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…..
Rhys's Statutory Interpretation Site 