Statutory Interpretation

Question 1

define the literal rule

Answer 1

when judges give the words of an act their ordinary, literal meaning.
can use a dictionary at the time of the act eg. cheeseman v dpp - to find the meaning of the word ‘passenger’. other extrinsic aids won’t be used, only intrinsic. emphasis is on what parl said not what they meant, even if it leads to an unfair or harsh result
Lord Esher: reason for use is bc if parl have made a mistake w the wording, it can be easily corrected by parl only not judges (parliamentary sovereignty)

Question 2

briefly describe the cases of cheeseman v dpp and fisher v bell in one sentence.

Answer 2

1. man got named infront of police officers in a public toilet n was charged for exposing himself to passengers but the pc’s weren’t passengers as they were stationary- not guilty.
2. d had a flick knife displayed in the shop window n it was illegal to offer knife for sale, displaying isn’t the same as offering so d was not guilty

Question 3

what made the literal rule applicable to brb v berriman?

Answer 3

relaying and repairing(act) isn’t the same as maintaining so compensation wasn’t given to railway workers wife

Question 4

define the golden rule

Answer 4

an extension of the literal rule. judges look at literal meaning n then if it would lead to an absurd/unfair result the judge can use the wide and narrow version of the rule.

Question 5

what are the different versions/approach’s of the golden rule.

Answer 5

narrow- used if a word/phrase has 2 possible meanings. judge can apply meaning which’ll avoid a harsh/absurd result.(adler v george n r v allen)

wide- used if a word/phrase only has one possible meaning and this will lead to an unfair/absurd result, judge will change the meaning by substituting another meaning which will lead to a fair/outcome.(re sigworth)

Question 6

describe the cases of adler v george and r v allen

Answer 6

1. ‘in the vicinity’ was interpreted in a narrow way to also include inside the prohibited place.
2. bigamy case. narrow view was used and ‘shall marry’ was interpreted as going thru w a marriage ceremony so d was guilty

Question 7

describe the case of Re: Sigworth

Answer 7

son killed mum to get inheritance so wide version of golden rule was applied so that the absurd result of him getting his inheritance from his mum who he killed wouldn’t happen

Question 8

define the mischief rule

Answer 8

first described in heydons case. if word/phrase in a statute are unclear, judge must answer 4 questions to discover what parl meant:1. what was common law b4 the act was passed 2. what mischief was there in the common law that parl intended to resolve 3. what remedy did parl create to deal w the mischief 4. reason for that remedy.
the emphasis of this rule is on what parl meant, rather than literally what it said. this is preferred by the law commission

Question 9

describe the case of smith v hughes and royal college of nursing v dhss

Answer 9

1. soliciting prostitution services in public was banned however 1 woman was in a balcony/others in windows which she argued wasn’t a public place. they applied the mischief rule and said the aim of parl was to prevent prostitution in public n balconies could be seen as public
2. mischief rule was applied n it was decided parls aim was to prevent backstreet abortions

Question 10

what aids are used when judges use the mischief rule?

Answer 10

more likely to use mischief rule. ‘twas easier to use the rule in the past, when most statutes had a lengthy preamble explaining the background to this statute, including the reasons for its introduction

Question 11

define the purposive approach

Answer 11

most modern approach and has been increasing in popularity with judges in recent years n now has take over from the literal rule as the most popular approach. more open version of the mischief rule but just asks what parls general purpose was in passing the act. it seeks to give affect to the general intention and spirit of the statute as opposed to the literal meaning of the word, broader approach than mischief, judges look at what they believe parl is trying to achieve. need to rely more on extrinsic aids. links to a more continental approach

Question 12

describe 3 purposive approach cases

Answer 12

1. ex parte smith- man was denied seeing his birth certificate bc ppl were worried he’d cause harm to his mum if he found out who she was. purposive approach was applied despite the plain language of the act as parl could’ve promoted a serious crime.
2. quintavelle- embryo’s n ivf i think
3. jones v tower boot- purposive approach used as parls intention was to eliminate discrimination in the workplace. ‘in the course of employment’ but racism took place outside but by co worker

Question 13

what are intrinsic aids? examples?

Answer 13

found inside the statute itself.eg. long and short title, preamble (older statutes), interpretation sections eg theft act , other sections eg shah and shah, schedules eg the postal services act, marginal hooks and headings

Question 14

what are extrinsic aids?examples?

Answer 14

found outside the act itself e.g. a dictionary eg. dpp v cheeseman, hansard(report on debates in parliament e.g used in pepper v hart), reports of royal commission or law reform bodies e.g. law commission, case law, human rights act, historical setting where act was passed eg rcn v dhss, reports of international conventions eg in fohergill v monarch airlines, the interpretation act 1978

Question 15

what are the advantages n disadvantages of the literal rule?

Answer 15

+ follows word of parl n parl sovereignty, recognises parl as supreme law maker, prevents unelected judges from making law, makes law more certain, makes law easier to understand for public

• assumes every act is written perfectly w/o any errors, not always possible to write an act so that it covers every possible situation parl intended it to e.g whitely v chappell illustrates this where d wasn’t guilty of voting under someone else’s name, words may be ambiguous so lit rule may make meaning of act unclear, different meanings of words may lead to absurd results, may lead to unfair/unjust results e.g brb v berriman

Question 16

what are the advantages n disadvantages of the golden rule?

Answer 16

+ respects words of parl to an extent, provides an escape route for absurdity when there’s ambiguity, allows judges to choose more sensible option when there’s multiple meanings to a word, prevents potential repugnant situations eg would’ve been clearly unjust to allow son in re sigsworth to benefit from the murder of his mother

• very limited in its use as only used when lit rule leads to absurdity, uncertain when it will be used so hard for lawyers to advise clients, michael zander(legal scholar) described legal rule as a ‘feeble parachute’ (very limited escape route that can’t do much)

Question 17

what are the advantages n disadvantages of the mischief rule?

Answer 17

+ promotes purpose of the law, allows judges to look back at the law and fill in the gaps that the act was created to cover, more likely a just result will occur, means judges will be trying to interpret the law in a way parl intended it to work, the law commissions preferred method of interpretation(1969 they recommended it should be the only rule used)

• risk of judicial law making, unelected judges are filling gaps in law w their own views on how law should remedy certain situations,royal v dhss- shows judges don’t always agree on how to fill gaps, could lead to uncertainty in the law- lawyers can’t advise clients n predict, scope isn’t as wide a purposive approach’s, limited to looking back at the old law n filling gaps rather than looking for a more general consideration of what the law actually is

Question 18

what are the advantages n disadvantages of the purposive approach?

Answer 18

+ leads to justice in more cases, broad approach n allows law to cover more approaches than applying words literally, useful where there’s new tech that was unknown when act was originally created eg quintavelle- parl would’ve had to create new law to cover cover new tech concerning cloning if purposive approach hadn’t been used to simply adapt law that already existed, gives judges more discretion than simply using the literal meaning of the words- if purposive approach was used in whitely v chap it’s likely d would’ve been found guilty bc parls purpose was to prevent ppl from voting in another persons name
- parls intention is sometimes unclear, allows unelected judges to make law, opponents of their approach say words of an act can show parls true intentions n judges using purposive approach are ignoring these

Question 19

what are the advantages and disadvantages to the diff aids to interpretation?

Answer 19

+intrinsic- judges are drawing directly on parls words so a upholding doctrine of parltry sovereignty, long titles are useful for using purposive or mischief rule as they can imply intention,