Public Law

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Principles of Statutory Interpretation

Courts are limited and they cannot re-enact or change the parliamentary statute. It is not the court's role to make laws but parliaments'.

Parliamentary Intention

Role of the courts in interpreting a statute is to find out what parliament intended. Problems with figuring out what parliament intends to occur when there are multiple intentions (political parties). A complex group of individual actors involved. The question is whose intentions count? Parliament as its own entity has its own intention.

The groups have the same objective but different mental states and intentions.

The modern legislative process

not everyone has read the Bill

some people do not understand

following party lines

too busy

One individual's opinion has no special democratic legitimacy. One person does not speak for parliament i.e. the people.

2nd reading: presents the bill in the best possible light although it can be inaccurate

these are not authoritative sources of law, modern case law places little importance on intrinsic material.

Courts can't directly ask Parliament what they mean- there is a strict separation of powers (SOP) interpretation is final

Statutes lay down law into the future, the constitution of Parliament may have changed.

Laws are supposed to be general not for a specific group of people

Asking Parliament for its opinion- they will change the law on an ad-hoc basis as they will want to please the people.

Parliamentary intention now

High Court is no longer searching for parliamentary intention- they do not believe that it is real. They are now constructing intention. Whatever rules of statutory interpretation produce=meaning of intention.

Interpreting statutes as a whole

ascertain legislative intention

Wollongong Pty Ltd v Fed Comm

Project Blue Sky Inc v ABA

Question of statutory interpretation: s122 of the Constitution

development of program standards and Australian content

NZ program: Project Blue Sky

Did the statute authorize the Authority to make this standard in light of s122 and s160(d)?

Inconsistent statute, harmonious goals not in conflict which is leading provision and which is the subordinate provision.

Meaning of a provision had to be construed by reference to the statute as a whole, including S160.

If s122 was read in isolation it would authorise but in light of 160(d), it would not authorise.

Issue: Blue Sky an NZ program. ABA could not bar NZ programs, nonpreferential treatment. Conflicting provisions - did the ABA have the power to make these decisions.

Federal Court and High Court: the more dominant provision will overtake the general - the specific provision will win out: s122

HC disagrees with Federal Court and says statutes need to be read together to avoid inconsistencies.

Conclusion: s160 was dominant provision, s122 had to be read consistently with 160.

s160 operates as a proviso on s122, therefore, ABA cannot make these standards.

The problem was that Parliament would not make a statute that did nothing. SOP: Parliament enacts legislation, courts pick and choose which provision they want.

Evidence of Purpose

Looking at the object clauses found in the statute itself. Old acts will often have a long title or preamble. Extrinsic material: explanatory memorandum, LRC report 2nd reading speech.

Common law is now broader. Courts can utilize the external material. The extrinsic material is a guide to meaning but can never replace the meaning of the words in the text. The extrinsic material can never rebut presumptions.

Victims Compensations Fund v Brown

When articulating purposes of a statute, be specific

Ordinary natural meaning and purpose conflict

Victims Support and Rehabilitation Act NSW (1996)

S3: statutory compensation scheme

financial viability, CL principles, the offender to pay restitution

Court of Appeal- eligible

High Court: not eligible for compensation

Q of Statutory Interpretation: 'and' or 'or'

Applicants had symptoms for more than 6 weeks but no disability.

COA decided 'and' meant 'or' - can have either symptoms or disability. Sometimes statutory drafters use words together, words mark out category stating that the applicant does not need to have both. Other factors: the main aim of the act, broad to provide compensation, broad beneficial purpose.

High Court concludes 'and' means and. He reaches the conclusion by looking at the extrinsic material (evidence of purpose). The legislation sets out the kinds of injuries that are compensable, limitations are necessary to preserve financial viability of the act. Ordinary meaning 'and' as 'and' is clear.

Looking at the act in detail in detail- a narrow scope that is limited.

Context and Purpose

Canons of Construction

Every word in a statute is intended to serve a purpose. When the same word is repeated in the statutes, it carries the same meaning

All provisions of a statute are intended to give effect to harmonious goals (Blue Sky v ABA).

Acts Interpretation Act 1901 (Cth).

s15AA- Interpretation best achieving the objectives of the Act.

Interpretation of Legislation Act 1984 (Vic).

s 35: Principles of and aids to interpretations

General presumption that Parliament did not intend an absurd meaning.

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Principle of Legality

The statute does not violate rights unless it states so expressly.

starting point

goal or objective

principles of statutory interpretation

Rule of statutory interpretation - when it wishes to interfere with common law rights, it must say so clearly and unambiguously that it will do so.

It protects prospectivity, access to the courts, equality where everyone is equal before the law and the core elements of a fair hearing.

Also, protects right to free speech and personal liberty. Courts are often conservative in their approach.

Constitutional validity: not going to construe that a statute intends to abrogate fundamental common law rights unless it expressly says so.

Common law rights: the presumption of innocence. double jeopardy, right to silence.

Ordinary Natural Meaning (Alcan)

legal meaning (strong reasons to depart)

The starting point is the text

all people under the law need to find out what it means

the law needs to be accessible and transparent

To the extent that the ordinary natural meaning of the law differs from the legal meaning, the accountability of the statute is diminished.

Emphasis ordinary and natural meaning- SOP

Avoids courts constructing its idea of the law.

This is the starting point but never the ending point.

Courts cannot ignore or rewrite the text, will look at the text in light of broader considerations.

If ordinary natural meaning is ambiguous, context and purpose will be really useful to help understand. They will carry heavy weight.

Common vs technical meaning

The definitions section

Dictionary meaning

Evidence of common usage

Context and purpose

History of the legislation- if this is not provided do not search for it

What are the consequences of a literal construction i.e will the purpose of the act be achieved?

Surrounding provisions (look at the rest of the act)

Evidence of purpose (intrinsic and extrinsic)

Canons of Construction

Maxims

Presumptions

Statutory principles and acts

AIA, ILA and Charter

Evans v NSW

'No to the Pope' coalition wants to protest the Catholic church's teachings on abortion, sex, and morals. They intended to distribute candles, badges, t-shirts, pamphlets and coat hangers symbolizing 'backyard abortions'.

In their judgment, the Court used the following resources: online dictionary, Oxford, and Macquarie.

BRING A DICTIONARY INTO THE EXAM

Common law rights that were affected:

right to protest, free speech, personal liberty

freedom of religious beliefs s.116

The court found that clause 7(1)(b) was invalid because the WYD act did not allow for this. Regulations ware part of the act but was it under the scope of the act>

Aim: to protect the event- can you limit one to protect the other

How did the principle of legality shape the court's interpretation of the act?

Read narrowly to protect the right as much as it can be

'annoying conduct' is too broad and subjective

Parliament did not intend to severely limit freedom of speech.

The mischief rule

Problem that the text is trying to solve ambiguous meanings: context of a word are reading statute in context

What is the subject matter of the statute?

Purpose Clause

A court should regard context and purpose when there is ambiguity, whenever the purpose is clear or unclear.

Looking at context resolves ambiguity all the time.

Purposive approach

Relationship between parliament and the courts'-statute is a plan for actions

A reason motivating the design of statute, statement of what the law is going to be- the purpose.

In practice:

Apply principles of statutory interpretation

does the statute have the intention to abrogate rights

if not clearly manifested that rights to be abrogated, read rights as to remain intact without changing the statute.

Evidence of purposes

Looking at the object clauses, long title of the act or preamble

The extrinsic material can be used but remember it can never rebut presumptions!

Case: Adler v George [1964]

D charged under S3 of the Official Secrets Act 1920 (UK). He was in a prohibited place, but the act stated 'in the vicinity of a prohibited place'.

Case: R v Allen (1872)

D charged with bigamy under s57 of the Offences against the Person Act 1861 UK

Victims Compensation Fund v Brown

Victims Support and Rehabilitation Act NSW 1996

S3: stat comp scheme

Q: 'and' or 'or'

Looking at the act in detail produces a narrow scope of interpretation that yields a limited outcome. In this case, applicants must present both prerequisites for the required duration (illness and disability).

Potter v Minahan 1908

a way of predicting what parliament actually intended, they would not intend to limit rights

Lacey v Attorney General 'high bar'

D convicted of manslaughter- sentenced to 10 years imprisonment. A.G thought it was too lenient and appealed. Scope of the COAs power against a criminal sentence. Appeals on criminal sentencing are very constrained due to double jeopardy. Court had unfettered discretion to vary a sentence- unlimited power

Conclusion: no not unlimited, the court can only intervene if original sentence is shown to be wrong (read narrowly).

Project Blue Sky v ABA (1998)

S122 of Constitution, whether NZ program could be removed for not having enough Australian content

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Interpretative presumptions of Statutory Interpretation

pre-existing or established principles that apply unless statute says otherwise. Statutes have a pre-existing set of presumptions attached. Presumption of mens rea, ejusdem generis (latin maxims)

Principle of legality, prospectivity, laws do not have an extraterritorial effect

syntactical presumptions

Consistency in the statute courts interpret within the context given by parliament

Presumptions reflect parliament as a sensible and responsible body- coherence in the statute.

The concept of prospectivity: it is unfair to hold a person responsible for a crime that they did not know they had committed in the past.

Presumptions can be rebutted. Parliaments can act retrospectively as no constitutional law prohibits this.

Extra-territorial: heads of power between states and parl

Principles are not constitutional limits.

Can courts apply these presumptions?

Presumptions do not get applied too strictly. Parl is able to rebut them at any time.

S32 of the Victorian Charter

All statutory provisions are to be read compatible with the Statement of Human Rights Charter. If not, an explanation must be submitted to explain why rights need to be violated. Courts cannot change a statute in Australia like the UK- legislative power does not belong to the courts.

Momcilovic v The Queen

s.32 was like the principle of legality

Category of rights s. 32 applies to: human rights expressly listed in the charter.

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Key public law concepts, institutions and their complexities (democracy and the rule of law) and how they apply in Australia

Key public law concepts, institutions and their complexities (democracy and the rule of law) and how they apply in Australia

Public law involves the state and individuals whereas private law governs the relationship between individuals e.g. contract law where there is an imbalance of power. Those who carry out public law are known as actors who need to be authorised to act e.g. police officers.

Public law deals with topics like education, defence, taxes, wages and jail time.

Government is subject to rules and principles that it must abide by.

Public law comes about from the expectations we have of our system of government. It is meant to serve freedom, equality and community values.

Government is expected to be accountable to the people and to use its tools of governance for good.

The rule of law

Aims: to prevent anarchy, ensure no one is above the law i.e. binding.

Prevent the replacement of the law with individual justice. A procedural perception of the law.

Also guards against arbitrariness, and protects both the good and the bad for everyone's sake.

Conceptions of the rule of law

Ideas of justice and fairness, whereby the people need to know what the law is and where they can find it. they are not informed, anarchy may arise. It is both a formal and procedural perception of the law where the law is expected to do more than just guide conduct.

Key case: Australian Communist Party v Commonwealth (1951)

Democracy

reflects values and interests of the people so that their voice can be heard. Is direct and representative

In practice, the democratic ideal is often compromised. e.g. the preferential system of voting, the operation of the electoral system, the need to make sure that the number of voters in each electorate is equal.

Jerry Mandering: when electoral boundaries are manipulated, democracy favours the majority

Federalism

many bodies joined into one

S. 51,52,109 of the Constitution

multiple governments with responsibilities over certain regions

The unitary government is one system of govt.

Pros and cons

States can operate independently

Efficiency in gathering information

Allows for experimentation

Nationalism and identity is lost

Different laws

Hinders uniformity

Constitutionalism

The idea that government power should be constrained by higher rules to ensure that they do not abuse their power. This concept is closely connected to the rule of law. Two types: political and legal constitutionalism

Legal constitutionalism

Courts play the key role in ensuring that parliament acts within its limits. Non-legal rule enforced by the court, a custom or convention that is not legally binding or written down and evolves over time. Only exists because everyone agrees to it.

Political constitutionalism

Courts play a limited role as can be inferred from the name. Legally unlimited power political constraints that are not enforced by the courts.

The Australian constitutional model

There are legal limits placed on governments and parliaments' power. Australia is a mix of both political and legal constitutionalism.

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Legal, political constitutionalism and both

In the UK/NZ, there is a legal constitutionalism. If the courts decide that something is unconstitutional then it is (uncodified constitution).

In Australia where there is a codified constitution that is primarily written or codified.

In the US, there is the BIll of Rights which prevents the violation of rights.

Branches of government

In the US the branches (LEJ) are completely separate.

In the UK and AUS the legislative and executive overlap and work together providing an accountability mechanism.

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Topic 4: The Judiciary

Structure and jurisdiction of the Australian legal system

Federal courts: HCA, Aus Const Chapter 2

Federal Court of Australia: Fed Court of Aus 1976 Cth, Judiciary Act 1903 Cth

Federal Circuit Court: Fed Circuit Court of Aus Act 1999 Cth

Family Court of Australia: Fam Law Act 1975 Cth

State Courts

Constitution Act 1975 (Vic) S 85

Aus Const ss 71,77(iii)

Territory Courts

Australian Constitution s122

Types of executive power

Constitution- governor general

Statutory

Prerogative

Common law

Nationhood

Boilermakers principles

Public Law principles Cases

Huddart, Packer & Co Pty Ltd v Moorehead (1909)

S 71 of the Constitution means that sovereign has the power to decide controversies between its subjects whether they relate to life, liberty or property. However, the exercise of this power does not begin until a tribunal is called into action.

Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996)

The function of the federal judicial branch is to quell controversies between individuals and corporate bodies.

Tampa CPCF - Ruddock v Vadarlis (The Tampa case) 2001

Issue: Did the government possess the prerogative power to detain the refugees from the boat?

The executive branch commenced the action so the problem lies in whether they were authorised to do so according to the Migration Act 1958 (Cth).

Held: The actions of the government were within its executive power.

*Sovereign power allowed people to be expelled if they were non-citizens, however, executive power did not. The executive would only be able to expel non-citizens if they were statutorily authorised. In this case, as per S61 the executive power of the Cth was under parliamentary control and thus the executive could perform the action under that head of power.

This case was an example of the executive acting without parliamentary approval. French J states that the actions of the executive were authorised because they represent the citizens of the country. Powers that were vested in one body can shift to another.

Union Steamship Co of Australia v King

Kable v DPP (NSW)

Facts: The executive wanted to detain Mr. Kable after he had served his sentence, effectively imprisoning him for a crime he was not responsible for. The legislation made targetted him.

Durham Holdings Pty Ltd v NSW

Al Kateb v Godwin (2004)

R v Kirby

Chu Kheng Lim v Minister for Immigration

What is detention? In this case, AK became stateless after failing to apply for a visa to enter Australia. The executive detained him for an indefinite period of time. The act did not provide for his situation.

Held: Executive did not have the right to detain him indefinitely as his statelessness was not his fault. Indefinite detention does not mean permanent detention.

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Topic 5: Inter-relationship of the three branches of government: Human Rights case study

Q: How are all three (L E J) linked to each other? Are there any flaws/weaknesses in the system and how does it operate in practice?

What rights are protected?

S116: no legislation based on religion

S117: no discrimination based on postcode

S80: trial by jury for federal offences

S51: just acquisition of land/property- compensation, taxation should not discriminate against states

S75: Original jurisdiction of the HC

S7 and 24: right to vote

Implied right: Freedom of Political Communication

Human Rights Parliamentary Scrutiny Act 2011 (Cth)

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Statutory Interpretation

Cases to cite!

Cooper Brookes

Nix v Hedden (1893) US

Momvilovic v R (2011)

NAAV v Minister for Immigration and Multicultural Affairs

Lacey v Attorney General (2011)

Project Blue Sky (1998)

Treasurer of Victoria v Tabcorp (2014)

International Finance Trust Co Limited v NSW Crime Commission 2009

Evans v NSW (2008)

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Exam

Treat legislation as a hypothetical statute

State or Federal legislation?

What are the operative provisions and how do they work?

Consider the defined words in the statute- why are they defined?

Consider ambiguous words

What is the purpose of the act?

Short essay questions component

Topics 4 and 5

The Judiciary and Human Rights

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The legislation

'may' and 'shall'- Leach case and S 35 of the ILA, AIA

For Cth acts use the AIA and for Vic act use the ILA

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Textbook content for Topics 4 and 5

Judicial review

The judicial branch undertakes a review of the Legislative and Executive branches. There are two types of judicial review that may take place:

guardian of the Constitution

Reviewing exercises of power by state and federal parliaments against the constraints imposed by the Constitution- this is the HC's role even though it is not expressly listed in the Const.

legal limits

executive power exercise in line with limits (Const, CL, statute)

Chapter 12 Human Rights in Australia

protection of human rights at different levels differs

'Brennan committee- Human rights are not understood in Australia. 2009- 31 recommendations