Business Law 1100

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Topic revision notes Topic 2 Sources of law Legislation

(incorporating material from the tutorial Legislation and relevant materials from the second seminar)

The purpose of these revision notes is not to duplicate material already provided, but to assist with the focus of your study for revision purposes.
Completed tasks By now you should have: Read chapter 3 of First Principles of Business Law Done the computer based tutorial Legislation. NOTE: The topics, 8. Other principles of interpretation in Chapter 3 (p.23) of the FPBL Source Book and 9. Presumptions that assist interpretation also in Chapter 3 (p.24) of the FPBL Source Book are NOT examinable in this course. This means that you do not have to do Topics 6.10 and 6.11 of the computer-based tutorial Legislation. Attended the seminar Review the revision notes at the end of the week in preparation for the revision quiz in next weeks class Bentley students only: Booked a time in the Assessment Centre for the OST

Learning outcomes
After completing this topic, you should be able to: identify the different sources of law in Australia to explain legislation as a source of law outline the legislative process and associated terminology explain the principles of statutory interpretation.
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Legislation as a source of law

Focus questions As you work through this topic, keep in mind the following key points: How is new legislation initiated? Can you explain what procedures are followed in the legislature when proposed legislation is introduced? What role does the head of state have in enacting new legislation? Why is it important to take account of which legislature enacted particular legislation? Can you explain what is meant by the following terms in relation to legislation: 1. title; 2. headings 3. divisions; 4. purpose clauses; 5. royal assent; 6. commencement date; 7. definitions?

Are there rules that judges use to establish the proper meaning of words in an Act if the meaning of the words are uncertain? If so what are they? Are you able to give a definition of each rule as follows: 1. What is the literal approach to interpretation; 2. What is the golden rule; 3. What is the purpose approach? Can judges look outside the Act for assistance in interpreting legislation? If so, in what circumstances? What specific materials can they refer to? Are you able to apply these rules to the case study from the seminar and computer based tutorial? 1. The legislative process The legislative process involves a number of different stages. These are described and explained in the tutorial Legislation.
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Try these activities 1. Outline the legislative process sufficiently to explain the following terms: Bill First, second and third reading of a bill Royal assent Commencement Unicameral and Bicameral legislatures. 2. Watch the video The Australian Legal System law vision (under Topic 1 Additional resources) or Finding Sources of Legal Information (under Topic 2) 2. An approach to reading legislation your roadmap. Steps skim through the legislation as a whole to get an idea of its structure, content and overall purpose take note of the title, the objects clause, the table of provisions, the use of section numbers and headings, and the definitions section find the sections most relevant to your enquiry, read them and the surrounding sections follow up any cross-references to other sections check for defined terms. 3. Interpreting legislation Sometimes, the meaning of a section in legislation is uncertain. It might be argued that the section could mean one thing rather than another, or that it could be applied either widely or narrowly. Such situations involve interpreting the legislation to ascertain its proper meaning. Rules of interpretation should be applied to resolve interpretation questions. In outline, these rules are: The literal approach Give the words using their ordinary, natural meaning. Look up a good dictionary to determine this. Can you recall the example given in the seminar? The golden rule

If the literal approach gives an absurd result, or one that is repugnant or inconsistent with the overall act, modify the literal meaning to the extent necessary to avoid the absurdity or inconsistency. Is this rule used very much?
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The purpose approach If the literal approach does not give a clear and unambiguous meaning, and as a general aid to the literal approach, ascertain the meaning of words by having regard to the purpose of Parliament when it passed the Act. Then choose the meaning that best serves that purpose. Can you recall the example given in the seminar? Do you know where the purpose approach comes from? What would be your authority here? (i.e. what piece of legislation would you cite in your answer that demonstrates the source of the rule? Are there different sources for state and commonwealth laws? If so, do you know the Commonwealth Act and the Western Australian Act?) Can you explain the difference between intrinsic evidence and extrinsic evidence used by judges when applying the purposive approach? List some examples of both. Can judges refer to just anything they want? There are other more specific rules of interpretation that may assist in particular cases, but are not examinable in this course, as noted above. Having applied the various rules of interpretation, state your final conclusions. You may now wish to review the case study from the seminar. Case study: The toxic waste

Late in the afternoon on 1 December 2009 Alex Demtiriou, who owns a waste removal business, collects a truckload of contaminated soil from excavations at a building site in Melbourne. He drives the full truck back to his companys yard in Werribee. He leaves it parked there overnight, intending to drive it to a remote dump the next day. A municipal inspector sees the truck in the yard and discovers that the soil in the truck is toxic waste. The inspector tells Alex that the law forbids storing such materials near a river or river bed without a special permit. Alex admits that the soil is contaminated and says that he cannot produce a permit. The Werribee River is three kilometres from the haulage companys yard. The inspector makes a report to the Police, who charge Alex with a breach of s 3 of an Act called the Contamination Avoidance Act. Alex is given the option of admitting guilt and paying a fine of $1,000. Otherwise, he will have to defend the charge in court.

Alex asks for your advice. He admits the soil was left in the yard, but says it was only left there overnight and that he always intended to move it the next day. He says that, in these circumstances, he does not think he contravened the Act. You are asked to advise Alex whether to pay the $1,000 fine or defend the charge in court. You search the AusLIIi databases and find the Contamination Avoidance Act. The Act contains provisions dealing with various environmental issues. The relevant sections of this Act are as follows: Contamination Avoidance Act 2006 (Vic) In the name and on behalf of Her Majesty I hereby assent to this bill. Governor of Victoria, 30th July 2006. 1. Objects. The objects of this Act are: (a) to preserve the water resources of Victoria; and (b) to prevent harm caused by the accidental spread of contaminants. 2. Definitions For the purposes of this Act (a) Minister means the Minister of Environmental Affairs. (b) river bed means a river with intermittent flow (c) toxic materials means any materials that are contaminated with or that contain substances known to cause harm to animals or plants. 3. Storage of toxic materials prohibited A person shall not store or permit the storage of toxic materials within five kilometres of a river or river bed without first obtaining a permit from the Minister. 4. Permits An application for a permit to store toxic waste must be made on the prescribed form at least three weeks before the intended storage takes place. 5. Offences and Penalties Any person who engages in conduct in contravention of this Act, or who causes another person to engage in conduct in contravention of this Act, shall be guilty of an offence and liable to a fine not exceeding $5,000. In addition to the Act itself, you also find this extract from the Ministers second reading speech. The Contamination Avoidance Act will ensure that there is no risk at all of contamination to our precious waterways due to toxic material being left in any circumstances within the prescribed areas

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Resolving the problem Does this Act apply to the case in question? Has it commenced operation?
Two things to consider: First, where does the case study take place? o Relevance: The Act is a Victorian statute. The Act will only apply to acts that occur in Victoria due to limits in the legislative power of State legislatures. o The event takes place in Victoria in Melbourne. Second, when does the case study take place? Has the Act commenced operation? o Relevance: If the Act has not yet commenced operation, Alex cannot be fined under the Act o o o o The Act received royal assent on 30 July 2006. The Act commenced 28 days later on 28 August 2006 These events occur on 1 December 2009 The events take place after the Act commences operation.

So since the events take place in Victoria and after the Act commences operations, its provisions apply.

What facts must be proved to establish a breach of section 3?

The elements are: A person, Shall not store or permit the storage of, Toxic materials, Within five kilometres of a rive or river bed, Without first obtaining a permit from the Minister.

On the known facts, what argument is Alex making in his defence?

The facts say: He admits the soil was left in the yard, but says it was only left there overnight and that he always intended to move it the next day. He says that, in these circumstances, he does not think he contravened the Act.
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It seems that the element that Alex is arguing did not exist is that he: shall not store or permit the storage of. Therefore, the argument that Alex is making in his defence is that: leaving the soil in the truck overnight does not constitute storing that material; it does not fall within the meaning of store.

Does Alexs argument raise an interpretation question? If so, what is that question?

Yes: it does raise an interpretation question. We need to interpret the meaning of the word store. More specifically, the interpretation question is: Does the word store, as used in section 3 of the Contamination Avoidance Act, include a temporary placing of prohibited materials within a restricted area?

Identify, explain and apply the relevant rules of statutory interpretation: the literal approach; the golden rule and the purpose approach. What conclusion is a court likely to reach by applying these rules to this case?

Literal Approach What is it? Give words their ordinary, natural meaning. Can use a good dictionary to assist with this Apply: What is the ordinary, natural meaning? o Dictionary definition: to place or leave in a location (e.g. warehouse, library, or computer memory) for preservation or later use or disposal; future use o May consider in determining: method, place and time of storage o But: doesnt the literal meaning of store suggest something more permanent than a temporary placing (cf. dictionary definition) This interpretation favours Alex: leaving the soil in the truck overnight was just a temporary placing, not a permanent placing. Therefore, Alex did not store the material. Golden Rule What is it? If the literal approach gives an absurd result or one repugnant or inconsistent with the overall Act, the golden rule modifies the literal meaning to the extent necessary to avoid the absurdity or inconsistency. Apply: The result of the literal approach is not absurd; so the golden rule would not apply (cf. Stopping at traffic lights momentarily meant store) Purpose Rule What is it? Ascertain the meaning of words or phrases by having regard to the overall purpose or underlying objective that the legislation was intended to achieve, and choose a meaning that best serves that purpose Apply: So while the literal approach might suggest that a temporary placing is not within the ordinary meaning of the word store, other evidence may indicate a different result. What other evidence can we look to? o Intrinsic evidence The Objects section (clause 1) to protect the water resources of Victoria from contamination to ensure the availability of safe water supplies for future

generations of Victorians Suggests the purpose is to protect the water resource not particularly strong expression, but still important to cite o Extrinsic evidence The Second Reading speech of the Minister: The Contamination Avoidance Act will ensure that there is no risk at all of contamination to our precious waterways due to toxic material being left in any circumstances within the prescribed areas This is a strong expression of the purpose of the Act: no risk at all; in any circumstances Therefore, the purpose of the Act, as disclosed particularly by the extrinsic evidence (the second reading speech) is to prevent all risk of contamination to the water resources of Victoria under any circumstances. So now, we interpret the word/phrase in a way that best serves that purpose The purpose suggests a wider meaning is to be given to store (cf. narrow meaning of the literal approach), to include even a temporary placing. This interpretation does not favour Alex.

On the basis of the conclusions reached, would you advise Alex to admit guilt and pay the fine, or should he defend the charge in court?
Admit guilt and pay the fine

This is the end of Topic 2