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Chapter 5

The Parliament and statute law

Copyright © Nelson Australia Pty Ltd 2003

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Outline

1. The nature of legislation2. The origins of Parliament3. The modern institution of Parliament4. The sovereignty of Parliament5. The legislative process6. The interpretation of legislation

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5.1

The nature of legislation

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Legislation

• The formal declaration of legal rules by parliament and people or bodies authorised by parliament

• Today it is the predominant source of law, and the courts’ time is increasingly devoted to its interpretation.

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5.2

The origins of Parliament

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The origins of Parliament

• In Anglo-Saxon England, the Great Councils of bishops, abbots and other leaders advised the King.

• After 1066, the Norman Kings continued the tradition with the King’s Council.

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The origins of Parliament

• Under the Magna Carta in 1215, King John agreed to obtain the ‘common counsel of the kingdom’ by summoning the Council when making law.

• The Westminster model of parliamentary government eventually evolved from this.

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5.3

The modern institution of Parliament

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The Federal Parliament

• The Federal Parliament consists of:• a lower house, the House of

Representatives• an upper house, the Senate• the Governor-General.

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The House of Representatives

• The ‘people’s house’, providing equal representation for the people of Australia

• Australia is divided into electorates with roughly equal numbers of voters, each of which elects a representative.

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The House of Representatives

• The political party with the majority of members in the House of Representatives forms government.

• The Prime Minister is traditionally a member of the lower house.

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The Senate

• The ‘States’ house’; it protects the rights of the States and acts as a house of review.

• There is an equal number of Senators from each State (12) in order to protect the interests of the less populous States.

• The Territories are represented by 2 Senators each.

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The Senate

• Section 53 of the Constitution provides that proposed laws ‘apportioning revenues or money, or imposing taxation’ (‘money bills’) shall not originate in the Senate.

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5.4

The sovereignty of Parliament

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Parliamentary sovereignty

• By the 17th century, English politics was dominated by the struggle for law-making supremacy between the Crown and Parliament.

• In the revolution of 1688, King James II was deposed.

• Eventually Parliament was victorious and the judiciary accepted that Parliament was the supreme legislative authority.

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Parliamentary sovereignty

‘The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined

has under the English constitution the right to make or unmake any law whatever, and, further, that no person or

body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’

Dicey, Law of the Constitution, 1927

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Parliamentary sovereignty

• In Australia, the principle of Parliamentary sovereignty is modified to the extent that:• a Federal system requires the division of

legislative power between the Federal Parliament and the State Parliaments

• Parliament cannot legislate to limit its future sovereignty (although it can bind itself as to the manner and form or procedure for passing legislation)

• in practice, political considerations restrain the powers of Parliament.

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5.5

The legislative process

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The legislative process

1. The original idea2. Drafting of a bill3. Parliamentary process4. Royal assent5. Commencement

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The original idea

• The original idea for legislative change may come from:• government policy• a government department• a parliamentary committee• a law reform body• criticism of legislation in a judgement• a pressure group.

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Drafting of a Bill

• The original idea is translated by parliamentary law-drafters into the form of draft legislation, called a Bill.

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The Parliamentary process

• The Bill goes through the following stages in each House:• first reading stage• second reading stage• committee stage• third reading stage

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Disagreement between the houses

• If:• the Senate rejects a Bill passed by the

House of Representatives, and• the Bill is reintroduced into and passed by

the House of Representatives after 3 months, and

• the Senate again rejects the Billthen under s. 57 the Governor-General may dissolve both houses of Parliament (double dissolution) and call an election.

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Disagreement between the houses

• If the deadlock continues with the new Parliament, the Governor-General can convene a joint sitting of both houses.

• If the Bill receives a majority vote, it is presented to the Governor-General for assent.

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Royal assent

• After being passed by both Houses, the Bill is presented to the Governor-General (or Governor) for Royal Assent, whereupon it becomes an Act of Parliament.

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The date of operation

• The Act will commence:• from the date specified in the Act; or• a date to be fixed by proclamation; or• if the Act is silent as to its commencement:

• from the date of Royal Assent (State acts)• 28 days after Royal Assent (Federal acts).

• Parliament has the power to declare an Act to be retrospective, but this power is used sparingly.

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5.6

The interpretation of legislation

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The need for interpretation

• It is unlikely that legislation can ever be drafted with such precision and clarity that interpretation is not required.

• Language is by its very nature imprecise.• Example: ‘When John met his uncle in the

street, he took off his hat.’

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The need for interpretation

‘The duty of the courts is to ascertain and give effect to the will of parliament as expressed in its enactment. In the

performance of this duty the Judges do not act as computers into which are fed the statutes and the rules for the

construction of statutes and from whom issue forth the mathematically correct answer … They are not legislators,

but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further

processing.’

Donaldson J, Corocraft Ltd v Pan American Airways Inc. [1968] 3 WLR 714 at 732

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Liberal or literal interpretation?

‘We do not sit here to pull the language of Parliament and of ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often

prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling

in the gaps and making sense of the enactment than by opening it up to destructive analysis.’

Denning LJ, Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 at 1236

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Liberal or literal interpretation?

‘The general proposition that it is the duty of the court to find out the intention of Parliament – and not only of Parliament but of ministers also – cannot by any means be supported.

The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel

outside them on a voyage of discovery are strictly limited.’

Lord Simonds, Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 191

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Rules of interpretation

• The courts have developed a number of rules and techniques to assist in the interpretation of legislation.

• Literal rule – The court should give a literal effect to the legislative language.

• Golden rule – Modifies the severity of the literal rule by providing that if a literal reading leads to absurdity or inconsistency, the literal meaning may be modified to avoid that absurdity or inconsistency.

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Techniques of interpretation

• Ejusdem generis – General words at the end of a list of particular words should be read down in the light of the meaning of the specific words.

• Expressio unius est exclusio alterius – The express mention of one member of a list or class implicitly excludes other members of the list or class.

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Techniques of interpretation

• Noscitur a sociis – The meaning of a word or phrase is to be derived from its context.

• Generalia specialibus non derogant – Where there is a conflict between general and specific provisions, the specific provisions prevail.

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Acts Interpretation Acts

• Each jurisdiction in Australia has an Acts Interpretation Act.

• These Acts shorten the content of other Acts by, for example, prescribing meanings for frequently used terms.

• They also contain provisions requiring a purposive approach to interpretation, and permitting the use of extrinsic materials.

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Purposive approach

Acts Interpretation Act 1901 (Cth) s. 15AA(1)

In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

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Purposive approach

• Criticism of s. 15AA: It is the function of an independent judiciary to interpret the law without interference by the legislature.

• Nevertheless, purposive interpretation is widely accepted today.

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Use of extrinsic materials

• Extrinsic material are materials or documents not forming part of the Act being interpreted.

• The common law position is that extrinsic materials are not to be used by judges in determining legislative intention.

• Section 15AB of the Acts Interpretation Act 1901 (Cth) now provides that courts may refer to extrinsic materials, although many judges are still reluctant to do so.