Exam 1

Question 1

S48 of ILA - Legislation presumed not to apply extra-territorially (Legal Principle)

Answer 1

In an Act or subordinate instrument, unless the contrary intention appears— (b) a reference to a locality, jurisdiction or other matter or thing shall be construed as a reference to such locality, jurisdiction or other matter or thing in and of Victoria.

Question 2

10A ILA (1 year in vic) Default Commencement (Legal Principle)

Answer 2

If an Act makes no provision for the commencement of a particular provision of the Act, the Act must be taken to provide for the provision to come into operation on a day to be proclaimed or on the first anniversary of the passing of the Act, whichever is the earlier.

Question 3

Presumption against retrospectively (Legal Principle)

Answer 3

Rodway

Question 4

Literal Interpretation (Legal Principle)

Answer 4

Engineers Case

Question 5

Interpreted in Context (Legal Principle)

Answer 5

CIC Insurance or Projects Blue Sky

Question 6

Define Ejusdem generis:

Answer 6

of the same sort, kind, or nature.

Question 7

Ejusdem generis (Legal Principle)

Answer 7

Deputy Commissioner of Taxation v Clark.

Question 8

Interpretation that voids absurd consequences should be preferred over one that does (Legal Principle)

Answer 8

Barton

Question 9

Purposive approach (Legal Principle)

Answer 9

Heydon’s Case & S35 A ILA.

Question 10

Words of minister cannot replace words of Act (Legal Principle)

Answer 10

Re Bolton

Question 11

Words are presumed to be used consistently throughout the Act (Legal Principle)

Answer 11

Wilson v Commissioner of Stamp Duties (1986).

Question 12

Words are presumed to carry their current meaning (Legal Principle)

Answer 12

Deputy Commissioner of Taxation v Clark.

Question 13

Statutes do not operate retrospectively (Rodway v The Queen 1990) [Common Law Presumption]

Answer 13

• In the interests of the predictability and continuity of the law, it is presumed that Interpretation does not operate retrospectively.
• Parliaments can enact legislation with retrospective effect (R v Kidman 1915) but only with an express provision.
• Rebuttable – express language or necessary implication.

Question 14

Parliament does not interfere with Common Law rights (Coco v The Queen 1994) [Common Law Presumption]

Answer 14

•Parliament can not interfere with fundamental rights to influence the outcome.
•Through express language and implication
o If the meaning of the act would be rendered meaningless or inoperative.

Question 15

Parliament does not abrogate the privilege against self-incrimination (Crafter v Kelly) [Common Law Presumption]

Answer 15

• Parliament has not excluded the right to refuse to self-incriminate
• Rebuttable- If the question was a ‘lawful’ question, whether it incriminates an individual of an offence.

Question 16

Parliament does not abrogate against legal professional privilege (Daniels Corporations International v Australian Competition and Consumer Commission 2002) [Common Law Presumption]

Answer 16

• Confidence between a legal client and a legal representative
• Rebuttal- Clear words or necessary implication

Question 17

Parliament does not derive people of access to the courts (Plaintiff S157/2002 v Commonwealth 2003) [Common Law Presumption]

Answer 17

Parliament can not restrict someone of having their dispute heard in court.

Question 18

Re-enactment constitutes approval of previous judicial interpretation (Flaherty v Girgis 1987) [Common Law Presumption]

Answer 18

When an act is re-enacted, it adds further strength to the argument for the purpose and the meaning of an act.

Question 19

Legislation does not bind the Crown (Bropho v Western Australia 1990) [Common Law Presumption]

Answer 19

•Act often contains statement that ‘This ac shall bind the crown’.
o This has the effect of Rebutting the presumption

Question 20

Penal provisions are strictly construed (Smith v Corrective Services Commission of NSW 1980) [Common Law Presumption]

Answer 20

Cant be sentenced for 25 years in prison.

Question 21

Property rights are not taken away without compensation [Common Law Presumption]

Answer 21

(Durham Holdings Pty Ltd v NSW 2001)

Question 22

Legislation does not have extraterritorial effect S21 (1)(b) [Common Law Presumption]

Answer 22

• Acts Interpretation Act 1901 (cth) provides: In any act… references to localities jurisdiction and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.
• Except for SA,WA territories.

Question 23

Parliament intends to legislate in conformity with international law
[Common Law Presumption]

Answer 23

(Minister for Immigration and Ethnic Affairs v Teoh 1995)

Question 24

stare decisis:

Answer 24

the legal principle of determining points in litigation per precedent.

Question 25

Per incuriam:

Answer 25

through or characterized by lack of due regard to the law or the facts.

Question 26

Noscitur a sociis:

Answer 26

a doctrine or rule of construction: the meaning of an unclear or ambiguous word (as in a statute or contract) should be determined by considering the words with which it is associated in the context.

Question 27

Expressio unius est exclusio alterius:

Answer 27

a principle in statutory construction: when one or more things of a class are expressly mentioned others of the same class are excluded.

Question 28

Generalia specialbus non derogant:

Answer 28

a rule of statutory interpretation that requires specific provisions in an act to prevail over general provisions if/ when the two come into conflict.

Question 29

Acts in pari materia:

Answer 29

Statutes inpari materiaare statutes sharing a common purpose or relating to the same subject. They are construed together as one law, regardless of whether they contain any reference to one another.