[Legal Method] Statutory Interpretation (Commonwealth and Queensland Legislation)


COMMENCEMENT

REMEMBER: QUEENSLAND COMMENCEMENT DATE= DATE OF ROYAL ASSENT

(1) Event occurring after the commencement

The incident involving (name) occurred on (date). Under s 5(1A) Acts Interpretation Act 1901 (Cth), the (Full name of the act) (the Act) commenced on (date) and as such, the Act covers the incident.

The incident involving Fred occurred on 1 September 2010. Under s 5(1A) Acts Interpretation Act 1901 (Cth), the Prevention of Hijacking Act 2010 (Cth) (the Act) commenced operation on 29 July 2010 and as such, the Act covers the incident. Many students incorrectly concluded that the Act commenced operation on the date of Royal Assent ie 1 July 2010.

(2) Event occurring before the commencement

*Heading should change to ‘Commencement and presumption against retrospective operation’
The incident with (name) occurred on (date) and under s 5(1A) Acts Interpretation Act 1901 (Cth), (statute in question) commenced operated on (date). This raises the issue of whether there is a reasonably certain intention for the Act to apply retrospectively (per Dixon CJ in Maxwell v Murphy).

o   If second reading speech is given by the responsible minister
When the responsible minister delivered in his/her second reading speech in the House of Representatives, he/she stated: ‘(quote)’. Under s 15AB Acts Interpretation Act 1901 (Cth), the responsible minister’s second reading speech, as extrinsic material, can be used to assist where a provision is ambiguous.

o   If this second reading is relevant (only when minister expresses that Act can operate retrospectively)

Arguably, this statement in the second reading speech by the relevant minister satisfies the above stated obiter dicta of Dixon CJ. However, it was stated by Gibbs J in Mathieson v Burton that ‘if the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only’.

The commencement of the Act raises a very important issue which only a few students identified. The incident with Jane occurred on 24 July 2010 and under s 5(1A) Acts Interpretation Act 1901 (Cth), the Act commenced operation on 29 July 2010. This raises the issue of whether there is a reasonably certain intention for the Act to apply retrospectively: Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon CJ). Most students stated that the Act commenced on 1 July 2010 and as such, applied to the incident with Jane.
As stated in the question, when the responsible minister delivered her second reading speech in the House of Representatives, she stated: ‘The Prevention of Hijacking Act will apply to the hijackers presently at large in this country who cannot be proceeded against under any existing law.’ Under s 15AB Acts Interpretation Act 1901 (Cth), the relevant minister’s second reading speech as extrinsic material can be used to assist where a provision is ambiguous. Arguably, this statement in the second reading speech satisfies the above stated dicta of Dixon CJ. However, as Gibbs J stated in Mathieson v Burton (1971) 124 CLR 1, 22: ‘If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only’. Students should have considered both dicta in the analysis. If a student concluded that the Act is fairly capable of either interpretation and thus ought to be construed as prospective only, in answering the question there is sufficient doubt to continue to answer the question ‘as if’ the Act does apply retrospectively.

ISSUE

INTERPRETATION IN CONTEXTS

The Act must be read as a whole and then the relevant section (section) must be read in the context of the other sections in an attempt to ascertain the plain ordinary meaning of (section) in the context of (person’s name) particular circumstances and the followings must be considered.

(If time permits) Mason J, in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985), affirmed the significance of a contextual approach: ‘…to read the section in isolation from the enactment of…is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context’  

(1) Consider keywords or phrases, intrinsic materials                           

            (1.1) If dictionary definitions are given

                        Dictionary definitions can be used from the definitions given in the question (see (relevant section)).  

(1.2) Ambiguity

(1.2.1) If ambiguous, STATE:

Internal aids to statutory interpretation are relevant in this regard. Although there is an argument that the internal aids to statutory interpretation might not be relevant under the Acts Interpretation Act 1954 (Qld) due to s 14A(3), there is no equivalent provision in the Acts Interpretation Act 1901 (Cth).

(1.2.2) If section refers to specific words that does not explicitly include the conduct in question, STATE:

Under ejusdem generis (the class rule), the class formed by the specific words (includes/excludes) the (conduct/object in question).  
Under the internal aid of express inclusions and implied exclusions, use of the words ‘including a (object/conduct)’ implies that a (conduct/object in question) should be (included/excluded) from the operation of the relevant section (section).

(1.2.3) Other presumptions:

  • Noscitur a sociis: the meaning of a word or phrase is to be derived from its context
  • Ejusdem generis: general matters are constrained by reference to specific matters
  • Expressio unius est exclusion alterius: an express reference to one matter indicates that other matters are excluded            
  • Expressum facit cessare tacitum
  • Generalia specialibus non derogant: where there is conflict between general and specific provisions, the specific provisions prevail
  • Reddendo singular singulis: where two or more subjects are qualified by two or more matters, the qualifications attach to the subjects in the order in which they appear.

            (1.3) Conclusion, if no doubt exists              
                                                                                       
                        The preferable conclusion here is that (conduct) did not happen under (relevant section).
                        (1.3.1) If there is a case authority that supports that conclusion

                                    This conclusion is supported by (judge) in (case). (Judge), at page (number) said: ‘(quote)’

The Act must be read as a whole and then the relevant section (ie s 4) must be read in the context of the other sections in an attempt to ascertain the plain ordinary meaning of s 4 in the context of Jane’s particular circumstances. Consideration of the following is necessary.
Passenger
In ascertaining the plain, ordinary meaning of s 4 in Jane’s circumstances, it must be noted that Jane is a ‘flight attendant’. Section 4 specifically applies to a ‘passenger’. On a plain, ordinary reading of s 4 it would appear that s 4 does not cover Jane. Some students argued that Jane would fall within the meaning of ‘passenger’ in s 4 because she was not one of the pilots. The common law presumption that provisions creating criminal offences must be interpreted strictly is relevant. According to Gibbs J in Beckwith v The Queen (1976) 135 CLR 569, 576, ordinary rules of construction must be applied but if ambiguity remains, then the doubt is resolved in favour of the defendant. On the basis of this presumption, the doubt concerning whether Jane is a passenger for the purposes of s 4 should be resolved in favour of Jane.
Causes to be diverted or attempts to cause to divert an aircraft from its scheduled course
The issue here is whether, due to the storm, the aircraft had already been diverted from its course prior to any attempt by Jane to divert the aircraft. Some students raised this issue and it was relevant in providing advice to Jane.

(2) Doubt

            (2.1) If there is doubt

The above analysis indicates that there remains doubt regarding whether (person) has committed an offence under (relevant section).

 (3*) Interpreting other statutes

            3.1 Interpreting penal statutes

There is a common law presumption that provisions creating criminal offences must be interpreted strictly. According to Gibbs J in Beckwith v The Queen (1976), ordinary rules of construction must be applied but if ambiguity remains, then the doubt is resolved in favour of (person).

            3.1.1 Presumptions

1)  Presumption that parliament does not mean to abridge basic rights and liberties

2)    Presumption in favor of constitutionality

3)    Presumption against extra-territoriality

4)    Presumption against retrospective operation

5)    Presumption against taking property without just compensation

6)    Presumption against binding the Crown

3.2 Interpreting criminal code

The Queensland Criminal Code Act codifies the criminal law of Queensland. The language must be construed in its context (CIC Insurance Ltd v Bandstown Football Club Ltd (1997))

 (4) Purpose and extrinsic material

(4.1) (Cth)

Under s 15AA(1) Acts Interpretation Act 1901 (Cth), a construction that would promote or object underlying the Act shall be preferred to a construction that would promote that purpose or object. (Section)  of the Act sets out the main object of the Act and this refers to (purpose of the Act). Arguably, (the conduct in question) may be understood as against (that purpose.)

(4.1.1) if there is extrinsic material that supports the person

However, under s 15AB Acts Interpretation Act 1901 (Cth), the relevant minister’s second reading speech specifically refers to (keyword) and this (does not) supports the conclusion that (person) has not committed an offence under (section) of the Act.  

(4.1.2) if there is extrinsic material that withstands the person

Under s 15AB (1) Acts Interpretation Act 1901 (Cth), the (revelent material) specifically refers to (keyword) and this (does not) supports the above conclusion that (person) has committed an offence under (section) of the Act.  

(4.2) (Qld)

Section 14A(1) of the Acts Interpretation Act 1954 (Qld) provides that in the interpretation of a provision of an Act, the interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation. The purpose of the act is found on (section). The purpose of the Act is to (purpose).

            (4.2.1) if there is extrinsic material

The use of extrinsic material is permitted under s 14B of the Acts Interpretation Act 1954 (Qld) and therefore, (relevant material) needs to be considered.

                        (4.2.2) if there is no extrinsic material

The use of extrinsic material is permitted under s 14B of the Acts Interpretation Act 1954 (Qld) but no information is provided in the question in this regard.

(5*) Judicial authority

Consideration must be given to the weight of the (relevant case).

            (5.1) if the judge was in dissent
(Judge) was in the minority but his/her judgment has persuasive value. Is the majority decision binding or is it distinguishable? In that case, (facts). The facts given in the question are very similar but the critical distinction is that (facts).

Hence it maybe argued that (case) is not direct authority.

(5.1.1) if the hypothetical was given in the relevant case that is similar

The hypothetical was given by (judge) in the (case) and this bears a greater similarity than the given scenario of the given case. This supports and adds to the position that the court is likely to decide (as stated above). 

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