7.4 – Statutory Interpretation

Interpretation Activity Look at the following section of the crimes act 6231/1958 (Vic). Write down what this section means. Rewrite the section in a way that is clearer yet still conveys the same meaning. Aggravated Burglary http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s77.html

Statutory Interpretation Interpret the following words and give examples Offensive behaviour Indecent language Man In the vicinity Weapon Possession Architectural design excellence

Why do judges need to interpret legislation? Legislation may be about a technical or complex topic Intention of the Legislation is unclear It may be expressed in general terms to cover wide range of circumstances but has to be applied to specific situations May not have foreseen all circumstances Meaning of words change over time Technology changes rapidly leaving gaps (upskirting, iwatch) Those looking for loopholes can find ways around legislation Amendments over time makes it unclear (Crimes Act 1958) Time pressures leads to clumsy, vague and ambiguous Acts Mistakes while drafting – Crimes Act 1958 (Vic)S51 Sexual exploitation of mentally impaired people requiring a witness to give evidence

Examples Meaning of the words may be ambiguous Davies v. Waldron (1989) – does “starting the car” mean “attempting to drive” Grace v. Fraser (1982) – does “driving” include not actually being behind the wheel? Mistakes can occur during the drafting of an act – parliamentary counsel may make mistakes when drafting a bill S51 of Crimes Act 1958 (Vic.) Deals with sexual exploitation of people with impaired mental functioning – a witness was required to support the victim’s evidence before prosecution It is unlikely that there would be a witness to such acts, so no prosecutions were brought Act has since been amended – a witness is no longer required The meaning of words can change over time – what do “man” and “woman” mean? The constitution gives the Commonwealth Parliament power to legislate over “the naval and military defence of the Commonwealth and of the several states…” S51 (vi) This does not refer to any air force, as this was not envisaged at the time of passing Acts may not include new types of technology – an act referring to records, audio tapes and CDs may or may not include DVDs

Legislation is unclear or intent is not clear

Methods used by Judges to interpret statutes Intrinsic sources (1st port of call) These are contained within the legislation Words of the Act The long title Preamble (intro section) Headings When these are read with the Act they help with making the Act clearer http://www.legislation.vic.gov.au/

Extrinsic sources Examine other material not found within the Act Found outside the Act Hansard Dictionaries The Acts Interpretation Act 1901 (Cwlth) Interpretation of Legislation Act 1948 (Vic) Committee reports Reports from law reform bodies

The effect of statutory interpretation http://www.thevine.com.au/entertainment/tv/top-10-judge-judy-moments/

The Effects of Interpretation Precedent is created The Act and its interpretation becomes legally binding on lower courts making judges influential law makers (Toonen V. Australia [1994] Words are ‘brought to life’ The actual word does not change but the meaning can. This can restrict or extend the scope of the legislation (Deing v. Tarola) Parliamentary Action Can abrogate – publicly remove a precedent made through judicial interpretation (Grace v. Fraser) Codify – bring together the law in a particular area in one statute

Toonen v Australia

Deing v Tarola

Grace v Fraser

Remember…. The judiciary makes laws when interpreting statutes or when expanding previous precedents However, when a major change is required the courts may decline to intervene because they see radical change as the responsibility of parliament Parliament is able to fully investigate an entire are of law, not just a single case before the court Parliament is better equipped to make comprehensive laws especially in controversial areas Judges are not elected as law makers and are not responsible to the community for decisions they make

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