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Week 11: Human Rights and International Law

This weeks material is the last of the formal study topics for the term. I was glad of this as it was also one of the more convoluted topics, with the links to human rights and international law. It was also the conclusion of the discussions on statutory presumptions, which has been the focus of the last three topics of the course (because this was such a broad topic).

The statutory presumption that legislation will not interfere with fundamental human rights is considered one of the strongest of all statutory presumptions, and as such, still used a lot in recent times. These are manifested through the ‘principle of legality’, and are that;

  • Individuals are bound by the law but are otherwise free to determine how they live their lives;
  • all individuals enjoy fundamental rights and freedoms;
  • government action against an individual should only be according to law;
  • laws should not generally be retroactive;
  • laws should not apply only to certain groups but to everyone; and
  • laws should only be made by a democratically elected legislature

While this statutory presumption is still one of the strongest, and still often used, the historical presumption that statues do not interfere with common law is obviously not longer true, due to the increased amount of legislative law. And the above list is by not means exhaustive, as there are several other rights that are considered fundamental human rights.

If I wasn’t confused enough by exactly how human rights fits into the equation, wait… there’s more! International law needs to be considered. Now, many of these ‘fundamental human rights’ are based on international principles – but that is not of any real importance – it’s just tipping the hat to acknowledge that we’ve adopted a similar approach to the international community. The real reason to consider international law is due to the number of treaties and conventions that Australia has ratified or signed. As a result, we’ve agree be bound by the terms and conditions expressed in the treaty or convention. And while many judges will consider that treaties and conventions are the only sources of international law, there are a few more – there are also international custom and also general principles of law recognised by ‘civilised nations’ . This is where things get a bit murky, as they are a vague source of law.

Probably the last important fact to know about international treaties is how they’re incorporated into the Australian legal system. Australia uses what is known as a ‘dualist approach’, as opposed to a ‘monist approach’. In a monist approach, the treaty would be automatically incorporated into domestic law when the government ratifies the treaty (as happens in the United States). In Australia, the Executive ratifies the treaty, and then the Legislature passes domestic legislation which give it effect. They can either do this by enacted the substance of the treaty in an Act, appending it to an act (in a Schedule), or simply giving executive discretion to the relevant Minister and empowering them to make the necessary changes.

All in all, this is a complicated topic, and I’m glad that I don’t have to deal with it in the near foreseeable future!

Week 9: Common Law Approaches

I’m posting this entry a bit out of order as I didn’t complete all of the reading or write my notes for this weeks material until yesterday. After the first skim read of this topic, my first reaction was it was good to finally read specifically about the three major common law approaches (literal rule, golden rule and mischief rule) rather than the brief mention from Week 1 or 2 to them. And then ‘urgh’ after seeing the section on latin maxims.

Having said that, on the second reading, it was very interesting to see that origins of these rules, and finally (although briefly) read the cases that resulted in the establishment of these common law approaches. It is also good to see that if you deconstruct the modern statutory approach to the interpretation of legislation, you can see elements of these approaches in action. This again reinforces the strong relationship between legislation and the common law.

Unsurprisingly, decisions made regarding statutory interpretation are binding if they are made by a higher court. However, since this is dependent on consideration of the exact same factual scenario, and the same Act, for the most part they are only persuasive, as it is highly unlikely that the same factual scenario and exact same Act will be considered  at another occasion. And just like almost  any other judicial decision, they can be appealed. However, if the line of reasoning document by a judge is defensible, then it is unlikely to be overturned.

The final section of this weeks material on Latin maxims are actually more interesting  than I thought it would be. I now understand why they are used (other than to make the user seem more eloquent or sophisticated!). They are a concise way of getting certain ideas across, such as ‘of the same kind’ or ‘express mention of one thing is the exclusion of another’. These ideas are historical in nature, but are still very relevant today in the interpretation of legislation.

Finally, there was the discussion on when and why courts will determine meaning – due to omissions, statues left intentionally vague and due to legal disputes that Parliament never envisaged. This just reinforces the role of the Judiciary as the interpreter of legislation that Parliament has created.

Week 10: Statutory Presumptions

This week’s material was probably one of the easier ones. But was also one of the most informative. Although it was essentially a listing of the presumptions (and assumptions) that courts commonly make, this is the sort of information that you don’t know when you hear about court decisions. Without the knowledge of these presumptions, it can be challenging to work out why a judge arrived at the decision that they did.

For example, take a criminal case, where the accused is found guilty. In accordance with the legislation, the judge will then hand down the sentence. However, there is an ambiguity in the provision. So they can’t use the literal rule of interpretation. They might use the mischief rule to identify what the purpose of the provision was, in order to resolve the matter. In this instance, there is a presumption that penal provisions are strictly construed. The result is that in the presence of ambiguity in penal provisions, the interpretation that favours the accused will be selected. But without the knowledge of this presumption it is hard to predict the outcome of the case.

There are several other presumptions that were covered, including that of ‘legislation does not bind the Crown’ and ‘Taxpayers provisions construed to the taxpayer’s benefit’. Both of these presumptions are of diminished importance in recent times, but for different reasons. The former is due to changes in how the government acts, which make this an unreasonable presumption in many cases. The latter presumption has lost importance due to the modern statutory interpretation approach requiring the interpretation that favours the purpose of the legislation, which is not always to the taxpayer’s benefit.

All in all, this topic has been very interesting, reading through some of the examples cases to identify how these presumptions have been applied, and the reasoning for their existence. The important takeaway message from this topic has been that these presumptions do exist, and that they are simply presumptions, and as such can be rebutted or overridden by Courts and explicitly overridden by Parliament if they wish to do so.

Week 8: Extrinsic Materials

In this week’s material we considered the types of intrinsic material that can be referred to when conceding the meaning of a provision or in determining the purpose and context of the Act. Provision for this has been made in the statutory interpretation legislation, and the use of some material has also been specifically excluded. There are also conditions for the use of extrinsic material, which are similar to the common law approach anyway.

The common law approach is elegantly simple. If the meaning of the text is clear, then extrinsic material cannot change the meaning (and nor should it). If there is ambiguity, then extrinsic material is used to resolve the ambiguity.

I could understand why materials such as the Explanatory Memoranda and Second Reading Speeches are considered, as they are directly related to the creation of the legislation. The former describes why the act is written the way it is and clarifies the intent of the provisions, whilst the latter is the justification by the Minister as to why the legislation is needed, and what it is intended to achieve.

In a similar vein, referring to Law Reform Commission reports and Parliamentary Committee reports also makes sense as these are a formal review of the legislation, and will also result in the identification of what was intended by the legislation. The legislative history is also important as it allows the identification of oversight or inconsistency by Parliament when a word or phrase is changed or not changed. And the use other materials such as dictionaries and case law goes without saying.

What did surprise me in the first instance was the importance of treaties. I was unaware that Australia had become a signatory to such a number of treaties (764 in force since 1990). And when interpreting treaties, you do not use the normal interpretation instruments. Instead, you use the Vienna Convention on the Law of Treaties (1974). It brings with it its own set of rules, with probably the most important one being that it is the domestic provision that brings the international treaty that is applied to a case, not the treaty itself. If I am interpreting that aspect of the convention correctly, this means that that treaty cannot overrule local domestic law.

It is also important to mention that although courts maintain that context should always be considered, even in the absence of ambiguity, that the courts are not in agreement as to the value of extrinsic material. Some courts have stated that this is ‘one of the blights of modern litigation’[1] and ‘it is a rare day when explanatory memorandum provides much assistance in the construction of a statute’[2].

It is probably for reasons such as these as well as the massive proliferation in the use of extrinsic material in court cases (partly due to the ease-of-access via the Internet) that there are now limiting provisions present in most statutory interpretation legislation that encourages a preference of the ordinary meaning, and avoiding prolonged legal proceedings.

[1] Lacey v Attorney-General of Queensland [2011] HCA 10 at [86].

[2] Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 at 216-217.

Week 7: Intrinsic Materials (The Text)

The focus of this weeks reading was again on the intrinsic material contained within the statue itself. However, this time, the focus was on the words themselves, rather than on the structure of the statute. We considered how when looking at word in a statue, unless it has been redefined in the statute, it will have the ordinary meaning that a common person would attribute it. Courts will strive to give meaning to every word in provision, as while they cannot always give the full and active meaning to each word, they are not at liberty to ignore any word or consider them insignificant. To aid in this, they will always consider the context within which the word is used. The purpose and intent of the statute will govern how the words will be interpreted, and which construction of the meaning of the words is more satisfactory.

When the word has been re-defined in an act, the new legal meaning is preferred for the purposes of the act, unless other intention stated.. The same is the case where words with trade or commercial meaning are used – the technical definition or meaning of the words will be used in preference to their common meaning. There can be composite statements what use words that have technical meanings and other words with ordinary meaning. When undefined words are encountered in a statute, a dictionary can be used to determine what the common meaning is. The current meaning of the words is used – so dictionaries published at the time the statute was drafted are not needed. The edition or origin of the dictionary is usually not important… and several dictionaries may be consulted to ensure a well-rounded definition is formed. Specialist dictionaries will be used when a specialised or uncommon word is encountered.

Consistency is important. In a statute, the assumed meaning of a word is the same throughout the act unless it is otherwise redefined in a section. If a different word would normally have been used in a specific provision, the usage of a different word implies that a different meaning is intended. Variants of words are also given corresponding meaning when a definition is provided. Then there are limiting words such as solely, primarily, exclusively and only. These words limit the operation of the provision, and courts have a little authority to deviate from these limitations, but they cannot disregard them.

When considering composite phrases (hendiadys) such as cease and desist, good and ready or sick and tired, the issue courts need to determine is whether Parliament intended conjunctive (and) or disjunctive (or) interpretation of the words. Another interpretive issue is temporal expressions such as ‘will, could’, ‘did, was’ and ‘is’. These past, future and present tense words can drastically change the effects of a provision. For instance, does the use of ‘will’ in a provision about financial assistance for hardship preclude the provision of assistance for present hardship?

There are several words and phrases which require interpretation. Some like ‘used’ and ‘import’ are said to have a ‘protean quality’,  meaning they have many meanings depending on context, and can be construed in a narrow or broad manner depending on context. Another contentious word is ‘publish’… when relating to communication on a website… who is the publisher… the owner of the platform that hosts the content… or the individual who wrote the material? Phrases like ‘having regard to’ and ‘take into consideration’ exist to draw the interpreters attention to certain points without being deterministic to the outcome or final decision.

It is easy to identify cases where the text has been the reason for it having gone to court. Just look for reference by the judge to the meaning of a particular word having been the key question that the court needed to address. Cases such as Dreamtech International Pty Ltd v Commissioner of Taxation [2010] FCAFC 103 have hinged on the interpretation of the word limousine… Dreamtech’s attempt to classify their larger than normal ‘Hummer’ as not being a luxury vehicle considerably larger than a standard road vehicle was unsuccessful. There are other cases such as Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19 where the temporal tense was the focus… and in considering the purpose of the legislation, the court’s verdict was that the stated purpose of ‘prevention and reduction of damage before it was caused’ was sufficient to outweigh the reference to ‘damage that has occurred’, rather than ‘damage that would have occurred’.

All this really means is that before having to consider any material outside the statute, there is plenty of areas which can be considered within the statute itself. The structural framework of the statute tells you a lot about it. Long titles, object clauses, dictionary sections and headings provide lots of clues. But the text of the statute itself can also tell you a lot about what it was meant to achieve, and how it was meant to be interpreted. It that isn’t enough, you move onto to extensic material, which is the focus of next weeks material.

Week 6: Intrinsic Materials (Statute Components)

It makes sense that to determine the context and purpose of a statute that you would consider the content of the statue itself. However, as with all aspects of statutory interpretation, there are rules which instruct as to which parts of the statue can be referred to in a legal sense. Thankfully, in the case of Commonwealth legislation at least, it has become much easier post December 2011. The new s13 of the Acts Interpretation Act1901 (Cth) basically states that everything in the Act from the first to the last page is part of the act, and that everything from the long title to the enacting words to the headings can be considered for the purposes of statutory interpretation.

There are several sections to a stature. These range from the long title, to the dictionary, to the schedules. They all have different purposes and roles, and may not all be present in every statute. Following is a list of some of the common headings and sections present in a statute, and a brief explanation of its purpose.

Long Title Explains the rationale, topic and audience of the statute. Decreasing in usage.
Short Title Used for ease of reference (on contrast to the long title). Can sometimes be more informative than the long title
Preamble Introductory statements – more common in international treaties and constitutions. Usually sets out the background and motivations behind an act. Also less common in modern legislation.
Objects clause Is the replacement for the long title and preamble. Is more flexible, and commonly lists the objects of the act, or of specific sections of the act.
Definitions A section (or multiple sections in longer acts) which override the common dictionary definitions of words used within the act. These definitions are specific to the act they are defined in. If definition is not exhaustive, it may be disregarded if the context evidences that the defined meaning was not intended to apply to the situation in question.
Headings These are present to make the statute easier to navigate and there are many levels. Part, Divisions and Sections are the most common.
Schedules Detailed information intended to support provisions. Usually in the form of a table, list or template. Also used when there is a list of items which may change frequently over time.
Notes Remnants from drafting, can include footnotes, headnotes and margin notes. Whilst most state and territories disregard these in statutory interpretation, it is considered in Commonwealth legislation post December 2011.
Punctuation Cannot override the purpose of the legislation, but is considered a part of Commonwealth and some state legislation.
Examples Can be used when interpreting a statue, but as with punctuation, cannot override substantive provisions. These are beneficial when trying to understand the intent of the provision
Penalties Common in criminal statues, these specify the maximum (not mandatory – unless otherwise stated) penalties for whatever misconduct the statute is in relation to. Whether they are fixed or maximum penalties is determined from the context and purpose of the act.

Although this is a discrete list of some of the different elements present within a statute, it should be remembered that they are all considered when determining the context and purpose of legislation. The different headings will give you an overview as to the different areas the statute might focus on. The long title will give you some idea of the purpose of the act, as will the preamble or objects clause, if they are present. You can look at the definitions to see what words the writers felt it was important to ensure there was a clear understanding of the meanings of the words used. The examples will also aid in determining intent.

In reality, this is all just words and semantics if you don’t start applying some of this new knowledge. This is why it was important to read through the examples provided in the textbook which demonstrated how the different parts of a statute were considered in real life court cases. In one case, a heading changed the perceived interpretation of a section of a statute. In another case, the definition of a term in a statue was examined in detail, and it was determined to be an exhaustive definition and the previous verdict upheld. And this is just the start. In the next chapter, we’ll start looking at how words have ordinary meaning… and sometimes they don’t!

Week 5 – Intention and Interpretive Techniques

This weeks material has been focusing on the purpose and intention of legislation, and the techniques used by courts to resolve interpretation. There has also been some discussion as to how changing circumstances are accommodated in statutory interpretation.

Following on from last weeks discussion as the purpose of legislation, this time we look at how we determine the purpose. Some legislation has a purpose provision. For other legislation, the purpose can be determined from its long title. And some legislation have Objects provisions. The question that then arises is what is the difference between purpose and intention. This controversial term had been defined as identifying what the intent of the words used by Parliament was – rather than what it intended to say.  And since Parliament cannot consider every single circumstance and possibility, what is to be done if the intent of Parliament is not apparent? This is where the  interpretive techniques used by the courts comes in.

If when reading a piece of legislation, the court determines that the ordinary meaning of a word or phrase is too broad, they will use the process of ‘reading down’ to constrain the meaning of words. This may be because the knowledge of the Parliament at the time the legislation was created was limited, and the literal interpretation of the provisions in question (in light of present day knowledge) too narrow. If it is believed that a drafting error has occurred, or inadvertent gap in the legislation due to the ordinary meaning of the vocabulary used, a process of ‘reading in’ may be used, to strain the meaning of the provision. Both of these processes rely on examining the purpose, context, history and language of the legislation, to determine what the intent of Parliament was.

As the process of creating and changing legislation is slow, there must be some process that allows the legislation  to accommodate for changes in societal values and policy changes. Statutory interpretation allows for this also by away of ambulatory interpretation, dynamic interpretation and ‘spirit of the law’. By using ambulatory formulations in creating legislation, broad provisions are used which then provides the judiciary the scope to take into account changing circumstances. Dynamic interpretation takes a different approach – which is to interpret provisions in the current context – such as looking up the meaning of a word in a current dictionary, rather than in one that was published at the time the legislation was drafted. And in the equitable interpretation – the provision may be shrunk or expanded as needed to achieve the ‘spirit and reason of the law’. However, these techniques to function, a mature legal system is needed, as the Parliament must be confident in how the judiciary will interpret the legislature that it creates.

Week 4 – Context and Purpose

Things started getting really interesting this week, now that we’re past all the dry “what is legislation”, “how does it work” and “how is it made” stuff. Now we’re started looking at how to actually work with and interpret legislation (hey, what about that, there’s the name of course – if you swap the words and use a synonym!). In doing so, we start looking at what the words context and purpose mean in relation to legislation. One of the key tasks in statutory interpretation is looking at the context and purpose of legislation in order to ensure that the intent of the legislature is upheld, and do do this we look a the ordinary meaning of the words – that is, how are they perceived by the general public. Many cases have hinged on how the words are ordinarily interpreted, such as the two example cases we studied this week – Mills v Meeking [1990] HCA 6 and Saraswati v R [1991] HCA 21. In the latter case, the outcome hinged on the ordinary meaning of the words “indecent assault”. In the former case, the outcome resulted from an examination of the purpose of the provision, and its context and history.

In statutory interpretation, we use the word ‘context’ to refer to the interpretation of the legislation in the context of the standard public meaning of the text. As the supporting material that can be refereed to varies from item to item, as well as its relevance to the case in question, there is no comprehensive list. However, generally the intrinsic material in the Act would be examining first – such as the long title, purpose statements and Object statements where pertinent. Then the extrinsic material such as the explanatory memoranda, Hansard and second reading speeches might also be examined. Historical circumstances and government policies are used to come to a better understanding of what the intent of the legislature was in creating the provisions in question. We also have to look at the purpose of the legislation or provision in question if there is a more explicit purpose statement. In the example of the Mills v Meeking [1990] case, it as deemed that the purpose of the legislation meant that the legislature had not intended that a vehicle must always be involved in an accident. The context of the provision had been to remove some previous mischief. These two understandings then lead to the outcome of the appeal being dismissed. So in this case, the literal meaning of the provision was rejected in preference to its intent

When interpreting legislation, the purpose and context must always be considered. In some cases, where there is a single and clear purpose, then it is a simple task to examine the context, and ensure that the perceived intent of the legislature is adhered to. When there are multiple purpose statements, and more than one possible meaning, this can be a very challenging affair. The courts will need to be very through in their examination of the context and purpose, to ensure they can come to a conclusion as to the legislature’s intent. And sometimes courts do not reach an interpretation that the legislature agrees with. However, due to the sovereignty of parliament, the legislature has the power to amend the legislation and resolve the issue.

So it is a very complicated system, but it the processes and rules are followed correctly, then consistent and appropriate outcomes should be achieved. And if they are not achieved, the legislature has the authority to make changes that ensure they will be in the future (and in the past if they choose to make retroactive changes – although this is rare).

Week 3 – Interpretation legislation

This week’s focus was on the first of three chapters about how to interpret legislation. In this case, it was more specifically focused on how to find the legislation that is used to actually understand legislation, known as interpretation legislation. Due to the repetitive nature of the legal system, a common set of terms, rules and conventions were collected together and implemented in a single act. The result was the Acts Interpretation Act 1901 for Commonwealth legislation, and similar legislation for each of the states. In the case of Queensland, there of two pieces of legislation that can be sought – the Acts Interpretation Act 1954 and the Statutory Instruments Act 1992, with the later act focused on how to interpret statutory instruments, their presentation, and managing subordinate legislation.

Due to that fact that different words can have different meanings to different people, to ensure this did not come an issue, the various Acts Interpretation Acts all contain dictionaries that define how words commonly used in statutory legislation should be interpreted. For example… how would you measure distance? Time? Age? In the case of distance or time, you may think these are ridiculous… but just take the case of “Johnny lives 10km away from Jill” – is that 10km via twisting roads? Is that 10km because of a valley? According to s 35 of the Commonwealth Act, you would know without question that this was measured in a straight line, on a horizontal plane, unless otherwise stated – otherwise referred to “as the crow flies”. And then there is may vs shall… where may allows for discretion, whereas shall is mandatory. So these acts making understanding all these terms, phrases and concepts quite straightforward.

Finally, these interpretation acts also layout conventions for how legislation operates – such as the commencement date, amendments, repeal, revival, and invalidity. And even though these conventions or rules are laid out in the interpretation acts, they are still sometimes themselves the subject of interpretation by the courts. For example, normally with invalidity, if an amendment to a piece of legislation is ruled invalid, is the original act or provision revived? In Roach v Electoral Commissioner (2007) 233 CLR 162, the court ruled that the original provision should be revived, as the amendment had implicit repeal. If if the amendment had explicit repealed the provision in question, then the court would have probably had to rule differently, as invalidation in this case would have resulted in no provision at all.

This weeks work has been quite interesting, as it is starting to show how legislation is interpreted, and what resources are needed to be able to interpret provisions in legislation. Next week should of even more interest because it is starting to focus on the purpose and context of legislative instruments.

Week 2 – Process of creating legislation

This weeks readings have been very interesting, in as far as learning a little bit about how legislation is drafted, and the process of how it goes from a Bill to an Act. This ties in well with the other course I am studying this term, LAWS11057, which has been talking about the history of the legal system, and the structure of the Australian legal system, and is about to move into the sources of law in Australia.

In Australian, the constitution is the font of all legislative power – it dictates the separation of powers – namely the role and powers of the Parliament, the Executive Government, and the Judicature. Federal power is limited to the areas listed in s51 of the Constitution, and residual power goes to the States.

There are two main drafting styles used when creating legislation – which Lisbeth Campbell descriptively refers to as being ‘fussy’ and ‘fuzzy’ . The ‘fuzzy’ style is traditionally used in civil law, and is clear & easy to understand, and more accessible to the general public, but give judges broad discretion in how to interpret it, and can result in varying interpretations, resulting in inconsistent case outcomes. The ‘fussy’ style is traditionally used in common law as it is precise, comprehensive, specific and detailed, and judicial discretion is contained, but it results is large amounts of law – making it more inaccessible, and is difficult to comprehend as it has more complicated and elaborate provisions. So it is clear that neither style is the ‘best’, and some compromise is needed. Hence the move towards Plain English drafting of legislature.

Plain English drafting has come about due to the dislike in the reading and hence knowledge of law by the general population, and even of those whose profession it is is to work with it – lawyers. It favours a simple and straightforward style, direct and familiar language, removal of unnecessary words and avoidance of long and complicated sentences. These changes make the resulting laws more comprehensible, and accessible, but does have the issue of how to deal with perceived changes to laws due to the changes in wording – but the Acts Interpretation Act 1901 does have provision for this, by instructing that just because the wording has changed, the meaning of the laws should no be interpreted differently. New laws are naturally written in Plain English right from the onset, and courts will most likely adapt and develop new conventions over time as to how they interpret these laws.

Finally, as part of the discussion on draft conventions, political dimensions and parliamentary proceedings, the process of drafting a bill, to it becoming an Act, and thus a enforceable piece of legislation was examined. Unsurprisingly, draft bills have a standard form – such as a Long title, the words ‘Parliament enacts’, and a standard set of words and phrases used in bills. There is explanatory material to supplement the bill, as it must be in the exact form it will be passed in – no side notes or comments! When in a bi-cameral system , the bill must pass both houses of parliament (a unicameral system only has one house, so Bills will usually pass if the party that puts it forward has majority). It will be read three times – the first time to simply introduce or ‘table’ the bill. On the second reading, it is debated – this is when the opinion of the government and the public is with regards to the proposed legislation is made known. On the third reading, the bill is voted upon. It is then sent to the other house if passes, where the process is repeated. If the bill passes both houses, and is settled, it is presented to the Governor General by the Attorney-General for assent, at which point it becomes an Act. Throughout this whole process, there may be changes and amendments to the legislation before it reaches its final form that is acceptable to all parties concerned.

In the unicameral system, since there is only one house of parliament, there are concerns that legislation can be passed without suitable input from the public. Due the nature of a representative democracy, although parliament is ultimately accountable to its citizens, the day to day running of government does not directly involve the public in the decision-making process. Because stages such as review by an appropriate committee are not mandatory, the viewpoints and concerns of the general public and other relevant parties are not considered. A recent piece of legislation which illustrates this point is the Vicious Lawless Association Disestablishment Act 2013, and due to the lack of debate and community consultation, this legislation is now in jeopardy of being ruled invalid by the High Court on the grounds that it is unconstitutional.