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Lecture 6

LWB145 Lecture Notes - Week 6.docx

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Queensland University of Technology

LWB145 Week Six Lecture Notes Statutory Interpretation Part 3 Lecture Outline  Retrospectivity  Syntactical presumptions  Aids to the meaning of words  Miscellaneous AIA provisions  Legal assumptions  Rules for interpretation of particular types of Acts/provisions  General approaches to statutory interpretation Retrospectivity  Read pages 186 – 188 of Statutory Interpretation.  The general rule is that parliament is presumed to enact legislation prospectively. o Maxwell v Murphy (1957) 96 CLR 261  It is a fundamental legislative principle under s 4 Legislative Standards Act 1992 (Qld) that legislation has sufficient regard to the rights and liberties of individuals.  One factor which is used to judge whether legislation has sufficient regard to the rights and liberties of individuals is whether it imposes obligations retrospectively (see s 4(3)(g)).  However, the Legislative Standards Act does not state that legislation operating retrospectively is invalid.  Parliament does have power to enact legislation which has retrospective operation: o Polyukhovich v Commonwealth of Australia (1991) 172 CLR 500  The most common way to make legislation operate retrospectively is by express provision.  This would provide: ‘This section/Act is taken to have commenced on …*date+…’ o For example, s 9 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) conferring State jurisdiction on Federal Courts was held to be invalid by HCA in Re Wakim; Ex parte McNally (1999) 198 CLR511.  Provisions such as s 6 Federal Courts (State Jurisdiction) Act 1999 (Qld) operated retrospectively to deem decisions made in the Federal Court hierarchy under the invalid s 9 to be decisions of corresponding State Courts. See below: 6 Rights and liabilities declared in certain cases The rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if (a) each ineffective judgment of (i) the Federal Court of Australia, otherwise than as a Full Court of the Federal Court of Australia; or (ii) the Family Court of Australia, otherwise than as a Full Court of the Family Court of Australia, had been a valid judgment of the Supreme Court constituted by a single Supreme Court judge, or in the case of an ineffective judgment given or recorded on or after 14 December 1991, of the Trial Division of the Supreme Court; and (b) each ineffective judgment of (i) a Full Court of the Federal Court of Australia; or (ii) a Full Court of the Family Court of Australia, had been a valid judgment of the Full Court of the Supreme Court or, in the case of an ineffective judgment given or recorded on or after 14 December 1991, of the Court of Appeal.  Beware that, if actions or events have occurred before the commencement, you need to check to see if the Act has retrospective effect or not.  Statutes are presumed to operate prospectively, although Parliament has the power to pass an Act having retrospective effect (e.g. Polyukhovich v Commonwealth of Australia (1991) 172 CLR 500). However, there is a strong presumption against the Parliament doing so (Maxwell v Murphy (1957) 96 CLR 261). Syntactical Presumptions Ejusdem Generis rule (EG): o Where there is a list of two or more specific words, followed by more general words, the otherwise wide meaning of the general words is restricted to the same class, if any, of the specific words Attorney-General v Brown [1920] 1 KB 773  See Study Guide [5.7] Fictional provision: Before a person can use a car, bus, truck, utility or other motor vehicle on a road in Qld, the person must first register it with the commissioner of main roads. o Would the words ‘or other motor vehicle’ apply to a motor bike? o It is a very wide term and seems designed to capture things not mentioned in the preceding list. o However, the words will not include a motor bike if the EG rule applies. o Here, all seem to have steering wheels and are driven rather than ridden. o See textbook Statutory Interpretation p 174.  A classic example comes from Attorney-General v Brown [1920] 1 KB 773. The provision in question said: “the importation of gunpowder, arms, ammunition or any other goods may be prohibited by a piece of delegated or subordinate legislation.” o A piece of delegated legislation the provided that you could not bring these into the UK except under license. o It was held that ‘any other goods’ appearing after words specifying a certain type of goods must refer to goods of the same type. Here, the EG rule applies.  Note that you cannot claim a ‘class’ from just one word – in order to determine a class, there must be at least two specific words followed by a general word (i.e. three words minimum) for the EG rule to apply.  However, in instances where only one word precedes a more general word, a de facto application of the EG rule can apply DPP v Williams (1998) 104 A Crim R 65 (in Sanson, 177).  The EG rule is only a presumption, therefore it can be rebutted. o Example: Stewart v Lizars [1965] VR 210 where section 3(1) of a piece of legislation provided: “any person who throws down, drops or otherwise deposits and leaves any litter in or on any public place commits an offence.” o Section 3(2) defined ‘litter’ to mean bottles, tins, cartons, packages, paper, glass, food, or other refuse or rubbish; and defined ‘public place’ to mean any street, road, lane or thoroughfare. o The defendant had drained a quantity of oil from his car which was parked on a reservation separating two carriageways. He was charged with littering. o The issue was this: could the wide meaning of ‘or other refuse or rubbish’ be restricted by words of a more specific type that occurred before the general words? o Note that the words ‘refuse or rubbish’ were wide enough themselves to cover oil because ‘refuse’ in its dictionary meaning means ‘that which is rejected or cast aside as useless or waste matter’ and the word ‘rubbish’ means waste or refuse material or rejected and useless matter of any kind. o It was held that the words which preceded the general words in this case did not define a single genus. For the EG rule to apply, they must do so. Therefore, in this instance, the EG rule could not apply. o If they had not included the word ‘food’ then they might have been capable of defining a single class, namely that of solid substances. But the word ‘food’ can describe both solids and liquids. No other candidate could be found so they held that the EG rule could not apply or was rebutted. o The Court added that definitions of ‘litter’ and ‘public place’ together with the operative provisions of the Act, showed the legislative intent was to prevent untidiness in any public place, and so there was no justification for frustrating that intent by restricting the general words. Noscitur a sociis rule (NS): o Words of a feather flock together i.e. words take their meaning from words with which they are associated.  This is a micro example of the macro principle that an Act must be read as a whole, and each provision be read in the context of the Act as a whole.  How does this differ from the EG rule? Words of a similar width may be used, and so the EG rule would no then be appropriate. If so, this rule might be appropriate instead.  See R v Ann Harris (1836) 7 C & P 446 where a woman was charged with a serious offence for biting off another woman’s nose. The provision pursuant to which she was charged provided: o If any person unlawfully and maliciously shall shoot at any person, or shall, by drawing a trigger, or in any other manner, attempt to discharge any kind of loaded arms at any person, or shall unlawfully stab, cut, or wound any person with intent in any of the cases aforesaid to maim, disfigure, or disable such person or to do some other grievous bodily harm to such person....shall be guilty of a felony.  It was held that evidently, according to the intention of the legislature and the words of the statute, that the wounding should be inflicted with some kind of instrument and not with hands and teeth. So although Ann Harris ‘wounds’ another person, the words with which that word is associated are ‘stab’ and ‘cut’ which both require instruments. ‘Wound’ therefore would also require instruments.  Therefore she could not be convicte
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