Topic 2 – Creation of Legislation

This week we started with some revision about the creation of Legislation:

• Created in parliament – state, federal and sometimes by local government
• Common law can be wiped out by enacting new legislation
• Separation of powers – the struggle to keep the executive, judicial and legislative functions of the government separated.

It is worth remembering that statute trumps case-law.

• Later statutes which are inconsistent with earlier statutes on the same topic repeal the early law to the extent of the inconsistency
• Acts or statutes take precedence over subordinate clause on the same topic unless the Parliament specifies otherwise
• Legislation made by the Commonwealth Parliament prevails over inconsistent state legislation on the same topic

We then moved on to 2 different styles of drafting legislation.

1. A general way of forming statute where the words used are general, this leads to a wider range of interpretations.

2. A very strict formal structure where every attempt is made to use the exact words and limit the scope of interpretation

There are conventions surrounding the drafting however recently there has been an attempt to move to plain English drafting to try to make the legislation easier to understand and more accessible. Plain English drafting is an attempt to get away from legal jargon; there are however complications with the plain English style of drafting:

Plain English drafting – recently there has been a significant move away from legal jargon to plain English drafting. Kirby J notes that lawyers don’t like to read the whole statute. Structure more user-friendly and sections shorter. Using general provisions rather repeating. Grouping of sections together and including definitions sections makes it easier to read.

The text notes that sometime plain English leads to other problems; plain English deals with simple ideas – it’s not always the case that complex ideas can be sufficiently covered by plain English versions. Changing legislation leads to new meanings because it wipes out the canon of law that preceded former legislation. introducing the plain English version can lead to uncertainty where once there was certainty.

Sometime it needs to be the concept that is simplified not the language used.

There is always a political dimension to enacting legislation too and sometimes this can lead to ‘bad’ legislation that when tested in the court does not serve the purpose it intended.

We then looked a little at parliamentary procedure and the way a bill is introduced into the parliament

Bill introduced –  first reading explanatory memorandum second reading and second reading speech) – bill needs to pass both houses (except in QLD) and both houses can amend the bill.

The most interesting part of the week was for me ‘promoting ambiguity’. The court does not necessarily need to adopt one of the approaches of counsel and can indeed form their own completely different view or rely on an existing interpretation which was not adopted by wither party.This goes back to last weeks follow-up blog where Wayne mentioned that we are interpreting statute to advance the client’s case and I found it interesting that both sides could be engaged in a battle of differing interpretations especially when neither of them could ultimately be adopted rather a pre-existing notion or a completely new interpretation could be found by the Judge!   ‘Nice arguments, strongly in favour of your clients position –  but unfortunately I don’t agree with either of you!.

Week 1 follow up

It turns out that this blog will be assessed but not really in the way I predicted. I will use the rules of statutory Interpretation that I note down in this blog to not only share with everyone but to create a useful model of how to approach a problem. The idea is that I could then use this model when faced with a client problem when i begin practice.

The Zoom session with Wayne this week bought up two big points:

1. There is a broad spectrum of how one can interpret statute. This leads to there being a broad spectrum of interpretations from Judges. There is a variety of rule to use and apply, there is no definitive rule which to use. Some Judges believe that laws should refer to fundamental human rights for example.

2. Because there is a variety of different interpretations this makes it easier for Lawyers to make a case for their client. They find different interpretations for statutes based on their client’s needs.

There is sometime no definitive answer, indeed this is why statutory interpretation and its rules are required. Sometimes what is black and white and seems precise can be interpreted in different ways.

Topic 1 – Introduction to Statutory Interpretation

Well the beginning of this course is finally here. I have done the prep, bought the textbook and done some preliminary reading. This is my first term in law and I think thatI will have some catching up to do as I see that some others have already done the Laws11057 introduction to law subject. Hopefully I will be able to manage.

I think we will be required to keep a weekly blog for one of the assessment tasks so here is my effort.

This week has been an introductory week. There was no zoom session and so we have been simply asked 1 problem question and have been given week 1 notes along with chapter 1 of the text to read.

So statutory interpretation is about interpreting the law that is made by the Parliament. Because it is written in English there are often different ways the words can be understood (interpreted). Another word for legislation is ‘statute’ and so that is where we get the statutory interpretation.

I have previously looked at statutory interpretation when I did my migration law course at ANU.  It remember that there were different ways that judges would look at the words of the legislation. Rules were made about how the words were to be interpreted. If there was a dispute about what the legislation meant then courts would look to see if higher courts had previously made judgments relevant to that case to see if there existed any precedent surrounding the interpretation.

Another thing I remember was that there was a literal rule and a purposive rule and that the Acts interpretation Act in Australia was the Act which gave rise to the purposive rule being used when interpreting legislation in Australia.

This week I have learned that that Act is a Commonwealth Act and that each state also has an Act .

We started by looking at how an Act comes into existence. It starts as a Bill and goes through the Parliament, it is debated by both houses of parliament (one in Queensland). When trying to interpret legislation one can look at extrinsic materials such as the explanatory memorandum and the second reading speech. These are only a guide however because the primary source of the law is the words of the Act itself.

Where can I find these? – I think I should note the websites and bookmark them on my browser so that I can come back to them easily in the future. this actually goes to organisation and I think that during my law course I will need to develop good strategies for organisations there is just so much information around.

We then took a look at the separation of powers and the hierarchy of the law – these are both topics I feel quite comfortable with as I have looked at them before. I was interested to see however that statute is placed above case-law in the hierarchy.

There are very strict rules about the construction of the legislation however there still remains much scope for the interpretation. Judges then can interpret it in their own way and this gives rise to some theories. Some judges still use the literal approach where they take a very narrow approach and use the exact meaning of the written words.

READING TO DO – The golden Rule and Mischief rule.

Given that Judges can interpret in different ways this leads us to the idea of judicial activism. could Judges be imposing their views onto the cases by interpreting the statute in a particular way. is this OK? I think it is probably not OK but rather unavoidable after all judges are still human and it would be very hard to interpret something in a way that leads to obvious injustice.

This then leads me to thinking that the rules of statutory interpretation must be imposed in order to avoid the potential for injustice to be done. Judges should favour rules that prevent them from coming to absurd conclusions or should assume that the parliament actually intended the legislation to mean that which avoids obvious injustice like erosion of human rights for example.

This week’s problem question was to find a piece of legislation that involved privacy and state the purpose of that legislation. i found mine in the Privacy Act 1988 (Cth) and the purpose was in the object of the Act. I also looked at some extrinsic material to confirm my understanding. I think this was also an exercise in locating legislation. Something that I will need to practice and practice.

Next week we will have a Zoom session and I will be more sure about what to put in this blog. So I will be back then…..