business law tutorial 03

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TUTORIAL 3

STATUTE LAW AND INTERPRETATION

1. Do you believe that non-parliamentary bodies should be allowed to make

laws? Give your reasons.

I do believe that non-parliamentary bodies should be allowed to make laws. There is

an enormous amount of legislation which cannot by itself effectively provide the

detail to adequately provide for an individuals rights. Of course an individuals

rights can be lost in the rabbit warren of unchecked bureaucracy which goes with such

bodies.

Governments undertake an immense range of functions. With this an enormous

amount of regulations are required. Parliaments do not have the time to reach intoevery aspect of these functions to provide such regulation. For efficiency, legislation

has to be delegated to non-parliamentary bodies.

When parliaments enact legislation, it is generally broad in scope. Somehow the gaps

must be filled, both in procedure and substance. Couple this with the enormous

range of functions governments deal with, particularly in todays age where highly

sophisticated technology and specialist skills are required, it becomes obvious that

much specialised help, not necessarily residing in the parliament, is needed.

The result is that legislation, which in broad terms reflect the will of the people, once

delegated, can then become relevant to the rights of an individual. This ensuresflexibility and it is this capacity which makes legislation useful, particularly to the

courts which inevitably are required to enforce such legislation.

The conferring of power by parliaments to enact or enable legislation can lead to

significant problems. Already the separation of powers has been diluted with the

executive arm of government being drawn from parliament. The executive also

controls the non-parliamentary bodies which receives the duty of delegated

legislation. In essence, the executive can make laws by itself (and in reality

anonymous public servants), and unlike enacted legislation, these laws do not undergo

the rigorous examination of parliament. To become lawful, all that is required is that

they be published in the Government Gazette.

This convenience can thus go against the welfare of a citizen. Hence the validity of

such laws can be questioned by the courts. But this will only be successful when

regulations go beyond the scope of the empowering act.

Challenging bureaucratic decisions can also be conducted by various other means,

including the Ombudsman, theFreedom of Information Act 1982 (Cth),

whistleblowing from an insider, the Administrative Appeals Tribunal, and as already

discussed by judicial review.


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Perhaps a more effective check upon delegated legislation is treating the problem

before the symptoms occur. Any such legislation coming before the Senate Standing

Committee on Regulations and Ordinances has a four-part test applied to it:

1. that regulations accord with the statute;

2. that personal rights and liberties are not unduly trespassed or compromised;3. that personal rights and liberties of citizens do not depend upon administrative

decisions without being subject to adequate judicial or independent review;

4. that regulations deal with administration only, not matters of substance.

However this Senate Committee cannot review all delegated legislation. There is now

general acceptance though that such laws involve the following aspects:

1. sunset clauses to limit the law, until a review is done;

2. regulatory impact statements, to inform the public about the need, costs,

benefits and alternatives;

3. mandatory consultation with the affected parties;4. more effective parliamentary scrutiny;

5. better public access to laws which affect them.

Non-parliamentary bodies should be allowed to make laws. Trying to keep up-to-date

with the depth and breadth of matters which affect every citizen is certainly beyond

the abilities of any parliament. Such laws, though, should be open to scrutiny, and

that described above should provide enough protection for an individual. Of course

any law so challenged is subject also to the body which holds the balance of power.

Delegated legislation can be overruled or can become enacted legislation, thus

overriding any decision made by a subordinate body. Likewise, authority to legislate

can be quickly and easily removed, just as it is to enable it.

2. Do you believe that we need to have two houses of parliament?

Give reasons for your answer.

I believe that we do need to have two houses of parliament. It is this convention

which recognises the principles of true representative and responsible government.

Although there are some problems with the system, it does give balance to the process

of law-making, ensuring that laws made are fair and just.

The lower house, the House of Representatives with respect to the Commonwealth

Parliament, provides for equal representation for Australian people, and performs the

vital role in providing the executive, and initiating new laws, particularly money laws.

The upper house, the Senate with respect to the Commonwealth Parliament,

provides equal representation of the States, with an equal number of delegates from

each State to ensure the interests of the less populous states are protected. Although

the Senate may initiate new laws, except for monetary laws, their role is essentially

one of review, to act as a safeguard against poorly considered legislation.

Thus a checks and balance system is obtained. Balance by firstly having each personequally represented and also each State equally represented. Secondly by having a


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process of initiated bills from the lower house, being reviewed by the upper house, a

natural system of checks is achieved.

The drawbacks of this system can be seen with the increasing pressures of party

politics existing in the Senate. Pressure from the Governments party to pass bills

compromises its true review function. If bills are not passed through the Senate theGovernment has an inordinate process of amendment ahead of it, something enjoyed

by no Government, and therefore party politics can exert a biased hand.

This can be more so if legislation is not passed for the second time. This was the case

in 1975 and a double dissolution was called, effectively prematurely dissolving the

Whitlam Government. Although this in itself is a check on perhaps an

uncompromising set of circumstances, the process could be manipulated if a

government wants to have an early election.

The state of Queensland, on the other hand, operates a unicameral parliament with

just one house. This may facilitate the speedier enactment of legislation, but there isno impartial check upon that legislation. The Governor acts on the advice of the

executive, which is the Government, and so this system is open to flaws and in the

extreme manipulation, perhaps corruption.

These days, with governments not usually having a clear majority in the Senate, they

are forced to make compromises. Legislation enacted by bicameral parliaments is

thus truly representative of the people and the states. It is this compromise which is

the principle of responsible government which can only come from having two houses

of parliament.

3. Do you believe that we should still retain the referendum in relation to

changing the Constitution? If so, do you believe that any change should be

made to the double majority requirement? Give full reasons for your

answer.

I do believe that we should still retain the referendum in relation to changing the

constitution, with no changes to the double majority requirement. The current

convention provides protection for the constitution and for the people as a unified

body. The process does make amendment difficult, but this is perhaps the ideal

characteristic of this mechanism it provides natural built-in protection.

The first thing, which must be questioned, is why have a constitution? Whats its

purpose? Professor Hood Phillips defines one as the system of laws, customs, and

conventions which define the composition and powers of the organs of the state and

regulate the relations of the various state organs to one another and to the private

citizen (in Constitutional and administrative law, 5th edn, 1973, p5). Osborns

Concise Law Dictionary (1993) defines a constitution as:

(1) These laws, institutions and customs which combine to create a system

of government to which the community regulated by those laws accedes.

(2) The written document embodying those laws. ...


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Therefore a constitution must provide an agreed system which allocates responsibility

for law-making, judicial powers, and the executive, in order to protect the rights of

citizens.

Australias constitution is the ultimate agreement between the citizens of the country.

To satisfy all sections of the community is by nature a very difficult task. Differencesare found everywhere and is even more so in Australias ever-growing multicultural

society. If one body had the autonomy to alter the constitution, then how can it be

guaranteed that all members concerns would be satisfied? This would in effect give

the constitution a unitary nature, as opposed to its uniting Federal nature.

All laws have their unique checks and balances. Statue law requires extensive review

and debate. Common law has endured the test of time to make it fair and just, and is

then subject to reform by statute law. So too does the Constitution require a check

and balance. The referendum provides such in a way which ensures that the majority

of people, including those in the less populous states, can be satisfied that any

proposal is fair and just for all Australians. As a unified country, states with fewerpeople have the opportunity to prevent changes which do not satisfy them. This

ensures that one set of interests are not forced upon those without an equal voice.

Although laws are made by various sectors, none of these laws can overrule the

constitutional laws. The constitution is for the people as a whole and the current

system of amendment, unlike the conventions for subordinate laws (statute law and

common law), ensures that the people, as a unified body, control its outcome and

effects.

The current system for Constitutional change does make it difficult for amendments to

occur. Very few proposals have been successful resulting in a less flexible system,

when compared to the UK system, for example, which does not have a constitution.

Since I have already argued that a constitution is necessary, so it must be

acknowledged that other systems also have drawbacks to change. Can a system,

characterised by flexible change, truly represent all the differences found in society?

There needs to be a mechanism which is accountable to all people.

The referendum process could be declared tedious however since the constitution

affects us all individually and as a whole, it needs to be thorough. Therefore the

mechanism that makes it difficult to amend, the referendum and the requirement for a

double majority, also affords protection. Therefore it behoves that any proposedamendment to be successful, must also be comprehensive enough to cater for all

people, and be fair and just.

In essence the Constitution is the countrys ultimate contract an enforceable

agreement which supercedes other laws made by individual bodies. A robust

mechanism for amendment is therefore required to ensure its integrity and the rights

of individual Australians.


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4. What safeguards of justice have been incorporated into our legal system?

Separation of powers.

Elections.

The legislative process.

The process for constitutional change referendums.

Law of precedent.

Courts of appeal, and other non-parliamentary bodies of appeal (eg the

Ombudsman).

5. Discuss in detail all the rules relating to statutory interpretation.

In applying statute law, courts must be able to interpret it. Both the Commonwealth

and the States have anActs Interpretation Actwhich assists with this function, but

these do not give general principles of how to go about interpretation. As commonlaw has evolved, so to have three judicial rules for statutory interpretation to resolve

ambiguities.

The first is the literal rule. This rule gives primacy to the literal interpretation of the

legislative language. Strict interpretation allows courts to be certain about

judgements made, and can restrict courts in analysing the underlying purpose of the

legislation, with the possibility of unfair outcomes in terms of the intent of the statute.

This has also lead to parliamentary drafters to be more detailed, making legislation

even more bulky and complex, hoping that by doing so any future doubt will be

removed. There will be occasions where statutes are unable to anticipate future

problems and thus there is a need for the courts to interpret statutes as to its intent as awhole.

The second rule is the golden rule, which similarly follows the grammatical and plain

meaning of words, however differs where the interpretation would lead to an absurd

or inconsistent finding. This could occur where the language used is ambiguous or

imprecise. The golden rule modifies the literal rule in its severity by being more

flexible, and keeping legislation effectual, but it can also lead to uncertainties in

interpretation.

Thirdly the mischief rule leads the courts to examine the mischief, or problems, which

legislatures attempted to overcome by enacting a statute. This requires considerationof matters of law occurring before the Act, the mischief which the law was unable to

legislate against, the remedy thus legislated, and the reason for suppressing the

mischief. Further examination into other sources of legislation is required to apply

this rule. Since not all of these sources are able to be called upon by the court to give

evidence, for example members of parliament cannot be called as witnesses, then it is

difficult to apply. The purpose of interpretation is to conclude the underlying intent

of legislation, consequently the mischief rule can be cumbersome.

Finally, when discussing interpretation, there needs to be a balance between the ease

with which a statute can be understood, and the level of detail in the search for

certainty. Simplicity generally comes at the expense of detail, however it enables a


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level of flexibility which can give courts scope within a statute to develop law, within

the legislatures intent, and for the rest of us to understand and comply with it.

6. Are laws always enforced in accord with the legislatures intent?

No, laws are not always enforced in accord with the legislatures intent. This is

primarily due to the problems of ascertainting what the legislatures intent actually is.

These problems can be conceptual and evidential. There are mechanisms, though,

which courts use to lessen the liklihood of misinterpreting the legislatures underlying

intent.

Conceptually, courts have difficulty in deriving the single intent of numerous

members of parliament who each contribute in enacting legislation. These tends to

remove the certainty which legislation attempts to provide. Also, legislation is not

able to anticipate future events which become the subjects of dispute which courts

must resolve.

There are numerous evidential problems, inherent in the legal system, which makes it

difficult for the courts to precisely ascertain legislative intent. These include:

MPs develop legislation, yet under common law they cannot be called as

witnesses to give evidence as to their intentions when enacting laws;

MPs do not have a robust reputation when it comes to participation in the

parliament and therefore such evidence may be useless;

the cross-examination of every MP could be time consuming and expensive;

members involved in law rerform the Law Reform Commission or

parliamentary draftspersons cannot be called as witnesses at common law;

if members of Law Reform Commissions could be called, their evidence would

not be thorough as they only have knowledge of what was initially intended, not

of how the initial drafts evolved through parliament; and

parliamentary debate revolves around a variety of personal opinion.

Hence there are a number of factors which contribute to laws not being enforced to

the exact intent of the legislature. However the underlying purpose of statutes are

thoroughly examined in order to avoid any injustice, using the rules for interpreting

legislation, and also referring to internal aids found within the body of the Act, such

as: Long title;

Short title;

Preamble;

Schedules;

Punctuation;

interpretation sections; and

the various headings to parts and divisions of the Act.

Additionally, information external to the Act are also being increasingly used to aid in

interpretation, particulalry in case of resolving ambiguity. Such information exists inthe form of:


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parliamentary debates;

law reform commission reports;

explanatory memoranda;

dictionaries; and

international agreements.

Courts do not intend to enforce laws outside of the legslatures intent. Courts intend to

interpret the law, finding its underlying purpose, in order to enforce the law. The

problems in achieving this are essentially balanced out by the plethora of information

available to the courts.

7. In after-hours Jenny, an engineering/law student, was demonstrating her

latest invention in the car-park at the University. The vehicle was solar-

powered and was controlled remotely by radio. Watched by a group of

friends and security guards, Jenny was seated in a passenger cabin towedby the vehicle and was able to reach 90 kmph following a slalom course

defined by rubbish bins. The police officer, without asking the security

officer, stopped the demonstration and told Jenny that she would be

charged under s.17(1) of the Motor Car Act 1958 (Vic).

So far as is relevant to this question, Section 17(1) of theMotor Car Act 1958

(Vic) reads as follows:

17(1) If...a motor car trailer is used on a highway without being registered...the

person driving the motor car...and the owner of the motor car...shall

severally be guilty of an offense against this Act.

The terms 'highway' and 'motor car' are defined in Section 3(1) of the Act asfollows:

Highwayany street, road, lane, bridge, thoroughfare or place open to or used

by the public for passage with vehicles.

Motor carany vehicle propelled by internal combustion steam gas oil

electricity or any other power and intended for use on any highway.

Jenny seeks your advice as to whether she is likely to be convicted. In the course

of your research you discover a 1970 case heard in the SA Supreme Court

in which the judge decided that, for the purposes of the SAMotor Traffic

Act, a supermarket car-park was a public street.

You also discover a 1983 High Court case relating to the Grazing of Animals Act

in which the Full Court decided that the car-park of the Royal GeelongYacht Club was not a public street.

Advise Jenny of her liability under s.17(1) of theMotor Car Act.

The material facts of the case are:

The demonstration occurred in the after-hours of the university.

The demonstration took place in the universitys car-park.

As Jenny was the inventor of the vehicle, it was therefore owned by Jenny.

The vehicle was solar powered, controlled remotely by radio.

The vehicle was able to reach speeds up to 90 kmph.

Jenny controlled the vehicle from a trailer towed by the vehicle.


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Assumption:

The vehicle was not registered.

Discussion:

1. The demonstration occurred in the after-hours of the university. Therefore the

demonstration may not be considered part the universitys curricula, but underthe full control and responsibility of Jenny.

2. The demonstration took place in the universitys car-park:

a. TheMotor Car Act 1958 (Vic) could be interpreted to suggest

that the car-park is a place open to or used by the public for passage of

vehicles. However the suggestion of the security officer may infer

that the car-park was not open to the public, that the officers presence

is to maintain security and order of the area.

b. The citing of a case heard in the SA Supreme Court in 1970, inwhich the judge decided that, for the purposes of the SAMotor Traffic

Act(SA), a supermarket car-park was a public street, can only be

considered as part of the dictum because that determination is outside

the Victorian jurisdictional hierarchy, but can be persuasive.

c. The 1983 High Court case relating to the Grazing of Animals

Actin which the High Court decided that the car-park of the Royal

Geelong Yacht Club was not a public street, should be examined under

the intent of that Act. It can be assumed that this case related to the

grazing of animals in a car park. It is a different matter when vehiclesare tested in a car-park with respect to their handling through a slalom

course which abled speeds up to 90 kmph.

d. In this case the car-park should be interpreted in accord with

theMotor Car Act 1958 (Vic) since it was used for the passage of a

vehicle.

3. For Jennys vehicle to be considered as a motor car as defined by theMotor

Car Act 1958 (Vic) the vehicles propulsion needs to be determined and if it

was intended for use on any highway:

a. it was propelled by any other power, being solar powered;

and

b. since the demonstration did take place, it could be construed

that it was intended for use, even though for purposes of

demonstration, on any highway. It could also be construed that a

university project of this nature would have the facility of testing the

vehicle at some other place specifically for this purpose.

4. Another issue which seems to be overlooked is the reference to the speed.

Driving at speeds in excess of the speed limit is also a breach of the law. Inbuilt-up areas the speed limit is generally 60 kmph unless further restricted


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around schools or for other reasons. It is fair to suggest then that seeing that

the vehicle was able to reach 90 kmph then it did in fact reach that speed in

the car park.

Advice to Jenny:

She is liable under s.17(1) of theMotor Car Act 1958 (Vic) as she did own and drivean unregistered vehicle, whilst being towed remotely, in excess of local speed limits,

in a car-park deemed as a public street. The purpose of her actions, to demonstrate a

vehicle following a slalom course, and was able to reach speeds up to 90 kmph, with

friends and security guards standing by watching, is a clear breach of the Motor Car

Act 1958 (Vic).

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