Foundations of Australian Law – Final Exam – Semester 1 2013 – Will Randles
Part A (79)
Has SkyArt contravened section 4(1) of the Canberra Foreshores Act 2013 (Cth) (“CFA”) by flying the
Sky Pony?
Of the issues raised in the problem question, a few are non-contentious. Clearly, the act applies to
any action undertaken after the 29th of May, since the commencement of acts, if unspecified, is 28
days after the act receives royal ascent [✓](Acts Interpretation Act 189 (Cth) “AIA” s 3A(2)[✓]). The
fact scenario also indicates that the flying of the sky pony took place inside the confines of the
foreshore area (while a map is not included, it can be assumed that the facts refer to the area as
assigned in the act) and under the height limit of 500m, so location does not present any problems
[✓]. Therefore, it seems very likely that the actions would fall under the jurisdiction of the CFA. The
contentious issues include whether the sky pony constitutes ‘art’ [✓] as defined in the act, whether
it has been ‘installed or shown’ [✓] and whether the approval granted by the Director of the
National Gallery (“Director”) is valid [✓], as well as whether the artwork has national significance
[✓].
Does the Sky Pony Constitute and ‘Artwork’ as it is used within the CFA?
As per CIC Insurance Ltd v Bankstown Football Club Ltd (“CIC”) [✓], words in a statute must be
interpreted in the context in which they appear according to their ordinary and natural meaning [✓].
Since ‘art work’ has an extremely broad ordinary meaning, it is more helpful to consider the
definition within the CFA [✓]. ‘Art work’ as defined is an open ‘includes’ definition, and it may be
helpful to apply the ‘ejusdem generis’[✓] maxim, which confines broad terms to the type or genus of
the words that preceded it. In this case, it is likely that ‘any other object, thing or design’ would be
limited to the category of any permanent or semi-permanent creative installation, [✓] as is the
genus easily assosciated with ‘drawings,’ ‘sketches’ and ‘sculptures.’[✓] Since the Sky Pony falls
easily within this genus, it is likely that is would match the category of ‘any other object, thing or
design.’ Therefore, it is most likely that a court would find that the Sky Pony constitutes an ‘art
work.’
Has the Sky pony been ‘installed or shown’?
The Federal Court of Australia found in an extremely similar context, that the meaning of ‘install’ [✓]
with relation to a similar statute was ‘to place in position for use.’ [✓] Since on the 9th of May, SkyArt
tethered the Sky pony at 100m above the ground, it seems to have been ‘placed in position for use,’
as we can assume from the facts that ‘use’ involves the display of the art. Therefore it is likely that a
court would find the Sky Pony to have been installed.
Does the Sky Pony have ‘national significance’?
‘National significance’ as defined be the act includes having meaning or importance to the nation.
[✓] In this context, it is unlikely to found that this is the case. We may turn to a purposive approach
as mandated by s 15AA[✓] of the AIA to further determine how to interpret ‘national significance.’
We may use the purpose statement in section 2 [✓] of the CFA to determine the purpose. [✓] The
purpose of the act seems to be to promote aesthetically appealing or nationally symbolic artwork in
the Foreshore region. [✓] Whether the Sky Pony could be thought of as ‘Aestheticall[y] appealing is a
matter for debate, however the protests [✓✓] against it indicate otherwise, and so it is likely that
prohibiting the sky pony would best promote the purpose of the act. To confirm this, s 15AB [✓]
permits the use of extrinsic materials such as the second reading speech to confirm the meaning of
the words in a statute, which in this case indicates that the purpose of the act is to protect the
foreshore from, ‘natural scenic character and visual quality of the foreshore,’ so it is unlikely that the
Sky Pony would not fall under the description of ‘aesthetically appealing.’
Under the common law (CIC[✓]), courts may look to further materials to ascertain the mischief [✓]
that the act intended to remedy. In this case, the mischief seems, in consulting the Canberra Times
quote [x], to be related to stopping displays such as the sky whale. Since the Sky Pony is by the same
artist as the sky whale and seems extremely similar in its purpose, it seems that in applying the
‘mischief rule’ (CIC), we can ascertain that preventing its exhibition would help to combat the
mischief that caused the CFA to be passed.
Therefore it seems most likely that a court would find that the Sky pony had been ‘installed or
shown’ under s 4(1)
Is the Director’s approval valid?
Taking a contextual approach (CIC), [✓] we must first ascertain the meanings of ‘record’ and
‘document.’ While their ordinary meanings are broad, we must turn to section 2B [✓✓] of the AIA,
which defines document as (in d) meaning, a ‘map, plan, drawing or photograph’ and record [✓✓] as
including ‘information stored…on a computer.’ By these definitions it seems that the approval is
indeed a record in a document. ‘Business day’ [✓] as defined in s 2B [✓] means a day that is not
Saturday or Sunday,’ and so despite the fact that the record is not displayed on the weekend, it only
needs to be available on business days [✓] and on these terms subsection 4(3) [✓] has not been
contravened. In taking a purposive approach (AIA s 15AA) [✓] we can consider intrinsic materials to
determine that the act’s purpose includes leaving power with the Director to approve art that is not
otherwise allowed, and therefore this interpretation seems to best fit the purpose of the CFA. [✓]
Therefore, despite the fact that the Sky Pony would most likely not be found to be art of national
significance, director’s approval is valid and a court would most likely find that SkyArt (who are a
corporate body and therefore considered a person under s 2C of the AIA) has not committed an
offence under the CFA. [Part A = 79]
Part B (76)
Has the National Sketch Troupe (“Troupe”) committed an offence under the “CFA”
The issues which appear non-contentious here include the application of the act to the troupe (since
9th of June is after the commencement, however it is clear that only the most recent sketch may be
thought of as potentially constituting an offence, [✓] as the strong presumption against
retrospectivity as seen in Rodway v The Queen [✓] prevent the allegations of ‘multiple
contraventions going back several months’ [✓] except by express mention of necessary implication
in the act, which is absent) [✓], the location (as it is clearly within the foreshore), [✓] the lack of
approval (as they never applied to the director) [✓], that they ‘installed or showed’ the [✓] alleged
art (since a live performance clearly fits the ordinary and natural meaning of ‘show’ – CIC) [✓]. What
is at issue is whether comedy sketches can be considered art.
Can ‘sketches’ be construed as ‘art work with cultural significance’?
The word ‘sketch’ must be considered in context (CIC[✓]) of the CFA, in which the definition section
lists ‘sketch’ in the context of ‘drawings,’ ‘sculptures’ and ‘paintings,’ and so it is unclear whether
comedy sketches may fit this definition. [✓✓] Since a contextual approach produces ambiguity, we
must take a purposive approach to interpreting the CFA, as mandated by the AIA s 15AA. [✓] Project
Blue Sky calls for the consideration of purpose statements in the act [✓]. In this case, as in the
previous question, the purpose can be defined as protect the foreshore from art that is not
‘aesthetically appealing’ or ‘nationally significant’. Since aesthetic appeal most likely indicates that
‘art work’ refers to permanent installations such as sculptures or paintings, and since s 15AB of the
AIA allows [✓] us to consult extrinsic materials where meaning is ‘ambiguous or obscure’ (s
15AB(1)(b)(ii)[(ii)?]), and since the Second Reading Speech also contains no reference to comedy, it
can be assumed that a court would not likely find that ‘sketch’ in this context qualifies as art. [✓]
[Part B = 76]