1. Statutory interpretation

2. Arkansas marriage legislation
The problem: Standardise marriage age at 18, but allow exception for pregnant teenagers
The answer:
"In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.“
Problems?

3. Exercise
4(1)(s)

4. Precision
Drafting?
Interpretation?
One meaning?

5. Interpretation as ‘common sense’
… the interpretation of legislation is not susceptible to being a mechanical or scientific task. In dealing with a legal problem, a lawyer does not reason from absolute to absolute; each consideration in the process depends upon a complex number of factors. And there are a multitude of forces to be found in solving a legal problem other than logic; such as tradition, history, sociology and morality. In the same way, a lawyer or court cannot determine the meaning of words by any strict logical or scientific approach; if, for no other reason than the lawyer speaks in a language that has all the uncertainties of english expression. At least a scientist is able to communicate through symbols and expressions of precision.
Language is not always a perfect medium of precise expression. Those formulating laws do not have perfect prescience to make their laws cover every contingency.
Middleton J Statutory interpretation - Mostly common sense?
Melbourne University Law Review Annual Lecture

6. INTRODUCTION

7. Materials Subject guide: Text: Recommended: Cases? Other readings?
Including practice questions for on-line session
 Text:
DC Pearce& RS Geddes, Statutory Interpretation in Australia, 8th ed. LexisNexis, 2014 (If students can obtain a second hand copy of the 7th edition (2011) that should be sufficient.)
Recommended:
Michael Meehan, Graham Tulloch, Grammar for Lawyers, 3rd ed. LexisNexis, 2013
Cases?
Other readings?

8. Assessment Assignment – 20% Exam – 80% Available next week
Due 24th July
Two questions – 10 marks each
Referencing important
No word limit – but many short answer
Exam – 80%
Three questions
Statutory interpretation problem – 40 marks
Essay question – 20 marks
Short problems – 20 marks
Examples next intensive

9. Class schedule Friday 19 May and Saturday 20 May 2017;
Friday 14 July and Saturday 15 July 2017.
Optional on-line session 2pm 3 June 2017

10. Questions?

11. Introduction to Statutes

12. Spigelman CJ:
The law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of the law are determined entirely by statute. No areas of the law has escaped statutory modification
JJ Spigelman AC, ‘The Poet’s Rich Resource: Issues in Statutory Interpretation’ (2001) 21 Australian Bar Review 224 cited in Pearce and Geddes p1.

13. Gleeson CJ
One of the changes making the work of modern judges different from that of their predecessors is that most of the law to be applied is now found in Acts of Parliament rather than judge-made principles of common law (in which I include equity). A federal judge devotes almost the whole of his or her judicial time to the application of an Act of the federal parliament, whether it be about corporations law, or bankruptcy, or family law, or migration.

14. Who interprets?
Courts
Tribunals
Government departments and agencies
Solicitors and barristers
Public – problems? Rule of law?

15. ‘Rule of law’ Gaudron J:
[approach to construction should be] dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage
Corporate Affairs Commission (NSW) v Yui (1991) 172 CLR 319 at 340 

16. ‘Rule of thumb’ French CJ:
[starting point for interpretation is] the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

17. Delegated legislation Administrative pronouncements
What is interpreted?
Legislation
Delegated legislation
Administrative pronouncements

18. Legislation Policy initiative Draft prepared First Reading
Explanatory Memorandum
2nd reading speech draft
First Reading
Second Reading – debate and amendments
Third Reading – vote
Process repeated in Upper House
Royal Assent

20. To think about…
How does the process of making legislation govern the shape and form of legislation?
How are other materials used in interpretation generated?

21. Delegated Legislation
GENE TECHNOLOGY (LICENCE CHARGES) ACT 2000 TABLE OF PROVISIONS Long Title 1. Short title 2. Commencement 3. Definition 4. GMO licence—annual charge 5. Regulations

22. GENE TECHNOLOGY (LICENCE CHARGES) ACT SECT 5 Regulations The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

23. Administrative pronouncements
E.g. – Merger guidelines
Interpretation of s50 TPA

24. Merger factors: s50(3)
(3)  Without limiting the matters that may be taken into account for the purposes of subsections (1) and (2) in determining whether the acquisition would have the effect, or be likely to have the effect, of substantially lessening competition in a market, the following matters must be taken into account:
            (a)  the actual and potential level of import competition in the market;
            (b)  the height of barriers to entry to the market;
            (c)  the level of concentration in the market;
            (d)  the degree of countervailing power in the market;
            (e)  the likelihood that the acquisition would result in the acquirer being able to significantly and sustainably increase prices or profit margins;
            (f)  the extent to which substitutes are available in the market or are likely to be available in the market;
            (g)  the dynamic characteristics of the market, including growth, innovation and product differentiation;
             (h)  the likelihood that the acquisition would result in the removal from the market of a vigorous and effective competitor;
             (i)  the nature and extent of vertical integration in the market.
                       

25. Merger guidelines: Nov 2008
Purpose of these guidelines These guidelines provide an outline of the broad analytical framework applied by the ACCC when assessing whether a merger is likely to substantially lessen competition under s. 50. These guidelines have been developed by the ACCC in relation to its functions under s. 50 and do not purport to represent the analytical framework that would be applied by the Tribunal in relation to its mergers functions.

26. 1.19. These guidelines are designed to provide reliable, comprehensive and detailed information that merger parties, the business community, their advisers and the public can draw on to:
• assess the likely level of scrutiny a merger will receive from the ACCC—in particular, guidance is provided on when merger parties should notify the ACCC of a merger (the threshold for notification is outlined in chapter 2)
• increase understanding of the application of s. 50
• assist in structuring (or restructuring) mergers to avoid raising competition concerns
• identify the types of information that will assist the ACCC to reach a view on how a merger is likely to affect competition—to make informed and timely decisions, the ACCC relies on the cooperation of the merger parties, customers, competitors, suppliers and any other persons or bodies holding relevant information
• identify the ACCC’s broad approach to remedying possible anti-competitive mergers through undertakings (see appendix 3).

27. 1.20. These guidelines do not have any legal force in determining whether a merger is likely to contravene the Act—final determination of the issues is a matter for the courts.

28. ACCC v Metcash [2011] FCAFC 151
Buchanan J at [10]
In the present case, the statutory tests to be applied are set out in s 50 of the Competition and Consumer Act 2010 (Cth) ("Competition Act"). The case against Metcash was obliged to satisfy those tests, rather than some more theoretical position. In that context, "market" is defined. It means "a substantial market for goods or services" (s 50(6)). The task of examining whether a substantial lessening of competition is likely in given circumstances obviously requires that a sufficiently relevant market be identified. Clearly, having regard to the statutory context, that is intended to reflect commercial reality, rather than be driven by economic theory.

29. ATO website: Public Rulings, Determinations and Bulletins
Public Rulings and Determinations set out the Commissioner's opinion as to the way in which 'a tax law' applies to:
a person in relation to a class of arrangements;
a class of persons in relation to an arrangement; or
a class of persons in relation to a class of arrangements.

30. Legislative Determinations Legislative Determinations are instruments issued by the Commissioner (or delegate) pursuant to a particular provision of an Act. Legislative Determinations, being a form of subordinate legislation, are law. The Legal Database currently contains Legislative Determinations relating to Excise, Goods and Services Tax, Income Tax and the Pay As You Go system. Go to Legislative Determinations ATO Interpretative Decisions An ATO Interpretative Decision (ATO ID) is a summary of a decision on an interpretative issue and is indicative of the Commissioner's view on the interpretation of the law on that particular issue. ATO IDs are produced to assist ATO officers to apply the law consistently and accurately to particular factual situations. For more information see Law Administration Practice Statement PS LA 2001/8 Go to ATO Interpretative Decisions

31. Role of courts in interpretation

32. Courts and interpretation
Kirby J in Coleman v Power (2004) 209 ALR 182:
It is not the judicial obligation to put specifically to parties…every rule of statutory construction relevant to the performance of the judicial task….this court may adopt a construction of legislation that has not been argued by the parties, and a fortiori is not restricted to the interpretative principles argued by their representatives

33. Precedent
Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 572-3: The judicial technique involved in construing a statutory text is different from that required in applying previous decisions expounding the common law. In the latter class of case, the task is to interpret the legal concepts which find expression in the various language used in the relevant judgements. The frequently repeated caution is against construing the terms of those judgements as if they were the words of a statute. The concern is not with the ascertainment of the meaning and the application of particular words used by previous judges, so much as with gaining an understanding of the concepts to which expression was sought to be given.

34. Ogden Industries Pty Ltd v Lucas[1970] AC 113
Per Lord Upjohn at 127:
It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself

35. Telstra Corp v Treloar (2000) 102 FCR 595
Branson and Finkelstein JJ:
The view which we prefer is that unless an error in construction is patent, or has produced unintended and perhaps irrational consequences not foreseen by the court that created the precedent, the first decision should stand. … Accordingly, we venture to suggest that it would be on a rare occasion that an intermediate appellate court … will allow an issue concerning the construction of a statute, past and closed and especially a repealed statute, to be thrown open, producing as it clearly will, uncertainty, disruption to the conduct of affairs, a sense of grievance in those who may consequently receive treatment less favourable than that received by others under the same statute and additional cost and expense.

36. Types of legislation

37. Types of legislation Public Private
See:
S73 Interpretation Act 1987 (NSW)
S143(3) Evidence Act 1995 (Cth)

38. Amendment v Repeal
Amend – alter the legal meaning of an Act, short of rescinding it
Repeal – rescind the Act (or provision) in question
So, the repeal (deletion) of a section may amend the Act
Attorney-General (WA) v Marquet (2003) 217 CLR 545 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [46]
BUT, can be quite technical (see discussion in text at )
Question of substance, not form
ALWAYS CHECK IF ANYTHING TURNS ON IT

39. Amendment of legislation
Act
Principal legislation
Amending legislation
Amendments survive amending legislation
S7(2)(b) AIA
‘Textual amendment’ drafting

40. Amendment by delegation?
‘Henry VIII clause’
Extradition Act 1988 (Cth) s11

41. How does amending one section affect the interpretation of the rest of the Act?
Interpret section in context?
Amendment changes context?

42. Commissioner of Stamps(SA) v Telegraph Investment Co (1995) 184 CLR 453
Question of interpretation of s24 Stamp Duties Act 1923 (SA)
Per Brennan CJ, Dawson and Toohey JJ:
… s 23 of the South Australian Act was amended in 1986 to provide that the Commissioner may express an opinion "whether requested to do so or not", that is to say, of his own motion, and so bring s 24 into operation. The Act previously provided that the Commissioner might act under s 23 only upon the requirement of some other person. At the same time as this amendment was made, the Commissioner was given wide investigative powers. Indeed, in this case the Commissioner acted of his own motion in expressing an opinion as to the amount of duty payable, having first exercised his investigative powers.
14. Section 24 was not amended at the same time as s 23, but the amended s 23 must be read together with s 24 in accordance with the principle expressed in s 15 of the Acts Interpretation Act 1901 (Cth). The principle is that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part of it. The Commonwealth Acts Interpretation Act has no application to South Australian legislation and there is no South Australian counterpart to s 15. However, that section is declaratory and represents the modern approach to the construction of an amended statute. The result is that both the Act which is amended and the amending Act are to be read together as a combined statement of the will of the legislature. Thus the effect of the amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.
15. Whatever meaning s 24 of the South Australian Stamp Duties Act may have had before the amendment of s 23, it must now be construed in the light of that amendment. As a consequence, s 24(4), which provides that the appellant may "require the Commissioner to state and sign a case setting forth the question upon which his opinion was required" (our emphasis), cannot now prescribe the procedure for an appeal in every case because under s 23 the Commissioner may express an opinion without being required to do so. That is what happened in this case

43. Amendments retrospective or proactive?
Savings provisions
Transitional provisions
eg Part XIII Competition and Consumer Act 2010 (Cth)

44. Amendments – Drafting Style
Reprints
Consolidations
Compilations
Codifications
compilation is a ‘cut and paste’ version of a law that shows you the text of the law as amended. A compilation may not contain all the amendments you expect - check the endnotes for details of things unincorporated amendments. Compilations do not normally incorporate laws that have not yet come into force although future law compilations are sometimes provided. Where you have a choice of compilations, you should choose the one most relevant to the point in time you are interested in.
Why?
Trade Practices Amendment Act (No 1) 2001

45. Parliament or private? Reprints Consolidations Compilations
Consolidations
Statute Law Revision Acts
Compilations

46. Importance of authorised sites

47. Consolidation v Codification
Consolidation: existing statute law
Codification: existing statute and common law
E.g Sale of Goods legislation
Codes v ‘codes’
‘Companies code’
Corporations Act 2001
Model legislation

48. Why ‘Codes’ Constitution –s51
How to achieve national objective without national legislative power?
Referendum
Referral
S4 Corporations Act
S4 Mutual Recognition Act (NSW)
Co-operative scheme – eg Fair Trading Legislation
Application scheme – ‘Code’ solution
Competition code
Australian Consumer Law

49. Application Scheme Lead legislator
Template applied by each participating jurisdiction
CCA Part XI
Unless within legislation

50. Interpretation of Application Scheme
e.g. Fair Trading Act 1987 (NSW) s 31
Courts
One consistent interpreter; one body of jurisprudence?
Re Wakim – cross vesting issues

51. Repeal of Acts
Express
By implication – provisions of a later Act dealing with particular subject matter inconsistent with earlier Act
Goodwin v Phillips (1908) 7 CLR 1
Cf ‘covering the field’ – but much rarer
Later Act?
Look at commencement date
Sunsetting (eg Part 4 Legislation Act 2003 (Cth))

52. Structure of legislation

53. Structure of an Act Number Preamble Long Title Short Title
Objects/ Purpose clause
Table of Contents
Parts, Divisions and Headings
Schedules

54. Preamble
Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established:
And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

55. Long Title SYDNEY TURF CLUB ACT 1943 Long Title
An Act to constitute and incorporate a Sydney Turf Club and to declare its objects, functions and powers; to provide for the acquisition by that club of certain racecourses and the equipment thereof; to provide for the discontinuance of the licences of certain racecourses; to provide for the establishment of a Racing Compensation Fund in the Treasury; to amend the Gaming and Betting Act 1912 and certain other Acts; and for purposes connected therewith.
R v White (1899) 20 LR (NSW) 12

56. Short Title PART 1 - PRELIMINARY 1 Name of Act and commencement
(1) This Act may be cited as the Sydney Turf Club Act

57. Objects clause Competition and Consumer Act 2010- s 2
Object of this Act                   
The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

58. Parts, Divisions and Subdivisions
PART IV--RESTRICTIVE TRADE PRACTICES Division 1--Cartel conduct Subdivision A--Introduction Subdivision B--Offences etc Subdivision C--Civil penalty provisions Subdivision D—Exceptions Division 2--Other provisions

59. Parts, Divisions and Subdivisions
Contextual interpretation
Re the Commercial Bank of Australia Ltd (1893) 19 VLR 333
Part provides immediate context for the section

60. Use of headings ACTS INTERPRETATION ACT 1901 - SECT 13
Material that is part of an Act
(1) All material from and including the first section of an Act to the end of:
(a) if there are no Schedules to the Act--the last section of the Act; or
(b) if there are one or more Schedules to the Act--the last Schedule to the Act;
is part of the Act.
(2) The following are also part of an Act:
(a) the long title of the Act;
(b) any Preamble to the Act;
(c) the enacting words for the Act;
(d) any heading to a Chapter, Part, Division or Subdivision appearing before the first section of the Act.

61. Replaced: Headings, schedules, marginal notes, footnotes and endnotes
(1)  The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.
             (2)  Every schedule to an Act shall be deemed to form part thereof.
             (3)  No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.

62. But NSW... S35 Interpretation Act
(1) Headings to provisions of an Act or instrument, being headings to:
(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or
(b) Schedules to the Act or instrument, shall be taken to be part of the Act or instrument.
(2) ...(a) a heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)),
(b) matter within a provision of an Act or instrument (being matter in parentheses that merely sets out a heading to or describes the effect of some other provision of the Act or instrument or of some other Act or instrument), or
(c) a marginal note, footnote or endnote in an Act or instrument,
shall be taken not to be part of the Act or instrument.

63. BUT.... Civil Liability Act 2002 (NSW)
PART 1A - NEGLIGENCE Division 1 - Preliminary 5. Definitions 5A. Application of Part Division 2 - Duty of care 5B. General principles 5C. Other principles

64. AND .... Trade Practices Act (1974)
PART V--CONSUMER PROTECTION
Division 1--Unfair practices
51AF. Part does not apply to financial services  
51A. Interpretation
52. Misleading or deceptive conduct
(1)  A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11

65. Stephen J at [12]:
...I do not regard it as appropriate that the unambiguous words of s. 52 should be given some unnaturally confined meaning because of the heading to Pt V. ... I would adopt what was said by Latham C.J. in Silk Bros Pty. Ltd. v. State Electricity Commission (Vict.) [1943] HCA 2; (1943) 67 CLR 1, at p 16 concerning the use of headings in the interpretation of statutes. His Honour said:
"The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision (see In re Commercial Bank of Australia Ltd. (1893) 19 VLR 333, at p 375 ). 'But where the enacting words are clear and unambiguous, the title, or headings, must give way, and full effect must be given to the enactment' (Bennett v. Minister for Public Works (N.S.W.) [1908] HCA 50; (1908) 7 CLR 372, at p 383 , per Isaacs J.)."

66. Stephen J:
13. To subject the clear and quite general words of s. 52 to some limitation derived from the heading to Pt V is, I think, especially inappropriate in the case of this particular legislation. The Act is intricately drafted, some of its provisions being expressed in terms of broad generalities, as is s. 52, others in elaborate detail. Each may be seen to take the precise form it does because of the particular work intended for it. That s. 52 (1) is intended to be a provision having a broad reach is made clear by the express provision in s. 52 (2) preserving its "generality" from any limitation which might be thought to arise from the more specific provisions of succeeding sections. It is also significant that the quasi-definitions of "consumer" in s. 4 (3) appear to have little application to most of the provisions of Div. 1 of Pt V; it is on Div. 2 that they principally operate. To interpret the provisions of Div. 1 in the light of the quasi-definitions, applied, through this heading, to the entire Part, will be to distort in numerous respects the otherwise clearly apparent legislative pattern manifest in Pt V. (at p226)

67. Concrete Constructions v Nelson [1990] HCA 17
5. The general heading "Consumer Protection" at the commencement of Pt V is part of the Act (Acts Interpretation Act 1901 (Cth), s.13). It constitutes part of the context within which the substantive provisions of Pt V must be construed and should be taken into consideration in determining the meaning of those provisions in case of ambiguity. The heading does not, however, control the permissible scope of the substantive provisions of Pt V and cannot properly be used to impose an unnaturally constricted meaning upon the words of those substantive provisions (see Hornsby Building Information Centre Pty. Ltd., at p 225; Parkdale, at p 202).

68. As a matter of language, s
As a matter of language, s.52 prohibits a corporation from engaging in misleading or deceptive conduct "in trade or commerce" regardless of whether the conduct is misleading to, or deceptive of, a person in the capacity of a consumer. In these circumstances, it is not permissible to give to the heading of Pt V the effect of confining the general words of s.52 to cases involving the protection of consumers alone. So to constrict the provisions of s.52 would be to convert a general prohibition of misleading or deceptive conduct by a corporation, be it consumer or supplier, in trade or commerce, into a discriminatory requirement that a corporate supplier of goods or services should observe standards in its dealings with a corporate consumer which the consumer itself was left free to disregard. That being so, the general words of s.52 must be construed as applying even-handedly to corporations involved in a transaction or dealing with one another "in trade or commerce". So to say is not, however, to deny the significance of the heading "Consumer Protection" for the purposes of the present case. In particular, as will appear, that heading is of importance in determining the effect of the words "in trade or commerce" in s.52 (see Hornsby Building Information Centre Pty. Ltd., at p 224).

69. Ragless v Prospect City Council [1922] SASR 299 at 311 per Murray CJ:
I think the rules [as to the use of headings] may be stated thus:
1.If the language of the sections is clear, and is actually inconsistent with the headings, the headings must give way;
2.If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings;
3.If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.

70. Explanatory memorandum
ACTS INTERPRETATION AMENDMENT BILL 2011
96. New section 13 would not prescribe how much weight (if any) should be given to particular material forming part of an Act in interpreting the Act. Of course, primacy should normally be given to the substantive provisions of an Act over headings and explanatory notes in interpreting an Act.

71. Section
Sections are sub-divided into: SECTION s1 SUB-SECTION (2) PARAGRAPH (a) SUB-PARAGRAPH (v)

72. Elements of a section
The elements of a section form a checklist – not a shopping list.
Unless it is drafted in the alternative, each element must be satisfied.
The sub-sections of each section are to be read independently – unless the drafting clearly indicates otherwise
Operative and machinery provisions

73. Australian Consumer Law - s 18
Misleading or deceptive conduct             
(1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

74. Elements of s18(1) Person Trade or commerce Engage in conduct
Misleading or deceptive

75. Elements exercise
Australian Consumer Law- s50
Harassment and coercion   
                
(1)  A person must not use physical force, or undue harassment or coercion, in connection with:
                     (a)  the supply or possible supply of goods or services; or
                     (b)  the payment for goods or services; or
                     (c)  the sale or grant, or the possible sale or grant,of an interest in land; or
                     (d)  the payment for an interest in land.

76. CIVIL LIABILITY ACT 2002 - s 5L
(1) A person ( "the defendant") is not liable in negligence for harm suffered by another person ( "the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

77. S47 CCA