TUTORIAL 3
Guide to answering the question
What follows is a guide. It demonstrates an approach to answering problem questions and has been designed to help you develop the analytical skills you will require. It is not a sample answer to this question. It is not in essay format – the format in which you will be required to present your answers. It contains a guide to the relevant law, and does not attempt to provide a full legal discussion of the question or full citations of any sources referred to. These questions help develop your analytical skills but are not a replacement for learning and applying the relevant law.
(Note: This was a previous exam question)
1. WORK OUT WHAT THE QUESTION IS ABOUT:
Both Howard and Patricia are charged with an offence under the Prevention of Piracy Act. You need to understand the provisions of this Act and any rules of statutory interpretation so that you may properly advise them. The question may talk about piracy, BUT IT IS ASKING YOU TO INTERPRET THE STATUTE. Be careful not to be distracted by red herrings.
WHAT MUST WE CONSIDER TO INTERPRET A STATUTE?
WHAT ARE THE ELEMENTS OF STATUTORY INTERPRETATION?
Preliminary matters
Ø DATE: WHEN DID THE ACT (OR ANY RELEVANT AMENDMENT) COME INTO FORCE? IF THE ACT IS SILENT WHAT DOES THE RELEVANT INTERPRETATION LEGISLATION PROVIDE? WHEN DID THE PARTICULAR BEHAVIOUR OCCUR? IS IT CAUGHT BY THE ACT?
Royal assent: 1 July 1996
Commencement date: Act silent; consider Interpretation legislation - 28 day rule applies. (Remember, you need to determine which of the Interpretation Acts to use – we are interpreting a Commonwealth Statute, so it will be the Acts Interpretation Act 1901 (Cth) s5(1A) )
Howard: 30 July 1996
Patricia: 5 August 1996
Ø JURISDICTION: DID THE RELEVANT PARLIAMENT HAVE POWER TO PASS THIS LAW?
The question makes it clear that the Act was within the constitutional power of the Commonwealth. (Even if it does not, this issue rates a mention in passing only, and should not be dealt with in great detail.)
Interpretation
Ø FOCUS ON THE SECTION: WHAT SECTION ARE YOU DEALING WITH? WHAT ARE THE KEY WORDS IN THE SECTION WHICH NEED TO BE INTERPRETED?
Howard: s. 4. person; possesses; any other transport
whatsoever; weapon
Patricia: s. 5. person; causes (attempts) to be diverted; ship;
scheduled course
Remember, to be guilty of an offence, Patricia and/or Howard must satisfy every element (usually the key words) of the relevant section.
Howard and Patricia are charged with different offences. These charges require you to consider different sections and different fact scenarios. Your structure will be clearer if you deal with Howard and Patricia separately.
HOWARD
Ø APPROACH TO INTERPRETATION: COMMON LAW OR STATUTE? CONSIDER FIRST THE NATURAL AND ORDINARY MEANING OF THE WORDS. NOW CONSIDER WHETHER THE WORDS OF THE SECTION HAVE MORE THAN ONE MEANING? CONSIDER s15AA, AS INTERPRETED BY DAWSON J. IN MILLS v MEEKING. Does consideration of purpose open a second construction, which is to be preferred?
v Where would you look to determine the purpose of the legislation? (Remember, unless you have satisfied the tests for extrinsic material, you cannot use it. What intrinsic material can you refer to?)
v Intrinsic aids: Read provision in context of whole Act (including Long Title and preamble)
v LONG TITLE
“An Act to deal with robbery of ships and boats in national and international waters”
What does this tell us about purpose of legislation?
v Can you refer to the section headings? Why? Why not? (Consider s13 Acts Interpretation Act 1901 (Cth))
Ø APPLICATION. NEXT: With this purpose in mind, go through each key word in the section, determine their meaning, and whether and how they apply to Howard.
v ARE THE KEY WORDS DEFINED IN THE LEGISLATION? Check the definitions section (and any other relevant sections). None given here. But you are provided with sections 6 and 7. Why?
s. 4 reads: “Any person (other than an officer or crew member or a ship protection officer)…”
Could Howard fall within this exception? Is he a person for the purposes of the legislation? (Consider date of Howard’s offence and date of establishment of register.)
So is he a person for the purposes of this Act?
Make a decision.
(No other key words defined in legislation – what other tools can you use?)
v WHAT IS THE ORDINARY MEANING OF THE WORDS?
Use a dictionary if necessary to determine ordinary meaning. Apply ordinary meaning of the words to the interpretation problem.
Why can you use a dictionary? What is your authority? Remember you always need to provide adequate legal foundation (authority) for any propositions. Here you could use a case such as State Chamber of Commerce and Industry v Commonwealth
Note: the question tells us that Howard “has a speargun in his possession.”
So does he possess for the purposes of this Act?
Make a decision.
(Will a dictionary help you with “weapon” or “any other transport”? What other tools can you use? These terms are contained in lists – look at the rules on how to interpret lists.)
v EJSUDEM GENERIS
“ship, boat, ferry or any other transport whatsoever” Is a train “any other transport whatsoever”? Ordinary meaning? General meaning limited by foregoing particular words relating to marine transport?
Is the train Howard is on, within this list?
Make a decision. Is Howard caught by the section? If you decide he is not – do not stop there but go on to look at the rest of the section.
any firearm, ammunition, weapon, or explosive substance
This is another list.
What is the relevant rule if interpretation? A speargun cannot be a firearm, ammunition, or explosive substance. Is it a weapon?
v NOSCITUR A SOCIIS
What is the context in which “weapon” appears? (R v Ann Harris) Is a speargun a weapon?
Make a decision.
v Remember to use the Latin maxims cautiously. They are a good guide, but will not stand against a contrary purposive interpretation. Double check the answer you get sits well with the purpose of the legislation. (These Latin maxims are also called syntactical presumptions – because they are presumptions which can be rebutted by purpose.)
Ø USE OF EXTRINSIC MATERIALS. We have looked at intrinsic materials as a guide to purpose. Can we refer to extrinsic materials? IS THE ORDINARY MEANING OF THE SECTION AMBIGUOUS OR, OBSCURE, or does it lead to a result which is MANIFESTLY ABSURD OR UNREASONABLE? (Why are these words important? What are the tests they refer to? Where are these tests found?)
v S15AB threshold
[extrinsic material may be considered]:
(a) to confirm that the meaning …is the ordinary meaning…taking into account its context…and the purpose…[of] the Act; or
(b)to determine the meaning… when:
(i) the provision is ambiguous or obscure; or
(ii)the ordinary meaning …leads to a result that is manifestly absurd or is unreasonable.”
Howard – if, ordinary meaning of transport is train, and ordinary meaning of weapon is speargun, then is it unreasonable or absurd for Howard to go to gaol for sitting on a train holding a spear gun?
v IF YES, WHAT EXTRINSIC MATERIAL CAN BE USED?
International Convention?
- Creates offences relating to the robbery of ships
Second reading speech?
- “…will apply to pirates who cannot at present be reached by existing law”
Section headings?
- “Possession of weapons on ships”
What do these materials tell us about the purpose and meaning of s 4?
Does this consideration of purpose change, or confirm our earlier interpretation?
Looking at all the above, how do you interpret s4? Will Howard be guilty of an offence under the Act? Why? Why not? REMEMBER TO DISCUSS BOTH SIDES OF ANY CONTENTIOUS ISSUES.
PATRICIA
Note: It is not necessary to repeat any common legal discussion. You may simply refer to the previous discussion, but note any different application which may result from the different fact situation.
Ø APPROACH TO INTERPRETATION: Is any further discussion required?
Ø INTERPRETATION:
v ARE THE KEY WORDS DEFINED IN THE LEGISLATION?
Note that section 5 is different to section 4 – person is not qualified in the same way. (Therefore you would not need to discuss person as you did for Howard.) Also look at the information in the question – and the way in which terms such as “scheduled course” are used.
Person: if the meaning is not clear you may have to refer to a dictionary or the relevant interpretation legislation.
Is Patricia a person for the purposes of the section?
who causes to be diverted or attempts to cause to be diverted
Are the words clear?
What did Patricia do? Was this an attempt at a diversion?
a ship
What information does the question give you?
from its scheduled course
What information does the question give you?
v WHAT IS THE ORDINARY MEANING OF THE WORDS?
CAN THE SECTION BE EASILY AND CLEARLY UNDERSTOOD OR IS THE RESULT AMBIGUOUS, OBSCURE, or leads to a result which is MANIFESTLY ABSURD OR UNREASONABLE? (Why are these words important? What are the tests they refer to? Where are these tests found?)
Patricia attempted to divert the ship after it had already left its course. Is it ambiguous or unclear whether the Act applies only to the first diversion from the scheduled course or to any diversion from the scheduled course?
IF YES, THEN CONSIDER THE STATUTORY INTERPRETATION TOOLS AVAILABLE. (GO THROUGH SAME PROCESS AS WITH HOWARD – BUT REMEMBER TO FOCUS ONLY ON WHAT IS RELEVANT. For example, will you need to consider the syntactical presumptions here – what lists do you have to interpret in s5?)
Ø S15AB threshold: note the test used for Howard? Is it the same test you will use for Patricia? (Most commonly, if a question has two different fact scenarios it is directing your attention to two different threshold tests.)
Ø WILL THE EXTRINSIC MATERIALS HELP YOU HERE? HOW? WHAT IS THE PURPOSE OF THE LEGISLATION? WHAT WAS PATRICIA DOING?
Looking at all the above, how do you interpret s5? Will Patricia be guilty of an offence under the Act? Why? Why not? REMEMBER TO DISCUSS BOTH SIDES OF ANY CONTENTIOUS ISSUES.