ACT laws & legislation.

Australian legislation is meant to be written in plain English; that is, written with ordinary language with words using their ordinary meanings. The intention of this policy is so that the general public can understand it. It is not meant to be ambiguous requiring specialist interpretation and in most cases it isn’t

creative_canberran said :

p1 said :

So even though the laws are written in English (Australia’s official language), and available freely online, they don’t actually mean what we think they mean?

That is precisely the case. Their usefulness is dependant on the ability of the user to interpret them appropriately.

Basically, interpreting legislation requires one to first interpret the words literally in the context in which they appear according to their ordinary meaning. Then, one must look at the words and interpret them so as to arrive at an interpretation that supports their original purpose. Both these involve complex rules on interpretation aids and extrinsic materials. You may have to refer to Hansard, maxums or to case law to see how words should be interpreted.

If the legislation is well drafted, the literal and purposive interpretations will arrive at the same conclusion. Often they don’t, particularly with older legislation. If they do not agree, then the purposive interpretation will be preferred by the law.

This isn’t actually the case – at least the way you’re stating it.

You only look to interpretive principles if the legislation as it reads is unclear or can support two different meanings.

The vast majority of legislation reads clearly and consistently. Some requires interpretation, but it is by no means the first step.

creative_canberran said :

For example, in Higgin v O’Dae, the owner of a gaming arcade was charged for permitting a minor on the premises….

What is wrong with a gamble after a hard day digging coal from the ground?

Softlaw might help you dig through the legislation with a bit more purpose. Get the appropriate advice if you have a matter before the courts, ACAT etc…

Opinions on softlaw for getting Law-n00bs on the right track?

http://www.softlaw.org.au/actlh/index.htm

Grail said :

I’m trying not to by cynical about it, but purposive interpretation sounds to me like just another gimmick the lawyers use to keep themselves in work. Of course they couch it in terms such as “literal interpretation of the law allows bad guys to get away on technicalities”.

Whether literal or purposive, there would be plenty of work either way for lawyers.
In Australia, the literal and purposive approaches exist side by side. For any interpretation, one must use both methods, and if the conclusion is different between the two, the law requires the purposive approach to prevail.

The literal approach is problematic because it assumes words will have a single, unambiguous meaning, which often they don’t. For example, in Higgin v O’Dae, the owner of a gaming arcade was charged for permitting a minor on the premises. The words of the Act could lead to only one literal interpretation, that the owner was guilty even though common sense and the court both said it was absurd. The government changed the legislation soon after to better reflect the purpose of the Act.

That is why the law now requires a purposive approach to prevail. To ensure the decision is based not specifically on the words written, but the purpose for which they are written.

johnboy said :

You’re meant to pay lawyers. It’s a racket.

That’s what I think.

So if the laws are written in such a way that I can’t interpreted them, then how is the everyday public meant to know what is legal and what is not?

I’m trying not to by cynical about it, but purposive interpretation sounds to me like just another gimmick the lawyers use to keep themselves in work. Of course they couch it in terms such as “literal interpretation of the law allows bad guys to get away on technicalities”.

Tell me I’m wrong? Tell me it’s just a mechanism the government can use to keep us under control as the rules get ever more proscriptive and oppressive?

p1 said :

So even though the laws are written in English (Australia’s official language), and available freely online, they don’t actually mean what we think they mean?

That is precisely the case. Their usefulness is dependant on the ability of the user to interpret them appropriately.

Basically, interpreting legislation requires one to first interpret the words literally in the context in which they appear according to their ordinary meaning. Then, one must look at the words and interpret them so as to arrive at an interpretation that supports their original purpose. Both these involve complex rules on interpretation aids and extrinsic materials. You may have to refer to Hansard, maxums or to case law to see how words should be interpreted.

If the legislation is well drafted, the literal and purposive interpretations will arrive at the same conclusion. Often they don’t, particularly with older legislation. If they do not agree, then the purposive interpretation will be preferred by the law.

creative_canberran said :

A word on legislation for the benefit of all RiotACT readers:
While it is useful that all the state, territory and commonwealth legislation is now available online, caution must be exercised in actually reading and using the legislation. Formerly, you could read legislation and interpret it literally. However, the law has changed and requires a rather complex process to arrived at a “purposive interpretation”. Doing this requires reference to the Acts Interpretation Act and a whole series of maxims and tests established by the court. It’s quite complex and can lead people into the trap of taking the words on face value.
Also, if the court has already being asked to interpret legislation, then you may need to refer to that as well.

So even though the laws are written in English (Australia’s official language), and available freely online, they don’t actually mean what we think they mean?