When Australia gained settlers in 1788, the land itself was considered uninhabited or having no stable population. This was referred to as Terra Nullius meaning the "Land of no-one". Governor Philip instituted British colonies which led to the dominion of ownership including English law, which had been transferred to Australia by the settlers. Any seizure of land that had been considered Terra Nullius by the English colonies had to "receive" or acquire as much law from the existing English law, to accommodate and sustain surrounding environments. This rule is called the Doctrine of Received Law.
However, Australia was not unoccupied at that time as the Aboriginal population had existed for many years. By bringing in the doctrine of received law, Aboriginals lost all laws, value systems, customs, and rights to the land. This became clearer in the case of Mabo v The State of Queensland (1992) 66 ALJR 408. The high court recognised that Australia was not Terra Nullius when the English colonies emerged. Regardless of this recognition, the High court approved and applied the Common Law system from England, confirming the supremacy of the Crown.
Question 2 The Parliament of Western Australia was concerned about foreign tourists being upset by people swimming in inappropriate or inadequate clothing. It passed the Bathing Act 2004 (WA) (a fictitious Act). Section 104 of the Act states: No person shall swim, unless in proper swimming costume, near to or within view of any public wharf, quay, jetty, bridge, or other place of public resort between 6am and 8pm, and any person who shall offend against this provision shall be liable to a fine not exceeding $100.
Mary Jane was celebrating the end of her university examinations on a very hot night. She decided to take a swim in the fountain at the local park. She kicked off her shoes and jumped into the fountain wearing her party dress. She was charged with a breach of Section 104 of the Bathing Act 2004 (WA). a. Using the four step process discuss the three main common law rules of statutory interpretation and consider whether Mary Jane will be convicted. (12 marks) The Area of Law (Step 1) The area of law that is applicable to this question is Statutory Interpretation.
The Principles of Law (Step 2) A number of laws that are passed by parliament or delegated legislation are sometimes too complex to understand. Hence, it becomes the responsibility of the courts to translate the words used in a particular law to enable a clear perception of what parliament meant when such laws were created. Interpretation of words and phrases will be required when words have more than one meaning or the meaning of the words have been changed. There are various approaches or rules that have been made available to assist the courts in interpreting legislation.
The approaches and rules have been listed under two main sections, statutory rules and common law (or judge-made) rules. Statutory Rules Often you will find a definition section that outlines particular points that are used in that statue. It is imperative that any person wanting to understand the meaning of the words or phrases within an Act should check the provisions of the Act itself first, before seeking information elsewhere. Precise statues have been passed by parliament to commonly aid in the task of statutory interpretation.
The Commonwealth Parliament has passed the Acts Interpretation Act 1901 (Cth) which is used in courts to interpret the Commonwealth legislation. The Western Australian Parliament has passed the Interpretation Act 1984 (WA) for the state and is used to translate Western Australian legislation. Particular important points in each Act are in sections 15AA and 15AB, with addition to section 18 and 19 in the Interpretation Act 1984 (WA). Section 18 directs the courts to give legislation a definition which is associated to the aim of the legislation.
This approach maybe used and is better known as the Purposive Approach. Section 19 permits the court to use material outside the interpretation to help in translating the legislation while understanding the intentions of parliament when the law was originally passed. A number of documents that may guide the courts are Minister's second reading speech (when bill was passed for a second time), reports of law reform commissions, and a treaty or other international agreements. All other states have outlined similar legislation to the Western Australian Interpretation Act 1984. Common Law Rules
Three principle approaches or rules have been produced by the courts themselves to be utilised in the case of interpreting legislation. They are the Literal Approach, the Golden Rule, and the Mischief Rule (similar to the Purposive Approach). The literal rule is applied when the court presents strict interpretation of parliament legislation by allowing the words of the statue to be given their ordinary and exact true meaning. Stringent interpretation of a statue can lead to an outcome that is unintended by parliament. This rule was applied in the case of IRC v Hinchy  AC 748.
If a person lodged an incorrect tax return, the law enforced a penalty of "treble the amount of tax payable". It was clear that parliament had meant that the penalty is three times the unpaid tax amount, but the court using the literal rule penalised Hinchy three times the total tax payable. The golden rule is adopted when words that are given their everyday meaning lead to an absurdity or discrepancy with the remainder of the statue. By using the Golden Rule, the court would be required to read the entire statue and interpret it so the words are given their exact meaning.
The words may be amended to avoid any inconsistency. The golden rule is rarely used, however it was used in the case of Adler v George  2 QB 44 where the accused was charged with obstructing the police "in the vicinity" of a prohibited place. The accused claimed that he was not "in the vicinity", he was actually "in" the prohibited place. The man was convicted due to the court applying the golden rule and modifying the legislation to read "in and in the vicinity" of the place.