throughout the Act. If a different word was used it was probably done for a purpose.

Variants of words – go back to AIA parts of speech etc.

Limiting words, solely, primarily, exclusively etc…..do not take it for granted that it is limiting. Case example of the University subletting shops. ‘solely for the purpose of the university. That is fine but you will always be able to slip something through but the law does not concern itself with trifles.

Hendiadys – putting two words into a phrase to come up with a new meaning. Do you need both things? Too much of a stretch to pull out the and replace it with an ‘or’.

Temporal expressions give you a good starting point but don’t take that for granted: case example Jemmena Gas – the court came to a sensible result. Moved away from a literal interpretation to avoid a silly outcome.

here some of the cases seem to me to point to the court avoiding silly outcomes, even though these rules of Statutory Interpretation exist, it is up to the court which ones to use and how to apply them. Avoiding a silly outcome seems to be going against the idea that Wayne highlighted in week 1 that it is not up to the court to try to come to a fair decision.

‘Deemed’ means something is easily shown. Deemed to mean – it does mean.

Even a word that seems clear is capable of a number of different meanings.