Public Law and Statutory Interpretation Notes - Studied in 2016 HD Result

4 Found helpful • 61 Pages • Complete Study Notes • Year: Pre-2021

PUBLIC LAW AND STATUTORY INTERPRETATION TOPIC 1: INTRODUCTION TO AUSTRALIAN GOVERNMENT Public law studies a wide ranging selection of concepts, including administrative, constitutional and human right law, and how the government, Parliament, executive, judiciary and the people are each related. Australia has a federalism-based system of government. As such, there are federal and state levels of functioning government, which are independent but interconnected. There is also a distinction between federal and state jurisdiction, but again a degree of connectedness between the courts to form a national judiciary. Jurisdiction is conferred by state law or the constitution upon the state supreme and other courts, while federal law and the constitution confers jurisdiction upon other federal courts and the High Court. The rule of law is the principle that the law should govern a nation and its people instead of being governed by the arbitrary decisions of a party or person in power. It is said that the ‘Australian Constitution is framed upon the assumption of the rule of law’ (Plaintiff S157/2002 v Commonwealth), indicating that the rule of law should guide the interpretation of statutes and explain the purpose or value of certain constitutional principles. However, the place of the rule of law in Australian constitutional law remains unclear. The rule of law is a a useful tool for assessing whether our laws are inherently ‘good’. The doctrine of Parliamentary sovereignty allows for an unrestricted discretion in the drafting and enacting of any law the Parliament should see fit. It tends to the rule of law as Parliament can create laws which regulate the social and legal consequences for Australian citizens. Although the Parliament has this power, it is representative in that constituents elect members of Parliament through regular elections and can be dismissed by the people, which, in theory, leads to Parliament acting in the interests of the people. Likewise, government conduct is responsible to the Parliament and may be dismissed by the legislature. A democratic system of government is complex, but ideally grants power to the people to a fair and even vote when electing members of government. It also applies within Parliament itself, as parties and houses vote, for example, for/against particular legislation. DEFINITIONS: Fundamental Concepts and Institutions Fundamental developments 1.3 Constitutionalism TOPIC 2: PARLIAMENT TOPIC 3: THE EXECUTIVE TOPIC 4: THE JUDICIARY TOPIC 5: STATUTORY INTERPRETATION Why statutory interpretation? • Statutory interpretation is pervasive in legal practice • The constitutional significance of statutory interpretation: – ‘In Australian law, the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.’ French CJ, Crennan and Bell JJ in Taylor (2014) HCA 9 at [40] Every area of the law, is regulated by statute o Every aspect our lives is regulated by a statute Why does the law need to be interpreted? • Legal writing is genre-specific • Certain terms have different meanings from general English meaning (eg consideration, damages, witness, duty, intention) • Legal writing is hard to understand, it can be complex, lengthy, obtuse, badly organised, unnecessarily elaborate • There has been a shift to ‘plain legal writing’ to address these problems: lawyers now seek to be clear, simple, direct in our communications Extending what you already know… In this topic, we will: • Explore in greater detail the “modern approach” to statutory interpretation – Section 15AA Acts Interpretation Act 1901 (Cth): ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.’ • Consider the nature of “interpretation” itself. Is it always devoted to discovering/clarifying pre-existing meaning, or does it sometimes involve supplementing or altering/correcting pre-existing meaning? • Discuss some of the current debates in legal theory surrounding statutory interpretation – Eg. the need for judicial creativity when statutes are vague or defectively constructed • Explore the difficulties and dangers of certain interpretative approaches

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