The Principles of Law

The mischief rule is used when a judge is able to recognise a problem (mischief) that existed prior to the legislation being passed. By this he or she will be able to decipher the legislation, advance a remedy set out in the law, and/or apprehend the mischief or problem. In a case involving prostitutes (Smith v Hughes [1960] 1 WLR 830), the Street Offences Act 1959 (UK) prohibited prostitutes soliciting "in the street". Prostitutes were charged with a breach of the law when they solicited from balconies or doorways.

The court interpreted the "mischief" that parliament was trying to address was an attempt to "clean up the streets", hence the prostitutes were convicted. Soliciting was equally undesirable from balconies and doorways as it was in the street. The purposive approach aids words in the legislation to achieve their objective by translating the words in the Act. This approach grew out of the mischief rule. However it concentrates more on the aim rather than the problem, unlike the mischief rule where the problem is the main point of attention.

Apart from the general rules, the courts may refer to other principles of interpretation better known as Maxims. These may be applied occasionally. Maxims include rules such as technical words being given their technical meaning, the general gives way to the specific, later statues prevail over earlier statues, where meaning of a word or phrase is to be derived from its context, an express reference to one matter indicates that other matters are excluded, where words of a precise meaning followed by words with a common meaning are given limitation to the same kind as the words with a precise meaning, and many more.

There are seventeen principles that currently exist. It is important to note that the court will only apply one rule of statutory interpretation, one that may not be predicted before hand. If the words are found to be precise and no forethought needs to be given, then the Literal Rule may be considered and applied. Applying the Law (Step 3) If the literal approach was to be enforced in the case of Mary Jane, where the statue is given its exact and true meaning, the court may define a fountain in a local park as "… other place of public resort".

As for Mary Jane's attire it would also be considered an offence as her party dress does not fall under the category of a "… proper swimming costume" as per section 104 of the Bathing Act 2004 (WA). The results of this decision would depend on the time the offence was committed and whether it was "… between 6am and 8pm" as the Act states. If it was found that Mary Jane did swim in the fountain between these times then she would most likely be found guilty. By applying the golden rule, where words may be amended to avoid any discrepancies, the court may amend the Act to read for example "…near to or within view of any public wharf, quay, jetty, bridge, or other place of public resort with water… ".

Mary Jane in this case would be guilty as a local park with a fountain would be defined as a public place with water. When the mischief rule is applied the judge has been able to define the problem that existed when the legislation was passed. In this case when the Bathing Act 2004 (WA) was passed, it may have been the intention of State Parliament to avoid people in a public resort from being offended by viewing inappropriate actions of other people in unsuitable swimming apparel.

Hence, Mary Jane may be found guilty as this refers to a 'local' park which in other words means a public park and her party dress as being inappropriate swimming clothes. Mary Jane's actions that night may have displeased a member of the public that happened to be in the proximity of the fountain. The courts can at any time refer to the Maxims for further principles of interpretation. Conclusion (Step 4) The decision in Mary Jane's case will differ according to what rule the court appoints.

The ejusdem generis rule refers to words that have specific meaning and are followed by words of a general meaning. The general words are translated in the same frame of reference or implication as the specific words. An example of this would be The Use of Mobile Phones Act 1999 (WA) section 26 which states "No person shall talk on a mobile phone when driving a motorcar, truck, motorcycle, or similar vehicle. " The words with particular meaning refer to "… motorcar, truck, motorcycle… " followed by words of general meaning such as "… or similar vehicle".

Ejusdem generis was applied in the case involving Kempton Park Racecourse Co Ltd [1899] AC 143 a provision in the Betting Act 1853. Legislation stated that "no house, office room, or other place shall be opened, kept, or used for the purposes of betting… " This was interpreted as ejusdem generis to exclude an uncovered enclosure near a racecourse which was fenced in by iron rails. Members of the public paid an entrance fee and were able to place bets with bookmakers who utilised that enclosure. Applying the Law (Step 3)

The Bathing Act 2004 (WA) states that "…near to or within view of any public wharf, quay, jetty, bridge, or other place of public resort… " leading to specific meaning given to "… public wharf, quay, jetty, bridge… " followed by a general meaning of "… other place of public resort". The courts may apply ejusdem generis to the general meaning of "… other place of public resort". In Mary Jane's case she was not "… near or within view of any public wharf, quay, jetty, bridge" however it may be considered that she was "… near or within views of any other place of public resort".

A wharf, quay, jetty, and bridge are places to be used by the public in a suitable manner, for example sailing, transporting people or goods, etc. Regardless whether the Act states a fountain or not, a fountain that is placed in a 'local' park automatically refers to anything that is near or within that area as part of a public resort, since it is location is bounded by a public area. The fountain may also be used by members of the public; however its placement in the park is not intended for swimming. Its main purpose is to compliment the park and its surroundings.

Therefore, members of the public may opt to sit near a fountain and enjoy its presence without performing acts of misconduct inside it. Conclusion If the court were to apply ejusdem generis to this case than I believe Mary Jane would be found guilty as a fountain in a 'local' park would be considered "… any other place of public resort".

References

Legal Frameworks study book 2006, Curtin University, Perth, Western Australia, Units 2-5. Latimer, P 2006, Australian Business Law, 25th edn, CCH Publications, Australia, pp. 72-80