Introduction to Legal Reasoning Exam Notes
Contents:
• Sample exam answers / templates
• Victorian Charter of Rights and Responsibilities
• Legal Reasoning
• Terminology
• Doctrine of Precedent
• Statutory Interpretation
• Acts Interpretation Act 1901
• Interpretation of Legislation Act 1984
Does the act govern the jurisdiction of the event?
Management of Poisons Act (MPA) is a Victorian Act and hence applies to Victoria. Moreover, the Interpretation of Legislation Act 1984 will govern the interpretation of the MPA.
Was the act in operation?
S.2 of the MPA states that the act will come into operation on the day that it received royal assent. MPA received royal assent on 01/07/2013. The event occurred on dd/mm/yyyy, so the Act was/was not in force and therefore does/does not apply.
Does the Act apply retrospectively to _______________?
• There is a strong common law presumption that an Act should have no retrospective operation if it affects substantive rights, unless the language of the statute expressly or by necessary implication requires such
construction (Rodway v R). This presumption is further embodied in s27 of the Victorian Charter of Rights and Responsibilities (criminal laws only). In order to rebut the presumption, the language should either make an express mention of such an intention or by necessary implication (R v Kidman) requires such construction.
• There is also an exception to the presumption whee the Act merely uses past conduct as a foundation for determining the present fitness to do something and the Act is directed to protecting public interest rather than punishing for the conduct (Geschke v Del Monte Home Furnishers; Re a Solicitor’s Clerk)
• Accrued rights and liabilities under a statute which has been amended or repealed will be preserved under s. 14(2) and s. 28(2) of the ILA (Byrne v Garrison)
• There is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure (Maxwell v Murphy), however, how X achieves those rights/liabilities may be changed
• The language of __________ is arguably backward looking. However, its retrospective application is ambiguous. Hence, in the absence of express mention to that effect or lack of such construction by necessary
implication, we can conclude that the Act does/does not have retrospective effect.
• Since the purposive approach prevails, we must now attempt to identify the purpose of the Act, which can be referred to in the absence of
ambiguity (s35(a)) – unlike the old common law approaches – by looking at the whole of the legislation.
o We first do so by looking at the purpose section of the Act, s1.
! This suggests broad/narrow meaning since_________
o By looking at the title of the Act (Birch v Allen)
o Headings to parts and divisions (s. 36) are part of the Act
o Marginal notes/footnotes/endnotes/index (s. 36) do not form part of the Act
o Schedules are part of the Act (s. 36)
o Punctuation (if Act passed after 2001) is included: Re Collins; Ex Parte Hockings
o Examples (if Act passed after 2001) s. 36 – the example is not taken as exhaustive
Under s35(a) and its equivalents, in the interpretation of a provision of an Act, the interpreter must attempt to discover the purpose or object
underlying the Act and, if possible, adopt an interpretation furthering that purpose or object.
• Since the construction that would promote the purpose of the Act prevails (s35(a)), I would advise __________ that we can argue that the provision should have a narrow/broad meaning and that ____________ will/will not fall within the Act.
• Under s35(b)(i) of the ILA, extrinsic materials may be used to ascertain the purpose of the act or to confirm that an interpretation is consistent with that purpose, even in the absence of any ambiguity on the face of the provision. (Shingles v Director General of Social Services)
• Here we can look at ___________ to assist us identifying the purpose of the legislation and putting it into context.
Victoria: ILA s 35(b)
• Principles of and aids to interpretation
• 35. In the interpretation of a provision of an Act or subordinate instrument-‐
• (b) 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; and
• iv) reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry or other similar bodies.
Materials that can be used:
o Reports of parliamentary debate o Commission and committee reports o International agreements
o Second reading speech: Re Shingles and Director-‐General of Social Security
• Humphries v Poljak per Crockett and Southwell: that ‘purpose’ or ‘object’
may not be ascertainable without reference to the parliamentary debates.
Accordingly, the better view would appear to be that, even if it be thought that the language is clear and unambiguous, it was not improper to have had recourse to the parliamentary debates in order to ensure that to apply the ordinary and grammatical meaning of the words would not give the statute a meaning which obviously was not intended.
• Since it is mentioned in _______ that _________________, we could infer that the purpose of the legislation is _________ and that the ambiguity should be resolved in line with this purpose, meaning ________________.
o However, in Re Bolton: Ex parte Beane, it was held that ‘words of a Minister must not be substituted for the text of the law’, they are persuasive only
o In Shingles v Director General of Social Services, a 2nd Reading Speech was used to determine eligibility of a parent of a disabled child to qualify for an allowance
o In Nominal Defendant v GLG Australia, it was held that it is not part of a court’s function to give effect to parliamentary speeches, ministerial media releases or other informal statements
• Courts have concluded that definitions provided in a dictionary will NOT be conclusive of meaning (Field v Gent)
• Since nothing is clearly mentioned about ______________, we could infer that a broad/narrow meaning would prevail for these purposes.
Can X be charged under the s? of the MPA?
• The act must be read as a whole and interpreted in context: Project Blue Sky
o Does the Act apply to X?
! Concerns ‘any person’. S38 of the ILR suggests the meaning to be a natural or legal person. Since X is a natural person, the section will apply to him/her.
o Are the elements of the offence satisfied?
! Did X do __________,__________etc.?
! Starting with the plain and ordinary meaning: Project Blue Sky; CIC Insurance
• The definitions section within the Act provides a closed/open meaning of the __________-‐ to be _______.
• ___________ as defined in the dictionary means __________ ( State Chamber of Commerce Industry v Commonwealth). This is a broad/narrow meaning.
However, Courts have decided that definitions provided in a dictionary will NOT be conclusive of the meaning that should be applied to the word and that dictionary defintions will be used to confirm a meaning that is justified in the context of the legislation as a whole. (Field v Gent (1996)).
• By interpreting the meaning in context to the other sections, chiefly sX and sY, it can be argued that the word ________ has a narrower/broader meaning to/and include/s______.
• Where the statute concerns a particular section of the community, the trade meaning may be taken into account. (Herbert Adams Ltd v Federal Commissioner of Taxation (1932))
• Words may be given their legal as opposed to popular meaning. (Fisher v Bell (1961)).
We can use the maxim noscitur a sociis (R v Ann Harris), so as to derive the meaning of _____________ from the words that accompany it. Arguably, the accompanying words mean ______; hence, the meaning of __________ can be construed as meaning _______ and seemingly/does not apply to the current
circumstance. However, maxims must be approached with and used with caution as they are a ‘valuable servant, but a dangerous master’ (Dean v Wiesengrund per Jenkins LJ). Thus, we need to cross check this construction with the overall purpose of the act by virtue of s35(a) of the ILA.
We can use the maxim ejusdem generis (Dean v AG) which restricts the
meaning of general words following words of a particular meaning to fall within the scope of that particular meaning. Arguably,________, __________, ____________ and ____________ could belong to the genus of ________. Hence, the meaning of the word _____________ is construed to mean __________ and, narrowing/broadening the scope of the word as it first appeared. However, maxims must be approached with and used with caution as they are a ‘valuable servant, but a dangerous master’ (Dean v Wiesengrund per Jenkins LJ). Thus, we need to cross check this construction with the overall purpose of the act by virtue of s35(a) of the ILA – whether or not general words are to be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute. (Deputy Commissioner of Taxation v Clark per Spigelman J).
We can use the maxim expression unis est exclusion alterius (Dean v
Wiesengrund), that suggests that express mention of one thing is the exclusion of another. Here the express mention of ______ in section ___ and the absence of it
from section _____ could mean that it is not to fall within section ______. However, maxims must be approached with and used with caution as they are a ‘valuable servant, but a dangerous master’ (Dean v Wiesengrund per Jenkins LJ). Thus, we need to cross check this construction with the overall purpose of the act by virtue of s35(a) of the ILA.
Generalia specialbus non derogant (Booth v federal commissioner of Taxation) that suggests that where there is a conflict between general and specific provisions, the specific provisions prevail. This rule proposes that an earlier provision that deals with a particular matter, namely s____ may not be repealed by a later, more general provision, in this case s______. OR the general power conferred by s___ is conferred without limitations or qualifications, while the special power in s ____ is expressed to be subject to the limitation of _____. It can be argued that the general power cannot be used to do that which is the subject of the special power. Therefore s____ will exclude the operation of the general expression in s___ that otherwise would have relied on for the same power. However, maxims must be approached with and used with caution as they are a ‘valuable servant, but a dangerous master’ (Dean v Wiesengrund per Jenkins LJ). Thus, we need to cross check this construction with the overall purpose of the act by virtue of s35(a) of the ILA.
We can use the maxim Reddendo singula singulis, in its legal form recognizes that, context permitting, the reader may properly infer that the author has intended a distributive relationship between two juxtaposed series of ideas.
Thus, where a text exhibits the pattern “A and B are Y and Z”, reddendo suggests that A should be matched with Y and B should be matched with Z, achieving a rough sort of symmetry in the passage. However, maxims must be approached with and used with caution as they are a ‘valuable servant, but a dangerous master’ (Dean v Wiesengrund per Jenkins LJ). Thus, we need to cross check this construction with the overall purpose of the act by virtue of s35(a) of the ILA.
Words are assumed to be used consistently, that is, words are repeated to mean the exact same thing in legislation (Fox v Warde). Hence, the use of the word ______ in s______ and s_____ lends the impression that it would mean the same thing in each section. Since in s___ we interpreted _____ to mean _____, it can be assumed that in the absence of any contrary intention, _____ will mean ________.
Since all words carry meaning, the expression of ______ and _____ would mean
different things: Project Blue Sky Inc v Australian Broadcasting Authority.
Since the word may is used in s____, this means that ______ has a discretion to do ______ and it is not a must for _______ to do ______. (ILA s45)
Since the word shall is used in s____, this means that ______ has no discretion to do ______ and it is a must for _______ to do ______. (ILA s45)
