WINTER 2008 SESSION
Legal Institutions Assignment Two
Comments
Overall, this assignment was not well done, and demonstrated considerable confusion
about the principles of statutory interpretation. Most students would be well advised
to refresh their understanding of ss15AA and 15AB of the Acts Interpretation Act
(Cth) 1901.
Structure






Most answers were poorly structured. Any statutory interpretation exercise must
focus on the words of the particular section of the statute to be interpreted – in the
present case, s7. The section – broken down into its elements – should provide the
basic structure for discussion. A number of students did not do this, and either
discussed the whole of the section in general terms (but did not provide the
particular detailed discussion of the elements required by statutory interpretation);
discussed other sections; discussed extrinsic material; or the general principles of
statutory interpretation. None of these alternative approaches adequately
answered the question or addressed the issues raised by the problem.
Students who focussed on s7 and its component elements tended to provide
stronger answers. Those who did not focus on the relevant elements often made
the mistake of attempting to interpret words which were not actually part of the
relevant statute. For example, many students attempted to apply the principles of
statutory interpretation to the words ‘laser’ and ‘blimp’. But these words are not
part of the relevant section – they are part of the facts.
Similarly, those students who did not focus on the elements of s7 often attempted
to interpret the extrinsic material, rather than the section. The second reading
speech is a tool which, if the appropriate threshold test has been met, may be used
to interpret the relevant section. It does not form part of the statute, and so is not
susceptible to an analysis based on the principles of statutory interpretation.
A number of students approached the question as if it was a comprehension
exercise, with s7 as their text. They often performed a very good analysis of s7,
but did this without any (or scant) reference to relevant law. Their marks, in a
legal assignment, reflected the knowledge of the law they displayed. It is simply
not possible to do well in a statutory interpretation question if the basic law of
statutory interpretation (in this case ss15AA and 15AB of the Acts Interpretation
Act (Cth) 1901) is not discussed.
Some students began their work with an extended exegesis of the law of statutory
interpretation – including those issues which were relevant, and those which were
not - and then failed to apply any of it when they turned their attention to the
actual problem. Again, their marks, in a problem question which calls for the
application of the relevant law to the issues raised by the facts, reflected their
ability to demonstrate how the law they discussed applied to the issues raised by
the question.
Most disappointingly, some students provided an excellent discussion of various
relevant issues raised by the problem, but then could not connect this discussion at
all to the question as asked. The essence of a problem question is not simply

providing a general discussion of the law – but applying this legal discussion to
the particular issues raised by the facts.
The same problem of application of the law to the facts noted in the first
assignment was present in this assignment. Students would provide a discussion
of the relevant law and then have a form of words such as:
o
o
o





Therefore
So
We can see
followed by a statement such as Fred and Jack are not guilty of a breach of s7.
This is not an application. In fact it leaves out the application – which is the
discussion, based on the facts of the problem, of the way in which the law
discussed does/not apply to the particular facts of the problem.
Students studying Criminal Law attempted to import criminal law concepts of
mens rea into their discussion of this section. Indeed a number of students were
overly concerned about the intention of Fred and Jack in particular and considered
that even though they were technically in breach of the section, as they did not
have the relevant intention (sometimes described as mens rea) they could not be
guilty of a breach of s7. Unless intention is clearly a relevant element of the
section (which it was not in s7) it should not be discussed. The purpose of this
exercise was to check whether students could interpret a statute. In order to do
this students needed to break s7 into its component elements and interpret and
apply each of these to the facts. Intention was not an element in s7 as drafted.
Many students provided their conclusions before explaining the legal basis for
these conclusions. It is always a stronger structure to state the issue first and
then the legal principles on which your answer will be based. Then follow
with an application of the law to the facts. If the issue is stated first, this focuses
the following discussion. If the law is stated next, it provides a reason and context
for the discussion which follows. If your discussion begins with a conclusion
which is not adequately supported then your legal reason for the conclusion may
be unclear, and your answer can drift.
Many students provided incomplete citations and not all acknowledged quotations
properly. A failure to acknowledge quotations can be very serious as it can lead to
plagiarism.
A number of students have work to do in the areas of spelling and grammar.
Careful proofreading is required before submission.
Some students did not plan their work sufficiently, so would write three pages
about the first issue and then have to rush through the remainder. While this is
understandable in an exam, it is not in an assignment which students have had
ample time to complete. The best way to develop the skill of properly planned
exam questions is to practice in assignments.
Issues


Answers needed to begin with a discussion of s7, not the words of the Minister of
Homeland Security. That is, focus on the issue of statutory interpretation, not
work chronologically through the words of the question.
Relevant elements:
o Corporation











o Erect or install
o Signs, structures or other objects
o Place or manner
o Injury
o Aeroplane, jet or aircraft or pilot of such craft
o Breach: imprisonment 15 years or $100,000 fine
Corporation: use s2 definition. Important issue for Fred and Jack, simple issue for
Jill and Mary.
Corporation: same principles apply as for discussion of s7 – break s2 down into
relevant elements and discuss these. This was generally, very poorly done, with
the consequence that almost no students considered the importance of “in
connection with any actions prohibited by this legislation” in their discussion.
Erect or install: simple issue for both. If using dictionary students must provide a
legal reason for doing so. Dictionary should be used to interpret words of statute
and definition then applied to facts. Dictionary should not be used to interpret
words of facts, which are then applied to section.
Signs, structures or other objects: a list, therefore to interpret the general term
‘other objects’ ejusdem generis should have been used. In order to do this, it is
not enough to state the words ‘ejusdem generis’. Students needed to show the
class comprised by the other words and how this applied to ‘other objects’ –then
apply that definition to the relevant facts. Very few students did this well. Even
fewer followed the advice of Quazi v Quazi and checked their interpretation
against purpose.
Place or manner: a number of students were involved in very convoluted
discussions of knowledge of flight paths, which missed the main issue of
interpretation. s15AA requires a construction informed by purpose. Mills v
Meeking directs us to consider purpose without waiting for ambiguities. s1
provides a clear statement of purpose which would indicate that place be read with
reference to flight paths.
Injury: this element was given to you in the facts.
Aeroplane, jet or aircraft: another list. This time a closed list, which if the
meaning of ‘aircraft’ was important, should be interpreted using noscitur a sociis.
Breach: this involves a substantial fine and gaol term. Such penalty may well be
unreasonable in the circumstances which would trigger one of the threshold tests
for s15AB and the use of extrinsic material.
Extrinsic material can only be used if one of the threshold tests has been met. The
relevant test must be named and how it is met demonstrated. Students may not
simply assume that a test has been met – and should not, as too many did – ignore
the existence of the tests altogether.
If using extrinsic material then students should consider separately each item of
extrinsic material and why/if it can be referred to.
The purpose of considering extrinsic material is to inform your understanding of
the relevant section. It is not to set up an alternative view of what Parliament was
trying to accomplish in passing the legislation in question.
Summary
The two things which students should remember are:
1. Break the relevant section down into its elements and consider each of
these in turn;
2. Ensure any consideration involves a discussion and application of
ss15AA and 15AB (or relevant state equivalents.)