LAW1LIM Lecture Notes - Lecture 8: Improper Conduct, Amanda Vanstone, John Godfrey Saxe
LIM Lecture 8 - Introduction to Legislation and Statutory Interpretation
Not all law is Judge Made
From the 16th to the 20th century:
•Acts of Parliament came to be written in English and printed on paper
•The Judges announced that they would give effect to the purpose of each Act of Parliament: Heydon’s Case (1584) 3 Co Rep 7a at 7b; 76
ER 637 at 638
•The struggle for supremacy between monarch and Parliament resulted in the recognition of Parliament’s supremacy: the King or Queen
became subject to the law and could only legislate by authority of an Act of Parliament
•Parliament became democratically elected and representative of all people
•Judges acknowledged their subordination to Parliament in the making of law (except in the case of written constitutions, which constrain
the legislative power of Parliaments)
Legislation Now
Currently in force:
•More than 1200 Acts of the Parliament of the Commonwealth of Australia (listed at www.legislation.gov.au under Acts in Force)
•More than 1200 Acts of the Parliament of Victoria (listed at www.legislation.vic.gov.au under Victorian Law Today)
•Not counting regulations, municipal by-laws and other statutory instruments made under Acts of Parliament
•Potentially, everything you do, want to do, or don’t want to do, can be prohibited, regulated, assisted, or compelled by an Act of
Parliament
•We would not be here today, but for Acts of Parliament:
o Latrobe University Act 1964 (Vic)
o Latrobe University Act 2009 (Vic)
•Every case I ever dealt with as a Judge of the Federal Court of Australia involved the application
of one or more Acts of Parliament
•Even in the State courts, a pure common law case would be extremely rare
•Whatever we do in the Law, we need to be ready make use of the relevant legislation
Legislation Now – Lifetime and Beyond
Statutes control:
•Birth and registration of birth
•Pre-school, primary, secondary and tertiary education
•Employment, other kinds of paid work, and workplace health and safety
•Welfare payments – including unemployment benefits, disability and age pensions
•Buying, selling and leasing houses and apartments
•Superannuation
•Health
•Taxation
•Registration of death and disposal of remains after death
•Wills, probate and the administration of estates
Statutory Interpretation
Why all the fuss about statutory interpretation? Can’t anyone just read what the Act says?
Not so easy, because:
•Acts can be very long and complex (the Income Tax Assessment Act 1997 (Cth) is in 11 volumes andwas likened by Keane J to a parallel
universe)
•Acts are sometimes the product of compromise, because of differences in the party room or the need to placate cross-benchers in an
upper house (Laws, like sausages, cease to inspire respect in proportion as we know how they are made: John Godfrey Saxe)
•Parliament legislates for the general; courts have to apply the legislation to the particular
•Language can produce uncertainty and ambiguity
•A dictionary gives you all of the possible meanings for a word; it won’t decide for you what is the meaning of the word in this provision of
this Act
•Parliaments have mandated that we use a purposive approach to interpretation (s 15AA Acts
Interpretation Act 1901 (Cth) and s 8 Interpretation of Legislation Act 1984 (Vic))
Smith v United States of America508 US 203 (1993)
•A federal Act imposed mandatory penalties if a defendant “during and in relation to…[a] drug trafficking crime uses…a firearm”
•During negotiations to buy a large quantity of cocaine, Smith offered to trade his automatic MAC-10 firearm as part of the purchase price
•Did Smith “use” the firearm?
•What result is achieved by adopting the “literal” approach to the word “uses”?
•What result is achieved by adopting a purposive approach?
•What if there were no actual firearm, but the buyer referred to the transaction of buying an illegal firearm as an analogy, during
negotiations?
Clark v Vanstone [2004] FCA 1105
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Lim lecture 8 - introduction to legislation and statutory interpretation. Interpretation act 1901 (cth) and s 8 interpretation of legislation act 1984 (vic)) Australia: the commissioners elected the chair of the commission from among their number; if clark ceased to be a commissioner, he would cease to be the chair of the commission. Clark v vanstone the questions: fundamental question: was the minister"s decision to suspend clark from office valid, only if it was open to the minister (as a matter of law) to find that clark"s conduct amounted to misbehaviour, two questions: Could clark"s conviction for obstructing police amount to misbehaviour within the general concept of misbehaviour in s 40(1) of the. In turn, the capacity to continue to hold an office has two aspects. The conduct of the person concerned might be such that it affects directly the person"s ability to carry out the office.
