You are on page 1of 6

Interpretation Acts Acts Interpretation Act 1901 (Cth) Interpretation of Legislation Act 1984 (Vic) Maxims There are

a number of legal maxims which help the courts determine the meaning of words in a statute: Noscitur a sociis the meaning of a word is known from the words that accompany it. Ejusdem generis (the class rule) if words of a particular meaning are followed by general words, the general words are limited to the same kind as the particular words. The general words should be read down in the light of the meaning of the specific words. Expressio unius est exclusio alterius the express mention of one (or more) words of a list or class implicitly excludes other words of that list or class. The absence of a word may be significant or intentional. Generalia specialbus non derogant The general does not detract or interfere with the specific. In other words, an earlier statutory provision which deals with a particular matter may not be impliedly revealed by a later, more general provision. Validity of Act/Date of Operation The Act will commence: from the date specified in the Act or a date to be fixed by proclamation in the Government Gazette or if the Act is silent as to its commencement: from the date of Royal Assent (Victorian Acts) 28 days after Royal Assent (Commonwealth Acts).

Common law rules of statutory interpretation The literal or plain meaning approach The purposive approach The literal or plain meaning approach Words are interpreted in their plain and ordinary meaning. The court should give a literal effect to the legislative language. The Act is read as a whole and, if its meaning is plain, that is the end of the matter. No attempt is made by the court to introduce extrinsic material. The purposive approach This approach considers the purpose of the act and intention of parliament Purposive interpretation is widely accepted today. Interpretation of Legislation Act 1984 (Vic) s35a allows for the use of the purposive approach under Victorian law Acts Interpretation Act 1901 (Cth) s 15AA(1) allows for the use of the purposive approach under Commonwealth law Acts Interpretation Act 1901 (Cth) s 15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. However, it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of interpretation (Saeed v Minister for Immigration (2010) 241 CLR 252) Therefore, always start with the literal approach then move on to the purposive approach when there is an ambiguity or absurdity

Use of Extrinsic Materials Extrinsic materials are materials or documents not forming part of the Act being interpreted. Include: second reading speech, parliamentary debates, executive documents, dictionaries, law reform commission reports, reports by Royal commissions, committee reports and international agreements, Section 15AB of the Acts Interpretation Act 1901 (Cth) provides that courts may refer to extrinsic materials Section 35b of the Interpretation of Legislation Act 1984 (Vic) provides that courts may refer to extrinsic materials Useful Act Sections in Statutory Interpretation Use of the purposive approach - Acts Interpretation Act 1901 (Cth) s 15AA(1) - Interpretation of Legislation Act 1984 (Vic) s35a Use of extrinsic materials - Acts Interpretation Act 1901 (Cth) s15ab - Interpretation of Legislation Act 1984 (Vic) s35b Headings to chapters, parts, and divisions into which an Act is divided are considered part of the act. - Acts Interpretation Act 1901 (Cth) s13(2)(d) - Interpretation of Legislation Act 1984 (Vic) s 36(1) Marginal notes, footnotes or endnotes shall not be considered part of the act. - Interpretation of Legislation Act 1984 (Vic) ss36(2A) A schedule is part of an Act. - Acts Interpretation Act 1901 (Cth) s13(1) - Interpretation of Legislation Act 1984 (Vic) s36(2)

Unless the contrary intention appears, words referring to a gender include every other gender. - Interpretation of Legislation Act 1984 (Vic) s37 Words in the singular include the plural, and words in the plural include the singular. - Interpretation of Legislation Act 1984 (Vic) s37 May can be construed either way the power conferred may be exercised, or not exercised, at discretion. - Interpretation of Legislation Act 1984 (Vic) s45 Shall must be construed in that the power conferred MUST be exercised. - Interpretation of Legislation Act 1984 (Vic) s45 Common Law Presumptions All criminal offences have some form of mens rea He Kaw Teh v The Queen (1985) 157 CLR 523 Statutes do not operate retrospectively Parliament does not interfere with fundamental rights Parliament does not abrogate the privilege against self-incrimination Parliament does not abrogate legal professional privilege Parliament does not deprive people access to the courts Legislation does not bind the Crown Penal provisions are strictly construed

ACTUS REUS/MENS REA There are two elements of an offence Actus reus the act itself Mens rea guilty mind/evil intention/subjective fault element

There is a common law presumption that all offences have some form of mens rea. However, this presumption can be rebutted by addressing the criteria in He Kaw Teh. You apply the He Kaw Teh criteria to the Act you are interpreting and not the facts before you. He Kaw Teh Words of the statute If the act does not contain words to the effect of intentionally, knowingly, recklessly or negligently then it is silent on mens rea. Subject matter what is the subject matter of the act? i.e. what behaviour is the act concerned with? E.g. drug dealing or disorderly behaviour etc. Generally, the more serious the subject matter, the more likely there is mens rea (e.g. drug dealing), the less serious the subject matter (e.g. public drunkenness) the less likely there is mens rea. Social utility Is the subject matter a grave social evil? e.g. Drug smuggling (yes), public drunkenness (no at least not in comparison). Would imposing the act without mens rea lead to luckless victims? A luckless victim is a victim by no fault of their own e.g. An accused who has actually had drugs planted in their bag would be a luckless victim because they didnt actually intend to smuggle the drugs but are convicted anyway seeing as the act doesnt care about mens rea/intention. Imposing strict liability in cases such as public drunkenness would not lead to luckless victims because individuals have control over their own alcohol consumption and offensive behaviour. Theyre not victims by no fault of their own. i.e. its their own fault.

Penalty What is the nature of the potential penalty of the accused? How bad is the penalty? i.e. imprisonment vs a fine. Where an act provides for imprisonment, it is more likely that the offence will require mens rea, since it is generally agreed that only morally culpable victims should be imprisoned. Conversely, if a section purports only to impose a fine or other monetary penalty, it is likely that the offence will not require mens rea meaning the offence is more likely to be one of strict liability. Deduce on the balance of your findings whether the presumption (that every offence has some form of mens rea) has been rebutted or not. If there is no mens rea, assume that it is strict liability. (So that you can proceed with Proudman v Dayman). Assuming that its strict liability, the criteria in Proudman v Dayman will be addressed to see if the defence of honest and reasonable mistake would be available to the defendant. Proudman v Dayman All of the criteria must be satisfied for this defence to work. Mistake not ignorance Did the defendant turn their mind to it? If they did, and proceeded, its a mistake. If they didnt turn their mind to it/it didnt occur to them then it is ignorance. (Has to be a mistake for the defence to work) Mistake of fact not law This defence only applies to mistakes of fact. Mistakes of law are not covered by the defence. Ignorance of the law is no excuse. Honest and reasonable Was it an honest mistake? Would a reasonable person have acted in the same way? Renders the accuseds act innocent Would the fact that their mistake is honest and reasonable render the accuseds act innocent? Are they caught under any other laws in their conduct? i.e. trespass, littering, graffiti. If they have then it doesnt render their act innocent. If all the criteria are satisfied the defence could succeed. If even one of the criteria is not satisfied then the defence will fail.