Logic

Enright, Legal Technique eWorkbook
Working with Statutes

INTRODUCTION
There are three tasks in working with statutes:
(1) Detecting ambiguity.
(2) Touring a statute.
(3) Analysing a statute.
DETECTING AMBIGUITY
The Task
The task in each of these questions is to find the ambiguity, understand its cause
or nature, and identify the possible meanings of the ambiguous sentence.
The Object
The prime object of this exercise is to focus on seeing possibilities. Accordingly, do
not ignore questions on the ground that some possible meanings of the ambiguity
are implausible in the context of the question; complete each question fully.
Answering questions in this way should sensitise students to the possibility of
ambiguity and have them always on the alert for it.
The secondary object of these questions is to counter the strategy, common to
some lawyers confronted by an ambiguity, of launching straight in to arguments
as to what it means or, worse, making assertions. Instead, appreciate that an
ambiguous provision cannot be interpreted properly until the ambiguity has been
detected, analysed and understood.
The Legal Relevance
Around half of these questions involve provisions of the Constitution and a few
other statutes. A number, however, involve a type of ambiguity which is unlikely
to be found in law. However, it may be found in evidence by a witness in court.
Questions
Question 1
There is a constitutional maxim: The King can do no wrong.
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The Federation Press, 2002
Working with Statutes Detecting Ambiguity
Question 2
There is a classification for films shown on television: Viewing recommended by
mature audiences.
Question 3
A sign outside an exclusive gentlemens club says Entry to this club is restricted
to members and their invited and accompanied guests.
Question 4
There is a film called Witness. The ambiguity is in the title of the film. [You need to
have seen the film to answer the question.]
Question 5
The cook was a good cook, as good cooks go; and as cooks go she went (Saki
(HH Munro) Reginald on Besetting Sins).
Question 6
Dorothy Parker sent a telegram to her friend who retired to the country and gave
birth to a baby: Congratulations: we all knew you had it in you.
Question 7
The sign outside a motel says Little Charm Motel.
Question 8
The motto of a school is We believe in doing what we do well.
Question 9
Some persons, after consuming alcohol, want to fight and become hard to
manage.
Question 10
We are less under the influence of reason than our ancestors.
Question 11
There is a famous World War II headline Macarthur Flies Back To Front.
Question 12
Its the last scene from that final exquisite study in the ambiguity that attends all
human relationships (Peter Redgrove The Arse and the Elbow).
Question 13
Much conversation was going on about him.
Question 14
The case will be reheard before a full bench. Counsel will argue both the merits
and the jurisdiction of the court.
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Question 15
The letter was not sent because of information received.
Question 16
Paint or varnish may be dissolved by turpentine or kerosene.
Question 17
Section 7(2) of the Acts Interpretation Act 1958 (Vic) provided that any such
investigation legal proceeding or remedy may be instituted continued or
enforced.
Question 18
Section 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth) provides: The
Tribunal has power to review any decision in respect of which application is made
to it under any enactment.
Question 19
In the Treason Act 1351 (UK) treason was defined as follows: If a man do levy war
against our Lord the King in his realm, or be adherent to the Kings enemies in his
realm, giving to them aid and comfort, in the realm, or elsewhere.
Question 20
There is a maxim: Necessity has no law (in Latin the maxim is necessitas non
habet legem).
Question 21
John and Tom are burglars who have just done an armed robbery. Tom has a
pistol. The police chase John and Tom who flee on to a roof top. John is captured.
The police shout to Tom who is hiding behind a chimney to throw out his gun and
give himself up. John who is being held on the roof top yells out to Tom: Let him
have it. Tom then fires the pistol killing a policeman. He is subsequently
captured. John is tried for murder based on what he said to Tom.
Question 22
Does s 128 of the Constitution authorise amendment to covering clause 6?
Question 23
What is the ambiguity when s 2 of the Constitution is read with s 61?
Question 24
What is the ambiguity when s 7 of the Constitution is read with s 122?
Question 25
What is the ambiguity when s 51(xx) of the Constitution is read with s 51(xiii)?
Question 26
What is the ambiguity when s 51(i) of the Constitution is read with s 92?
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Question 27
What is the ambiguity when s 51(xxvii) of the Constitution is read with
s 51(xxviii)?
Question 28
What is the ambiguity when s 51(xxx) of the Constitution is read with s 51(xxix)?
Question 29
What words or phrases in s 52(i) of the Constitution appear to be ambiguous?
Question 30
What is the ambiguity in s 72(ii) of the Constitution?
Question 31
What is the ambiguity in the phrase after an interval of three months in s 57 of
the Constitution?
Question 32
What is the ambiguity in s 51(i) of the Constitution?
Question 33
What words or phrases in s 52(xxxi) of the Constitution appear to be ambiguous?
Question 34
What is the ambiguity in s 51(vi) of the Constitution?
Question 35
What is the ambiguity in s 92 of the Constitution?
Question 36
What is the ambiguity in s 81 when it is read with s 83 of the Constitution?
Question 37
(1) What is the ambiguity in s 116 of the Constitution?
(2) Would it authorise grants of money to religious schools?
(3) Would it allow a government to establish and run state schools?
Question 38
What is the ambiguity in s 51(v) of the Constitution?
Question 39
Is there any word or phrase in s 51(xx) of the Constitution which is used
proleptically?

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Answers
Answer to Question 1
The maxim, the King can do no wrong, can either mean that the King is immune if
he does wrong, or that he is not allowed to do wrong and must, therefore, make
restitution if he does.
The classification for films, viewing recommended by mature audiences, has
ambiguity of implied qualification. It is meant to mean that those who want to
watch it should be mature. It can possibly mean also that the film is recommended
for all mature people.
In the sign, Entry to this club is restricted to members and their invited and
accompanied guests, the ambiguity is over the second use of and. Is it used
conjunctively and disjunctively? Do guests have to be both invited and accom-
panied (the most sensible meaning in context), or one or the other, ie either invited
or accompanied.
The film Witness is about a child, a member of the Amish sect, who witnessed a
murder. This is one sense of witness. During the film the mother of the child is
tempted to betray her religious principles and have an affair with the detective
investigating the murder. This is challenging her duty to live her life in a way
which witnesses the Christian faith. This is another meaning of witness.
The ambiguity here is in the word go. Usually it means leave, but in the form
it is used in the phrase, as good cooks go, it means something like measure
up. Hence the statement is a pun on the two meanings of go.
To say you had it in you may be meant literally, as a pregnant woman has a
child in her, or it may be meant metaphorically in the sense that you were capable
of doing what you had to do.
The Little Charm Motel obvious means a little motel which is charming. It
could, though, mean a motel which has only a little charm.
The motto, We believe in doing what we do well, can mean that we believe in
doing well whatever we do, or that believe in doing only the things that we do
well. It is obviously meant in the first sense.
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Sometimes words are not repeated because they are understood. Here there is the
possibility that the words want to are not repeated before become. This is
syntactically possible although it is not the obvious sense of the statements. On
this meaning the person wants to fight and wants to become hard to manage. On
the other, more plausible meaning, the person wants to fight, and in addition (and
in consequence), they become hard to manage.
This statement can mean: We are less under the influence of reason than our
ancestors were under the influence of reason. Or it can mean: We are less under
the influence of reason than we are under the influence of our ancestors.
The World War II headline, Macarthur Flies Back To Front, is a pun on the
phrase back to front involving the famous US general, General Douglas
Macarthur. Back to front can mean backwards. Or it can mean that Macarthur
flew back to the front line of the war, which is clearly the intended meaning.
The ambiguity which attends all human relationships is more a matter for poets
and novelists. To hazard a guess, the line between love and hate is often a fine
one, something reflected in the words of Oscar Wilde in his poem, the Ballad of
Reading Gaol, that each man kills the thing he loves.
In the sentence, Much conversation was going on about him, the word about
can mean that he was the subject of a conversation, or it can mean that people near
and around him were having conversations.
In the sentence, Counsel will argue both the merits and the jurisdiction of the
court, there is relational ambiguity over the concluding phrase of the court.
Does it go just with jurisdiction or does it go with merits as well. On one
interpretation counsel is arguing the jurisdiction of the court and the merits (of the
case). On the other, counsel is arguing two things about the court, its merits and
its jurisdiction.
In the sentence The letter was not sent because of information received the use
of not is ambiguous. It is not clear what part of the sentence not goes with.
Does it go with sent meaning that the letter was not sent? Or does it go with
because of information received meaning that the letter was sent, but the reason
that it was sent had nothing to do with the information which had been received?
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The statement, Paint or varnish may be dissolved by turpentine or kerosene,
raises the ambiguity covered by the maxim reddendo singula singulis. Does it mean
that paint is dissolved by turpentine and varnish is dissolved by kerosene, which
applies the maxim? Or does it mean that either turpentine or kerosene will
dissolve both paint and varnish?
Section 7(2) of the Acts Interpretation Act 1958 (Vic) provided that any such
investigation legal proceeding or remedy may be instituted continued or
enforced. This phrase also involves the maxim reddendo singula singulis. Do we
read investigation with instituted, legal proceedings with continued and
remedy with enforced, or do we take each of the three nouns, investigation,
legal proceeding or remedy, with all three verbs, instituted, continued or
enforced?
In s 25(4) the ambiguity is whether the phrase, under any enactment, goes with
in respect of which application is made to it or with decision. If it goes with
decision, then it means that the Tribunal can review a decision (made) under
any enactment provided that application is made to it. If it goes with in respect of
which application is made to it then it means that for the Tribunal to have power
to review a decision an enactment must provide that an application can be made
to the Tribunal for review of the decision. (This ambiguity was discussed in Re
Qantas (1979) 2 ALD 291.)
The Treason Act 1351 (UK) defined treason in the following way: If a man do levy
war against our Lord the King in his realm, or be adherent to the Kings enemies
in his realm, giving to them aid and comfort, in the realm, or elsewhere. Treason
involves any of three actions:
(1) Levy[ing] war against our Lord the King.
(2) Be[ing] adherent to the Kings enemies.
(3) Giving to them [the Kings enemies] aid and comfort.
Each of these three actions is specifically defined to be treason if it takes place in
the realm. At the end of the description of the three actions the Act has the
phrase or elsewhere. The question is whether this applies just to the third
action, giving aid and comfort to the Kings enemies, or to all three actions.
There is, we need to note here, a constitutional presumption that a statute operates
in the realm anyway, and not beyond it. This will weigh the argument that it
attaches only to the third action. (Roger Casement was convicted of treason and
hanged during World War I when he lost this argument on the interpretation of
the provision. See R v Casement [1917] 1 KB 98, although the judgment of the Court
of Appeal is incoherent.)
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The maxim, Necessity has no law, can mean that necessity is an exception to
most legal rules (which is the accepted meaning), or it can mean that necessity has
no legal recognition.
The words, Let him have it, can have either of two meanings. It can mean let the
police have the gun, ie to hand it over. This is a literal meaning of the phrase. Or it
can mean shoot the policeman, a colloquial meaning of the phrase.
The ambiguity in s 128 is that it refers to an amendment to the Constitution. On
the face of it this refers to the provisions authorised by covering clause 9 of the
Commonwealth of Australia Constitution Act, but does not authorise amendment to
the other covering clauses. It is possible, however, to read an implied extension
into s 128 to the effect that of necessity it allows amendments to all covering
clauses. The ambiguity, of course, is whether this extension is permissible.
When s 2 is read with s 61 the ambiguity is that they are potentially inconsistent in
conferring power on the Governor General. This is ambiguity of competing rules.
When s 7 is read with s 122 the ambiguity is that they are potentially inconsistent.
Is the Senate composed just of State Senators (s 7) or can there be Senators from
the Territories as well (s 122)? This is ambiguity of competing rules.
When s 51(xx) is read with s 51(xiii) there is ambiguity because the provisions
overlap. Does s 51(xx) authorise legislation on the item which is specifically
excluded from s 51(xiii), State banking? This is ambiguity of competing rules.
There is a similar ambiguity regarding State insurance when s 51(xx) is read
with s 51(xiv).
Section 51(i) authorises laws on trade and commerce between the States, while
s 92 effectively forbids laws on interstate trade and commerce which make it not
absolutely free. This is ambiguity of competing rules.
Section 51(xxvii), authorising legislation on immigration and emigration, seems
to swallow up s 51(xxviii) to the extent that the influx of criminal arises from
immigration. This is ambiguity of competing rules.
Section 51(xxix), authorising legislation on external affairs, seems to completely
swallow up s 51(xxx) authorising legislation on the relations of the Common-
wealth with the islands of the Pacific. This is ambiguity of competing rules.
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Section 52(i) refers to the seat of government. Where does this begin and end?
What institutions does it take in? How widely does it cover them, eg for Parlia-
ment House does it allow legislation just on the building and grounds of
Parliament, or does it extend to a zone around them? This is ambiguity of
involving a vague and subjective term.
Section 72(ii) authorises the Governor General in Council to dismiss a federal
judge for misbehaviour. Does this involve committing a crime, behaving in an
unethical but not illegal fashion, or behaving without decorum, to give some of
the possibilities? And how severe does this behaviour have to be? For example, if
committing a crime is included, does it extend to serious crime or to any crime?
This is ambiguity involving a vague and subjective term.
In s 57, dealing with resolution of deadlock between the Senate and the House of
Representatives, the phrase, after an interval of three months, is ambiguous
because it is not clear when the three-month period commences. There are two
possibilities. (1) It commences when the House of Representatives passes any
proposed law. (2) It commences when the Senate rejects or fails to pass it [the
proposed law], or passes it with amendments to which the House of
Representatives will not agree. This is syntactic ambiguity. It was discussed in
Victoria v Commonwealth (PMA Case) (1975) 134 CLR 81).
In s 51(i) the ambiguity is in the expression trade and commerce, but is
amplified by the reference to trade and commerce being with other countries and
among the States. At the centre of trade and commerce is the exchange of goods
and services. But there are activities both before and after this exchange, and the
contract of exchange has several stages. Putting this together there is a chain
which often involves the following steps (and perhaps more) manufacture of a
product, advertising the product, discussing the product with a would be
purchaser, negotiating a contract with the purchaser, entering this contract,
payment of the price by the purchaser, delivery of the product by the seller (and
where a service is sold, performance of the service) and after sales service. Section
51(i) requires that there is an interstate or international character to trade and
commerce to involve the power in s 51(i). In other words it is necessary to be able
to draw an interstate or international boundary through the trade and commerce.
This involves an ambiguity: where does this boundary line have to run? Is it only
through the central acts of contracting and performing, or can it be through any of
the more peripheral, but still necessary, activities before and after these?
In s 52(xxxi) the major ambiguity is just terms (which sets the constitutionally
decreed price for a compulsory acquisition of property). How do we calculate
what is a just price?
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Section 51(vi) authorises the Commonwealth to legislate for a purpose, namely
defence. How do we gauge when a law is for this purpose?
Section 92 requires that interstate trade, commerce and intercourse be absolutely
free. It does not, however, say what it is that trade, commerce and intercourse
must be free from. Weevils? Taxes? Protection rackets? Safety regulations? This is
ambiguity of omission, the casus omissus. It is worth noting here that an alert High
Court could readily find s 92 void for vagueness on the basis that it vests an
impermissible amount of legislative power in a court which has to interpret it.
Section 81 requires that revenues and moneys raised or received shall form one
Consolidated Revenue Fund. Section 83 provides for appropriation of this
money [and revenue] from the Treasury. Does Treasury refer to the Consoli-
dated Revenue Fund? Logically it has to, or s 83 is meaningless.
(1) In s 116 the term religion and cognate expressions are ambiguous. Is
religion just confined, for example, to organised and institutionalised
religions, or does it also include a set of ethical or spiritual beliefs?
(2) Making grants of money to religious schools might be construed as
establishing a religion, although this view is a bit strained.
(3) Section 116 forbids any law prohibiting the free exercise of any religion. If
parents have deeply held religious views which compel them to send their
child to a religious school, expenditure by a government of taxpayers
revenue on state schools without providing an equivalent benefit to these
parents inhibits their ability to exercise their religion freely. Hence, according
to this argument, it offends s 116.
Section 51(v) gives the Commonwealth power to legislate over Postal,
telegraphic, telephonic and other like services. With the phrase other like
services there is ambiguity as to how like postal, telegraphic and telephonic
service these other services have to be.
Section 51(xx) gives the Commonwealth power to legislate over three types of
corporations foreign corporations, and trading or financial corporations formed
within the limits of the Commonwealth. The participle formed, which attaches
to both trading and financial corporations, could be used in either of two senses. It
could be used in its literal sense of meaning already formed, with the result that
the Commonwealth has power over these corporations only once they are formed.
Alternatively, it could be used as a contracted form of the future perfect tense,
meaning which will have been formed. This usage is proleptic.
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TOURING A STATUTE
THE CONSTITUTION
Why Tour a Statute?
It is essential to become acquainted with a statutes provisions and its layout
before starting to work with it, for example by analysing it or answering problem
questions on it. A straightforward way of becoming acquainted is to answer a
series of simple questions directed to finding specific provisions in the statute. The
questions involve walking through the provisions of the statute.
The questions below are based on the Commonwealth of Australia Constitution Act
and the Constitution.
THE MODEL ANSWERS
The model answers are given by reference to the section of the Commonwealth of
Australia Constitution Act or the Constitution which contains the answer. To avoid
confusion, sections of the Commonwealth of Australia Constitution Act are called
covering clauses, and sections of the Constitution are called sections.
As far as possible the answers stick to these sections and do not mention the
existence of relevant conventions: this is an exercise in touring a statute, not in
constitutional law. In any event, seeing a raw constitutional power untrammelled
by convention is a good background against which to illustrate the effect of
convention. (The obvious convention is that the Governor General exercises her
power on the advice of the institutions of government. Executive powers of the
Governor General should be exercised on the advice of the executive government.
Logically, legislative powers should be exercised on the advice of the parliament,
although this logic is not often expressed indeed, many observers say that the
power should also be exercised on the advice of the executive government.)
Questions
Question 1
What is the legal connection between the Commonwealth of Australia and the
United Kingdom?
Question 2
Who enacted the Commonwealth of Australia Constitution Act?
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Touring a Statute The Constitution
Question 3
(1) What are the major institutions of government?
(2) Which provisions of the Constitution establish these institutions?
(3) Which provisions of the Constitution confer power on these institutions?
Question 4
(1) Briefly, what form of government was there in Australia before federation?
(2) This questions concerns the position after federation of New South Wales,
Victoria, South Australia, Queensland, Western Australia and Tasmania? Did
their Constitutions continue? Their powers? The laws that they made before
federation?
(3) What does the term States mean in the Constitution?
(4) What effect did the Constitution have when it commenced?
Question 5
What action commenced the Commonwealth of Australia?
Question 6
Look at each of the provisions indicated below and say whether it is (a) a power,
(b) a prohibition, (c) a procedure. Some will be a mixture and fall within more
than one category. These provisions are ss 51(ii), 51(iii), 51(xiii), 51(xiv),
51(xxiiiA), 58, 61, 71, 73, 75, 76, 80, 81, 83, 90, 92, 96, 109, 114, 115, 116, 117, 119.
Question 7
What powers does the Governor General have under the Constitution?
Question 8
Is there any one to advise the Governor General?
Question 9
(1) What is the composition of the Commonwealth Parliament?
(2) What is the Senate composed of? The House of Representatives?
(3) If a Bill passes both houses of Parliament does it become law?
Question 10
What part of the Constitution deals with legislative power?
Question 11
(1) What powers does the Commonwealth Parliament have?
(2) Can the Commonwealth make any law that it likes?
Question 12
(1) Name five sections of the Constitution which confer legislative power on the
Commonwealth Parliament.
(2) Can the Commonwealth Parliament make laws about bankruptcy?
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(3) Can the Commonwealth Parliament make laws about beacons and buoys?
(4) Can the Commonwealth Parliament legislate to prohibit the import of
manufactured clothing into Australia from China?
(5) If the Commonwealth does not have specific power to deal with a subject,
does this mean it has no power at all?
(6) Can the Commonwealth Parliament legislate to regulate the conduct of the
accounting profession?
Question 13
What do the following provisions have in common (a) s 51(vi) read with s 114;
(b) s 52; (c) s 51(ii) read with s 90; and (d) s 51(iii) read with s 90?
Question 14
Can the Commonwealth Parliament pass a Crimes Act making a comprehensive
code of criminal law for the whole of Australia? (By a comprehensive code we
mean a statute that deals with all major crimes, eg murder, manslaughter, rape,
aggravated assault, assault, larceny, fraud, arson etc.)
Question 15
What part of the Constitution deals with executive government?
Question 16
Who questions the executive power of the Commonwealth?
Question 17
What section of the Constitution established the Executive Council? Ministers of
state? Government departments?
Question 18
Can the Governor General go onto a ship of the Royal Australian Navy and tell
the captain what to do?
Question 19
What are the functions of Ministers?
Question 20
Can the Governor-General appoint the captain of the Australian cricket team as a
Minister?
Question 21
What part of the Constitution deals with the judicature?
Question 22
What is the Federal Supreme Court called?
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Question 23
Which provisions of the Constitution vest jurisdiction in Commonwealth Courts?
Question 24
Who appoints justices of the High Court?
Question 25
Can the Prime Minister remove a judge because she does not like his decision in a
case?
Question 26
Jenny was born on 1 January 1929. Could she be appointed to the High Court?
Question 27
Can the High Court hear the following matters:
(1) An appeal from the Supreme Court of Victoria?
(2) A matter arising under a treaty?
(3) An action for debt by Fred who lives in Queensland against Mary who lives
in Victoria?
(4) A matter involving a collision between two ships?
Question 28
What is the combined effect of the following provisions s 51(vi) (just the part
about defence, not the police power), s 114 (just the part about naval and military
forces, not taxation), and s 119.
Question 29
A girl drinking next to you in the saloon bar of your local hotel tells you that she
does not have a copy of the New South Wales Constitution. She adds: That went
out the window with federation. Is she right?
Question 30
A fellow drinking next to you in the saloon bar of your local hotel (the older
brother of the girl in Question 29) says to you: At school I learnt the names of the
six States. I am pleased that there cannot be any more because I do not want to go
to the bother of learning more names. Is he right?
Question 31
Australia, says your friend Feddy, is made up of six States and the
Commonwealth. These are the only constitutional entities. Is Feddy correct?
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Answers
The Constitution is contained in an Act of the United Kingdom, the Commonwealth
of Australia Constitution Act. This means that, in a formal sense, all constitutional
power of the Commonwealth derives from the United Kingdom.
The United Kingdom Parliament. This is indicated by the words of enactment
which are located just before s 1.
(1) Major institutions of government are:
(a) The Crown, ie the Queen (ss 1, 2 and 61).
(b) The Parliament (Chapter I).
(c) The executive government (Chapter II).
(d) The judicature, ie courts (Chapter III).
(2) Provisions establishing these institutions are:
(a) Crown s 2 (Governor General).
(b) Parliament s 1.
(c) Executive government s 2 (Governor General). See also s 62 (Executive
Council) and s 64 (Ministers).
(d) High Court and other courts s 71
(3) Major provisions conferring power are:
(a) Crown s 2.
(b) Parliament. Section 1 provides that the legislative power of the Com-
monwealth is vested in Parliament. Specific powers are conferred on
Parliament by a number of sections of which the main ones are ss 51 and
52.
(c) Executive government. Section 61 provides that the executive power of
the Commonwealth is vested in the Queen but is exercisable by the
Governor-General as the Queens representative. Section 61 defines this
power in broad terms. It extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth. Other
provisions of the Constitution confer specific powers on the Governor
General. Examples are ss 62, 64 and 68.
(d) Courts. Section 71 says that the judicial power of the Commonwealth
shall vest in three sets of courts (i) the High Court of Australia, (ii)
such other federal courts as the Parliament creates, and (iii) such other
courts as the Parliament invests with federal jurisdiction. Other pro-
visions define the extent of this judicial power. These are ss 73, 75, 76
and 77.
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(1) Before federation Australia consisted of six self-governing colonies,
Queensland, New South Wales, Victoria, Tasmania, South Australia and
Western Australia.
(2) Constitution ss 106, 107, 108.
(3) Constitution covering clause 6.
(4) The Constitution did two major things. (a) It established a new national
government called the Commonwealth government. It did this by estab-
lishing institutions of government. This is covered in the answers to Question
3. (b) It created a federation consisting of the six colonies and the Common-
wealth. The principal way it did this was by covering clause 6 which
renamed the colonies as States, and by ss 106, 107 and 108 which preserved
their Constitutions, powers and laws.
Covering clause 3.
(1) Powers Constitution ss 51(ii), 51(iii), 51(xiii), 51(xiv), 51(xxiiiA), 61, 71, 73,
75, 76, 83, 119 (which imposes a duty which implicitly confers a power).
(2) Prohibitions Constitution ss 51(ii), 51(iii), 51(xiii), 51(xiv), 51(xxiiiA), 83, 90,
92, 109, 114, 115, 116, 117.
(3) Procedures Constitution ss 58, 80, 81, 83, 114, 119.
Section 61 confers general power, s 2 authorises the Queen to assign powers, and
some sections confer specific power, eg ss 5, 62, 64, 68 and 72.
Constitution s 62.
(1) Constitution s 1.
(2) Constitution ss 7 and 24.
(3) Constitution ss 1, 23, 40 and 58 for ordinary cases. Constitution ss 57, 59 and
60, and 128 for special cases.
Constitution Chapter I, Part V and also s 1.
(1) Power to make law is conferred on the Commonwealth Parliament in specific
terms. The main provisions conferring power are ss 51 and 52. Other sections
confer specific powers. Examples are ss 71, 72, 73, 76 and 77.
(2) There is a general principle, called ultra vires (meaning literally beyond
power), that a body, including a parliament, can exercise only the power
which is conferred on it. Hence the Commonwealth Parliament cannot make
any law that it likes. It is a Parliament of limited power.
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(1) Examples are Constitution ss 51, 52, 71, 72, 73, 7 and 77.
(2) Constitution s 51(xvii).
(3) Constitution s 51(vii).
(4) Constitution s 51(i).
(5) Power to regulate something generally includes power to regulate any aspect
of it. Hence, indirectly, the Commonwealth may be able to use one or more
provisions of the Constitution to enable to cover, usually not completely, an
area for which it does not have direct or specific power. A good example of
this is the Trade Practices Act 1974 (Cth). There is no direct or specific power
for the Commonwealth to legislate on trade practices, but there is power
from s 51(xx) of the Constitution to legislate on corporations. Hence the Com-
monwealth can use the corporations power to legislate on trade practices
which involve corporations.
(6) This question applies the principle that we just discussed. There is no direct
or specific power to regulate the accounting profession but a number of pro-
visions give some aspects of the power. For example, s 51(xx), the
corporations power, would allow the Commonwealth to regulate accountants
with respect to work done for corporations. And s 51(xvii), the bankruptcy
and insolvency power, would allow the Commonwealth to regulate accoun-
tants with respect to work done in bankruptcy and insolvency.
These all make power exclusive to the Commonwealth government.
The basic principle is that the Commonwealth Parliament can enact legislation
only when the subject falls within its specific powers. There are two applicable
comments in relation to the power of the Commonwealth to enact a compre-
hensive criminal code. First, there is no specific or direct power which allows it to
pass a general criminal code for the whole of Australia. This power as a whole,
therefore, is exclusive to the State Parliaments. Second, the Commonwealth has a
limited power to create criminal offences. It can do this when creation of the
criminal offence is part of its exercise of some other power. Indeed, it can use most
of its powers to create criminal offences relevant to those powers. For example, it
can use the bankruptcy power in s 51(xvii) to make it an offence for a bankrupt
not to disclose all of their assets to the court.
Constitution Chapter II.
Constitution s 61.
Constitution ss 62 and 64.
17

Constitution s 68.
Constitution ss 62-64.
Constitution s 64.
Constitution Chapter III.
Constitution s 71.
Constitution ss 71, 73, 75, 76, and see also s 77.
Constitution s 72.
Constitution s 72.
Constitution s 72.
(1) Constitution s 73.
(2) Constitution s 75(i).
(3) Constitution s 75(iv).
(4) Constitution s 76(iii).
We have to see the effect of reading together three sections s 51(vi) (just the part
about defence not the police power), s 114 (just the part about naval and military
forces, not the taxation power) and s 119.
Section 51(vi) provides that the Commonwealth Parliament can legislate on
the naval and military defence of the Commonwealth. Section 114 provides that
a State shall not, without the consent of the Parliament of the Commonwealth,
raise or maintain any naval or military force. Section 119 provides that the
Commonwealth shall protect every State against invasion and, on the application
of the Executive Government of the State, against domestic violence.
The first major point arises from looking at s 114 and s 51(vi) together. Section
114 forbids a State to raise or maintain any naval or military force. Section 51(vi)
18
allows the Commonwealth to legislate on the naval and military defence of the
Commonwealth. Using this power the Commonwealth can raise and maintain a
naval and military force. Taken together, these provisions confer a defence power
on the Commonwealth and make most of that power, and the part that counts,
exclusive to the Commonwealth.
The second point is a question. Since the States lack a defence power, how are
they protected against invasion or domestic violence? There are two means. (1)
Under s 114 they can ask the Commonwealth for permission to raise and maintain
their own naval or military force. (2) Section 119 requires the Commonwealth to
protect a State against invasion. It also requires the Commonwealth to protect a
State against domestic violence if the Executive Government of the State requests
it.
Constitution s 106 (although it does not deal with defenestration).
Constitution s 121.
Constitution s 52(i) (places and the seat of government), and s 122 (Territories).
19

ANALYSING A STATUTE
INTRODUCTION
Techniques for Analysing a Statute
Analysing a statute involves dividing its specific provisions into elements and
consequences. Generally this is done by sticking faithfully to the provisions which
are broken into bite size pieces and set out in a structured way according to their
elements and consequences.
In some cases, though, it may be necessary to rearrange a provision and add
bits that are not stated but are implicit (Legal Technique Chapter 34, [34.78][34.89]).
Two examples illustrated in the Model Answers to questions involving the
Constitution are:
A provision such as s 117 which asserts that something (including
someone) shall be free from something else. (See Model Answer to
Question 5.)
A provision such as s 92 which says that something (including someone)
shall not be subject to something. This amounts to saying that something
shall be free. (See Model Answer to Question 14.)
In other cases, some provisions, typically establishment provisions, are all
consequences. They have no elements. Examples are ss 1, 2, 61 and 71 of the
Constitution which are the subjects of Questions 2, 1, 3 and 4 respectively.
The Trade Practices Act
The Model Answers to questions on the Trade Practices Act 1974 (Cth) are based
upon the Act as amended to Act No 101 of 1998 (Gas Pipelines (Country of Origin)
Act 1998).
20
Analysing a Statute The Constitution
THE CONSTITUTION
Questions
Question 1
Break s 2 into its elements and their consequences.
Question 2
Question 3
Question 4
Question 5
Break s 117 into a check list of its elements and their consequences.
Question 6
Question 7
Question 8
Question 9
Question 10
Question 11
Question 12
Break s 81 and s 83 taken together into a check list of elements and their
consequences.
Question 13
Question 14
21

Answers
Answer to Question 1: Section 2
Section 2 performs several functions:
(1) It establishes the office of Governor General. It does this indirectly in saying
that a Governor-General appointed by the Queen shall be Her Majestys
representative in the Commonwealth.
(2) It prescribes the function of the Governor General. She is Her Majestys
representative in the Commonwealth.
(3) It prescribes the method of appointment of the Governor General. She is
appointed by the Queen.
(4) It prescribes the powers of the Governor General. He shall have and may
exercise in the Commonwealth . . . such powers and functions of the Queen as
Her Majesty may be pleased to assign to him. This power is subject to two
qualifications. (a) It is exercisable during the Queens pleasure. (b) It is
subject to this Constitution.
Section 1 performs four functions:
(1) It creates, even if indirectly, the Federal Parliament. Section 1 does this via the
other three functions described below (a) by naming it, (b) by determining
its composition, and (c) by vesting legislative power in it.
(2) It gives the Parliament three names. It is the Federal Parliament, The
Parliament, or The Parliament of the Commonwealth.
(3) It determines the composition of the Federal Parliament. It is to consist of
the Queen, a Senate, and a House of Representatives.
(4) It vests the legislative power of the Commonwealth in the Parliament.
(1) It vests the executive power of the Commonwealth in the Queen.
(2) It delegates the executive power of the Commonwealth it is exercisable by
the Governor-General as the Queens representative.
(3) It defines the executive power. It extends to the execution and maintenance
of this Constitution, and of the laws of the Commonwealth.
(1) It establishes, even if indirectly, the High Court of Australia. It provides that
the judicial power of the Commonwealth shall be vested in a Federal
Supreme Court, to be called the High Court of Australia.
(2) It names the High Court. It is a Federal Supreme Court which is also to be
called the High Court of Australia.
(3) It determines the composition of the High Court. It shall consist of a Chief
Justice, and so many other Justices, not less than two, as the Parliament
prescribes.
22
(4) It indicates that the judicial power of the Commonwealth shall vest in three
sets of courts (a) the High Court of Australia, (b) such other federal courts
as the Parliament creates, and (c) such other courts as the Parliament invests
with federal jurisdiction.
Section 117 has to be broken into a check list of its elements and their
consequences.
Elements
Element (1) There is a subject of the Queen.
Element (2) The subject of the Queen is resident in one State.
Element (3) The subject of the Queen is subject, in a second State, to a disability
or discrimination.
Element (4) The disability or discrimination would not be equally applicable to
the subject if they were a subject of the Queen resident in the second State.
Element (5) The disability or discrimination is imposed by some action taken by
some person (This requirement is implicit in s 117 but not explicit).
Element (6) The person who takes this action falls into one of three categories
(this requirement is implicit in s 117 but not explicit):
(a) The Commonwealth government.
(b) A State government.
(c) A private citizen.
Element (7) This action is one of the following (this requirement is implicit in
s 117 but not explicit):
(a) If the action is taken by the Commonwealth, or a State government, the
action is one of the following kinds:
(i) Legislative action.
(ii) Executive action.
(iii) Judicial action.
(b) If the action is taken by a citizen, the action is either of the following:
(i) Action which involves using law.
(ii) Action which does not involve using law.
Consequences
The action is unconstitutional and invalid.
consequences. There are four components.
Establishing a Religion
Elements
Element (1) The Commonwealth makes a law.
Element (2) The law establishes a religion.
23

Consequences
The law is unconstitutional and invalid.
Imposing Religious Observance
Elements
Element (2) The law imposes a religious observance.
Consequences
Prohibiting Exercise of Religion
Elements
Element (2) The law prohibits the free exercise of any religion.
Consequences
Imposing a Religious Test
Elements
Element (1) The Commonwealth makes a law, or takes executive or judicial
action.
Element (2) The law or action requires something.
Element (3) The something is a religious test.
Element (4) The religious test is a qualification.
Element (5) The qualification is for either of the following:
(a) An office under the Commonwealth.
(b) A public trust under the Commonwealth.
Consequences
The law or action is unconstitutional and invalid.
Section 90 has to be broken into a check list of its elements and their consequences.
As it reads, s 90 is broken up in the following way:
Elements
Element (1) Uniform duties of customs have been imposed. (Uniform duties of
customs were imposed when the Commonwealth Parliament enacted the
Customs Act 1901.)
Element (2) Parliament has power to do two things:
(a) Impose duties of customs and excise. (This power is conferred by
s 51(ii). Customs and excise duties are forms of tax. Section 51(ii) gives
the Commonwealth Parliament power to impose any form of tax that it
likes.)
(b) Grant bounties on the production or export of goods. (This power is
conferred by s 51(iii).)
24
Consequences
The power of Parliament (a) to impose duties of customs and excise, and (b) to
grant bounties on the production or export of goods, is exclusive.
Looking at s 90 with regard to both its content and function, it can be
arranged in another way which is more practical that the one above. This
arrangement is as follows:
Elements
Element (1) Uniform duties of customs have been imposed. (Uniform duties of
customs were imposed when the Commonwealth Parliament enacted the
Customs Act 1901.)
Element (2) A government of a State or Territory takes action.
Element (3) This action does either of two things:
(a) It imposes duties of customs and excise. (This power is conferred by
s 51(ii). Customs and excise duties are forms of tax. Section 51(ii) gives
the Commonwealth Parliament power to impose any form of tax that it
likes.)
(b) It grants bounties on the production or export of goods. (This power is
conferred by s 51(iii).)
Consequences
The action of the State or Territory is unconstitutional and invalid. (This is a
consequence of s 90 making power to take this action exclusive to the Common-
wealth. If it is exclusive to the Commonwealth, no one else can legally do it.)
consequences. There are two parts.
Coining Money
Elements
Element (1) There is a State.
Element (2) The State coins money.
Consequences
Legal Tender
Elements
Element (2) There is a debt.
Element (3) The State makes something legal tender in payment of the debt.
Element (4) The something is not gold or silver coin.
Consequences
25

consequences. Section 114 has three components.
Naval or Military Force
Elements
Element (2) The State raises or maintains a naval or military force.
Element (3) The State does not have the consent of the Parliament of the
Commonwealth.
Consequences
State Taxing Commonwealth
Elements
Element (2) The State imposes a tax.
Element (3) The tax is a tax on property of any kind.
Element (4) The property belongs to the Commonwealth
Element (5) The State does not have the consent of the Parliament of the
Commonwealth.
Consequences
Commonwealth Taxing a State
Elements
Element (1) The Commonwealth imposes a tax.
Element (2) The tax is a tax on property of any kind.
Element (3) The property belongs to a State.
Consequences
consequences.
Elements
Element (1) There is a law of a State.
Element (2) There is a law of the Commonwealth.
Element (3) The State law and the Commonwealth law are inconsistent.
Consequences
(1) The Commonwealth law prevails.
(2) The State law is, to the extent of the inconsistency, invalid.
26
consequences. There are two parts.
Invasion of a State
Elements
Element (2) The State is invaded, or is threatened with invasion. (Section 119
merely used the word invasion and does not mention a threat of invasion.
Nevertheless, it is not hard to read the duty imposed by s 119 to protect a
State against invasion as being a duty to protect it against a threatened
invasion.)
Consequences
The Commonwealth is under a duty to protect the State against the invasion.
Domestic Violence in a State
Elements
Element (2) There is domestic violence in the State or the threat of domestic
violence. (Section 119 merely used the term domestic violence and does not
mention a threat of domestic violence. Nevertheless, it is not hard to read the
duty imposed by s 119 to protect a State against domestic violence as
being a duty to protect it against threatened domestic violence.)
Element (3) The Executive Government of the State applies to the Common-
wealth for protection against the domestic violence.
Consequences
The Commonwealth is under a duty to protect the State against the domestic
violence.
Answer to Question 12: Sections 81 and 83
Sections 81 and 83 have to be broken into a check list of their elements and
consequences. These sections have to be read together.
Revenue into Consolidated Revenue: Section 81
Elements
Element (1) There are revenues or moneys.
Element (2) Either of two things happens:
(a) The revenues are raised. (In this regard s 81 is badly drafted. This
provision most logically means that a statute imposed liability on a
person to pay money. An obvious example is a tax.)
(b) The moneys are received by the Executive Government of the
Commonwealth.
Consequence
The revenues or moneys shall form one Consolidated Revenue Fund.
27

Revenue out of Consolidated Revenue: Sections 81 and 83
Elements
Element (1) A statute appropriates revenues or moneys from the Treasury of the
Commonwealth. (This is a requirement, ie an element, because s 81 says that
revenues or moneys can be appropriated only in the manner imposed by the
Constitution. Section 83 prescribes the manner of appropriation. It refers to
drawing money from the Treasury of the Commonwealth. The Treasury of
the Commonwealth means the Consolidated Revenue Fund. Section 83
provides that money can be appropriated only by law, ie by statute.)
Element (2) The statute provides that these revenues or moneys are appropriated
only for the purposes of the Commonwealth (Constitution s 81).
Element (3) The statute provides that these revenues or moneys are appropriated
subject to the charges and liabilities imposed by the Constitution
(Constitution s 81). (Section 82 prescribes these charges.)
Consequence
The revenues or moneys are now appropriated by the statute from the Treasury of
the Commonwealth (this means the Consolidated Revenue Fund). Now the
money can be spent.
Fiscal Responsibility of Parliament
Sections 81 and 83 together implement a fundamental principle of constitutional
law. Parliament is responsible for money because of three specific rules:
(1) Money can be raised compulsorily from a citizen only by statute. This is a
common law rule. It means that executive power conferred by s 61 does not
include power to raise money by taxation. Section 51(ii) is the source of this
legislative power of the Commonwealth to pass legislation which imposes
taxation.
(2) Once money is raised, it must be paid into the Consolidated Revenue Fund.
Section 81 implements this rule. The point to the rule is that money stays in
consolidated revenue until it is appropriated by Parliament.
(3) Money can be paid out of consolidated revenue, and thus spent by the
government, only when it is appropriated by Parliament for government
purposes. Sections 81 and 83 implement this rule.
Section 80 has to be broken into its check list and consequences.
Elements
Element (1) There is a trial.
Element (2) The trial is on indictment.
Element (3) The trial is for any offence.
Element (4) The offence is an offence against any law of the Commonwealth.
Consequences
(1) The trial shall be by jury.
(2) There are provisions about where the trial shall be held:
28
(a) If the offence was committed in a State, the trial shall be held in that
State.
(b) If the offence was not committed within any State, the trial shall be held
at such place or places as the Parliament prescribes.
Section 92 has to be broken into its check list and consequences.
Elements
Element (1) There is trade, commerce or intercourse.
Element (2) The trade, commerce or intercourse is among the States.
Element (3) The trade, commerce or intercourse is by means of internal carriage
or ocean navigation.
Element (4) Someone takes action.
Element (5) This someone is any of the following:
(a) The Commonwealth government.
(b) A State government.
(c) A private citizen.
(This lists the logical possibilities. Initially in W&A McArthur v Queensland
(1920) 28 CLR 530 it was held that the States only, and not the Common-
wealth, were bound by s 92. This remained settled doctrine until overruled
by the Privy Council in James v Commonwealth (1936) 55 CLR 1, holding that
the Commonwealth is as much bound by s 92 as the States. This has been
followed subsequently without serious question. There does not seem to be
consideration as to whether action taken by a private citizen can breach s 92.)
Element (6) This action is either of the following:
(a) If the action is taken by the Commonwealth or a State government, the
action is action of one of the following kinds:
(i) Legislative action.
(ii) Executive action.
(iii) Judicial action. (So far s 92 has been applied in relation to
legislative powers. It is not absolutely certain that, when the point
arises, a court will find that it applies to executive and judicial
power as well.)
(b) If the action is taken by a citizen, the action is either of the following:
(i) Action which involves using law.
(ii) Action which does not involve using law.
Element (7) This action makes the trade, commerce or intercourse not absolutely
free.
Consequences
This action is illegal and has no effect.
29

ANALYSING A STATUTE
TRADE PRACTICES ACT
Questions
Question 1
Look through the parts of the Act and find the following types of provision
jurisdictional, procedural, remedial, substantive and establishment.
Question 2
Take s 45(2), (3) and (4) and break these subsections into their elements. (Do not
worry about the consequences because these are not in s 45 but in other provisions
see the answer to Question 1.)
Question 3
Take s 50(1) and break it into its elements. (Do not worry about the consequences
because these are not in s 50 but in other provisions see the answer to Question
1). Then note the effect of s 50(3) and (6) but without going into detail.
30
Analysing a Statute Trade Practices Act
Answers
Major parts of the Trade Practices Act perform either of two major functions: they
establish and empower regulatory bodies (Parts II, IIA, III,), or they contain
litigious provisions (Parts IIIA, IV, IVA, IVB, V, VA, VI, VII, VIII, IX). This answer
considers only Parts II, IV and VI.
Regulatory Provisions
Part II establishes and empowers the Australian Competition and Consumer
Commission. Provisions in this Part are institutional provisions and thus perform
the following functions they establish institutions of government; they
determine the composition of these institutions; they confer power on institutions;
and they determine procedures for institutions to follow.
Use these functions to classify the provisions in Part II:
(1) Establishing institutions of government s 6A
(2) Determine the composition of institutions (including provisions about
members and staff) ss 7-15, 27, 27A
(3) Conferring power on institutions ss 25-26, 28, 29
(4) Determining procedures for institutions to follow ss 16-19.
Litigious Provisions
Parts IV and VI are litigious provisions. This involves three categories of
provisions action, jurisdictional and procedural. Use these categories to classify
the provisions of Parts IV and VI:
(1) Action provisions have two parts. Their elements are substantive provisions.
These define the wrong conduct which the Act forbids. Sections 45-51AAA
and 84 are substantive provisions. Section 51 prescribes general exceptions
(although there are exceptions for specific sections contained within the
sections themselves). Section 85 prescribes defences. The legal consequences
which they bring to the parties are remedial provisions. These authorise the
remedy to right the wrong. Various remedies are prescribed by the Act
pecuniary penalties in ss 76 and 77, criminal penalties in ss 78 and 79,
injunctions in ss 80-80AB, orders to disclose information or publish an
advertisement in s 80A, divestiture in s 81, damages in s 82, other orders in
s 87, orders prohibiting payment of transfer of money in s 87A, and orders
enforcing undertakings in ss 87B and 87C. Section 87AA prescribes some
special considerations to take into account in relation to remedies in the case
of boycotts.
(2) Jurisdictional provisions determine which court can hear a matter. Section
s 86 gives jurisdiction to the Federal Court, s 86A gives jurisdiction to State
courts and s 86B gives jurisdiction to the Family Court in special cases.
(3) Procedural provisions determine how the matter is heard. For the more part
procedural provisions are contained in the rules of evidence and in the Rules
of Court of the court hearing the case. There are, however, procedural
provisions in ss 79A and 83.
31

This question involves analysing s 45(2), (3) and (4). Section 45(2) is the main
provision. It has two prohibitions. One is about forming the contract, or an under-
standing. The other is about giving effect to it.
Forming Contract, Arrangement or Understanding
This prohibition has the following elements:
(1) The defendant is a corporation.
(2) The defendant makes a contract or arrangement, or arrives at an under-
standing.
(3) The contract or arrangement, or understanding has a provision. Provision
is defined in s 45(4) for the purpose of determining when a provision has or is
likely to have the effect of substantially lessening competition. It means a
provision of the contract arrangement, or understanding together with either
of the following:
(a) Other provisions of the actual or proposed contract, arrangement or
understanding.
(b) Provisions of any other actual or proposed contract, arrangement or
understanding to which the corporation or a related body corporate is or
would be a party.
(4) This provision of the contract, arrangement or understanding has either of
two characteristics:
(a) It contains an exclusionary provision.
(b) It has the purpose, it has the effect or is likely to have the effect, of
substantially lessening competition. This competition, s 45(3) provides,
takes place in any of the following markets:
(i) Any market in which the corporation which is or would be a party
to a contract, arrangement or understanding supplies or acquires,
or is likely to supply or acquire, goods or services.
(ii) Any market in which any body corporate that is related to the
corporation in (a) supplies or acquires, or is likely to supply or
acquire, goods or services.
Giving Effect to Contract, Arrangement or Understanding
This prohibition has the following elements:
(2) There is a contract or arrangement, or understanding.
(3) The contract or arrangement, or understanding was formed (ie made or
arrived at) either before or after the commencement of s 45.
(4) A provision of the contract, arrangement or understanding has either of two
characteristics:
(a) It is an exclusionary provision.
(b) It has the purpose, it has the effect, or it is likely to have the effect, of
substantially lessening competition.
(5) The corporation gives effect to this provision.
32
33

Question 3 involves breaking part of s 50 into its elements. These elements are:
(2) The corporation makes either of two acquisitions:
(a) It acquires shares in the capital of a body corporate.
(b) It acquires any assets of a person.
(3) The corporation makes these acquisitions either directly or indirectly.
(4) These acquisitions have the effect, or are likely to have the effect, of
substantially lessening competition in a market. Section 50(6) provides that
market means a substantial market for goods or services in Australia, in a
State or in a Territory. Section 50(3) sets out matters to be considered in
determining whether the acquisition has or is likely to have this effect.

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