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Laws 101: Test 1, 2017

Statutory interpretation

Feedback
The test was worth 10% of your final result and
was marked out of 25.

Your mark out of 25 as a grade:

0 9.5 = E 17.5 18.5 = B


10 12 = D 19 19.5 = B+
12.5 13.5 = C- 20 21 = A-
14 14.5 = C 21.5 22 = A
15 16 = C+ 22.5 25 = A+
16.5 17 = B-
Overall class results
Number %
Number %
E 13 3.0%
B 68 15.5%
D 33 7.5%
B+ 39 8.9%
C- 49 11.2%
A- 16 3.7%
C 63 14.4%
A 12 2.7%
C+ 71 16.2%
A+ 1 0.2%
B- 73 16.7%

Total who sat: 438

Total C range = 41.8%


Total B range = 41.1%
Total A range = 6.6%
Some general comments
The overall results are very normal for the first Laws 101 test of the year. Last
year, the first test was on case analysis, but the results were broadly similar.

You may be feeling disappointed with the mark you got youre not alone -
41% in the C range (but as I say this is typical for the first test of the year).

There is plenty of time to improve and you should treat this as a learning
experience. If you keep at it, you will very likely do better next time. Many
people who got Cs, C+s and B-s in their first test last year ended up with B+ or
A- or even higher as their final result.

Also be aware that a very large proportion of this class got at least 8/10 in the
5% online quiz so even if you got a lower mark in the 10% test your quiz result
may have dragged you up to a much better mark out of 15 for assessment to
date.

Theres another quiz and another test to sit, up to 5% for tutorial attendance
and then a final exam of 60% - so theres a long way to go and much room to
improve.
Comments from the marker:
The great majority of students followed the
recommended structure and did well on the
Introduction and Purpose Discussion parts of the
exercise.

However, many students then let themselves down


when answering the three questions (a), (b) and (c).

Some students missed the point of the Purpose


Discussion they simply restated or paraphrased
the contextual material and/or parts of the statute
without attempting to do any analysis.
Markers comments: Question (a)
Main problem here was many students failing to identify and comment on all of
the interpretive issues arising under s 5:
- Is Petes van a shop as defined in s 4?
- Is Zest a herbal high as defined in s 4?
- Does he sell it as defined in s 4?
- Is it within a suburban community (suburban defined in s 4)?

Unless the answer is yes to all of these issues, Pete cannot be convicted
under s 5.
Unfortunately many students only identified, and/or commented on, one or
two of these issues.
Many students also failed to comment on how they thought Petes situation
related to the overall purpose of the RHHA.

Students who identified 3 or 4 issues, and discussed the relevance of the


purpose of the RHHA, tended to get in the B range or higher. The best answers
did these things and also talked about what interpretive technique or principle
would best achieve the outcome that was seen as the right one in relation to
each issue.
Markers comments: Question (b)
The main problem here was students getting the focus wrong
nothing really turned on whether Jenny is a child. Whether or not
she was intoxicated in terms of s 4 is relevant to an extent, because
if she was not then the Police would have no power to incarcerate her
at all. But, even if she was intoxicated, the Police still breached s 12
because they held her for more than 72 hours. So nothing turned on
intoxication either.

The real problem in the question is that the Act does not expressly
provide for compensation for a breach of s 12. Nor does it provide the
amount of any compensation, if it is payable. The 2004 version of the
Act did not specifically provide compensation for breach of s 12 either,
but it did contain s 14 which talked about compensation payable for
any breach of a provision in this Part of this Act.

So, was the wording of s 13 of the 2016 version of the Act and/or the
absence of s 14 deliberate, and if not, what could the Courts do about
these problems?
Markers comments: Question (b)
A number of students argued that leaving s 14 out of the 2016 version of the Act was very
arguably a drafting error, and that therefore s 14 should be treated as being present in the
2016 Act. Based on the scheme of Part Three, including s 14, the words and/or s 12 could
then be read in to s 13, and accordingly up to $20,000 would be the amount payable for a
breach of s 12, as happened here. A number of students who made this argument also
suggested that the District Court would be the one to apply to, which seems to be the right
conclusion given that offences under s 9 are to be tried in the District Court.

On the other hand, a number of students argued that Part Three of the 2016 version of the
Act had to be taken at face value, in other words that the absence of s 14 and/or the wording
of s 13 must be taken to be intended by Parliament, and therefore no compensation was
payable to Jenny in her case. This was a more difficult argument to pursue, because there was
nothing explicit in the context to suggest that compensation should be payable for breach of s
11 but not for a breach of s 12. Nevertheless, if you took this line and argued it logically, you
would have been given credit for that.

One further comment I would add: the issue in this question was entirely predictable, if you
had read the statute and context carefully in advance. A reference to s 12 is obviously missing
from s 13, and there does not appear to be any reason for that. Nor is there any reason for
the absence of s 14 of the 2004 version. For these reasons, Part Three was clearly a part of
the Act on which an interpretation question might be based.
Markers comments: Question (c)
A number of students were able to make up for not-so-
good answers to (a) and (b) by doing this question well.

On the other hand, it was surprising how many students


did badly on question (c), because they did not answer
the question which was asked.

You were prepared for exactly this kind of question in


lectures; you were given an example answer; and you
were told what you didnt need to do to answer it (ie, say
what the substantive outcome would be and/or write
about the purposive approach generally). Many students
seemed unaware of this advice given in class, or
(apparently) ignored it.