La Trobe University
La Trobe University
LAW5SIN
Statutory Interpretation 2023
END-OF-SEMESTER ASSIGNMENT
PART A QUESTION PAPER
QUESTION 1 (15 marks)
It is October 2028 when your advice is sought. Now for some background.
Joe Blow is Mayor of Greenhaven Shire Council. Joe Blow comes to your firm for advice.
Joe informs you that he has been asked to appear before the Chief Municipal Inspector (CMI) under section 183(3)(c) of the Local Government Act 2020 (Vic) (the 2020 Act). He has been given notice of an investigation by the CMI into possible breaches by him of section 123(1)(a) of the 2020 Act.
The notice from the CMI states these allegations:
That in September 2028 you did intentionally misuse your position to gain or attempt to gain, directly or indirectly, an advantage for yourself and for another person (your daughter, Josephine) in that:
You disclosed your position as Mayor, Greenhaven Shire Council to an employee at Purple and Yellow Consulting Pty Ltd immediately before asking that person whether there were any positions available for your daughter Josephine at their firm. Purple and Yellow Consulting Pty Ltd does not currently have a contract with the Greenhaven Shire Council but it has been contracted by the Greenhaven Shire Council to do some work for the Council in the past.
You disclosed your position as Mayor, Greenhaven Shire Council to an employee of Tradies Conglomerate Pty Ltd immediately before asking that person whether you could obtain a discount rate for work done at your home. Tradies Conglomerate Pty Ltd does not currently have a contract with the Greenhaven Shire Council but it has been contracted by the Greenhaven Shire Council to do some work for the Council in the past.
You disclosed your position as Mayor, Greenhaven Shire Council to an employee of Beautiful Food Pty Ltd, owner of The Beautiful Restaurant, immediately before asking that person whether you could cancel your booking for Christmas Day lunch at the restaurant without paying the cancellation fee previously agreed to. Beautiful Food Pty Ltd does not currently have a contract with the Greenhaven Shire Council but it has been contracted by the Greenhaven Shire Council to do some work for the Council in the past.
A partner in your firm, Julie, asks you to answer this question: with respect to the allegations made in the notice, has Joe Blow misused his position as Mayor, Greenhaven Shire Council within the meaning of section 123(1) of the 2020 Act?
In the course of answering this question -
assume that Joe does not dispute the factual basis of the allegations in the notice to him
interpret the words misuse their position in section 123(1)
assume that satisfaction of the other elements of a section 123(1)(a) offence is not in doubt
assume that the circumstances specified in section 123(3)(a)-(f) do not apply to Joe.
Finally, as the template advises, if the preferred construction could give rise to different outcomes when it is applied to the facts, you should state what those outcomes are and give brief reasons for the preferred application (outcome).
Instructions and Assessment Details
Please see Subject Learning Guide on LMS for intended learning outcomes, special consideration, university policies that apply to graded assessment, and assessment criteria and marking guide.
Instructions for the Assignment as a whole
Allocated marks
The End-of-Semester Assignment is out of 60 marks.
Part A (Problem Question 1) is out of 15 marks.
Part B is out of 45 marks. Part B includes
Question 2 (a further problem question, out of 20 marks) and
Question 3 (the Essay component of the Assignment, out of 25 marks).
Due date
The End-of-Semester Assignment is due 11.59 pm Wednesday 8 November 2023.
Word limit
The word limit for the Assignment as a whole is 3,000 words. This is the only word limit.
Parts of the Assignment
To allow students ample time for completion, the Assignment is issued in two parts. This Question Paper is Part A of the Assignment. Part B of the Assignment will be released separately (immediately after the end of the last class). Although issued in two parts, the Assignment has one due date and the Parts are to be submitted together in the one document.
How the Assignment answer is to be produced
The Assignment is not a group assignment. You must produce your answer independently. Among other things, you must not work on the Assignment with another student, or distribute your written answer or a written draft to another student. See the Subject Learning Guide and its links for further information.
As a purpose of the Assignment problems and essay is to test your study of the examinable materials (primary sources of law and extrinsic materials), the use of generative AI tools is not permitted in answering the Assignment. Students are given notice that the use of generative AI tools may therefore amount to academic misconduct. See <https://latrobe.libguides.com/artificial-intelligence/assignments>.
Assessable topics and materials
The assessable topics are Weeks 1-11 topics (in addition to assumed skills and knowledge).
Tutor availability
Your lecturer and tutor is available to answer any question you may have about a Week 1-11 topic, about these Instructions, and about the general meaning of a section of the answer template. But he cannot assist in analysing the examinable legislation or in answering the assignment question.
Style and referencing
Style
Subject to the following, follow the 4th edition of the Australian Guide to Legal Citation. See link at <http://latrobe.libguides.com/law>.
First, it is preferred (where possible) that students use in-text references rather than footnotes. (In-text references are explained below.) Unless your references are bulky, it is easier for the examiner to read references if they are in the body of your answer rather than in a footnote. The latter requires the reader to leave the page, remember where they were, and resume reading. This is particularly the case with online marking where the footnote may not be immediately visible. In-text references also save a student on cross references that would be employed if footnotes were used.
In-text referencing
In-text references are references which may be put either in parentheses in the middle of a sentence, or after a colon at the end of a sentence. In-text references otherwise follow AGLC style for the first reference to an Act or a case. But, for a second or subsequent reference, they do not need a cross reference to an earlier footnote. For example, with cases:
In Dog v Cat ((2020) 204 CLR 227), the High Court appears to have propounded the principle that dogs make better friends than cats: 239 [87]. In the same case, the Court made obiter comments about the friendship qualities of guinea pigs: 240 [88] . In the Dog case the Court also made obiter comments about the friendship qualities of rabbits: 240 [90].
The High Court has propounded that dogs make better friends than cats: Dog v Cat (2020) 204 CLR 227, 239 [87].
The same style may be used with respect to legislation. For example:
Sections 33-6 of the Dog Act 2020 (Cth) list the friendship qualities of dogs.
The Dog Act 2020 (Cth) lists the friendship qualities of dogs (ss 33-6), but these should not be taken to be exhaustive.
Although the Dog Act 2020 (Cth) (rightly) does not list the friendship qualities of dingoes, the Act does list the friendship qualities of dogs: ss 33-6.
In-text referencing is often employed in legal opinion writing, for example, Yucesan (Week 1 seminar case), R v PJ (Week 3 seminar case), BGM16 (Week 5 seminar case).
Pinpoint references
In respect of pinpoint references to any reported case, you should supply a medium-neutral paragraph reference as well as a page reference.
Word count and 10% allowance before imposition of penalty
You must state the word count of your answer on the pro forma coversheet (supplied) that is to be attached to the submission.
The word count does not include
the coversheet
any footnotes, provided they are solely used for referencing.
The word count includes all other information in your submission, including the headings in the template that you adopt in your submission.
Before submitting your answer, delete explanatory material in square brackets that is on the template. You should also delete a heading or subheading that is on the template if there is nothing to say about it.
An assignment is not penalised if the word count is 10% or less over the word limit, that is, 3300 words or less.
If the word count of an assignment is more than 10% over the word limit, that is 3301 words or more, a penalty of 10% of the total percentage of marks allocated to the assignment will be applied. For example, an assignment that is 3500 words and provisionally marked at 80%, will be penalised 10% and be awarded 70%. In addition, the marker may make a reasonable guess of the point at which the assignment exceeds the 10% leeway, and cease reading from that point.
Presentation
Do not include, in your submission, a problem or other part of the question paper (apart from the template for answering Part A and the problem component of Part B). Doing so only increases the Turnitin similarity reading and renders your submission subject to unnecessary investigation on that account.
Identification
Do not put your name on the submission. This includes the name of the file.
Extensions of time
University policy (Assessment Procedure Adjustments) provides for short extensions of time:
https://policies.latrobe.edu.au/document/view.php?id=380
Under this policy, if you do not have a Learning Access Plan and you are seeking a short extension of time (up to 5 working days), go to the LMS and under Assessment, see Request an extension here. In your application you should specify the extension period you are seeking. You should attach appropriate documentation, otherwise delays will ensue. Medical grounds normally require a medical certificate.
If you have a Learning Access Plan, the University policy provides that you are eligible for an extension of up to 10 working days.
If a short extension is not likely to be adequate, you should apply for Special Consideration.
Submission and lateness penalty
Submit the completed coversheet and answers to the Turnitin link for the End-of-Semester Assignment on the LMS.
If a submission is late, University policy is that 5% of the total possible mark, per business day, is applied. (See Assessment Procedure Adjustments to Assessment Policy.)
Feedback
Brief online feedback addressing each of the assessment criteria will be given to each student on the LMS. In addition, group feedback will be given via the LMS. After a student has studied the individual and group feedback, the student may, if the student wishes, also approach the subject coordinator leader for additional feedback.
Instructions for Part A and problem component of Part B
Preparatory steps
Before attempting Part A and the problem component of Part B of the Assignment, it is recommended that students attempt one or more of the End-of-Semester Assignment Problem self-assessment exercises on the LMS and obtain feedback by perusing the examiners answer.
Assessable materials
For Part A, the Local Government Act 2020 (Vic) (the 2020 Act) is examinable.
If the 2020 Act refers to another Act (such as for a definition in that other Act), students are expected to examine that other Act as far as it is relevant. This is standard advice and is not to be taken as necessarily applicable to the problem.
In answering Part A students are expected to check, and draw on where and if appropriate, the following extrinsic material:
the Explanatory Memorandum to the Local Government Bill 2019 (Vic)
the Ministers speech, moving a motion in the Parliament that the Local Government Bill 2019 (Vic) be read a second time
the Statement of Compatibility in relation to the Local Government Bill 2019 (Vic).
Apart from locating the above material, students are not expected to engage in legal research in answering Part A.
Assumptions about facts
Assume the facts occurred in Victoria, unless otherwise specified.
Use of facts and information
If you think a material fact (fact X) pertaining to the problem is not set out on the Question Paper, you may consider fact X as if it exists or can be proved to exist, provided it is plausible and that you also consider the alternative situation where it is assumed fact X does not exist or cannot be proved to exist. This is standard advice for legal problem solving and is not to be taken as a suggestion that a material fact is not stated in the problem.
Similar advice applies to any information, set out in the problem on the Question Paper, which you regard as ambiguous. If the ambiguity is plausible, then make the most probable inference, or give alternative advice based on each scenario. This is standard advice for legal problem solving and is not to be taken as a suggestion that information in the problem is ambiguous.
Format
In answering a problem question that raises general principles (Weeks 1-8) but not special issues (Weeks 9-11), students should as far as possible follow the problem solving template provided with this question paper. In answering a special issues question, students should as far as possible follow any appropriate model issued for handling that issue, or, if no such model has been issued, use the problem solving template provided (adapted as necessary).
The subject coordinator is not available to advise students what template to use.
Meaning of interpret
To interpret legislation includes framing competing constructions (potential meanings) of the unit of inquiry in the problem.
A unit of inquiry refers to the words of legislation whose meaning is in doubt.
Each of the competing constructions should be supported by arguments for the party who would advance that construction, so that the interpretation is as fully informed as possible.
For further guidance as to what is expected of interpretation, see the Assessment Criteria and the problem solving template to be used in answering the question.
COVER SHEET
LAW5SIN
Statutory Interpretation 2023
END-OF-SEMESTER ASSIGNMENT
Student number:
Word count for Assignment as a whole (Parts A and B combined):
[PROBLEM SOLVING TEMPLATE]
[Before submitting, omit all explanatory material in square brackets.]
[This template assumes the question does not raise an issue about the commencement of the legislation in question or the relevant jurisdiction. If a problem were to raise such a preliminary issue, it would be discussed immediately before Discussion under a heading Preliminary Issues.]
1. Question presented [optional]
[While this section is necessary in legal professional practice in a legal opinion, it may presently be omitted if the Question Paper states the question clearly.]
2. Answer in brief
[The answer to the question posed in the Question Paper. This section must be answered. Ordinarily, you must give the legal meaning of the unit of inquiry as well as the answer on the facts.]
3. Discussion
3.1 Material facts
[In legal professional practice this section will often be included in a legal opinion. But, in view of the facts given in the Question Paper and any applicable time or word limit, omit the section if it is not necessary to resolve factual issues.]
3.2 Unit of inquiry [words whose meaning is in doubt]
[State the unit of inquiry here, including the relevant provision, Act and jurisdiction. If the unit of inquiry is part of a legislative provision, set out the relevant word or words in question.]
3.3 Opposing constructions of unit of inquiry and applications to facts
[The object is to consider all constructions that might be considered by a court see section 3.6. Normally, the opposing constructions that are considered by a lawyer asked to give a legal opinion are two constructions, one of which favours the client and another which favours the other party. They are accordingly the constructions put by, or which could be put by, each party. However, uncommonly, it may be appropriate to consider a third construction one that is not in favour of either party. In that case, that construction could be (but need not be) the construction that is ultimately preferred.]
(a) [Name of party: the party whose construction is not preferred at section 3.6]
(i) Construction for
(ii) Application to facts
[The likely result of applying the above construction to the facts.]
(b) [Name of opposing party: the party whose construction is preferred at section 3.6]
(i) Construction for
(ii) Application to facts
[The likely result of applying the above construction to the facts.]
3.4 Arguments for construction of [name of party] [Arguments for the construction that is not preferred at section 3.6.]
[For each Glazebrook domain below set out the relevant arguments. But, before stating an argument based on an interpretative factor, state any general interpretative criterion that the interpretative factor is derived from and the case or legislative authority. Then, after saying Here, present the argument based on the interpretative factor. Begin a new paragraph for each new argument.]
Text/Unit of inquiry
Remainder of Act
Legislative history
Wider context
3.5 Arguments for construction of [name of party] [Arguments for the construction that is preferred at section 3.6]
[As for 3.4: for each Glazebrook domain below state the relevant arguments. But, before stating an argument based on an interpretative factor, state any general interpretative criterion that the interpretative factor is derived from and the case or legislative authority. Then, after saying Here, present the argument based on the interpretative factor. Begin a new paragraph for each new argument.]
Text/Unit of Inquiry
Remainder of Act
Legislative history
Wider context
3.6 Preferred construction and brief reasons
(a) Preferred construction
[The preferred construction is the construction that, in the writers opinion, would be preferred by a court, assuming the matter came to the court for resolution.]
(b) Reasons
[Brief reasons why one of the constructions is preferable to the other]
4. Application of the law as interpreted to the facts
[If the application of the preferred construction to the facts could give rise to different outcomes, you should state what those outcomes are and give brief reasons for the preferred application (outcome). But omit this section if no such application issue is likely to arise and what you have to say is in the Answer in Brief.]
La Trobe University
LAW5SIN
Statutory Interpretation 2023
Practice Problem
ANSWER
Question
Today is Tuesday 28 November 2028. Your advice is sought. Now for some background.
Bill Bloggs is a Councillor at Greehaven Shire Council.
On Monday 27 November 2028 a man comes to the Council offices and sees Bill Bloggs. After introducing himself as John Brown, a developer, the man says, Ive got something for your wife. Please pass it on. John then gives Bill a pearl necklace.
Later that day, Bill gives the necklace to his wife, Jill.
The next day (28 November) Bill comes to your firm for legal advice.
A partner in your firm, Mary Smith, asks you to answer this question: is Bill potentially in breach of s 137(1) of the Local Government Act 2020 (Vic) (the 2020 Act)? In the course of answering this question, interpret the phrase for the benefit of the Councillor in s 137(1).
In answering this question assume
the value of the necklace is higher than the gift disclosure threshold;
the address of John Brown is not known to Bill
the gift was not made during the donation period, within the meaning of s 3(1) of the 2020 Act.
Answer
Legislation: Local Government Act 2020
137Anonymous gift not to be accepted(1)Subject to subsection (2), a Councillor must not accept, directly or indirectly, a gift for the benefit of the Councillor the amount or value of which is equal to or exceeds the gift disclosure threshold unless
(a)the name and address of the person making the gift are known to the Councillor; or
(b)at the time when the gift is made
(i)the Councillor is given the name and address of the person making the gift; and
(ii)the Councillor reasonably believes that the name and address so given are the true name and address of the person making the gift.
Penalty:60 penalty units.
(2)If the name and address of the person making the gift are not known to the Councillor for whose benefit the gift is intended, the Councillor is not in breach of subsection (1) if the Councillor disposes of the gift to the Council within 30 days of the gift being received.
Answer in brief
The client is potentially in breach of s 137(1) of the Local Government Act 2020 (Vic). This is because the phrase for the benefit of the Councillor includes an indirect benefit enjoyed by a Councillor following a gift accepted by the Councillor, albeit a gift intended ultimately for someone else.
Here, the Councillor indirectly benefits from passing on the gift to a family member.
But, by dint of s 137(2), the Councillor will not be in breach of the provision if the gift is disposed of to the Council within 30 days of the gift being received (midnight 27 December 2028).
Construction for client
The words for the benefit of the Councillor mean for the direct and ultimate personal benefit of the Councillor.
Application: the gift was for not for the direct and ultimate personal benefit of the Councillor. It was the ultimate personal benefit of the Councillors wife. Therefore, there has been no breach.
Construction for prosecution
The words for the benefit of the Councillor comprise indirect as well as direct personal benefits to the Councillor.
Application: bestowing a gift on a family member gives an indirect benefit to the Councillor. The direct benefit here is to the family member who is the ultimate beneficiary. The Councillor derives an indirect benefit by being the giver of a gift. A giver of a gift (here, the Councillor) derives a benefit or advantage to themselves as it is likely to place the Councillor in a favourable or more favourable position or relationship vis--vis the ultimate receiver of the gift.
Arguments for the client
Text: In construing legislation one starts with the natural and ordinary meaning. Here, the text mentions Councillor. It does not mention other persons.
Text: In construing legislation, one presumes that each word in legislation has work to do (presumption against surplusage). Here, the words say for the benefit of. If any gift accepted by the Councillor was intended to be caught, the words for the benefit of would be surplus.
Text: In construing legislation, it is permissible to say that, if a particular intention had been intended, particular alternative words would have been used. Here, if a benefit to friends, family and associates had been intended to be caught, or if an indirect benefit to the Councillor had been intended to be caught, those additional words could have been used.
Text: In construing legislation, one starts with the natural and ordinary meaning. Here, the words themselves indicate the direction of the benefit. The words (for the benefit ), employing the purposive for, suggest that the benefit is determined by the giver, not by the receiver. Thus, if the giver indicates the gift is for someone else, then the benefit is enjoyed by that person.
Act. In construing legislation one considers the immediate context (noscitur a sociis). Here, the surrounding words refer to directly or indirectly for the accepting, but not for the benefit. Therefore, expressio unius est exclusio alterius, the words directly or indirectly do not apply to the benefit.
Act: In construing legislation one is entitled to apply the canon expressio unius est exclusio alterius (the express reference to one is the exclusion of another). Here, the express reference to family members in the conflict of interest provision (s 128(3)(b)) suggests that family members are not caught in s 137.
In similar vein, s 309, which also applies to gifts, is differently worded.
309Certain gifts not to be accepted(1)It is unlawful for a candidate or a person acting on behalf of a candidate to receive during the donation period a gift made to or for the benefit of the candidate
This provision makes a distinction between a gift to someone and a gift for the benefit of someone. Therefore, expressio unius, when s 137(1) refers to benefit, it does not have the meaning of a gift to someone.
Act. In construing a provision of an Act, one has regard to the rest of the Act, since an Act is presumed to work harmoniously. Here, s 137(2) refers to for whose benefit the gift is intended. This suggests that it is the ultimate receiver whose benefit is relevant.
Wider context. In construing legislation a maxim that may be relevant is de minimis non curat lex (the law is not concerned with trifles). Here, it is hard to see why Parliament would place 60 penalty units on an offence of obtaining a benefit when that benefit is indirect and amounts to little more than a rosy glow from being a gift giver.
Wider context The opposing construction has an uncertain operation. What amounts to an indirect benefit? If the gift is passed to a charity, does that qualify?
Arguments for the prosecution
Act: In construing legislation one has regard to the rest of the Act since an Act is presumed to work harmoniously. Here, the Act has specifically provided for an exception in s 137(2). This is consistent with a broad reading of s 137(1).
Act and legislative history In construing legislation the object of the exercise is to be consistent with the purposes of the Act. Here, in s 4(b) it includes making Councils transparent. The present construction promotes that objective to a greater extent than the opposing construction because it minimises anonymous gifts that do not have to be disposed of to the Council under s 137(2).
In addition, s 137 is contained within Part 6: Council Integrity. It may be inferred that the purpose of the provision (dealing with anonymous gifts) was to ensure the appearance of being above board is maintained. But a gift that is given to a friend or family is not above board.
The purpose, of reinforcing the integrity of local democracy and improving Councillor conduct, is emphasised in the Ministers Second Reading Speech:
The Bill will improve community confidence and reinforce the integrity of local democracy.
Improving councillor conduct
Poor conduct by a minority of councillors is an ongoing challenge for the local government sector. This Bill sets clear standards to address and improve conduct.
In addition, the bad behaviour of some councillors is notorious. A court, therefore, would be well aware of this mischief and for this reason would be tending not to read the provision narrowly.
Legislative history In construing legislation the mischief or the purpose may be indicated by parliamentary materials. Here, the Explanatory Memorandum to the Local Government Bill 2019 (Vic) states, in relation to proposed s 137, that it prohibits Councillors from receiving anonymous gifts. This suggests the mischief is the receiving of anonymous gifts, regardless of whether they are passed on to someone else.
Wider context. In construing legislation, whether consequences were intended or not is a legitimate consideration. Here, the present construction would not have an uncertain ambit and operation. If the Councillor is in any doubt, the Councillor can dispose of it to the Council under s 137(2).
Evaluation
This problem is not easy to resolve. For starters, the consequences of the prosecution construction are somewhat troubling. The arguments for the client are strong textually but not strong from purpose. The arguments for the prosecution are strong from purpose but less strong textually.
A court might favour either construction.
The decisive point is not s 35(b) of the Interpretation of Legislation Act 1984 (Vic), but the textual link in the construction for the prosecution: the reference to indirectly benefit. This point is decisive as, without a textual link, the prosecutions construction will fail for the same reason that the lower courts construction failed in R v Bentham. The House of Lords saliently observed:
Purposive construction cannot be relied on to create an offence which Parliament has not created.
But here, sufficient textual link can be shown for the construction for the prosecution. Therefore, on balance, and notwithstanding considerable doubt, the prosecutions construction would likely be preferred by a court.
