Monday, January 3, 2011

Wouldn't Happen Here: driving conviction overturned on a drafting error

Only in America. (Full story at the Washington Post.)

Read (carefully!) this section of a Virginian law.
A person is guilty of reckless driving who fails to stop, when approaching from any direction, any school bus which is stopped on any highway, private road or school driveway for the purpose of taking on or discharging children.
Spot the problem? On it's face, it says a driver must stop a stopped school bus. It's missing an at; probably between "direction," and "any".

There once was an "at", but it was accidentally removed by an amendment. And that two-letter missing word was enough for one very lucky driver to have a reckless driving conviction overturned. The appeal judge, whilst wondering "if there's some latitude" in reading the law, ultimately held that "There probably isn't, because it's a criminal statute." As such, he quashed the conviction.

Now, there's some debate over whether that was the correct decision under US law. But here's why the question would never have come up in WA. The Interpretation Act 1894 (WA) provides the courts with very clear rules about how they are to interpret statutes. Section 18 provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
There is no distinction here between criminal law or civil law --- it applies to all written law. Clearly the construction preferred by the court does not promote the object of road traffic legislation.

Additionally, a court may also refer to extrinsic material in some circumstances. Extrinsic material is material not part of the Act the court is trying to interpret, such as parliamentary debate, or explanatory memorandum. Extrinsic material may be used either to confirm the ordinary meaning of a provision, or to determine the meaning of a provision when --- 
s 19(1)(b) ... 
    (i)    the provision is ambiguous or obscure; or 
    (ii)    the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
The construction preferred by the US court would easily be described as unreasonable. So an Australian court would have no problem finding some material explaining what the fateful amendment was supposed to do, and doing that.

So, if you find a missing preposition in an Australian law, don't bet on being able to rely on the strict, literal interpretation of the law.

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