STATUTORY
INTERPRETATION
Arkansas marriage legislation
The problem: Standardise marriage age at 18, but allow
exception for pregnant teenagers
The answer:
"In order for a person who is younger than eighteen (18) years
of age and who is not pregnant to obtain a marriage license,
the person must provide the county clerk with evidence of
parental consent to the marriage.“
Problems?
http://www.gmanetwork.com/news/story/56652/news/weirdand
wacky/error-in-arkansas-law-allows-kids-to-marry
Exercise
• http://www.austlii.edu.au/au/legis/nsw/
consol_reg/shfar2011502/
• 4(1)(s)
• http://www.smh.com.au/environment/a
nimals/gary-the-goat-has-his-day-incourt--and-wins-20130123-2d6f3.html
INTRODUCTION
TO STATUTES
Spigelman CJ:
The law of statutory interpretation has
become the most important single
aspect of legal practice. Significant
areas of the law are determined
entirely by statute. No areas of the law
has escaped statutory modification
Who interprets?
• Courts
• Tribunals
• Government departments and
agencies
• Solicitors and barristers
What is interpreted?
•Legislation
•Delegated legislation
•Administrative
pronouncements
Legislation
• Policy initiative
• Draft prepared
• Explanatory Memorandum
• 2nd reading speech draft
• First Reading
• Second Reading – debate and amendments
• Third Reading – vote
• Process repeated in Upper House
• Royal Assent
http://www.peo.gov.au/images/library/000
7-Path-of-bill.jpg
Delegated Legislation
GENE TECHNOLOGY (LICENCE CHARGES) ACT 2000
TABLE OF PROVISIONS
Long Title
1. Short title
2. Commencement
3. Definition
4. GMO licence—annual charge
5. Regulations
GENE TECHNOLOGY (LICENCE
CHARGES) ACT 2000 - SECT 5
Regulations
The Governor-General may make
regulations prescribing matters:
(a) required or permitted by this Act to be
prescribed; or
(b) necessary or convenient to be prescribed
for carrying out or giving effect to this Act.
Administrative pronouncements
• E.g. – Merger guidelines
• Interpretation of s50 TPA
• http://www.accc.gov.au/publications/m
erger-guidelines
Merger factors: s50(3)
(3) Without limiting the matters that may be taken into account for the purposes
of subsections (1) and (2) in determining whether the acquisition would have
the effect, or be likely to have the effect, of substantially lessening competition
in a market, the following matters must be taken into account:
(a) the actual and potential level of import competition in the
market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer being
able to significantly and sustainably increase prices or profit margins;
(f) the extent to which substitutes are available in the market or are
likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal from
the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
Merger guidelines: Nov 2008
Purpose of these guidelines
1.18. These guidelines provide an outline of the broad
analytical framework applied by the ACCC when assessing
whether a merger is likely to substantially lessen
competition under s. 50. These guidelines have been
developed by the ACCC in relation to its functions under s.
50 and do not purport to represent the analytical framework
that would be applied by the Tribunal in relation to its
mergers functions.
1.19. These guidelines are designed to provide reliable, comprehensive
and detailed information that merger parties, the business community,
their advisers and the public can draw on to:
• assess the likely level of scrutiny a merger will receive from the
ACCC—in particular, guidance is provided on when merger parties
should notify the ACCC of a merger (the threshold for notification is
outlined in chapter 2)
• increase understanding of the application of s. 50
• assist in structuring (or restructuring) mergers to avoid raising
competition concerns
• identify the types of information that will assist the ACCC to reach a
view on how a merger is likely to affect competition—to make informed
and timely decisions, the ACCC relies on the cooperation of the
merger parties, customers, competitors, suppliers and any other
persons or bodies holding relevant information
• identify the ACCC’s broad approach to remedying possible anticompetitive mergers through undertakings (see appendix 3).
1.20. These guidelines do not have any
legal force in determining whether a
merger is likely to contravene the
Act—final determination of the issues
is a matter for the courts.
ACCC v Metcash [2011] FCAFC 151
• Buchanan J at [10]
• In the present case, the statutory tests to be applied are
set out in s 50 of the Competition and Consumer Act
2010 (Cth) ("Competition Act"). The case against
Metcash was obliged to satisfy those tests, rather than
some more theoretical position. In that context,
"market" is defined. It means "a substantial market for
goods or services" (s 50(6)). The task of examining
whether a substantial lessening of competition is likely
in given circumstances obviously requires that a
sufficiently relevant market be identified. Clearly, having
regard to the statutory context, that is intended to reflect
commercial reality, rather than be driven by economic
theory.
ATO website:
Public Rulings, Determinations and Bulletins
Public Rulings and Determinations set out the
Commissioner's opinion as to the way in which 'a
tax law' applies to:
• a person in relation to a class of arrangements;
• a class of persons in relation to an arrangement; or
• a class of persons in relation to a class of
arrangements.
Legislative Determinations
Legislative Determinations are instruments issued by the
Commissioner (or delegate) pursuant to a particular provision of an
Act. Legislative Determinations, being a form of subordinate
legislation, are law. The Legal Database currently contains Legislative
Determinations relating to Excise, Goods and Services Tax, Income
Tax and the Pay As You Go system.
Go to Legislative Determinations
ATO Interpretative Decisions
An ATO Interpretative Decision (ATO ID) is a summary of a decision
on an interpretative issue and is indicative of the Commissioner's
view on the interpretation of the law on that particular issue. ATO IDs
are produced to assist ATO officers to apply the law consistently and
accurately to particular factual situations.
For more information see Law Administration Practice Statement PS
LA 2001/8
Go to ATO Interpretative Decisions
ROLE OF COURTS IN
INTERPRETATION
Courts and interpretation
Kirby J in Coleman v Power (2004) 209 ALR 182:
It is not the judicial obligation to put specifically to
parties…every rule of statutory construction relevant to
the performance of the judicial task….this court may
adopt a construction of legislation that has not been
argued by the parties, and a fortiori is not restricted to the
interpretative principles argued by their representatives
Precedent
Gummow J in Brennan v Comcare (1994) 50 FCR 555 at
572-3:
The judicial technique involved in construing a statutory
text is different from that required in applying previous
decisions expounding the common law. In the latter class
of case, the task is to interpret the legal concepts which
find expression in the various language used in the
relevant judgements. The frequently repeated caution is
against construing the terms of those judgements as if
they were the words of a statute. The concern is not with
the ascertainment of the meaning and the application of
particular words used by previous judges, so much as
with gaining an understanding of the concepts to which
expression was sought to be given.
Ogden Industries Pty Ltd v Lucas[1970] AC
113
Per Lord Upjohn at 127:
It is quite clear that judicial statements as to the
construction and intention of an Act must never be
allowed to supplant or supersede its proper construction
and courts must beware of falling into the error of treating
the law to be that laid down by the judge in construing the
Act rather than found in the words of the Act itself
Telstra Corp v Treloar (2000) 102 FCR 595
• Branson and Finkelstein JJ:
• The view which we prefer is that unless an error in construction is
patent, or has produced unintended and perhaps irrational
consequences not foreseen by the court that created the precedent,
the first decision should stand. … Accordingly, we venture to
suggest that it would be on a rare occasion that an intermediate
appellate court … will allow an issue concerning the construction of
a statute, past and closed and especially a repealed statute, to be
thrown open, producing as it clearly will, uncertainty, disruption to
the conduct of affairs, a sense of grievance in those who may
consequently receive treatment less favourable than that received
by others under the same statute and additional cost and expense.
TYPES OF LEGISLATION
Types of legislation
• Public
• Private
• E.g.
http://www.legislation.nsw.gov.au/viewtop/inforce/act+sjc+
1857+cd+0+N
• http://www.legislation.nsw.gov.au/viewtop/inforce/act+tti+1
992+cd+0+N
• See:
• S73 Interpretation Act 1987 (NSW)
• S143(3) Evidence Act 1995 (Cth)
Amendment of legislation
• Act
• Principal legislation
• Amending legislation
• Repeal of Acts
• Savings provisions
• Transitional provisions (eg Part XIII Competition
and Consumer Act 2010 (Cth))
http://www5.austlii.edu.au/au/legis/cth/consol_act/c
aca2010265/index.html#s177
• https://www.comlaw.gov.au/Details/C2004A00823
• Sunsetting (eg Part 6 Legislative Instruments Act
2003 (Cth))
Parliament or private?
• Reprints
• http://trove.nla.gov.au/ndp/del/article/2278055
• Consolidations
• Statute Law Revision Acts
• http://www.ag.gov.au/consultations/documents/consolidationofcom
monwealthantidiscriminationlaws/human%20rights%20and%20antidiscrimination%20bill%202012%20-%20exposure%20draft%20.pdf
• http://www.austlii.edu.au/au/cth/ - but see notes
• Compilations
• https://www.comlaw.gov.au/Browse/ByTitle/Acts/Current
Amendments – Drafting Style
• Importance of compilations
• Trade Practices Amendment Act (No 1) 2001
• https://www.comlaw.gov.au/Details/C2004A00831
Importance of authorised sites
Consolidation v Codification
• Consolidation: existing statute law
• Codification: existing statute and common law
• Codes v ‘codes’
• Companies code
• Corporations Act 2001
• http://www.austlii.edu.au/au/legis/cth/consol_act/c
a2001172/index.html#s3
• Model legislation
• http://www.pcc.gov.au/uniform_legislation_official
_versions.html
Why ‘Codes’
• Constitution –s51
• How to achieve national objective without national legislative
power?
1. Referendum
2. Referral
• S4 Corporations Act
• S4 Mutual Recognition Act (NSW) 1992
http://www.austlii.edu.au/au/legis/nsw/consol_act/mrs
wa1992393/s4.html
3. Co-operative scheme – eg Fair Trading Legislation
4. Application scheme – ‘Code’ solution
• Competition code
• Australian Consumer Law
Application Scheme
• Lead legislator
• http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2
.html
• Template applied by each participating jurisdiction
• CCA Part XI
• http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s13
1.html
• http://www.austlii.edu.au/au/legis/nsw/consol_act/fta1987117/s28.ht
ml
• Unless within legislation
• http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s15
0c.html
Interpretation of Application Scheme
• Interpretation of Application Scheme?
• e.g. Fair Trading Act 1987 (NSW) s 31
• http://www.austlii.edu.au/au/legis/nsw/consol_act/fta1987117/s31.ht
ml
• Courts
• One consistent interpreter; one body of jurisprudence?
• Re Wakim – cross vesting issues
STRUCTURE OF
LEGISLATION
Structure of an Act
•Number
•Preamble
•Long Title
•Short Title
•Objects/ Purpose
clause
•Table of Contents
•Parts, Divisions
and Headings
•Schedules
Preamble
• Whereas the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, humbly relying on
the blessing of Almighty God, have agreed to unite in one
indissoluble Federal Commonwealth under the Crown of
the United Kingdom of Great Britain and Ireland, and
under the Constitution hereby established:
• And whereas it is expedient to provide for the admission
into the Commonwealth of other Australasian Colonies
and possessions of the Queen:
Long Title
SYDNEY TURF CLUB ACT 1943
Long Title
An Act to constitute and incorporate a Sydney Turf Club
and to declare its objects, functions and powers; to
provide for the acquisition by that club of certain
racecourses and the equipment thereof; to provide for
the discontinuance of the licences of certain
racecourses; to provide for the establishment of a
Racing Compensation Fund in the Treasury; to amend
the Gaming and Betting Act 1912 and certain other
Acts; and for purposes connected therewith.
•
R v White (1899) 20 LR (NSW) 12
Short Title
PART 1 - PRELIMINARY
1 Name of Act and
commencement
(1) This Act may be cited as the
Sydney Turf Club Act 1943 .
Objects clause
Competition and Consumer Act 2010- s 2
Object of this Act
The object of this Act is to enhance the
welfare of Australians through the
promotion of competition and fair trading
and provision for consumer protection.
Parts, Divisions and Subdivisions
PART IV--RESTRICTIVE TRADE PRACTICES
Division 1--Cartel conduct
Subdivision A--Introduction
Subdivision B--Offences etc
Subdivision C--Civil penalty provisions
Subdivision D—Exceptions
Division 2--Other provisions
Parts, Divisions and Subdivisions
• Contextual interpretation
• Re the Commercial Bank of Australia Ltd (1893) 19 VLR
333
• Part provides immediate context for the section
Use of headings
ACTS INTERPRETATION ACT 1901 - SECT 13
Material that is part of an Act
(1) All material from and including the first section of an Act to
the end of:
(a) if there are no Schedules to the Act--the last section of the
Act; or
(b) if there are one or more Schedules to the Act--the last
Schedule to the Act;
is part of the Act.
(2) The following are also part of an Act:
(a) the long title of the Act;
(b) any Preamble to the Act;
(c) the enacting words for the Act;
(d) any heading to a Chapter, Part, Division or Subdivision
appearing before the first section of the Act.
Replaced:
Headings, schedules, marginal notes, footnotes and
endnotes
(1) The headings of the Parts Divisions and
Subdivisions into which any Act is divided shall be deemed to
be part of the Act.
(2) Every schedule to an Act shall be deemed to form
part thereof.
(3) No marginal note, footnote or endnote to an Act,
and no heading to a section of an Act, shall be taken to be
part of the Act.
But NSW...
• S35 Interpretation Act
• http://www.austlii.edu.au/au/legis/nsw/consol_act/ia1987191/s35.html
(1) Headings to provisions of an Act or instrument, being headings to:
(a) Chapters, Parts, Divisions or Subdivisions into which the Act or
instrument is divided, or
(b) Schedules to the Act or instrument, shall be taken to be part of the
Act or instrument.
(2) ...(a) a heading to a provision of an Act or instrument (not being a
heading referred to in subsection (1)),
(b) matter within a provision of an Act or instrument (being matter in
parentheses that merely sets out a heading to or describes the effect of
some other provision of the Act or instrument or of some other Act or
instrument), or
(c) a marginal note, footnote or endnote in an Act or instrument,
shall be taken not to be part of the Act or instrument.
BUT....
Civil Liability Act 2002 (NSW)
PART 1A - NEGLIGENCE
Division 1 - Preliminary
5. Definitions
5A. Application of Part
Division 2 - Duty of care
5B. General principles
5C. Other principles
AND ....
Trade Practices Act (1974)
PART V--CONSUMER PROTECTION
Division 1--Unfair practices
51AF. Part does not apply to financial services
51A. Interpretation
52. Misleading or deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to mislead
or deceive.
• Hornsby Building Information Centre Pty Ltd v Sydney
Building Information Centre Ltd [1978] HCA 11
Stephen J at [12]:
...I do not regard it as appropriate that the unambiguous words of s.
52 should be given some unnaturally confined meaning because of
the heading to Pt V. ... I would adopt what was said by Latham C.J.
in Silk Bros Pty. Ltd. v. State Electricity Commission (Vict.) [1943]
HCA 2; (1943) 67 CLR 1, at p 16 concerning the use of headings in
the interpretation of statutes. His Honour said:
"The headings in a statute or in Regulations can be taken into
consideration in determining the meaning of a provision where that
provision is ambiguous, and may sometimes be of service in
determining the scope of a provision (see In re Commercial Bank of
Australia Ltd. (1893) 19 VLR 333, at p 375 ). 'But where the
enacting words are clear and unambiguous, the title, or headings,
must give way, and full effect must be given to the enactment'
(Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50;
(1908) 7 CLR 372, at p 383 , per Isaacs J.)."
Stephen J:
• 13. To subject the clear and quite general words of s. 52 to some
limitation derived from the heading to Pt V is, I think, especially
inappropriate in the case of this particular legislation. The Act is
intricately drafted, some of its provisions being expressed in terms
of broad generalities, as is s. 52, others in elaborate detail. Each
may be seen to take the precise form it does because of the
particular work intended for it. That s. 52 (1) is intended to be a
provision having a broad reach is made clear by the express
provision in s. 52 (2) preserving its "generality" from any limitation
which might be thought to arise from the more specific provisions
of succeeding sections. It is also significant that the quasidefinitions of "consumer" in s. 4 (3) appear to have little application
to most of the provisions of Div. 1 of Pt V; it is on Div. 2 that they
principally operate. To interpret the provisions of Div. 1 in the light
of the quasi-definitions, applied, through this heading, to the entire
Part, will be to distort in numerous respects the otherwise clearly
apparent legislative pattern manifest in Pt V. (at p226)
Concrete Constructions v Nelson
[1990] HCA 17
• 5. The general heading "Consumer Protection" at the
commencement of Pt V is part of the Act (Acts
Interpretation Act 1901 (Cth), s.13). It constitutes part of
the context within which the substantive provisions of Pt V
must be construed and should be taken into consideration
in determining the meaning of those provisions in case of
ambiguity. The heading does not, however, control the
permissible scope of the substantive provisions of Pt V
and cannot properly be used to impose an unnaturally
constricted meaning upon the words of those substantive
provisions (see Hornsby Building Information Centre Pty.
Ltd., at p 225; Parkdale, at p 202).
• As a matter of language, s.52 prohibits a corporation from engaging in
misleading or deceptive conduct "in trade or commerce" regardless of
whether the conduct is misleading to, or deceptive of, a person in the
capacity of a consumer. In these circumstances, it is not permissible
to give to the heading of Pt V the effect of confining the general words
of s.52 to cases involving the protection of consumers alone. So to
constrict the provisions of s.52 would be to convert a general
prohibition of misleading or deceptive conduct by a corporation, be it
consumer or supplier, in trade or commerce, into a discriminatory
requirement that a corporate supplier of goods or services should
observe standards in its dealings with a corporate consumer which
the consumer itself was left free to disregard. That being so, the
general words of s.52 must be construed as applying even-handedly
to corporations involved in a transaction or dealing with one another
"in trade or commerce". So to say is not, however, to deny the
significance of the heading "Consumer Protection" for the purposes of
the present case. In particular, as will appear, that heading is of
importance in determining the effect of the words "in trade or
commerce" in s.52 (see Hornsby Building Information Centre Pty.
Ltd., at p 224).
Ragless v Prospect City Council [1922]
SASR 299 at 311 per Murray CJ:
I think the rules [as to the use of headings] may be stated
thus:
1.If the language of the sections is clear, and is actually
inconsistent with the headings, the headings must give
way;
2.If the language of the sections is clear, but, although
more general, is not inconsistent with the headings, the
sections must be read subject to the headings;
3.If the language of the sections is doubtful or
ambiguous, the meaning which is consistent with the
headings must be adopted.
Explanatory memorandum
• ACTS INTERPRETATION AMENDMENT BILL 2011
• 96. New section 13 would not prescribe how much weight
(if any) should be given to particular material forming part
of an Act in interpreting the Act. Of course, primacy should
normally be given to the substantive provisions of an Act
over headings and explanatory notes in interpreting an
Act.
Section
Sections are sub-divided into:
SECTION
s1
SUB-SECTION
(2)
PARAGRAPH
(a)
SUB-PARAGRAPH
(v)
Elements of a section
• The elements of a section form a checklist – not a
shopping list.
• Unless it is drafted in the alternative, each element must
be satisfied.
• The sub-sections of each section are to be read
independently – unless the drafting clearly indicates
otherwise
• Operative and machinery provisions
Australian Consumer Law
- s 18
Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to
mislead or deceive.
Elements of s18(1)
•Person
•Trade or commerce
•Engage in conduct
•Misleading or deceptive
Elements exercise
Australian Consumer Law- s50
Harassment and coercion
(1) A person must not use physical force, or undue
harassment or coercion, in connection with:
(a) the supply or possible supply of
goods or services; or
(b) the payment for goods or services; or
(c) the sale or grant, or the possible sale
or grant,of an interest in land; or
(d) the payment for an interest in land.
CIVIL LIABILITY ACT 2002 - s 5L
(1) A person
( "the defendant") is not liable in
negligence for harm suffered by another
person ( "the plaintiff") as a result of the
materialisation of an obvious risk of a
dangerous recreational activity engaged in
by the plaintiff.
S47 CCA
• http://www.austlii.edu.au/au/legis/cth/consol_act/caca201
0265/s47.html