A2 Statutory Interpretation & Intro to admin law July 2008

1. A2Statutory Interpretation& Intro to admin law July 2008

2. Rule of Precedents (stare decisis) • In early England, the King may occasionally lay down laws • But customs governed how affairs of people were settled • King would appoint judges to decide on disputes • Over time, these rulings were adopted by other judges in similar circumstances • Today, the doctrine requires a lower court to be bound by decisions of a superior court where case is of same nature • Precedents may be either binding (if in same jurisdiction) or persuasive (if in a different jurisdiction) • Some precedent caselaw may be ‘distinguished’ rather than ‘followed’, depending on material facts of the cases • High Court not bound by its own decisions • Doctrine promotes stability and certainty of the law, and also the notion of justice and fairness • Precedent caselaw useful in drawing submissions

3. Aids to statutory interpretation • Statutes are drafted by legal draftspersons, who could use terms which are either ambiguous or have broad meanings • Printed versions also subject to typesetting or printing flaws • So interpretation is often required to get to the true meaning or intention of the legislature when it passed the statute • Some legislative aids to statutory interpretation: • Acts Interpretation Act 1901 provides a ‘purposive’ construction of statutes, i.e. to give meanings to words in statute in order to effect their intended purpose • Paragraphs in relevant legislation for definition of terms (e.g. s.5 Migration Act 1958, Regulation 1.03 Migration Regulations 1994) give a legal definition or interpretation of the meaning of terms as applied within that particular piece of legislation • be careful not to apply definition of one term in a piece of legislation to another piece of legislation

4. Use of language in statutory interpretation • ‘If the Act is directed to dealing with matter affecting everybody generally, the words used have the meaning attached to them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business, or transaction, and words are used which everybody conversant with that trade, business, or transaction, knows and understands to have a particular meaning in it, then the words are to be construed as having that particular meaning, though it may differ from the common or ordinary meaning of the words.’ (Lord Esher MR, in Unwin v Hanson [1891])

5. Use of language in statutory interpretation • For words with no definitive meaning, e.g. ‘reasonable’ or ‘compelling’, Policy is devised to give it a meaning within prescribed contexts • principle of expressio unius est exclusio alterius (“express mention of one thing is exclusion of another”), where meaning of a word is gleaned from those of other words used in the same context • principle of ejusdem generis (“of the same kind”) or noscitur a sociis (“known from associates”), where a general word following other particular words will be interpreted in the same vein as the others, or that the word will be interpreted in the same context as surrounding words.

6. Literal rule: ‘If the words of an Act are clear then you must follow them even though they lead to a manifest absurdity. The court has nothing to do with the question whether the legislature has committed an absurdity.’ (Lord Esher MR in R v Judge of the City of London Court [1892]) Golden rule: ‘The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or repugnance or some inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency, but no farther.’ (Lord Wensleydale in Grey v Pearson [1857]) Mischief rule: if a literal interpretation is not possible because of ambiguity or inconsistency, the courts may have regard to the original purpose of the statute, what the common law was before its enactment, and what ‘mischief’ did it intend to remedy, and then make such construction as necessary to suppress the mischief and advance the remedy (Heydon’s case [1584]) Statutory or Purposive rule: a variation of the Mischief rule, based on the Acts Interpretation Act, to ‘promote the general legislative purpose underlying the provisions, to look at the context of the stature, and to go beyond merely searching for the mischief to which the statute is directed’ (Lord Denning MR in Notham v London Borough of Barnet [1978]) Rules of statutory interpretation

7. Wide range of materials which may be useful in the task of statutory interpretation Intrinsic materials (internal to the legislation in question): Definition paragraphs in the legislation Preambles Notes (forenotes, sidenotes, endnotes) Examples Extrinsic (external) materials: Hansards of Parliamentary speeches and debates Second reading speeches Parliamentary committee reports Official reports of Royal Commissions, Law Reform Commissions, etc. Other statutes from the same or different jurisdictions International covenants, conventions and treaties Law journals and textbooks Dictionaries Use of intrinsic & extrinsic materials

8. Possible defects instatutory interpretation • Sir William Blackstone, a famous 18th century English jurist, had expressed the view that to permit review of unreasonable legislation by judges through statutory interpretation was ‘to set the judicial power above that of the legislature, which would be subversive of all government’. • When Lord Denning tried in Magor & St Mellons Rural District Council v Newport Borough Council [1952] to find the intention of Parliament and give effect to it by filling in gaps in the wording of the relevant statute, Lord Simonds had reiterated the view of Blackstone by rebuking him for a 'naked usurpation of the legislation function under the thin disguise of interpretation'.

9. Natural justice The rules of natural justice • The rule against bias: an overall duty on the official to act fairly in administrative inquiries, which must be carried out in a fair manner and with due regard for procedural fairness • The fair hearing rule: the person who is the subject of the inquiry and who may be subject to some penalty must be made aware of what the allegations are, the evidence and the nature of the evidence against him/her, and be afforded a reasonable opportunity to respond • Migration Legislation Amendment (Procedural Fairness) Act 2002 provides a clear legislative statement that the codes of procedure identified in the Migration Act are an “exhaustive statement of the requirements of the natural justice hearing rule” in relation to the matters they deal with, i.e., as long as administrators abide by the codes of procedure contained in the Act, then natural justice or procedural fairness is said to have been met, and affected parties would not have recourse to appeal to the courts on the grounds that they had not been afforded natural justice, unless they can prove actual bias in the decision making process

10. Physical elements of an offence Conduct Circumstance Outcome ‘Fault’ elements of an offence Intention Knowledge Recklessness Negligence Burden of proof Evidentiary – adducing or pointing to evidence to suggest a reasonable possibility that the matter exists or does not exist – repudiation of most offences under the Migration Act require this form of burden of proof Legal – must be specifically stated in law, and must be discharged on balance of probabilities 3 types of statutory offences Mens rea offence – needs to prove a ‘guilty mind’ Strict liability offence – automatic responsibility, no fault elements; but ‘mistake of fact’ defence available Absolute liability offence – similar to strict liability, but ‘mistake of fact’ defence is not available ‘Mistake of fact’ – reliance on wrong but honest and reasonable consideration of the facts and circumstances at time of offence, and if the circumstances existed or the facts had not been wrong, then it would not have been an offence Most offences under the Migration Act are strict liability offences Penalty unit = $110 (Crimes Act 1914, s.4AA) Application of Criminal Code

11. Intro to Admin Law • PRIVATIVE CLAUSE DECISIONS • As a result of the passing of privative clauses legislation [Migration Legislation Amendment (Judicial Review) Act 2001], most primary decisions relating to visa decisions are no longer subject to judicial review from 2 October 2001, even if decision was made before that date, although it is still possible to go to judicial review from the MRT, RRT or AAT [Migration Act, ss.464 & 476] • Permissible applications for judicial review must be lodged with the court • within 28 days, but • the court may extend time limit by 56 days

12. Hickman & Plaintiffs S157 & S134/2002 • R v Hickman; Ex parte Fox and Clinton (1945) 75 CLR 598 • The ‘Hickman exceptions’ basically mean the courts cannot override the decision unless • the decision was not a bonafide attempt to exercise power (e.g. as result of fraud, bribe,dishonesty, etc.) • the decision does not relate to the subject matter of the legislation; or • the decision was not reasonably capable of reference to the power given to the decision maker • Plaintiffs S157/2002 and S134/2002 • The High Court ruled on 4 February 2003 that • The Australian Parliament had power to enact ‘privative clause’ legislation • Privative clause legislation are valid (except for the ‘Hickman’ exceptions • Decisions affected by ‘jurisdictional error’ are not privative clause decisions • Privative clauses do not prevent grant of prerogative writs

13. Prerogative writs • Prerogative (or Constitutional) writs as remedies in judicial review proceedings[Migration Act, ss.477 & 486A] • Mandamus • Court order compelling a public official to perform a duty or exercise a statutory discretionary power • Prohibition • Court order preventing a tribunal or inferior court acting in excess of power from proceeding further • Certiorari • Court order quashing the decision or determination of a tribunal or inferior court • Injunction • Court order of an equitable nature requiring person to do, or refrain from doing, a particular action • Declaration • A formal imperative statement issued by a court creating or preserving a right

14. ‘Class Actions’ • As a result of passing of the Migration Legislation Amendment (No.1) Act 2001, class actions and joinder of plaintiffs or applicants in migration proceedings no longer available from 1 October 2001 • Exceptions – • Applications lodged before 14 March 2000, or • Where court has already commenced substantive hearing, or • Persons who are family unit members of applicant joining in the migration proceeding, or • Persons performing statutory functions, or • Commonwealth or State Attorneys-General, or • Certain persons prescribed by the Regulations, or • Where the court is permitted by Court Rules to ‘consolidate’ proceedings for efficiency purposes • But see Muin & Lie v RRT[2002] HCA 30 (8 Aug 2002) • High Court held (by 4:3 majority) that the plaintiffs had been denied procedural fairness by the RRT • As a result thousands of applicants who had joined in the class action may need to have their refugee claims reassessed

15. Exclusive jurisdiction on migration litigation in the High Court, Federal Court and Federal Magistrate’s Court Lodgment of migration judicial review to be made directly to Federal Magistrates Court Ensure identical grounds of review whether appeal to High Court or Federal Magistrates Court to stop multiple reviews Set uniform time limits of 28 days to judicial review applications, but court may extend by 56 days on request Restrict access to the Administrative Decisions (Judicial Review) Act 1977 by ‘privative clause decisions’ under the Migration Act 1958 High Court can remit migration cases to Federal Magistrates Court for review, and to do so ‘on the papers’ Litigant must disclose any previous judicial review on same matter Lawyers to sign statement that their judicial review case has merit Courts can summarily dismiss cases which have no reasonable chance of success Courts can issue personal cost orders against lawyers lodging application for ‘unmeritorious’ cases or cases with no reasonable chance of success Migration Litigation Reform Act 2005