Crimes Act 1914 (Cth) – Part VIIC – Division 3: Sections 85ZV, 85ZW and Associated Definitions Potential Interpretative Issues and their Impact
| Autor: | Barnes, Jeffrey |
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| Jazyk: | angličtina |
| Rok vydání: | 2019 |
| Předmět: | |
| DOI: | 10.5281/zenodo.3271515 |
| Popis: | This report is an examination of central provisions of the spent convictions scheme in the Crimes Act 1914 (Cth): ss 85ZV and 85ZW and associated definitions. The main purposes of the report are four-fold: first, to ascertain what interpretative issues may arise; second, to determine what types of interpretative issues may arise; third, to indicate the causes of the interpretative issues; and fourth, to gauge the extent to which the issues can be factored into a legislative mapping exercise. In this report ‘interpretative issues’ is broadly understood as capturing readings of a provision that require interpretative knowledge beyond a literal reading. It includes the classic interpretative issue where rival contentions as to meaning — called here ‘constructions’ — may arise. Some of these ‘issues’ may be weak or tenuous. It also includes the application of the law where that application involves a value judgement and requires taking into account the context of the provision. And it includes ‘readings’ of the provision where that reading is informed by legal knowledge of a relevant provision of an Act of general application, such as the Acts Interpretation Act 1901 (Cth). The application of a provision of an Act of general application may produce a reading that is different to what a lay person would arrive at uninformed by such knowledge. The spent conviction scheme in the Crimes Act appears to be well drafted. However, no legislative scheme is immune from potential interpretative issues, and the spent convictions scheme is no exception. Importantly, it is a misconception to see the potentiality for interpretative issues as necessarily evidence of a drafting mistake or a bad thing. In summary, 19 potential interpretative ‘issues’ in the central provisions of the spent convictions scheme are identified. The issues are of three types. For convenience, they are labelled categories A, B and C. These categories are now briefly described. Category A. The potential for issues in this category to arise is deliberately created. The potential is a by-product of the drafter using a style of drafting known as general principles drafting. Issues in this category can be readily identified to an extent. Category B. The potential for issues in this category to arise may not be deliberately created. What has brought about the issues is not entirely clear and to an extent may be indeterminate. Moreover, the very existence of the issue itself is not settled. From the author’s perspective, the potential for the issue to arise is often uncertain and in many cases may be remote. And even if the facts arise to generate the issue, the argument for one side may be weak. In other words, the ‘issue’ may be tenuous. Category C. The potential for issues in this category can be readily identified. The potential arises because of a potential difference of views amongst interpreters. The provisions concerned are not ambiguous to the well-informed interpreter, but they require that person to apply specialist interpretative knowledge not ordinarily possessed by the lay person. Specifically, they require the provision to be read with knowledge of a relevant provision of an Act of general application, especially the Acts Interpretation Act 1901 (Cth) (‘AIA’). A person who does not possess this specialist knowledge could well take a different view of the meaning of the provisions. DC25008: Compliance by Design (CbD) and Compliance through Design (CtD) solutions to support automated information sharing (2018-19). Law and Policy. Project C. Spent Convictions Use Case. Australian Government funded Data to Decisions Cooperative Research Centre (2018-2019), end-user: Australian Criminal Intelligence Commission. |
| Databáze: | OpenAIRE |
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