LAWS1111 Exam Reference Guide
gallery_1292524854deleteme1.png

Exam Reference Guide

Ratio Decidendi

  1. Identify the court, number of judges, and which ones constituted the ratio. If it involves more than simply applying an existing law, identify this too
  2. “MacCormick’s model of ratio decidendi is conceptually the most compelling explanation of ratio. According to MacCormick, ‘[a] ratio decidendi is a ruling expressly or impliedly given by a judge with is sufficient to settle a point of law put in issue by the parties’ arguments in a case, being a point on which a ruling was necessary to his [or her] justification (or one of his [or her] alternative justifications) of the decisions in the case.”
  3. Identify the issue(s) in dispute from the material facts – reference by paragraphs
  4. Identify the ratio(nes) – once again, reference MacCormick and the location
  5. Identify the legal reasoning involved in reaching the ratio – if time permits, identify examples of obiter

Statutory Interpretation

  1. Identify that the statute applies – if no information is given on commencement, identify that you assume it has commenced
  2. Identify the issues of the question that need to be solved
  3. Read the section as a whole, identifying ambiguity, then the entire Act (or excerpt) as a whole, identifying if that changes anything – working with only plain, ordinary meaning of the words (including dictionary definitions)
  4. Identify any internal aids that can be used for Commonwealth statutes/Queensland statutes passed prior to 1991, or alternatively state that “since the Act operates in Queensland and was passed after June 30th 1991, we should not look to presumptions or rules of interpretation for additional information (s14A(3) Acts Interpretation Act 1954 (Qld))
  5. Identify the need for the purposive approach as specified by the Acts Interpretation Act that applies in this case:

(a) “Since the Act operates in Queensland, ‘the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation' (s14A(1) Acts Interpretation Act 1954 (Qld))
(b) “Since this is a Commonwealth Act, ‘in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act…shall be preferred to a construction that would not promote that purpose or object’ (s15AA(1) Acts Interpretation Act 1901 (Cth)”
6. Identify the need to look to beyond the Act if required.

(a) “Since the Act operates in Queensland, consideration may be given to extrinsic material if ‘the provision is ambiguous or obscure…the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable…[or] to confirm the interpretation conveyed by the ordinary meaning of the provision (s14B(1) Acts Interpretation Act 1954 (Qld))”
(b) “As this is a Commonwealth Act, extrinsic material may be used to ‘confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision…or to determine the meaning of the provision when the provision is ambiguous or obscure; or the ordinary meaning… leads to a result that is manifestly absurd or is unreasonable (s15AB(1) Acts Interpretation Act 1901 (Cth)”

7. “The courts have established that it is necessary to look beyond the Act itself to identify or clarify any ambiguity. ‘The use of the word ‘ambiguity’ in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.’ (Spigelman CJ in Repatriation Commission v Vietnam Veteran’s Association (2000) 48 NSWLR 548 at 577-8)”
8. Having identified the approach and any ambiguity, identify the potential arguments for each possible interpretation in relation to how well they would be supported by the apparent purpose.
9. Conclude which construction better promotes the purpose of the Act based on that reasoning.

Relevant References

Walton Stores (Interstate) v Maher (1988) 164 CLR 387 (equity – 17-18)
The Law of Nations or the Principles of Natural Law, Emerich de Vattel (International Land Colonisation and terra nullius 24-25)
Mabo v Queensland (No. 2) (1992) 175 CLR 1 (terra nullius overruled 34-40)
Commentaries on the Laws of England, Sir William Blackstone (reception of English law 27)
Australian Courts Act 1828 (Imp) s24 (Clarification + cut-off date for non-paramount 28)
Colonial Laws Validity Act 1865 (Imp) (Australian laws repugnant so far as they conflict with law of England 32-34, 66)
Australian Constitutions Act 1850 (introduction of Legislative councils and upper/lower houses, 67)
Commonwealth of Australia Constitution Act (1900) UK (Australian Constitution, 87-88)
Statute of Westminster Adoption Act 1942 (Cth) (Cth statutes no longer repugnant 90-105)
Kirmani v Captain Cook Cruises Pty Ltd (No 1) (185) 159 CLR 351 (Cth statutes no longer repugnant 90-105)
Australia Act 1986 (passed by all states, Britain, Cth – overrides Colonial Laws Validity Act, removes privy council 105)
Donoghue v Stevenson [1932] AC 562 (principle and ratio example)
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (ratio example)
Declaration of Principles on Judicial Independence 1997 (tenure of judges/ability to appoint temporary judges 163-164)
Legislative Standards Act 1992 (Qld) (General standards Queensland legislation should try and adhere to)
Statutory Instruments Act 1992 (Qld) (Identification and limitations placed on regulation, delegated legislation, and other identified statutory instruments)
Harriton v Stephens [2006] HCA 15 (9 May 2006) [134]-[144] (Kirby’s comments on relationship between statute and common law 326-328)
Acts Interpretation Act 1954 (Qld)
Acts Interpretation Act 1901 (Cth)