Lecture 7 LR.

Peer Academic Coaches (PACs)

• PACs are current, high-achieving students hired by the university to provide advice and tips to other students.

• They can assist with both academic and non-academic matters.

  • Examples include help with SmartRider, course planning, assignments, and legal research.

• Consultations are one-on-one, 20 minutes long, and free.

• Available Monday to Friday during teaching weeks and break week.

• Located in the library and Student Central.

  • Library: Level 3, My Advice location.

  • Student Central: Level 3 of the building, log in via iPad (QLESS system).

• No appointments are needed; students can simply show up during the PAC's scheduled time.

Acknowledgment of Country

• Murdoch University acknowledges the Whadjuk and Bundjarab Noongar people as the traditional custodians of the land.

• This land has been a place of learning for over 45,000 years.

Introduction to Legislation

• Review of Previous Topics

  • Introduction to the system of government with the separation of powers.

  • Sources of law, especially case law and the concept of ratio decidendi.

• Today's Focus

  • Legislation as a source of law.

  • How and why legislation is a source of law.

Who Uses Legislation?

• Discussion: Who needs to use, read, and interpret legislation?

  • Judiciary: Judges and courts interpret legislation constantly.

  • Police Officers: They need to understand the criminal code (legislation) to identify offences and understand their powers.

  • Executive Branch: Can only act within the bounds of what legislation permits.

  • Private Individuals: Can do anything not prohibited by law.

  • Regulated professions: heavily governed by legislation dictating what they can and can't do, including reporting obligations.

  • Companies & Engineers: Need to comply with regulations.

Difficulties in Interpreting Legislation

• Old Legislation:

  • Can be hard to understand due to outdated drafting conventions.

  • Example given of updating an administrative law textbook and comparing current legislation to the WA's Parliamentary Inspector legislation from 1978.

• Ambiguity and Lack of Definition:

  • Important words may be undefined in the Act.

  • Language is inherently imprecise; words have multiple meanings.

• Context:

  • The meaning of a word can change depending on the context.

• Written Communication:

  • Lacks non-verbal cues, making interpretation harder.

• Broad vs. Specific: Legislation is often written in broad terms but applied to very specific circumstances.

• Example: "It is a criminal offense to shoot a kangaroo in a vehicle."

  • Multiple interpretations possible.

Statutory Interpretation

• Definition: The body of law dedicated to interpreting legislation.

• Importance: It is the most important single area of legal practice because statutes significantly determine many areas of law.

• Scope: All areas of the law are affected by statutory modification.

• Nature: It's a distinct body of law, not just a collection of maxims.

• Synonyms:

  • Legislative Interpretation.

  • Construing and Constructing.

• Provision: A general term referring to any part of legislation (section, part, subsection, paragraph).

Factors Affecting Interpretation

• Scenario: A law clerk is asked to list factors affecting the interpretation of the provision: "Spectators are not permitted to take glasses into the seating area."

• Relevant Factors Identified:

  • Definition of words: Glasses could mean spectacles or drinking glasses.

  • Context: Where does this provision appear? Is it a university or a bar?

  • Definition of Spectator: Who does that include?

  • Other Provisions: Are there provisions which allow things or address conduct in general? Is everything that's not prohibited permitted?

  • Purpose: What is the underlying safety concern that is trying to be addressed? Public Safety?

  • Name of the Act

  • Jurisdiction

  • Client's reasons for asking

  • Historical considerations

Additional Factors

• Consider Only the Words of the Provision:

  • What is the literal meaning? Ordinary meaning?

• Research Reveals Different Pieces of Legislation.

  • First Act: Purpose is for examining, assessing, observing the senses (touch, sight, hearing, smell and taste).

    • Indicates spectacles or sight glasses.

  • Second Act: Regulates serving beverages in sporting venues.

    • Indicates drinking glasses.

• The Surrounding Provisions: What do they tell you about the legislative context?

• Historical Context: Does the provision repeal another Act, or is it new?

Separation of Powers

• Three Branches of Government:

  • Legislature (Parliament): Makes laws in the form of statutes.

  • Judiciary (Courts): Interprets laws and creates common law (case law).

  • Executive (Administration): Enforces laws.

• Doctrine of Separation of Powers:

  • Each branch can only act within its constitutionally granted powers.

  • Purpose: Checks and balances.

• Role of Each Branch

  • Legislature: Creates Statutes

  • Judiciary: Interprets Legal principles in Legislation

  • Executive: Enforces the Law

• Exceptions to the Doctrine

  • Ministers who head government departments are part of the executive and the legislature and are very involved in creating legislation.

  • The drafted delegated legislation is drafted by the executive and has to undergo rubber-stamp review by parliament.

• The Judiciary needs to be very separate with hardly any overlap.

Literal Meaning vs. Historical Context vs. Purpose of the Act

• The literal meaning of the words complies most closely with the doctrine of separation of powers. They are the words Parliament picked.

• If there is a definitions section, that complies with the doctrine of separation of powers.

Problems with Focusing only on the Literal Meaning

• Words can have multiple meanings.

• Over time the meaning of words change.

• Additionally, the words of the legislation can't capture all of the relevant context, meaning and intent.

Higgin and O'Day Case (1892)

• Section 84 of the Police Act: "Every person who shall have or keep a house, shop, room or any place of public resort and who shall willingly or knowingly permit drunkenness or disorderly conduct in such house, shop, room or place or knowingly suffer any unlawful gaming therein or knowingly permit or suffer persons apparently under the age of 16 years to enter and remain there shall on conviction be liable to a penalty."

• An amusement arcade operator was charged under this section for allowing a person under 16 years old to be present.

• The court held the accused was liable due to the literal wording of the act.

  • It did not matter if the circumstances did not contribute or correlate to the other conditions described in the act.

• During the 1960s and 1970s, the courts will begin to interpret what the intent of parliament was.

  • This is a very dangerous line to walk however, as it strictly breaches the doctrine of separation of powers.

Key Points

• When considering separation of powers, it's important to directly apply the law and what the legislature passed.

• The Court can only interpret the words in the legislation. It is not their role to add words, change words or change what they really meant even though they said that. That breaches the doctrine.

• Sometimes the meaning of the words in the legislation is unclear or the words say one thing, and the historical context changes the understanding of the act.

• You can give courts wider interpretation power with the use of Interpretation Acts.

Interpretation Acts

• Around 1980, Australian Parliaments began enacting legislation to guide how legislation should be constructed.

• Key Provisions:

  • Amendment to the Acts Interpretation Act (Commonwealth).

    • Section 15AA (commenced in 1981).

  • WA Interpretation Act.

    • Section 18. (Essentially the same as the original 15AA). Has remained unchanged.

WA Interpretation Act Section 18

• "In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law, whether that purpose or object is expressly stated in the written law or not, shall be preferred to a construction that would not promote that purpose or object."

Commonwealth Acts Interpretation Act Section 15AA (Current)

• "In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act, whether or not that purpose or object is expressly stated in the Act, is to be preferred to each other interpretation."

Key Themes

• Both provisions state the importance of considering the purpose of the act and interpreting it accordingly. The terms of purpose of object are used interchangeably.

When to use each Provision

• If its a WA Act, refer to the WA Section 18 of the Interpretation Act for applying interpretation.

• If its a Commonwealth piece of legislation, refer to Section 15AA of the Acts Interpretation Act.

• It is important to look up the equivalent provision in different areas/jurisdictions.

  • Section 33 of the New South Wales Interpretation Act.

15AA was amended in 2011.

• Originally, commonwealth stated the exact same as Section 18.

  • Where WA used "written law," the original 15AA stated the word Act.

  • In the WA Act Section 18, you can look up the definition of written law.

    • It states an Act of Parliament or Subordinate legislation as well as an Act of Parliament, it doesn't cover case law however.

Key Difference Between WA & Current 15AA

• The deliberate difference in wording is that WA legislation "promotes purpose," and current 15AA is that it "best achieves."

  • There is a slight difference in that with the older WA Act language in Section 18, if there were three potential interpretations to promote purpose, then either of those would be up for interpretation. However, since the new act amendment 15AA refers to "best achieves," you would only pick that one main interpretation.

Separation of Powers

• The legislatures tell you, if there are multiple purposes or purposes within the act.

• 15AA and Section 18 does not allow the courts to rewrite the legislation.

• Two quotes from the High Court stating that they can't construe the Act or rewrite it in light of the purposes.

Applying these concepts to Higgin & O'Day.

The Question

• Given the original wording, with a literal interpretation with Higgin and O'Day, had the offense been made out?

  • Yes.

• Had you followed the interpretation, with a well-being approach, the accused would have been convicted.

• You've taken the approach with both sides and you said there's two potential interpretations now.

The Solution

• Keep the word the same in the interpretation that promotes. But, how can you keep those words, give it to an interpretation that would mean that the accused is a lot viable, the child wellbeing has to do with a purpose.

• Take into account to knowingly use it in the lot so you can be thinking about knowing the intent when we're looking

Gymnastics

• In real life, you're looking to see if that is the only purpose you consider all the other factors to narrow what you are going through

• Historical Considerations.

• If there was a particular reason to say that we give this civil liabilities act what was the reason so if it was a very common law. You got to use your research skills to look.

Aids for Identifying Purpose & Determining Meaning

• Express Objects or Purposes Section (most modern legislation).

• Is often in the legislation section 7A; the main purposes of this act is to combat and reduce the incidence of organized crime and to improve the continuously the integrity of and reduce of misconduct. That is given broad investigator wise powers that aren't generally given to regular law enforcement.

• Long title of the Murdoch University Act.

• An act to establish and incorporate Murdoch University to make provisions for the government of the university and for incidental and other purposes.

• Headings.

  • 8A of the Murdoch University Act. The Power of The University to Provide Residential Accommodation for Staff and Students.

• Definition, Interpretation Section.

• Those will tell you expressly if your word is defined if you're trying to have the meaning of is defined there