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Statutory Interpretation And Ombudsman Notes

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Statutory Interpretation; Ombudsman

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"To a large extent judicial review of administrative action is a specialized branch of statutory interpretation" (S A de Smith Constitutional and Administrative Law

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"The Cardinal rule of statutory interpretation ... requires the words of a statute to be read in their context (K & S Lake City Freighters v Gordon [1985] HCA) o

Context includes other sections, the title and divisional structure and the legislative history (Newcastle City Council v GIO General)

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In administrative law this context is broader and includes aspects of government and the legal system that lies outside of the statute

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But regardless of these attempts at prescription "there is no simple rule of thumb...What the court does is take an overall view, weigh all the relevant interpretive factors and arrive at a balanced conclusion (Francis Bennion, Statutory Interpretation)

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The interpretive criteria are: common law and statutory rules; principles derived from legal policy, presumptions based on the nature of the legislation and linguistic canons applicable to any prose

The Language of the Statute

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The starting point is always the literal approach - "If the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning" (Gleeson CJ in Cooper Brookes v Federal Commissioner of Taxation)

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There also exists the purposive approach to work alongside this: o

In interpreting a provision... "a construction that would promote the purpose or object of the underlying Act [whether or not expressly stated] shall be preferred to a construction that would not promote that purpose or object" (s15AA of the Acts Interpretation Act 1901 (Cth))

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s15AA(1) implies that this approach works alongside the literal approach

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Purpose is taken into account not only whether the provisions offer more than one construction but also whether more than one is open (Mills v Meeking [1990] - Dawson J)

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The purpose of the statute/canons of construction may require legislative provisions to be read in a way not corresponding with the literal/grammatical meaning (Project Blue Sky v Australian Broadcasting Authority [1998])

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The reason for the shift from semantic construction to purposive/contextual follows:Respect for suffrage and due accord to the will of parliament when ascertained

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Appreciation of the complexities of government in an era of detailed regulationGrowing understandings of the function of context in all human communicationThe impetus given by the provisions themselves which promote this approachJudicial recognition that the price of simplification of law reflects a need for courts to give effect to the purpose Kirby J - Australian Finance Direct v Director of Consumer Affairs Victoria [2007]

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This approach was favoured inSales v Minister for Immigration and Citizenship [2008] - statutory power to cancel visa 'granted' to person did not authorization cancellation of visa 'held'Australian Crime Commission v AA [2006] ALD - court took account of the history/purpose of legislation establishing the commission and its purpose

Also note how both approaches can arise indirectly: Vardalis - FCA was divided as to whether or not the Migration Act comprehensively defined government power over entry or operated alongside executive governmental power to safeguard sovereignty

The nature of the subject matter being regulated and interests apt to be affected

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The area of community life to which the statute applies is also important o

Woodward - subject matter of the statute is national security and this supports an expansive construction

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Bradbury - Power to regulate activity varies in scope according to whether the activity is socially desirable or obnoxious

Whether or not the decision affects individual interests is also important o

FAI - court generally don't regard the exercise of statutory discretion that affect the rights of a citizen as absolute and unfettered (Mason J)

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Coco - Express language is required to authorize interference with basic immunities that are the foundation of individual freedom

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But individual interests shouldn't be over emphasised - it is in the nature of legislation to have an impact on individuals that may seem harsh (e.g. unemployment benefits to people who fit criteria)

The nature of the power being exercised

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Generally powers which are polycentric in nature are construed broadly to accommodate the range of competing claims and interests that fall within their scope.

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The same is true for subordinate legislation (Tanner)

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Powers with prerogative ancestry reflect that origin in their construction (Coutts v Commonwealth [1985]

The nature of the decision maker

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The conferral of power upon a minister is relevant to the standard of impartiality to be expected of that minister and the range of matters considered in reaching that decision (Jia, Peko, Murphyores), the same applies to a vice-regal officer (FAI) or local government body (Bowser)

Interpretation Statutes

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All jurisdictions have interpretation statutes; (Acts Interpretation Act 1901/1987 (Cth/NSW) which define the meaning of commonly used statutory terms

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Some jurisdictions (VIC and ACT) have enacted human rights legislation that aid in the interpretation of statutes (e.g. in Vic statutes must "so far as it is possible to do so consistently with their purpose" interpreted in a way "compatible with human rights (which is further defined"

Extrinsic Materials

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All interpretation statutes make it permissible to have regard to contemporary material extrinsic to the Act (explanatory memoranda, second reading speeches etc.) which form a resource in gleaning policy objectives

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International conventions can also be given regard but only as an "interpretive influence" that does not override domestic. These instruments are subject to their own methods of construction (A v Minister for Immigration and Ethnic Affairs)

Judicial Presumptions Common law approaches, assumptions and presumptions

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These common law principles are generally judicially inspired and are tantamount to "a common law bill of rights - a protection for the civil liberties of the individual against invasion by the state" (Pearce & Geddes Statutory Interpretation in Australia)

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But all common law presumptions are rebuttable - some easier than others by the words of a statute (for some an implication will suffice for others express/unambiguous language is required)

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Sometimes these presumptions operate in different directions and the approach taken depends on which predominates

Implied Incidental Power

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Sometimes powers aren't directly conferred but statutes permit activities incidental/consequential upon the powers which are conferred - but absent this there is an implied power of similar effect:

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"Those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited (Lord Blackburn - A-G v Great Eastern Railway Co [1880]

Herscu v The Queen (1991) 173 CLR 276 Facts: The appellant was convicted under the QCC for bribing a minister of local government "in the discharge of the duties of his office". He appealed saying that the activity for which he bribed him was not his explicit duty Ratio (Mason CJ, Dawson, Toohey and Gaudron JJ):

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The joint judgement asserted that it was not necessary to list all the powers given to a minister, suffice to say that the powers given are wide-ranging

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One charged with business connected with local government and administration of legislation bears a responsibility for supervision and control of their department and is as such clothed with "general" authority in addition to specifically statutorily conferred powers

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A minister must "perform all his duties...those lying within the scope of the office, those essential to the accomplishment of the main purpose...which, although only incidental and collateral, serve to promote the accomplishment of the principal purpose" (McHugh JA in GJ Coles v Retail Trade Industrial Tribunal)

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It is possible to point to particular functions regarded as imposing duties on a minister but this doesn't exhaust the whole of his executive/administrative responsibilities - there were many others conferred upon him by his office

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Implied incidental powers were also considered in:

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A-Gv Smethwick Corporation [1932] - local government agency could purchase equipment to undertake all its printing in house rather than contracting it

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Health Insurance Comission v Freeman [1988] FCR - DPP, apart from its prosecutorial role can give legal advice to government agencies on investigations (legal privilege attaches to this too)

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Binse v Williams [1998] CA - Statutory functions conferred on prison governors including an implied power to discharge these functions (e.g. applying physical restraints on prisoner threatening others)

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Acts Interpretation Act 1901 (Cth) - power conferred by statutes to grant/issue instruments presumably includes the power to revoke/rescind them

Principles of implied/incidental powers are limited by three other principles: o

Clear/unambiguous statutory language is required to authorize conduct otherwise tortuous or interfering with fundamental rights to freedom/immunity (Coco)

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Statutory powers mustn't be used for an unauthorized purpose

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Activity ancillary in nature must compliment not supplement the statutory scheme - one cannot add powers outside the limits of powers conferred for more effectively

coping with the evils intended to be met (Isaacs J in Carbines v Powell [1925]
HCA)

Kent v Johnson (1972) 21 FLR 177 Facts: Canberra residents challenged the construction of the Telecom Tower on the summit of one of the hills in the capital. The Postmaster General (PMG) was to erect this tower under the authority conferred by the Post and Telegraph Act 1901 (CtH) and other statutes also made under s51(5) of the constitution. Ratio (Smithers J):

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No statutes expressly authorize the PMG to construct the restaurant/tourist services in the tower but it is suggested that it is implied as being incidental to this power (which is permitted Benning v Wong)

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Such incidental powers must pass the test that they are "necessary for the reasonable fulfilment of the process of performing those acts and matters which are expressly authorised

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It was suggested that all expenditures on features to be built, costing only an extra $200, 000, was a reasonable and sensible one to aid in the amortisation of the funds required to erect the tower.

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But a project incidental to the exercise of its statutory power must have affinity with that power
- economy or convenience is insufficient. Smithers J cited: o

A-G (Vic) v CTH - Starke J asserts that the CTH's authority to maintain clothing factories other than by its constitutional powers might be desirable from the perspective of efficiency and economy "but the constitutional warrant is still lacking". In that case the incident was the necessity to keep skilled men available for making military clothes when necessary.o

An authorized project dependent upon obtaining revenue from another project without affinity is the same as this

Thompson v Randwick Corporation [1950] HCA - Excess land purchased with a view to using profit from it to reduce costs on the remainder - this was an abuse of the Council's powers since it was not a substantial purpose (of buying the land) in the sense that it wouldn't have been done if it wasn't desired to reduce the cost of the road by sharing profit from resale.

Established Freedoms and immunities

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Legislation is presumed not to abrogate a fundamental right, freedom or immunity other than by express or unambiguous language

Coco v The Queen (1994) 179 CLR 427 Relevant Facts: Coco (a QLD businessman) was convicted of offering a bribe to a CTH office contrary to s73(3) of the Crimes Act. This hinged on evidence from telephone conversations recorded from a listening device

installed on his premises by police officers posing as telecom employees who were purportedly acting under the approval of Carter J (SC Judge) under the Invasion of Privacy Act s43(3) that provided a judge could grant approval to 'use a listening device'. Held: The power conferred by the section in this Act to approve the 'use' of a listening device didn't extend to installation by unauthorized entry. Principles (Mason CJ, Brennan, Gaudron & McHugh JJ)

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Every unauthorized entry upon a private premise is trespass, and an interference with a person's fundamental common law right of possession and the exclusion of others (Entick v Carrington)

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Statutory authority to engage in what would otherwise be tortuous must be clearly express in unmistakable and unambiguous language; in the absence of an express provision to the contrary, the presumption is that the legislature didn't intend to authorize what would otherwise be tortuous conduct (Plenty v Dillon [1991] HCA) o

But the presumption is rebuttable and can be displaced by clear implication (e.g. the provisions becoming inoperative or meaningless) but not by inconvenience in carrying out the object authorized by the legislation

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This insistence on express words is in line with earlier judicial statements in England (Raymond v Honey - "a citizen's right to unimpeded access to the courts can only be taken away by express enactment"

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This insistence can be understood as a manifestation that not only did the legislature direct itself to the question of abrogation of fundamental rights but was also determined upon their abrogation; courts should not infer this in the absence of this intention being manifested in clear and unmistakable language

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The rationale for this can be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness" (Potter v Minihan)

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A second rationale is that it enhances the parliamentary process by ensuring greater attention to the impact of legislative proposals on fundamental rights

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But this does not exclude the possibility of fundamental rights being displaced by implication (e.g. if it becomes inoperative or meaningless); the idea of 'necessary implication' just emphasises the stringency of this test. o

But it would be rare for general words in statute to be rendered meaningless if no implication concerning fundamental rights were made since general words can always be given some operation

Ratio:
? s43 doesn't contain express words conferring power to authorize the relevant conduct that would be tortuous - the conduct here infringed the fundamental right of persons to exclude people from their property
? The requirement that a judge has to have regard to the 'extent' to which the privacy of the person is likely to be interfered with doesn't necessarily point to authorization of entry but

rather refers to interference with the privacy of communication
? 'Use' does not extend to installation where it is necessary in order to listen to a private conversation - its meaning is narrower than this
? Furthermore there is no clear expression of an unmistakable and unambiguous intention to confer such a power
? Furthermore it cannot be found as an implied power - the absence of any reference to a power of entry excludes this
? It was suggested that, at the commencing date, listening devices could not be used without making entry; this is not true for ALL devices. And furthermore entrance to effect installation could be gained with the person's co-operation.
? The QLD act didn't confer power on Carter J to authorize entry onto Cosco's premises

Evans v State of NSW (2008) 168 FCR 576 Facts: WYD was preceded by the creation of the WYD Coordination Authority under the WYD Act

2006. s58 (1) of the Act authorized the Governor to make regulations "necessary or convenient" for giving effect to the Act and (2) for 'regulating the conduct of the public on WYD venues and facilities'. Reg 7 of the WYD Regulation 2008 conferred authority on officers to 'direct a member of the public within a WYD declared area to cease conduct that b) causes annoyance or inconvenience to participants in WYD. The applicants commenced proceedings to get reg 7 declared invalid in that it would inhibit their freedom of protest (distributing materials relating to contraception and the stance of the Catholic church, stickers etc.) Held: reg 7 was invalid Ratio (French, Branson and Stone JJ):

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s58(1) requires that there must be a rational relationship between the regulation and the powers/obligations created by the Act or an object or purpose of the Act

On "Conduct"

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The ordinary English meaning is 'manner of conducting oneself' which is wide enough to encompass any observable act including form of communication; taken in isolation it could be used enjoin silence etc.

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The constraint on this Act is that it be 'necessary or convenient' for giving effect to the Act

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But there is a principle independent of such constraints that limits the power to regulate conduct - when constructional choices are open it is an important principle that Acts be construed so as to not encroach upon common law rights or freedom (They then cited O'Connor J in Potter v Minahan)

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Even though in Malika Holdings v Stretton, McHugh J observed that the rules of construction in Potter is fast becoming an interpretive fiction (since what is "fundamental" is subject to change and the reach of the regulatory state makes it difficult to assume that the

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