Lecture Notes: Australian Law PDF

lOMoARcPSD|16714919 CONTENTS Page What Is Law? …………………………………………...……………..………….. 2 The Rule of Law …………………………………………….……….……………. 2 Classification of Law …………………….………………....…………………... 6...

lOMoARcPSD|16714919 CONTENTS Page What Is Law? …………………………………………...……………..………….. 2 The Rule of Law …………………………………………….……….……………. 2 Classification of Law …………………….………………....…………………... 6 Development of Australian Legal System and Constitution …................ 9 Separation of Powers ………..…….....………………………………………….. 9 Rights Under Constitution …….……………….………………….................... 11 Sources of Australian Law …….……………..………………………………. 15 Types of Legislation …………….…….…………………………………………. 15 Distribution of Powers ……….………….………………………………………. 15 Indigenous Australians and the Protection of Human Rights …..….….. 18 Mabo …………..…………..…….…….....………………………………………. 18 Constitution ………….………….………………………………………………... 19 Racial Discrimination Act (1975)……………………………………………….. 20 Proposed Changes ……………………………………………………………… 21 Case Law and Precedent …….....…………………………………………….. 25 Ratio Decidendi ……………......………………………………………………... 25 Avoiding Precedents ………......………………………………………………... 26 Australian Court Systems and Jurisdictions ………...……………………. 30 High Court of Australia ………….….…………………………………………... 31 State & Territory Hierarchies…...……………………………………………….. 35 State Tribunals …………………………………………………………………… 39 Judicial Decision Making…………………………………………………….… 42 Terminology………………………………………………………………………. 43 Statutory Interpretation………………………………………………………… 45 Layout of Statutes………………………………………………………………... 46 Common Law Rules of Interpretation………………………………………….. 48 Maxims of Interpretation…………………………………………………………. 49 Presumptions of Interpretation………………………………………………….. 50 Acts Interpretation Act 1901…………...…………………………………………51 1  lOMoARcPSD|16714919 What is Law?  ‘The law is a system of rules made by the state and enforceable by prosecution or litigation’.  The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties.  Has been debatable for years.  Set of rules that define how society should behave.  Knowing right from wrong.  Legislation in particular is quite open to interpretation.  The law aims to be objective.  “Stare decisis” – to stand by decisions and not disturb the undisturbed.  Law and the legal system: o Legal laws  made by the state, legislature or judiciary; enforceable by law (litigation – civil action; prosecution – criminal action); punishable (contracts; binding). o Non-legal laws  made by individuals/organisations; not enforceable or punishable by laws (scouts; schools etc).  What is the purpose of law: o Regulates behaviour. o Settles disputes. o Fairness in distribution of resources/opportunities. o Stabilising the economy. o Reflection of our values (social, moral, economic, political). o Prevents misuse of power by people of authority (state, police, government).  THE RULE OF LAW: o “Australia’s system of government is based on the rule of law. This means that everyone has to obey the law; that no one, no matter how important or powerful, is above the law. This means that the law applies not only to citizens but also to organisations and to people in government including the Prime 2 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 Minister, the heads of government departments, and members of the armed forces. So, the same law that makes it a criminal offence to steal someone’s property applies to everyone. Another aspect of the rule of law is that no one is allowed to exercise powers except those powers given to them by law.” o Absolute supremacy of government by law as opposed to government by arbitrary fire. o Government can only operate if they have specific legal authority to do so. o A person can only be punished for a breach of the law. o Everyone—including citizens and the government—is bound by and entitled to the benefit of laws.  How our laws should operate.  Courts uphold the rights of citizens. o Basic principles   Clear and unambiguous.  Known to the public (need to be available to all people).  Applicable to law.  The law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds.  Laws are publicly adjudicated in courts that are independent from the executive arm of government.  Dispute settlement is fair and efficient where parties cannot resolve disputes themselves. o Relevance today   Increasing public safety.  Restricting legal aid to criminal defendants?  Additional 15 years for certain crimes.  Can laws today be justified – are they discriminatory? 3 Downloaded by Teearnarh Paige ([email protected]) lOMoARcPSD|16714919 4  lOMoARcPSD|16714919 Classification of Law  Common law systems: o Australia is a Common Law country based on English Common Law. o “Magna Carta” first time laws were written down. o Development of a consistent set of rules/principle by judges.  Civil law systems: o All laws are contained in codes - government writes codes. o All rules in a particular area can be found in one source (consolidation). o Role of judges is to apply legal rules rather than develop new rules.  Domestic law and international law: o Domestic law  regulates individuals/organisations within a country/state. o Public international law  rules that regulate conduct with countries dealing with other countries (treaties/conventions) (domestic law puts these in effect). o Private international law  rules on which country’s laws apply to dealings/disputes between individuals/organisations at international level (who’s country will prosecute for breach in online shopping contracts).  Substantive law and procedural law: o Substantive law  Sets out rights and obligations of individuals/state. o Procedural law  Rules that regulate legal processes (timeframes of how a case will be run; right to legal aid; bail; trial by jury etc).  Public and private law: o Public law  relationship between the people and the state/government; relationships between individuals, which are of direct concern to the society.  Constitutional Law; Administrative Law, Criminal Law, Taxation Law. o Private law  relationship between a person and organisations; common law.  Tort Law; Contract Law; Property Law; Company Law; Commercial Law; Competition Law; Family Law (custody; divorce; abuse). 5  lOMoARcPSD|16714919  Criminal law and civil law: o Criminal law   Dispute between individual and state.  Regulates social conduct and proscribes threatening, harming, or otherwise endangering the health, safety, and moral welfare of people.  Includes the punishment of people who violate these laws.  Burden of proof: beyond reasonable doubt.  Outcome: penalty, imprisonment etc.  Objectives: Rehabilitation; Deterrence; Punishment. o Civil law   Dispute between two or more individuals.  Burden of proof: on the balance of probabilities.  Outcome: monetary compensation; injunction etc. 6 lOMoARcPSD|16714919 7  lOMoARcPSD|16714919 Development of the Australian Legal System and the Australian Constitution  The Australian Constitution: o 2 main reasons of importance  1. Determines the relationships between governments (states). 2. Bind everyone in Australia (governments, parliaments, courts, people). o Also Constitutional Conventions/Practices – ways in which system of government operates.  SEPARATION OF POWERS: o The doctrine of the separation of powers is often assumed to be one of the cornerstones of a “fair” and "responsible government." o None of the three branches of government able to exercise total power. o The doctrine can be extended to enable the three branches to act as checks and balances on each other. Each branch’s independence helps keep the others from exceeding their power, thus ensuring the rule of law and protecting individual rights. o The Courts have found that the separation that exists for the judiciary does not strictly apply to the relationship between executive and legislature.  Attorney-General (CTH) v. R. (1957) 95 CLR 529. o The first three chapters of the Australian Constitution are headed respectively "The Parliament", "The Executive Government", and "The Judicature". Each of these chapters begins with a section by which the relevant "power of the Commonwealth" is "vested" in the appropriate persons or bodies. o Legislature   Chapter I of Constitution.  Makers of laws (parliaments). o Executive   Chapter II of constitution.  Administers/enforces laws.  Section 64 provides that federal Ministers - members of the executive - must sit in Parliament. 8  lOMoARcPSD|16714919  Prime minister; other ministers; Queen’s power executed by Governor-General. o Judiciary   Chapter III of Constitution.  Interprets laws.  Judges, juries, courts.  Asear lyas1915,t heHi ghCour tdeci dedt hatt hes tri cti nsul ati onof j udi ci alpowerwasaf undament alpr inc ipl eoft heCons ti tut i on.  NewSout hWal esvCommonweal t h(WheatCase)( 1915).  Ther eas oni ngi ntheWheatCasewast akenf urt her ;adec isi ve di st inct i onbet weenj udi ci alandar bit ralf unct i onswasdr awn.  Wat ers ideWor ker s'Feder ati onofAus tral i avJ W Al exanderLt d ( 1918). o Exceptions   Australia does not have a complete separation because some of the roles of the Parliament, Executive and Judiciary overlap.  Members of Executive are also members of the Parliament.  The Governor-General, who is part of the parliament, officially appoints High Court judges and the Executive.  Certainly, in its classical form it exists here only partially at best; but in practice mechanisms for avoiding the over-concentration of power exist in many ways – through constitutions and conventions; the bicameral system; multiple political parties; elections; the media; courts and tribunals; the federal system itself; and the active, ongoing participation of citizens.  The doctrine is part of a simultaneously robust and delicate constant interplay between the arms of government.  A tension between separation and concentration of powers will always exist, and the greatest danger will always lie with the executive arm – not judges or legislatures – because in the executive lies the greatest potential and practice for power and for its corruption. 9  lOMoARcPSD|16714919  Preventing this in our system relies, as much upon conventions as constitutions and the alarm bells should ring loudly when government leaders dismiss or profess ignorance of the concept.  The Constitution and the High Court: o “Guardian of the Constitution”. o Interprets Constitution and other laws. o Challenges constitutional validity of laws. o Amendment of the Constitution is very difficult.  S 128 – referendum – majority of people in a majority of states (double majority).  The method involves several steps; firstly, a bill containing the proposed change must be passed by the Parliament of Australia (absolute majority – majority of all members not just those present on the day).  Secondly, the proposed change must be submitted to the Australian electors for approval.  The referendum must occur at least two months after the bill has been passed, but at most six months after.  It does provide that all electors who are eligible to vote in elections for the House of Representatives are eligible to vote in referendums.  State constitutions: o Generally states are authorised to make laws “for the peace, order and good government” of the state – subject to Federal Constitution. o ACT and NT have legislation that have rules for some self-government; not included in the Constitution.  S 106 – preserves Constitutional/Commonwealth power.  Rights under the Constitution: o No ‘Bill of rights’ in Australia – no list of fundamental rights. o At conception, it was thought that English laws would protect rights. o Some rights are protected under Constitution:  S 41 – right to vote.  S 51 (xxxi) – right to acquisition of property on just terms - gives a broad entitlement to compensation.  S 80 – right to trial by jury – for indictable offences. 10  lOMoARcPSD|16714919  S 116 – right to religious freedom - prohibiting the Commonwealth (but not the states) from making "any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion". o Implied freedom of political communication   The existence of the freedom was unanimously confirmed in Lange v ABC (1997) 189 CLR 520. Rejecting wider suggestions in the earlier cases, Lange decided that the freedom can be found only in the "text and structure" of the Constitution and not by reference to any general legal or political principles, for example that of "democracy".  In these terms, the freedom was found to be a necessary concomitant of the provision in Constitution sections 7 and 24 that the houses of the Commonwealth parliament shall be "chosen by the people"; the people must not be restricted from communicating with each other and with their representatives on all matters that may be relevant to that choice.  The freedom was deemed to extend into the states and territories, on the basis that nationally there is a single sphere of political communication. 11 lOMoARcPSD|16714919 12 lOMoARcPSD|16714919 13  lOMoARcPSD|16714919 Sources of Australian Law  A Bill  legislative proposal.  An Act  passed by Parliament and receives Royal Assent.  Parliament can only legislate when it has Constitutional powers.  Types of legislation: o Original Acts. o Amendment Acts  Acts amending other Acts. o Repealing Acts  Acts abolishing other Acts. o Consolidations/Reprints  when too many amendments/additions have been made making it too confusing, one whole new law/Act is made. o Delegated legislation  parliament delegates law making abilities to individual ministers/local authorities (councils etc); do not have time for all laws.  Common law: o Laws made by judges in adjudicating disputes. o Doctrine of precedent. o Decisions of higher courts are more authoritative. o The higher a court in the hierarchy the more authority it has. o Legislation overrides case law. o Case law influential in determination of legal disputes and statutory interpretation.  Distribution of powers: o Exclusive powers  federal law only; exclusive only to federal parliament.  Sections 52; 90; 114; 115; 122 of Constitution. o Concurrent powers  shared between federal and state; federal law prevails (s 109); usually federal government enacts laws; power to make laws for the peace, order, and good government of the Commonwealth.  S 51 – list of concurrent powers. o Residual powers  powers not listed in Constitution; left over/residual to the States.  Education; Health; Crime/law and order; Transport; Property. 14 lOMoARcPSD|16714919 15 lOMoARcPSD|16714919 16  lOMoARcPSD|16714919 Indigenous Australians and the Protection of Human Rights  Indigenous Australians and the legal system: o Doctrine of ‘Terra nullius’ – Aboriginal people had no recognizable property rights. o Under English Common Law, the Crown held all title in land. o Push for Aboriginal land rights:  Milirrpum v Nabalco P/L (1971) 17 FLR 141.  Aboriginal Land Rights (NT) Act 1976 (Cth).  Mabo v Qld (No 2) (1992) 175 CLR 1 o Meriam people (Torres Strait) sought legal recognition of traditional rights over land. o High Court overruled “terra nullius”. o Rights co-existed with “beneficial native title”. o Continuous and ongoing connection/occupation of land. o These rights could have been extinguished by legislation or other Crown actions.  Native Title Act 1993 (Cth).  The Wik People v State of Qld (1996) 187 CLR 1.  1998 amendments to the 1993 Act.  Indigenous Australians and the Constitution: o ‘Race power’ in s 51 (xxvi). o Altered in 1967 referendum to enable laws re Aboriginal people (90% of population voted for laws). o Do such laws have to be beneficial?  Kartinyeri v Cth (1998) 195 CLR 337. o Current debate and reform proposals to recognise indigenous Australians in the Constitution. o Preamble…  Indigenous people and the criminal justice system: o Complex and troubling history. 17  lOMoARcPSD|16714919 o Outside of native title, governments and courts have generally been unwilling to recognise Aboriginal customary law. o Indigenous sentencing courts (Magistrates Court sitting as the Koori Court) now exist in most Australian jurisdiction. o Hearings conducted are different to traditional courtroom but punishments etc are the same; more of a roundtable discussion rather than Magistrate presiding. o Trying to get to the cause of criminal behaviour (similar to Drug Court). o No recent moves to take customary law into account in sentencing for criminal matters.  Indigenous people and Human Rights in Australia: o Racial Discrimination Act implements parts of the UN Convention on Elimination of all Forms of Racial Discrimination, rather than the Convention having legal effect. o Limited implied rights – political communication; freedom of movement and association. o No “Bill of Rights” in Australia.  Racial Discrimination Act: o 18D: (protects free speech) Defences.  Eatock v Bolt (2011) 197 FCR 261  Andrew Bolt case. o Abbott government proposal to repeal s 18C and replace it with a more limited prohibition – only to vilify or intimidate (fear of harm); defences are watered down.  Express and Implied Constitutional Rights: o The Constitution limits the Commonwealth’s law-making power – legislation not in compliance with it is invalid. o Same rights are expressly protected in the constitution:  Section 41: right to vote.  Section 51(xxxi): acquisition of property on just terms.  Section 80: trial by jury.  Section 116: freedom of religion. 18  lOMoARcPSD|16714919 o Some limited implied rights:  Freedom of political communication.  Freedom of movement and association.  Racial Discrimination Act 1975 (Cth): o Section 18C  1. It is unlawful for a person to do an act, other than in private, if: a) The act is reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people; and b) The act is done because of the race, colour and or national or ethnic origin of the other person or of some or all of the people in the group. 2. For the purposes of subsection (1), an act is taken not to be done in private if: a) Causes words, sounds, images or writing to be communicated to the public; or b) Is done in a public place; or c) Is done in the sight or hearing of people who are in a public place.  “Public place” includes any place to which the public have access by invitation, whether express r implied and whether or not a charge is made for admission to the place. o Section 18D  Exemptions Section 18C does not render unlawful anything said or done reasonably and in good faith: a) In the performance, exhibition or distribution of an artistic work; or b) In the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or c) In making or publishing: i. A fair and accurate report of any event or matter of public interest; or 19  lOMoARcPSD|16714919 ii. A fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.  Proposed changes to Racial Discrimination Act: o Liberal Government wanting to repeal Section 18C completely. o Similarly, a limitation in the draft definition of ''intimidate'' to ''cause fear of physical harm'' could also be broadened to include verbal bullying. o Some community groups have also argued against the proposed removal of provisions making it unlawful to ''offend, insult and humiliate'' someone because of their race or ethnicity. o The Opposition and Greens say the changes will give the green light to bigotry in Australia. o The federal government wants to make it legal to offend, insult or humiliate a person on the basis of his or her race, colour, descent or national or ethnic origin. The practical impact of this will mean that the green light is given to those who believe their right to free speech will always outweigh the right of someone to exist free of insult and humiliation. The concerns regarding this have been well articulated by many, it may create a more hostile culture where bigoted behaviour can lead to social and workplace disharmony. o Amendments also propose to introduce protection against vilification on the basis of race, colour, descent or national or ethnic origin. Vilification is an uncertain term, and any proposed protection against vilification arguably does not protect against offence, insult and humiliation on the basis of race. In any event, the government wants a provision that should be termed the “Andrew Bolt exclusion”, rendering this new section powerless in regards to words, sounds, images or writing communicated in the course of public discussion of any political, social, cultural, religious, artistic, academic or scientific matter. o While there has been much debate about these proposals, one of the factors that has been largely overlooked is the inherent unfairness of racism itself. Indeed, the very notion of “race” is a culturally and historically produced category, rather than one based in any biological fact. o “Race” is a notoriously difficult concept to identify, and it is almost universally accepted that the biological differences within so-called racial groups are not significant when compared to the biological similarities that cut across these socially created boundaries. o Allowing humiliation of someone on the basis of race is no different to 20  lOMoARcPSD|16714919 humiliating someone because they were born with a congenital birth condition. It’s inherently unfair and an excessive and unjustifiable use of free speech.  Adverse Treatment of aboriginals: o Doctrine of ‘Terra nullius’  no recognizable property rights; land was considered ‘no one’s land’ when English ‘settled’ they just took over. o Reception of English Law  (settled rather than conquered) meant there was an assumption of no prior legal system; didn’t consider aborigines as have rights to land. o Race powers in Constitution  excluded Aborigines from census and everything, no voting until 1984. o Stolen generation  motivations evident include: child protection, beliefs that given their catastrophic population decline after white contact that Aboriginal people would die out, and a fear of miscegenation (mixing of races) by full-blooded Aboriginal people; sought to remove aboriginals from Australian race altogether.  Changes in favour of Aboriginal rights: o Mabo case (see above)  Overruling terra nullius; gave aboriginals recognition of being original land “owners.” o Wik case (see above)  (further advance on Mabo but more amendments to Native Title Acts on pastoral leases); establishing concept of native title; the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs; the court found that the statutory pastoral leases under consideration by the court did not bestow rights of exclusive possession on the leaseholder. As a result, native title rights could co-exist depending on the terms and nature of the particular pastoral lease. Where there was a conflict of rights, the rights under the pastoral lease would extinguish the remaining native title rights; Native title was not defined by the Wik decision. However it is commonly accepted to include rights to perform ceremony, or to gather foods or medicines. o Apology by Kevin Rudd Prime Minister, Kevin Rudd, announced that an apology would be made to Indigenous Australians, the wording of which would be decided in consultation with Aboriginal leaders; happened on 13 21  lOMoARcPSD|16714919 February 2008; I move: That today we honour the Indigenous peoples of this land, the oldest continuing cultures in human history, we reflect on their past mistreatment. 22 lOMoARcPSD|16714919 23 lOMoARcPSD|16714919 24  lOMoARcPSD|16714919 Case Law and Precedent  Doctrine of precedent (stare decisis – de-cheese-is).  A court should apply the rulings of previous cases in situations where the facts are the same.  Governs how judicial decisions set down rules of law.  Precedents are used to make a decision for a new case.  Specific words expressed by a judge are not fixed – decision can be interpreted.  In appellate decisions, judges may express rules in different ways.  Judges interpret laws differently, difficult to identify what the legal rule is.  Promotes certainty, justice and efficiency; achieves equality.  Can become out of sync with social values if out of date.  General rules: o Courts are bound by courts higher in their hierarchies. o Decisions of lower courts can be persuasive on higher courts but not binding. o Courts are not bound by their own past decisions, only persuasive. o Only the ratio decidendi (reason for decision) is binding, not the obiter dicta (by the way statements). o Courts are only bound by their own state hierarchies, not by different states.  Ratio decidendi: o Reasons for the decision based on facts given in the case. o Only the ratio in a case is binding. o Not always straightforward; o In such a case where there are different ratios from each majority judge, the ratio will be the narrowest version of the legal reasoning which most judges agreed with and led to the same result. 1. Difficult to identify the ratio sometimes   Reasons only derive from points of law in contention.  Ruling on a point of law is the ratio. 2. Level of generality   Can be specific to case details or general for future cases. 3. Ratio of appellate decision   Principle agreed to by majority of judges. 25  lOMoARcPSD|16714919  Not always clear if majority has agreed on principle. 4. Ratio decidendi and obiter dicta   Obiter statements are by the way, statement on issues that are not in direct contention.  Obiter  if this was the situation, this would be the result. AVOIDING PRECEDENTS 1. Precedent is distinguishable on the facts  case is similar but different enough to allow for a different ruling. 2. Statement of law is too wide  not a narrow construction. 3. Statement of law is obiter dictum rather than ratio decidendi  4. Changed social conditions  if the law is too outdated, a judge may change it or set a new precedent. 5. Precedent is unsatisfactory  judge does not agree with ruling. 6. Precedent is wrongly decided  wrong ruling given. IMPORTANCE OF FOLLOWING PRECEDENT  Need for certainty, equality, efficient and the appearance of justice.  Telstra Corporation v Treloar (2000) 102 FCR 595.  Circumstances in which appropriate for Full Court to refuse to follow decision of the same court.  The existence of the problem is not simply a case of one judge’s opinion against another on a topic upon which minds can differ. It is not merely an anomaly. It is fundamental to the operation of the legislative scheme.  This demonstrates that the legislature never contemplated that s 27 of the 1988 Act would have any role to play in relation to cases caught by the transitional provisions, for the reasons outlined in Hoyle. This explains why s 27 is not referred to in s 124.  These considerations lead me to the view that the reasoning in Schlenert should not be applied in the present case, and that for the AAT to do so was an error of law.  Reich v Client Server Professionals of Australia Pty Ltd (2000) 29 NSWLR 551.  Risk of trial judge being overturned on appeal. 26  lOMoARcPSD|16714919  Cattanach v Melchior (2003) 215 CLR 1 o Novel case, no binding authority. o Key issue   Should damages be awarded for costs of raising a child born after sterilization process went wrong?  How did the judges resolve this issue? o According to Kirby J, when creating new law, courts should consider  1. The state of any legal authority already developed and apply by analogy. 2. Any applicable considerations of relevant legal principle. 3. Any considerations of legal policy. o McHugh and Gummow JJ   Once established that birth of unwanted child negligently caused, it is illogical to deny damages in respect of foreseeable expenses.  It is misleading to focus on the creation of parent-child relationship as this diverts attention away from the central question. o Kirby J   The question whether the parents were entitled to compensation for the costs of child-rearing should be answered by applying basic principles of tort law.  To deny the parents’ right to recover child-rearing costs is to provide a zone of legal immunity to medical practitioners engaged in sterilisation procedures that is unprincipled and inconsistent with established legal doctrine.  It is not the birth of the child that constitutes the harm, injury or damage for which the parents sue. It is for the economic harm inflicted upon them. o Callinan J   The appellants were negligent and therefore the respondents are entitled to be compensated for the costs they are likely to incur in rearing the child until he is 18 years old. 27  lOMoARcPSD|16714919  The reciprocal joy and affection of parenthood can have no financial equivalence to the costs of rearing him. One is no substitute for the other. o Gleeson CJ (dissenting)   The harm for which damages were claimed was the creation of the parent-child relationship.  The parent-child relationship has multiple aspects and consequences; some economic and some non-economic; some beneficial to parents, some detrimental.  Financial consequences of the birth of a healthy child are incapable of rational or fair assessment. o Hayne J (dissenting)   There are benefits and burdens associated with parenthood and public policy forecloses inquiry into ‘the monetary value of the child’.  Public policy arguments determinative – “there are occasions when judges in a common law system must make choices about the way in which the common law is to develop.” o Heydon J (dissenting)   Did not accept that the parents’ obligation to bring up the child should be regarded as harm for which compensation is payable.  “Human life is invaluable in the sense that it is incapable of valuation.”  Allowing the claim would give rise to a new order of litigation and possibly damage the child when he later learned that he was unwanted. JUDGE-MADE LAW  In the words of lord Radcliffe: o There was ‘never a more sterile controversy than that upon the question whether a judge makes law. Of course he does. How can he help it?’  Lord Radcliffe ‘Law and Order’ (1964) 61 Law and Society Gazette 821. 28 lOMoARcPSD|16714919 29  lOMoARcPSD|16714919 Australian Court Systems and Jurisdictions  Hierarchy of Courts: o Doctrine of precedent is premised on a hierarchical court structure. o Decision is binding only on lower courts in the hierarchy. o Nine court hierarchies in Australia:  Federal.  6 States.  2 Territories. o States can exercise federal jurisdiction, but not vice versa ; Jurisdiction of Courts Cross-vesting Act 1987 (Cth); p 132-133 of textbook (can deal with cases arising under federal law, only where federal legislation allows it). o See flowchart from lecture slides.  Jurisdiction: o Original  power to hear a case for the first time; a court of first instance. o Appellate  power to hear cases on appeal from a lower court. o “Jurisdiction is a generic term and signifies in this connection authority to adjudicate. State jurisdiction is the authority which State Courts possess to adjudicate under the State Constitution and laws; federal jurisdiction is the authority to adjudicate derived from the Commonwealth Constitution and laws.”  Baxter v Commissioner of Taxation (NSW) (1907) 4 CLR 1087, at 1142 per Isaacs J. o Factors affecting jurisdiction   The issue in dispute or the point to be decided.  The amount of money involved (civil claims usually).  The seriousness of the offence (criminal trials usually).  Geographic area in which the offence occurred/contract was finalised/where Tort occurred. 30  lOMoARcPSD|16714919 FEDERAL HIERARCHY  High Court of Australia: o General appellate and jurisdiction in certain matters, such as Constitutional cases.  Federal Court of Australia: o Single judges have original and appellate jurisdiction. o Full court (3 judges) have appellate jurisdiction.  Family Court of Australia: o Single judges have original and appellate jurisdiction (on Family matters from State Magistrates Court and FCC).  Federal Circuit Court of Australia (previously Federal Magistrates’): o Original jurisdiction and limited appellate jurisdiction in federal matters.  Administrative Appeals Tribunal: o General jurisdiction to hear appeals regarding administrative matters.  Other Federal Tribunals: o Social Security Appeal Tribunal; Migration Review Tribunal etc. HIGH COURT OF AUSTRALIA  Ultimate court of appeal in Australia.  Head of both state and federal hierarchies.  Exercises both original and appellate jurisdiction.  Interpret and apply the law of Australia.  Decide cases on special significance.  Appeals from state and federal courts (special leave).  Sections 75 – Actual original jurisdiction (conferred explicitly by Constitution).  Section 76 of the Constitution – Potential original jurisdiction (parliament may make laws conferring original jurisdiction – Judiciary Act, High Court of Australia Act).  Section 73 of the Constitution – Appellate jurisdiction.  Under the Judiciary Act, to obtain special leave, it must be a question of law of public importance; or issue involving conflict between lower courts involving important legal principles; in the interest of administrational justice. 31  lOMoARcPSD|16714919  Dietrich v R – access to legal aid? Right to fair trial?  HCA and the doctrine of precedent:  Ratio decidendi are binding on ALL state and federal courts in Australia.  Single judge of HCA not bound to follow a previous singles judge’s decision.  A single judge must follow a full court of the High Court’s appellate decision.  When will the HCA overrule itself?  No exhaustive list but generally when an earlier list is ‘manifestly wrong’; ‘fundamentally wrong’; or ‘plainly erroneous’.  John v Federal Commissioner of Taxation (1989) 166 CLR 417. 1. Earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases; 2. A difference between the reasons of the justices constituting the majority in one of the earlier decision. 3. The earlier decisions had achieved no useful result but ont eh contrary had led to considerable inconvenience; and 4. The earlier decisions had not been independently acted on in a manner, which militated against reconsideration.  Imbree v McNeilly (2008) 236 CLR 510. 5. ‘Change is necessary to maintain a better connection with more fundamental doctrines and principles’.  HCA and Constitutional cases: o Debate over the extent to which courts should develop the law through constitutional interpretation to keep pace with community attitudes.  Re Wakim; Ex parte McNally (1999) 198 CLR 511, at 549 per McHugh J.  The judiciary has no power to amend or modernize the Constitution to give effect to what the judges think is in the public interest. Function of the HCA is to give effect to the intention of the makers of the Constitution as evinced by the terms in which they expressed that intention.  Re Governor, Goulbourn Correctional Center: Ex parte Eastman (1999) 200 CLR 322, at 355 per Kirby J.;  Each generation reads the Constitution in light of the meaning of its words and the requirements of its structure as understood from time 32  lOMoARcPSD|16714919 to time. The intent of the framers may not fetter the present and the future to the past. FEDERAL COURT OF AUSTRALIA  Appellate jurisdiction: o Appeals from decisions of single judges of the court. o Appeals from the Federal Circuit Court in non-family matters. o Appeals from tribunals such as the Administrative Appeals Tribunal.  Section 5 of the Federal Court of Australia Act 1976 (Cth).  Section 19 – Original jurisdiction (conferred by other legislation).  Hears appeals on the following matters  o Copyright, patents; taxation; workplace relations etc. o Restrictive trade practices and consumer protection under the Competition and Consumer Act 2010 (Cth). o Native title determination applications under the Native Title Act 1993 (Cth). o Financial services and corporate regulation under the Corporations Act 2001 (Cth) and ASIC Act 2001 (Cth).  FCA and the doctrine of precedent: o A single judge of the FCA is bound by decisions of the Full FCA.  Minister for Immigration and Multicultural Affairs v Farahanipour FCA 605. o A single judge is not bound by decisions of another single judge.  La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201, at 204 per Burchett J. o Single judges follow decisions of other single judges unless convinced that the earlier decision is ‘clearly wrong’.  When will the FCA overrule itself? o Full Court of the FCA is not bound by its own previous decisions, but is reluctant to overrule them unless ‘clearly or plainly wrong’.  Department of Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469. o Decisions of a Full FCA are entitled due respect and will not be lightly departed from. 33  lOMoARcPSD|16714919  Transurban City Link Ltd v Allan (1999) 95 FCR 553. o Cases involving statutory interpretation. o Earlier appellate court decision determining intent of a statute should stand, unless:  Error of construction.  Unintended or irrational consequences.  Telstra Corporation Ltd v Treloar (2000) 102 FCR 595, at 602.  FCA and State Appellate Courts: o FEDERAL CIRCUIT COURT OF AUSTRALIA  Established in 1999 as Federal Magistrates Court.  Renamed in April 2013. o Jurisdiction to deal with   Family law and child  Human rights. support.  Workplace law.  Administrative law.  Migration.  Admiralty law.  Privacy.  Bankruptcy.  Trade practices.  Copyright. FAMILY COURT OF AUSTRALIA  The Family Court of Australia was created by the Family Law Act 1975 (Cth).  Administers Australia’s family laws and hears matters relating to: o The divorce process. o Property settlements. o Maintenance and custody of children.  Doctrine of precedent in the Family Court and Federal Circuit Court: o Family Court   A single judge is bound by Full Family Court and HCA, but not other single judges.  Full Court will depart from its own decisions only if ‘wrong’. o Federal Circuit Court of Australia  34  lOMoARcPSD|16714919  FCC bound to follow Full FCA And Family Court.  Not bound by a single Federal Court judge unless ‘plainly wrong’. FEDERAL TRIBUNALS  Administrative Appeals Tribunal.  Social Security Appeals Tribunal.  Migration Review Tribunal.  Refugee Review Tribunal.  Australian Competition Tribunal.  Fair Work Commission. STATE AND TERRITORY HIERARCHIES  High Court of Australia  o General appellate and jurisdiction in certain matters, such as Constitutional cases.  Supreme Courts  o Superior court in each state court system.  Intermediate Courts  o County/District Courts.  Lower Courts o Magistrates Court; Coroner’s Court; Children’s Court etc.  State Tribunals  o Victorian Civil and Administrative Tribunal (VCAT); Municipal Electoral Tribunal; VOCAT etc. SUPREME COURT OF VICTORIA  Established by Supreme Court Act 1958 (Vic).  Most senior court in the Victorian hierarchy.  Appellate and some original jurisdiction.  Can deal with: o Civil and criminal matters. o Federal and state matters.  Divided into two division: 35  lOMoARcPSD|16714919 o Trial Division (CJ and about 20 judges) (Commercial, Equity & Common law divisions). o Court of Appeal.  Doctrine of precedent in state and territory Supreme Courts: o A single judge of a state Supreme Court is normally bound by decisions of the appellate courts of that state and decisions of the HCA.  Einfield v HIH Casualty & General Insurance Ltd (1999) 152 FLR 211. o A single judge in a territory Supreme Court is bound by the Full FCA and the HCA. o A single judge in a state or territory Supreme Court is not bound by decisions of other single judges of the same court, though should only depart from such decisions when clearly wrong.  Tomasevic v Travaglini (2007) 17 VR 100.  Clayton v Thomas C Denton & Co Pty Ltd VLR 46.  State and territory supreme courts: o State appellate courts are bound by decision of the Full HCA but not single judge of HCA.  Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737.  Farrah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89.  Phillips v The Queen (2006) 225 CLR 303. o State/territory appellate courts are not bound to follow each other’s decisions unless ‘wrong’.  ‘Plainly wrong’: o Criterions ‘plainly’ and ‘manifestly’ wrong are frequently used as a touchstone for when decisions should be departed from. o Not capable of exhaustive definition. o Includes   Consideration of incorrect statute or not considering an applicable statute. 36 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Failure to apply a binding decision.  More than just the fact that minds may differ on the solution.  BHP Billiton Iron One Pty Ltd v National Competition Council (2009) 162 FCR 234. o As well as failing to consider appropriate materials, can include erroneous reasoning. COUNTY COURT OF VICTORIA  Established by the County Court Act 1958 (Vic).  Intermediate court with original and some appellate jurisdiction (against any sentencing orders may by the MC and the Children’s Court).  Criminal jurisdiction: o All indictable criminal matters with the exception of: treason, murder and murder-related offences.  Civil jurisdiction: o Commercial matters. o Building disputes. o Claims for damages arising from medical negligence, serious injury or defamation. o Jurisdiction conferred by specific legislation. MAGISTRATES COURT OF VICTORIA  Established by Magistrates’ Court Act 1958 (Vic).  Lowest level of the Victorian court hierarchy.  Hear and determine sentences: o Civil disputes up to $100, 000. o Minor or summary criminal offences. o Worker’s compensation claims. o Applications regarding drivers’ licences. o Applications for intervention orders. o Bail applications. SPECIALIST COURTS  Children’s Court  37 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o The Family Division has jurisdiction to hear a range of applications and make a variety of orders in relation to the protection and care of any person under the age of 17 years. o The Criminal Division has jurisdiction to hear and determine charges against young people aged between 10 and 17 years at the time of committing the alleged offence. o The Children's Koori Court deals with young Koori people who have been found guilty of committing a criminal offence.  Coroner’s Court  o Where people are brought into the care of the coronial jurisdiction for the initial stages of a coronial investigation, including any medical examinations a coroner may require. o The cornerstone of this service is respect for:  The dignity of the person who has died.  The family and friends of the deceased person.  A process aimed at assisting family and friends to understand what happened and why.  Division of Magistrates Court: o Koori Court   The court is more informal.  The Magistrate sits at a large table with all other participants in the case, not at the bench;  The defendant will sit with his or her family at the table, not in the dock; and  Participants will talk in 'plain' English rather than using technical legal language.  This helps to reduce perceptions of cultural alienation and to ensure sentencing orders are appropriate to the cultural needs of Koori offenders, and assist them to address issues relating to their offending behaviour. o Drug Court   Sentencing and supervision of the treatment of offenders with a drug and/or alcohol dependency who have committed an offence under the influence of drugs or alcohol or to support a drug or alcohol habit. 38 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Response to the failure of traditional criminal justice measures to adequately address drug use and related offending.  Focusing on the rehabilitation of offenders with a drug or alcohol dependency and providing assistance in reintegrating them into the community. o Family Violence Court. o Neighbourhood Justice Center. STATE TRIBUNALS  Tribunals are administrative rather than judicial bodies.  Tribunals in Victoria include: o VCAT   Civil division: consumer matters; domestic building works; owners corporation matters; residential and retail tenancies; sale and ownership of property; use or flow of water between properties.  Administrative division: local council land valuations and planning permits; Transport Accident Commission decisions; state taxation; legal services; business licences and professional registrations; Freedom of Information applications; WorkSafe assessments; disciplinary proceedings for a range of professions and industries.  Human rights division: guardianship and administration; equal opportunity; racial and religious vilification; health and privacy information; the Disability Act 2006 (Vic); decisions made by the Mental Health Review Board. o Municipal Electoral Tribunal. o Victims of Crime Assistance Tribunal.  Doctrine of precedent in inferior courts and Administrative tribunals: o Inferior courts   Precedent not strictly applied, but eg. Decisions of Victorian County Court are usually followed in Magistrates’ Court (unless wrong). o Administrative tribunals   Usually follow their own decisions. 39 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Must follow relevant decisions of State appellate court, FCA or HCA. OTHER COMMON LAW JURISDICTIONS  Decision not binding on Australian Courts.  House of Lords/UK Court of Appeal decisions may be persuasive. EQUALLY DIVIDED COURTS  Majority prevails in Full Court decisions.  But, where an even number of judges and equally divided, provisions for ‘statutory majority’ are included in:  Section 23, Judiciary Act 1903 (Cth).  Section 12, Supreme Court Act 1986 (Vic). 40 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 41 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 Judicial Decision Making THE PROCESS OF FACT-FINDING  Trial judge or jury must establish material facts – usually in dispute.  Conclusive circumstantial evidence.  Rules of evidence: o Standard of proof   Criminal: beyond reasonable doubt.  Civil: balance of probabilities. o Rule against ‘hearsay’. o Facts, not opinions. APPEALS  Appellate courts are generally focused more on questions of law than fact.  Criminal cases: o Some room for appeals on facts.  Section 276(1) Criminal Procedure Act 2009 (Vic). o But mainly on errors of law eg. ‘miscarriage of justice'.  Civil cases: o Findings of fact at trial overturned only where ‘glaringly improbable’. o Appeals re errors of law.  Section 148 Administrative Tribunal Act 1998 (Vic). MATTERS OF FACT OR LAW?  Sometime clear but more often not.  Collector of Customs v Pozzolanic (1993) 43 FCR 280.  Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389.  Director General Dept of Land & Water Conservation v Bailey (2003) 136 LGERA 242. HOW DO TRIAL JUDGES IDENTIFY THE LEGALLY BINDING RULE?  Limited discretion for judges in lower courts to develop new law.  Where there is not applicable authority, judge must create a new rule: o Discredited ‘declaratory theory’… 42 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o View that judges do make law in novel cases. TERMINOLOGY  Affirm: o If appellate court agrees with the decision of the lower court in the case before it, it will affirm the decision.  Approve: o If an appellate court agrees with the decision of a lower court in a previous case, it will approve that decision. o Obviously if a court disapproves of the earlier decision, the reverse is true.  Reverse: o Where an appeal court does not agree with the lower court whose decision is before it, it will reverse that decision.  Overrule: o Where an appeal court does not agree with the decision of a lower court in a previous case, it will overrule the principle of law in that case. o May not state that it is overruling earlier decision expressly, but may state the earlier decision is ‘no longer good law’ or it was ‘wrongly decided’.  Applied: o Apply is the term used when a court applies the ratio decidendi of a previous case to meet the circumstances of the case before it.  Followed: o When a court uses the principle of a decision of a previous case to decide the case before it, it is said to follow that decision. o This term is used whether the previous decision was a binding precedent or only a persuasive precedent.  Distinguished: o Where a court could be otherwise bound to follow a previous decision, but sees some difference between the circumstances of that case and the present case, it distinguished that case. o This means that the later court thinks that there is such a difference in circumstances that the ratio decidendi of the earlier case does not apply.  Not followed: 43 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o Lawyers will often ask courts to apply the decisions of courts by which they are not bound. o If the court does not do this, it is said to not follow that decision. 44 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 Legislation and Statutory Interpretation  Introduction: o The law of statutory interpretation has become the most important single aspect of legal practice. o Significant areas of the law are determined entirely by statutes. o No area of law has escaped modification. o Statutes modify laws. o Equity smooth’s over the Common Law. o Statute of Laborers 1349. o Why does neglect of interpretation happen?  Law schools focus on Common Laws; ethos of the legal profession where there is an unconscious perception that Common Law prevails and statues are an annoying necessity.  Nature of interpretation: o Field in which parliament, executive and judiciary interact in discharge of their respective functions. o Parliament makes the laws/statutes. o Executive exercises powers and discharges obligations conferred on it by those laws. o Courts (judiciary) hear and determine cases including cases about interpretation of laws.  Nature of legislation: o Legislation is the ultimate source of law (subject to Constitution). o Legislation consists of statutes and subordinate legislation. o It can amend/displace judge-made law or earlier statute law. o It is binding upon courts, tribunals and regulators. o Legislation can outline how they should be interpreted – definition clauses etc. o Always assume Commonwealth has made legislation based on 1984 Act. o If you are interpreting legislation of a particular state, make sure you use the Act of that state!! 45 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o Even High Court uses Vic Act if the case come from Victorian jurisdiction. o Cannot use Commonwealth Law to interpret state law. o If state and federal legislation are together in one case, use the legislation that prevails (typically Commonwealth).  The intention of Parliament: o Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach preferred results. o Parliament can enact general legislation that interprets all other legislation. o “Act Interpretation Act” – defines what basic concepts mean (day/hour etc). o If you are dealing with Commonwealth Law, use Acts Interpretation Act 1901 (Cth), if Victorian Law, use 1984 Interpretation Act.  Layout of statutes: o Numbering  old statutes numbering references the year of the reign of the sultan plus the chapter of statute of that year; today’s statutes numbering references by calendar year, starts January 1 #1. Check slide on pg. 3. o Table of provisions  look at provision of an Act as a whole; check provision has commenced. o Long and short title  long title = whole name of Act/purpose of act; short title usually quoted in Section 1 (this act can be referred to by …). o Preamble  still used in private acts; purpose clauses used more often today. o Enacting words  not used often today. o Purpose clauses  8.38 of textbook. o Interpretation sections  guidance to terms used in Act, usually in the front. P251 of textbook. o Headings/marginal notes  indication of what each section is about. o Notes  “this section does not apply in relation to …” 46 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o Schedules  Clause; sub-clause; paragraph; sub-paragraph OR item; sub- item; paragraph; sub-paragraph (item always for Commonwealth) – schedule is a part of the Act and should always be interpreted as such.  Structure of statutes: o Chapter  Ch o Part  Pt o Division  Div o Subdivision  Subdiv o Section  s.4 o Subsection  subs.(3) o Paragraph  para (a) o Sun-paragraph  subpara. (vi) o Clause  cl (A) o Sub-clause  subcl (1)  Statutes – points to note: o Commencement date  Don’t refer to Acts that have not commenced yet; can say months (beginning of November), days (first day of 2013, Christmas Day 2013) or a specific date (21/12/2013) different sections may have different dates. o Retrospectivity  See pg. 241 of textbook. o Amendment  o Repeal   Check book on implied repeal; sunset clauses; effect of repeal.  If Act B repeals Act A, Act C’s repeal of Act B cannot revive Act A unless expressly stated.  If a person is convicted of a crime, and then the legislation regarding that crime is repealed, their conviction still stands. 47 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Different types of statutes: o Public  applies to all. o Private  protect/promote interests of the group who made/proposed it (Churches/Girl Guides). o Consolidation  o Reprint  o Declaratory  o Omnibus  o Cognate   Common Law Rules of Interpretation: o The literal rule   The fundamental rule to interpretation, to which all others are subordinate.  Interpretation according to the intent of the parliament who made it.  Examine the language of a statute as a whole (literal meaning).  What does the language mean in its ordinary and natural sense?  Fisher v Bell 1 QB 394.  Higgon v O’Dea (1962) WAR 140.  Does not permit recourse to extrinsic materials – just interpreting the statute on its own as it is written.  May require interpretation that does not correspond with the literal or grammatical meaning of individual words. o The golden rule   Literal rule unless it would lead to an absurd result or some repugnancy or inconsistency with the rest of the instrument.  In such a case, grammatical and ordinary meanings may be modified to avoid that absurdity and inconsistency.  Interpreted in a way that reflects the purpose of the legislation.  Must be able to interpret without rewriting the Act.  The Act still must make sense in its context. 48 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 o Purposive approach   Used when the literal rule would create ambiguity.  Ascertain purpose of legislation as a whole.  Inaccurate to use purposive approach with the mischief rule.  Heydon’s Case (1584) 76 ER 637.  Purposive approach prevails today.  Promotes purpose or objective of the Act.  May not be successful in determining the meaning of legislation in all instances – mixture of literal and purposive often necessary.  Techniques:  Rewriting the statute  construction of words actually used; what did Parliament meant o say?  Implying words  unless there is clear necessity, cannot imply words that are not written.  Strained constructions  justified when: 1. Words have been inadvertently used. 2. Because words have been omitted. 3. Parliament has failed to deal with an eventuality required to be dealt with. 4. Because the statute proceeds on a mistaken assumption. 5. Parliament did not intend grammatical meaning. 6. Words must be omitted to avoid absurdity.  Maxims of interpretation: o Ejusdem Generis   Literally – ‘of the same kind’ or ‘genus’.  If general words follow specific words (cats/dogs/guinea pigs) then general words are limited to the same genus as the particular words (mammals not reptiles).  Apply with caution – parliament’s intention must be clear. o Noscitur a sociis   Literally - ’known by your associates’.  Prohibition of bookmaking in a ‘house, office, room or place’ does not include a public lane.  Prior v Sherwood (1906) 3 CLR. 49 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  ‘…maliciously cut, stab or wound any person…with intent to maim, disfigure or disable…’ does not extend to biting off end of nose of protagonist.  R v Ann Harris (1836) 173 ER 198. o Expression unius exclusion alterius est   Literally – ‘an express reference to one thing is an exclusion of others’.  This maxim must always be applied with care – not of universal application.  Applies only when the intention it expresses is discoverable upon the face of the instrument.  Dictionaries as aids to interpretations: o Not to be used only for defining statutes – although statutes should use words as their ordinary sense of the word, other ways of defining (sections in Act) are necessary. o Dictionary identifies a range of possible meanings – doesn’t always work as synonyms for a word in its statutory context (changes meaning).  Principles of interpretation: o Assume legislation always speaking. o Assume consistent use of words. o Reference to other legislation. o Reference to prior existing law. o Assumptions re audience.  Presumptions of interpretation: o Presumption against surplusage   No clause, sentence or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent.  General rule that a meaning must be given to every word in a statute although the meaning is not written with literary perfection. o Presumption against interference with fundamental rights  50 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Improbable that legislation would overthrow fundamental principles, infringe rights or depart from general systems of law without expressing its intentions clearly. o Principle of legality   A statutory intention to abrogate (abolish) or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness.  If clear words are not used, courts are able to interpret statute. o Presumption against Retrospectivity   Clear language will be used by the parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. o Presumption against abrogation (abolition) of privilege against self- incrimination. o Presumption against abrogation of legal professional privilege. o Presumption against denial of access to the courts. o That re-enactment constitutes approval of previous interpretation. o That legislation does not bind Crown. o That penal provision are strictly construed   Beckwith v R (1976) 135 CLR 569, 576. o That property rights are not removed without compensation. o Presumption against extra-territorial effect   Presumption that the Legislature does not intend to exceed its jurisdiction.  Always read as being prima facie restricted in their operation within territorial limits. o Presumption of conformity with international law.  Extrinsic materials and statutory interpretation: o In 1984, s15AB was introduced into the Acts Interpretation Act 1901 (Cth): 51 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919  Specifically provides for the use of extrinsic materials in determining the meaning of words within legislation.  Similar sections now appear in most State/Territory statutory interpretation legislation.  ACTS INTERPRETATION ACT 1901 (Cth), s 15AB: o In the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material (15AB(1)): a) To confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision. b) To determine the meaning of the provision when the provision is ambiguous or obscure; the ordinary meaning leads to a result that is absurd or unreasonable. o The material that may be considered includes (15AB(2)): a) All matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer (notes, heading etc). b) Any relevant report of a Royal Commission, Law Reform Commission, Committee of Inquiry or other similar body that was laid before either the House of the Parliament before the time when the provision was enacted. c) Any relevant report of a committee of the Parliament or of either House of Parliament that was made to them before the time when the provision was enacted. d) Any treaty or other international agreement that is referred to in the Act. e) Any explanatory memorandum relating to the Bill containing the provision, or any other relevant document that was laid before the time when the provision was enacted. f) The speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill 52 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 containing that provision be read a second time in that House (not often done; causes a lot of litigation; rare occasions where investigation has value). g) Any document…that is declared by the Act to be a relevant document for the purposes of this section. h) Any relevant materials in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record of debates in the Parliament or either House of Parliament (Hansard). o Section 15AA and 15AB:  Section 15AA has mandatory application whereas 15AB requires that cross threshold in subs (a)(a) or (b).  Refer to Re Shingles and Director General of Social Security 6 ALD 568 AAT 1984.  INTERPRETATION OF LEGISLATION ACT 1984 (VIC), s35(b): o In the interpretation of a provision of an Act or subordinate instrument  b) Consideration may be given to any matter or document that is relevant including but not limited to: i. All indications provided by the act or subordinate instrument as printed by authority; including punctuation. ii. Reports of proceedings in any House of Parliament. iii. Explanatory memoranda or other documents laid before or otherwise presented to any House of Parliament. iv. Reports of Royal Commissions, Parliamentary Committees, Law Reform Commissions and Commissions, Boards of Inquiry or other similar bodies (refer to S15AB(2)(c) – laid out prior to enactment). o s35(b):  This section does not limit the circumstances in which extrinsic materials may be used. 53 Downloaded by Teearnarh Paige ([email protected])  lOMoARcPSD|16714919 KEY TAKE-AWAYS:  Read the statute as a whole.  Read the statute in its context.  Be mindful of relevant interpretation legislation.  Use rules (presumptions etc) as aids, not as hard and fast rules. 54 Downloaded by Teearnarh Paige ([email protected])