Statutory Interpretation A drafters perspective June 2011 Statutory

Statutory Interpretation A drafter’s perspective June 2011

Statutory Interpretation Outline � The structure of legislation � A plain reading � A purposive construction � The context in which legislation is drafted Ø The statutory context: § The application of the Interpretation of Legislation Act 1984 and other Acts of general application § Federal constitution Ø The common law context: § Case law § Some interpretive rules and aids to interpretation

Statutory Interpretation The structure of legislation � Make sure you have the correct version of the legislation � Read the Act as a whole

Statutory Interpretation � Finding Ø the correct version of an Act www. legislation. vic. gov. au v Statute Book (Acts passed and Regulations made in a designated year) § Authorised versions and historic Acts v Law Today (current consolidated versions of principal Acts and Regulations) § Authorised versions and version history v Parliamentary Documents (Bills and explanatory memoranda) § As sent prints and As passed prints Ø www. ocpc. vic. gov. au Ø www. parliament. vic. gov. au v Commencement Book v Act and Statutory Rule Tables v Lists of current Acts and statutory rules v Hansard v Information regarding parliamentary process

Statutory Interpretation Read the Act as a whole Structure and layout of legislation § Chapters, Parts, Divisions, Subdivisions, sections, subsections, paragraphs subparagraphs and subsubparagraphs § Numbering conventions § Definitions § Punctuation § Notes and examples

Statutory Interpretation Standard or common provisions in Acts ØPreamble ØLong title and short title ØPurpose ØObjects/Principles ØCommencement ØDefinitions ØBinding the Crown ØRegulation making powers ØTransitional provisions ØSelf repealing provisions in amending Acts

Statutory Interpretation � Give � Look the provision a plain reading at the context of the provision

Statutory Interpretation A Purposive construction � Section 35(a) of the Interpretation of Legislation Act 1984 ØSection 35(a) of the Interpretation of Legislation Act 1984 provides- In the interpretation of a provision of an Act or subordinate instrument: (a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object; and

Statutory Interpretation Ø Extrinsic aids to interpretation: Interpretation of Legislation Act 1984 section 35(b): (b) and consideration may be given to any matter or document that is relevant including but not limited to— (i) all indications provided by the Act or subordinate instrument as printed by authority, including punctuation; (ii) reports of proceedings in any House of the Parliament; (iii) explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; (iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.

Statutory Interpretation Statutory context for interpreting legislation Legislation of general application ØInterpretation of Legislation Act 1984 ØCharter of Human Rights and Responsibilities Act 2006 ØSentencing Act 1991 ØCriminal Procedure Act 2009 ØInfringements Act 2006 ØMonetary Units Act 2004 ØConstitution Act 1975

Statutory Interpretation � Interpretation of Legislation Act 1984 ØCommencement and repeal of Acts ØFormal matters relating to Acts ØRules of construction (interpretation) of Acts ØDefinitions (s. 38) ØSaving of Acts and things done under repealed provisions ØDelegation of powers ØMatters dealing with the exercise of powers and duties ØSpecial provisions dealing with subordinate legislation (including regulations, rules of court and other statutory rules)

Statutory Interpretation � Charter of Human Rights and Responsibilities Act 2006 ØSets out human rights and responsibilities drawn from ICCPR ØStatements of compatibility ØStatutory interpretation ØSupreme Court powers to make declarations ØDuties of public authorities

Statutory Interpretation � Sentencing Act 1991 ØCreation of offences: s. 111 ØPenalty levels: s. 109

Statutory Interpretation � Infringements Act 2006 ØIssuing and serving of infringement notices and enforcement of infringement penalties for 60 Acts that contain infringement offences

Statutory Interpretation � Criminal Procedure Act 2009 ØSection 72 provides that the defendant bears the evidential burden of proof in relation to any exception or excuse to an offence created by statute

Statutory Interpretation � Monetary Units Act 2004 ØSets penalty units and fee units ØFixed by the Treasurer by Government Gazette notice

Statutory Interpretation � Constitution Act 1975 ØParliament, Executive, Supreme Court ØSpecial and absolute majority requirements ØSection 85 (jurisdiction of the Supreme Court) ØReferendum provisions

Statutory Interpretation Common law context for statutory interpretation � Case law � Legal assumptions/rules of construction Ø Presumption against retrospective operation Ø Presumption of Crown not bound by legislation Ø Presumption against alteration of common law doctrines § Privilege against self incrimination § Legal professional privilege / client legal privilege Ø Acts presumed to be within legislative powers of the State Ø Presumption against extraterritoriality Ø Rule against delegation of legislative power