Statutory interpretation

Arkansas marriage legislation "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.“ http://www.gmanetwork.com/news/story/56652/news/weirdandwacky/error-in-arkansas-law-allows-kids-to-marry

Revision exercise http://www.austlii.edu.au/au/legis/nsw/consol_reg/shfar2011502/ 4(1)(s) http://www.smh.com.au/environment/animals/gary-the-goat-has-his-day-in-court--and-wins-20130123-2d6f3.html

Introduction to Statutes

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

Who interprets? Courts Tribunals Government departments and agencies

What is interpreted? Legislation Delegated legislation Administrative pronouncements

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

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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

GENE TECHNOLOGY (LICENCE CHARGES) ACT 2000 - 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.

Administrative pronouncements E.g. – Merger guidelines Interpretation of s50 TPA http://www.accc.gov.au/publications/merger-guidelines

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.

Merger guidelines: Nov 2008 Purpose of these guidelines 1.18. 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.

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).

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.

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.

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. For more information see: Taxation Ruling TR 2006/10 (concerning the public rulings system), GST Ruling GSTR 1999/1 (concerning the GST Rulings system), Product Ruling PR 2007/71 (concerning the Product Rulings system), Class Ruling CR 2001/1 (concerning the Class Rulings system), Self Managed Superannuation Funds Product Ruling SMSFPR 2009/1 (concerning the Self Managed Superannuation Funds Product Rulings system) and Law Administration Practice Statement PS LA 2008/3 (concerning provision of written advice by the ATO). Go to Public Rulings, Determinations and Bulletins

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

Role of courts in interpretation

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

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.

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

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.

Types of legislation

Types of legislation Public Private S73 Interpretation Act 1987 (NSW)

Types of legislation - Consolidation of Acts Consolidating Reprinting/Incorporation Trade Practices Amendment Act (No 1) 2001 http://www.austlii.edu.au/au/legis/cth/consol_act/tpaa12001256/sch1.html http://www.austlii.edu.au/au/cth/ Compilations http://www.comlaw.gov.au/comlaw/management.nsf/lookupindexpagesbyid/IP200401339?OpenDocument Statute law revision Acts

Consolidation v Codification Consolidation: existing statute law Codification: existing statute and common law Codes v ‘codes’ Companies code Corporations Act 2001 http://www.austlii.edu.au/au/legis/cth/consol_act/ca2001172/index.html#s3

Why ‘Codes’ Constitution –s51 How to achieve national objective without national legislative power? Referendum Referral S4 Corporations Act S4 Mutual Recognition Act (NSW) 1992 http://www.austlii.edu.au/au/legis/nsw/consol_act/mrswa1992393/s4.html Co-operative scheme – egFair Trading Legislation Application scheme – ‘Code’ solution Competition code Australian Consumer Law

Application Scheme Lead legislator http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html Template applied by each participating jurisdiction CCA Part XI http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s131.html http://www.austlii.edu.au/au/legis/nsw/consol_act/fta1987117/s28.html Unless within legislation http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s150c.html

Interpretation of Application Scheme Interpretation of Application Scheme? e.g. Fair Trading Act 1987 (NSW) s 31 http://www.austlii.edu.au/au/legis/nsw/consol_act/fta1987117/s31.html Courts One consistent interpreter; one body of jurisprudence? Re Wakim – cross vesting issues

Structure of legislation

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

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:

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

Short Title PART 1 - PRELIMINARY 1 Name of Act and commencement (1) This Act may be cited as the Sydney Turf Club Act 1943 .

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.

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

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

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.

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.

But NSW... S35 Interpretation Act http://www.austlii.edu.au/au/legis/nsw/consol_act/ia1987191/s35.html (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.

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

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

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.)."

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)

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).

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).

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.

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.

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

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

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.

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

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.

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.

S47 CCA http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s47.html

Statutory interpretation