Statutory Interpretation in the Common World - Essay Example

Business Law Introduction Thalia who just came to visit Perth happened to be in the park where a crowd gathered for a peaceful protest that supportthe Free Tibet Campaign and celebrate Tibetian Culture. Thalia carried with her an umbrella for fear that it might rain but unfortunately she was approached by a Constable and was charged for breach of Section 10 of Celebrations Control Act 2007 which states that: “During celebration of whatever kind it shall be illegal for a person to carry any weapon in any street, laneway, right of way or other place.” Must Thalia be charged guilty of violation of Sec. 10 of the said Act. Should her act of carrying an umbrella be construed illegal carriage of weapon? Must umbrella be considered part of the weapon defined in the Sec. 10 of Celebrations Control Act of 2007? Following the four (4) step process, this paper intends to discuss common law rules of statutory interpretation in order to establish whether or not Thalia has really breached Sec. 10 of Celebration Control Act of 2007. With the use of the four (4) step process, this paper shall also discuss review of administrative action by the court to establish whether or not the Constable acted ultra vires when he confiscated Thalia’s umbrella. Four (4) Step Process on Statutory Interpretation of Sec. 10 of Celebration Control Act 2007 Step 1. The identified area of the law is statutory interpretation. It is important to establish the common law rules of statutory interpretation to come up with a sound bases for the decision whether Thalia is guilty of the offense. Step 2. The Principles of the Law must be discussed in order to see its relevance to the case. Sec. 10 of Celebration Control Act 2007 is relevant and is consistent with many laws that ensure the safety of the general public from any harm especially during mass actions and protests where Thalia happened to be around. It is consistent with the Umbrellas (Prohibition) Act 1985 which is an Act to prevent a common cause of eye and face injuries which states: It shall be an offense to carry an open umbrella in any road or street to which the public has access. It is indeed dangerous to carry weapons that would endanger the safety of the public so much so during celebrations such this when a lot of people might be affected. Sec. 10 of Celebration Act 2007 is based on the principle that the lives of the people in public places must be protected and be ensured from harm. The right to safety and life is enshrined in the Universal Declaration of Human Rights and in the Constitution. Article 13 Sec 16 States: “Every one has the right to protection against bodily harm.” The United Nations (2007) has also documented cases of killings because authorities failed to strictly impose laws that could have save the lives of the people in Nepal who were on a rally. The authorities failed to see that many of the protesters were armed with “bhaatas” which are spliced lengths of broad diameter bamboo that could be lethal when it is used as weapons.. Below is an excerpt of the UN report: There can be no doubt that most, if not all, of the killings in Gaur could have been prevented. First and foremost, the incidents highlighted once more the weaknesses of law enforcement agencies who, aware of the potential for clashes and other violence, were grossly ill prepared to ensure effective crowd control. (UN 2007) Step 3. The Constable is right to have invoked Sec. 10 of Celebration Act 2007. US Legal (2007) quoted a municipal definition of weapon: Weapon as defined in Section 13.68.010 means and includes, but is not limited to: “ a) Any knife having a blade three inches or more in length, or any snap-blade or spring-blade knife regardless of the length of the blade; (b) Any ice pick or similar sharp stabbing tool; (c) Any straight edge razor or any razor blade fitted to a handle; (d) Any cutting, stabbing or bludgeoning weapon or device capable of inflicting grievous bodily harm; (e) Any dirk or dagger or bludgeon; (f) Any "taser public defender" or other similar electronic immobilizer which causes, by means of an electrical current, a person to experience muscle spasms and extreme pain, followed by unconsciousness. (Ord. 4814-NS § 1, 1975: Ord. 2881-NS § 1, 1947)" Whether umbrella can be regarded as part of the definition of a weapon must be established. The following process of common law rules of statutory interpretation may be utilized: (1) literal rule; (2) golden rule; (3) mischief rule; (4) noscitur a sociis; (5) ejus dem generis; (6) expression unis exclusion alterius; and (7) expression unius. Using the literal rule “weapon” as used in Sec. 10 provides an ambiguous meaning of the word. There is no clear meaning as to what it could include. If however, ejus dem generis rule or “things that are the same” is applied. Accordingly it is used “when a statute includes list of items and an and similar items clause.” There is no indication that umbrella can be regarded as a weapon. On the bases of the above process where the Constable invoked Sec. 10 of Celebration Control Act, though he is taking into consideration the general welfare of the many, and to prevent any untoward thing to happen the case cannot prosper. Considering all the circumstances, and the fact that umbrella is not defined as a weapon, she cannot be charged guilty of the offense. Using the four step process it can also be established whether the Constable acted out of ultra vires for his confiscation of the umbrella. Step 1. Area of law: Review of Administrative Action. Whether the Constable had acted ultra vires when he confiscated the umbrella must be proven. Step 2. Principles of Law. The Constable did not act ultra vires or “beyond his power” when he confiscated the umbrella of Thalia. He was safeguarding the people from possible harm. What if Thalia will use the umbrella to hurt people should there be violence in the rally? The constable exercised what is within his power and that is to protect and secure the people from possible harm. She confiscated the umbrella but did not hurt Thalia. He did what is expected of him as a peace keeper. He prevented the thing that could have been blamed on him such as how the UN blamed the NP and the AFP of Nepal: The NP and the APF failed to prevent the violence from happening by persuading the organizers to move or postpone the rallies. They failed to stop the violence when it broke out. They failed to protect those who came under attack, and they failed to carry out any arrests (UN 2007). Step 3. The mischief rule for the statutory interpretation is applicable to the Constable where Heydons Case 1584 (cited by www.rinhinstyle.com)- the criteria for the Mischief Rule: 1. What was common law before the Act? 2. What was the mischief for which the existing law did not provide? 3. What remedy has Parliament decided upon? 4. Judge should make such constructions on the Act to suppress the mischief and subtle inventions and evasions for continuance of the mischief, according to the true intent of the makers of the Act. Step 4. It can be concluded therefore that the Constable did not act ultra vires or beyond his powers when he confiscated the umbrella of Thalia. It was act within his power which is to secure the public from any possible harm. Bibliography Benion, Francis. 2000. The global method: Statutory interpretation in the common world. CLEA Newsletter. 85, 30-33. Gilhams. 2008. Statutory interpretations. Statutory Interpretation Law Firm. Retrieved, October 2, 2008 from http://www.gillhams.com/dictionary/332.cfm United Nations Office of High Commissioner. 2007. OHCHR Nepal releases report on Gaur investigation. Retrieved, October 2, 2008 from http://nepal.ohchr.org/en/resources/Documents/English/pressreleases/APR2007/2007_04_20_HCR_PressRelease_Gaur_E.pdf http://www.ethiopar.net/type/English/genifo/conchp31.htm Read More