LA 112 LEGISLATION

 

SEMESTER TWO 2007

 

FINAL EXAMINATION

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YOU MUST ANSWER ALL QUESTIONS ON THIS PAPER.

 

YOU MUST ONLY ANSWER PART A OR PART B FROM QUESTION THREE.

 

YOU MUST ONLY ANSWER PART A OR PART B FROM QUESTION FOUR.

 

YOU MUST ANSWER ONLY THREE (3) TOPICS FROM QUESTION FIVE.

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QUESTION 1

 

[10 marks]

 

In 2006 Marty Marlin is convicted and fined under the Marine Resources Regulations (Oyster Islands) for deep-sea fishing inside prohibited fishing zones around the islands. He couldn’t afford to pay the fines and, in default, is sentenced to 3 years imprisonment. His boat and all the fish catch are confiscated. He is due for release from prison in 2009.

 

While the Marine Resources Act 1986 (Oyster Islands) generally prohibits various forms of deep-sea fishing, the regulations describe the prohibited zones and specify penalties for particular offences.  

 

In 2007, the deep-sea fishing prohibitions are repealed by the Marine Resources (Amendment) Act 2007 (Oyster Islands). The Marine Resources Regulations (Oyster Islands) are not amended. However, both the authorising Act and the amending Act are silent in relation to the effect of repeal or amendment on subsidiary legislation.

 

The Interpretation Act 1980 (Oyster Islands) contains the following provisions:

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8. Where any Act or part of an Act is repealed, subsidiary legislation issued under thereof, shall, unless a contrary intention appears, remain in force, so far as it is not inconsistent with the repealing Act, until it has been revoked or repealed by subsidiary legislation …

10. The repeal of an Act does not-

(a) ….

(b) affect the previous operation of the Act or anything duly done or suffered under it;

 

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act;

 

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against the Act;

 

(a) As you are the prison legal officer, Marty seeks your advice. He argues that, as deep-sea fishing is no longer an offence, he doesn’t think he should be sitting in prison for something that is no longer illegal.

 

What will you tell him? Explain your answer. [5 marks]

 

(b) Marty also wants to know when he gets out of prison, whether he can be fined if he goes back fishing because the regulations prescribing the zones and fines have not been repealed.

 

What will you tell him? Why?  [5 marks]

 

 

 

QUESTION 2

 

[15 marks]

Read the following information carefully and then answer the questions below.

The Constitution of the Pacific country of Mantaray Islands contains the following provision:

‘35. (1) Every person has the right to freedom of conscience, religion and belief.

(2) Every person has the right, either individually or in community with others, and both in public and in private, to manifest his or her religion or belief in worship, observance, practice or teaching…’

The preamble of the Constitution is framed as follows:

‘SEEKING the blessing of God who has always watched over these islands:

RECALLING the events in our history… and the enduring influence of Christianity in these islands and its contribution, along with that of other faiths, to the spiritual life of Mantaray Islands:

WITH GOD AS OUR WITNESS, GIVE OURSELVES THIS CONSTITUTION…’

Section 2 of the Constitution also states:

‘This Constitution is the supreme law of the State.’

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Holy Hosé is the leader of a spiritual sect called Church of Divine Nature. The group is a fundamentalist brethren who fanatically reject the killing or mistreatment of animals or the consumption of animals or animal products of any kind, for any purpose whatsoever. They live in an isolated community in the mountains outside the town of Mantaray Bay. The group believe their spiritual leader, Sedna, the protector of sea animals, has specially chosen them to lead the rest of the world to eternal salvation by communing with nature and rejecting the evils of money and materialism.

In May 2006, Holy Hosé and a group of his followers organise a public rally in the town square and march peacefully through the streets of Mantaray Bay singing songs and carrying banners stating ‘Sedna will save you, so you can save others’.

Some of the residents of Mantaray Bay think the group is a bunch of ‘crazies’ and consider its objections to killing or eating animals to be offensive to Pacific culture. They block the main street and refuse to let Hosé and his group continue their rally. The police arrive and arrest all the members of Church of Divine Nature but none of the other residents.

Holy Hosé is charged under section 36 of the Crimes Act 1985 (Mantaray Islands) and is due to appear before the Mantaray Magistrates’ Court.

Section 36 of the Crimes Act states that:

‘Any person who organises, conducts or participates in any meeting or assembly in public for any purpose connected with religion or belief is guilty of an offence and is liable to imprisonment for one year.’

Hosé comes to you for legal advice.

(a) What defence would you raise on his behalf?

(b) In interpreting the statutes provided, outline all the arguments you might use to support your case. You should support your position with authority from at least one (1) case you have studied in this course, discussing the case briefly.

(c) Assuming the Court agrees with your position, and rules in your favour, what would the practical consequences of the Court’s decision be for Hosé?

 

QUESTION 3

[5 marks]

You must answer ONLY Part A OR Part B of this question.

You have been asked to give a seminar presentation to a group of your fellow students on ‘simplifying statutory interpretation’. You may choose from one of the following topics.

 

PART A.  [5 marks]

There are some common law rules used to interpret statutes that are often described as rules of language. Describe two (2) of these rules and explain how each rule works. Illustrate your explanation of each rule with a simple example.

OR

 

 

 

PART B.  [5 marks]

 

Describe four (4) of the secondary tools or aids you might use to help you resolve an ambiguity or inconsistency in a statute and explain when you might use each of them. As an illustration, cite one (1) case you have studied in this course, which used one or more of these tools and briefly explain to the group what the case was about.

 

QUESTION 4

[5 marks]

You must answer ONLY Part A OR Part B of this question.

As a recent law graduate, you have been asked by the Attorney General’s department in Solomon Islands to give a seminar to local lawyers on drafting old legislation into plain language. You have selected some examples from existing statutes to use as exercises. Next you have to prepare a set of answers for the participants!  

 

Look at the following pieces of legislation and follow the instructions CAREFULLY.

 

 

PART A.  [5 marks]

 

Select words or phrases in section 5 of the Act below that do NOT comply with the rules of plain language. Indicate how and why you would change the words or phrases you have selected

 

You do not need to completely redraft or rewrite the section, just make a list of what changes you would make and the reasons why.

 

Islanders Marriage Act [Cap 171] (Solomon Islands)

Marriage before a minister of religion

5. - (1) (a) Before a marriage may be celebrated by a minister of religion, written notice of the intended marriage, and of the date of such intended marriage, in the language spoken by the parties thereto, and signed by the minister in charge of the church in which such marriage is to be celebrated, shall be posted prominently on a notice board set aside for the purpose in such church. Such notice shall be posted at least three weeks before the date of such intended marriage, and shall remain on the notice board until the celebration of the marriage or until the expiration of three months from the date of the notice, whichever shall first happen.

(b) Every minister of religion shall keep a register in which shall be recorded the names and particulars of the parties in respect of whom notice has been given, and he shall also record therein the dates on which notice was so given.

(c) If, for any reason, the marriage be not celebrated within three months from the day on which the last notice shall have been given as required by paragraph (a) hereof, fresh notice must be given in the manner hereinbefore set out.

 

OR

PART B.  [5 marks]

Read section 12 of the Act below carefully until you are sure you know what it means.

Then redraft the section by reorganising and punctuating the text so it is easier to read and understand. [Do NOT change the meaning of the section or add or delete any words except for grammatical purposes.]

 

Closed Districts Act [Cap 4] (Solomon Islands)

 

Responsibility of master of vessel

12. The master of any vessel shall be held responsible under this Act for the movements of his vessel and for the acts and movements of all seamen and passengers in such vessel while in a closed district, and any master of a vessel who fails to prevent any seaman or passenger in such vessel committing an offence against this Act shall be guilty of an offence against this Act; but nothing in this section contained shall be construed as relieving any seaman or passenger as aforesaid of personal liability for any offence committed against this Act:

Provided that in any charge against the master of a vessel under this section it shall be a sufficient defence if the said master shall prove that no reasonable and lawful action that he could have taken would have prevented the offence being committed.

 

 

QUESTION 5

 

[15 marks]

 

You must select and complete three (3) topics from this list.

 

Do NOT answer any more than three (3) topics.

 

Each topic is worth five (5) marks.

 

 

  1. Is there a cut off date for the application or adoption (or both) of introduced legislation in your country? If so, what is it? In your own words, explain the significance of this date. If there is no such date, explain why this is the case. Was any legislation adopted or applied in your country?

 

  1. Discuss the reasons why many European countries elected to introduce their own laws into the colonised states of the Pacific Islands where customary systems of law already existed.

 

  1. What is the date of enactment of a statute? How does this differ from the date of commencement? What is the preamble of an Act? What is the legal effect of a preamble within a statute?

 

  1. What is meant by the term ‘plain language’? Is it the same as ‘plain English’? Why is the use of plain language important when drafting legal documents? Give two (2) examples of words or phrases that do not comply with the rules of plain language and explain why they do not comply.

 

E.     What are the two (2) principal approaches to statutory interpretation that have been used by the courts in the Pacific region? In your own words, describe briefly how each of these rules operates. What is the preferred approach to statutory interpretation in the USP region today? Briefly describe a case from the region that illustrates your answer.

 

  1. What is the hierarchical relationship between common law and legislation? Can common law be abolished or changed by legislation and subsidiary legislation? Illustrate your answer by using an example from one (1) case you have studied in this course.

 

THIS IS THE END OF THE PAPER