Statutory Interpretation
description
Transcript of Statutory Interpretation
A drafter’s perspective
June 2011
Outline
The structure of legislation A plain reading A purposive construction The context in which legislation is drafted
The statutory context: The application of the Interpretation of Legislation Act
1984 and other Acts of general application Federal constitution
The common law context: Case law Some interpretive rules and aids to interpretation
The structure of legislation
Make sure you have the correct version of the legislation
Read the Act as a whole
Finding the correct version of an Act www.legislation.vic.gov.au
Statute Book (Acts passed and Regulations made in a designated year) Authorised versions and historic Acts
Law Today (current consolidated versions of principal Acts and Regulations) Authorised versions and version history
Parliamentary Documents (Bills and explanatory memoranda) As sent prints and As passed prints
www.ocpc.vic.gov.auCommencement BookAct and Statutory Rule TablesLists of current Acts and statutory rules
www.parliament.vic.gov.auHansard Information regarding parliamentary process
Read the Act as a whole
Structure and layout of legislation Chapters, Parts, Divisions, Subdivisions, sections,
subsections, paragraphs subparagraphs and sub-subparagraphs
Numbering conventions Definitions Punctuation Notes and examples
Standard or common provisions in ActsPreambleLong title and short titlePurposeObjects/PrinciplesCommencementDefinitionsBinding the CrownRegulation making powersTransitional provisionsSelf repealing provisions in amending Acts
Give the provision a plain reading
Look at the context of the provision
A Purposive construction Section 35(a) of the Interpretation of Legislation
Act 1984
Section 35(a) of the Interpretation of Legislation Act 1984 provides-
In the interpretation of a provision of an Act or subordinate instrument:
(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and
Extrinsic aids to interpretation:
Interpretation of Legislation Act 1984 section 35(b):
(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 the Parliament;
(iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.
Statutory context for interpreting legislation - Legislation of general application
Interpretation of Legislation Act 1984Charter of Human Rights and Responsibilities
Act 2006Sentencing Act 1991Criminal Procedure Act 2009Infringements Act 2006Monetary Units Act 2004Constitution Act 1975
Interpretation of Legislation Act 1984
Commencement and repeal of ActsFormal matters relating to ActsRules of construction (interpretation) of ActsDefinitions (s. 38)Saving of Acts and things done under repealed
provisionsDelegation of powersMatters dealing with the exercise of powers and
dutiesSpecial provisions dealing with subordinate
legislation (including regulations, rules of court and other statutory rules)
Charter of Human Rights and Responsibilities Act 2006
Sets out human rights and responsibilities drawn from ICCPR
Statements of compatibilityStatutory interpretationSupreme Court powers to make declarationsDuties of public authorities
Sentencing Act 1991
Creation of offences: s. 111Penalty levels: s. 109
Infringements Act 2006
Issuing and serving of infringement notices and enforcement of infringement penalties for 60 Acts that contain infringement offences
Criminal Procedure Act 2009
Section 72 provides that the defendant bears the evidential burden of proof in relation to any exception or excuse to an offence created by statute
Monetary Units Act 2004
Sets penalty units and fee unitsFixed by the Treasurer by Government Gazette
notice
Constitution Act 1975
Parliament, Executive, Supreme CourtSpecial and absolute majority requirementsSection 85 (jurisdiction of the Supreme Court)Referendum provisions
Common law context for statutory interpretation
Case law
Legal assumptions/rules of construction
Presumption against retrospective operationPresumption of Crown not bound by legislationPresumption against alteration of common law doctrines
Privilege against self incrimination Legal professional privilege / client legal privilege
Acts presumed to be within legislative powers of the StatePresumption against extraterritorialityRule against delegation of legislative power