LAW5SIN STATUTORY INTERPRETATION - ASSIGNMENT SOLUTION

Question 1 [using practice problem model]

1. Question Presented

Michelle has applied to the Minister under section 10 of the Protection of Movable Cultural Heritage Act 1986 (Cth) (‘the Act’) to obtain a permit to export a Class B object. Whereas, her father – Joe has disclosed his pecuniary interest under section 21(1) of the Act since her daughter is the applicant. At the same time Joe has submitted his intention to be present, for his research purposes, at the meeting at which deliberation of the Committee with respect to discharge of Michelle’s application would take place. However, Joe’s submission was not considered by the Chairperson of the Committee citing section 20(3)(b) as the reason. The interpretation of s 20(3)(b) needs to be examined in order to determine whether the Chairperson’s refusal to consider Joe’s submission was correct.

2. Answer in Brief

It is highly likely that Joe’s submission should be considered at the meeting of the Committee and decided thereby, instead of outright being denied the right to participate. Joe is not entitled under s 20(3)(b) to take part in making ‘determination’ whether he should be allowed to participate in Committee meeting at which Michele’s application would be considered. However, this should be distinguished from taking part in meeting where Michele’s application should be considered under s 20(2). The Chairpersons refusal to consider Joe’s submission regarding his intention to be present at the Committee meeting and take part in decision making appears to be illegal.

3. Discussion

3.2 Unit of inquiry

Section 20(3)(b) – Disclosure of interests

3.3 Opposing constructions of unit of inquiry

Construction for the Chairperson of the Committee 

Subsection (3) deals with deliberation on the matter being considered by the Committee in which the Member has a pecuniary interest.

Construction for Joe 

Subsection (3) deals with determining whether the Member who has interest in the matter can participate in deliberation on that matter.

3.4 Arguments for Chairperson’s construction

Provision:

The words in the legislation should be read consistently and the grammatical and ordinary sense of words should be adhered to unless it leads to any absurdity in the law. Therefore, reading the section in isolation it is prohibited for the interested person to take part in the meeting of the Committee wherein the matter is being considered.

Act as a whole:

The intended purpose of these provisions is to avoid conflict of interest and bias in decision making of the Committee pertaining to the matter of obtaining permit or making other decision as per law. If an interested person is allowed to interfere in the decision-making process it would defeat the fundamental purpose of these provisions.

Legislative history:

The long title of the Act defines more fully the purpose of the statute as follows:

“to protect Australia's heritage of movable cultural objects, to support the protection by foreign countries of their heritage of movable cultural objects, and for related purposes.”

It so appears that this objective is better achieved when a Member is prevented as far as possible to affect the outcome of the matter in which he interested.

Wider context:

The construction of Joe is likely to lead to disputes at the meeting of the Committee and might result in controversies and impression of favoritism if the decision is perceived by the public as being influenced by his presence.

3.5 Arguments for Joe’s construction

Provision:

If the meaning of a sub-section appears to be ambiguous when read in isolation it should be read in conjunction with the surrounding sub-sections and the other sections of the statute. S 20(3) at the very outset refers to sub-section (2) which requires wither the Minister or the Committee to make a determination with regard to whether interested person can participate in the matter.

Act as a whole:

If s 20(3) pertained to deliberation on the matter being considered (award of permit to export a Class B object) then the whole of sub-section (2) would become superfluous. 

Subsections (2) and (3) are drafted in sequence. Therefore, applying the principle of Ejusdem generis, the construction would better achieve the purpose as:

• Subsection (2) for deliberation on matter
• Subsection (3) for determination of whether interested Member can participate

Legislative history:

Allowing the person who could contribute to the decision through his immense research interest in meteorites would contribute to the process of decision-making of the Committee while at the same time enabling justice and fair play.

Wider context:

Not reading / seeing / providing opportunity of being heard to the person whose interest resides in the matter is against the fundamental principle of audi alteram partem whereby every person has the right of being heard. A parliament does not interfere with the fundamental rights of people.