topic a lecture 7 - statute law without cases

8/6/2019 Topic a Lecture 7 - Statute Law Without Cases

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Legislation

Statute law (legislation) now constitutes that partof the law which most dominates our social andcommercial lives.

Legislation is the formal declaration of legalrules by parliament and people or bodiesauthorised by parliament.

While there are clear procedures to be followed tocreate a statute, the task of applying it to a givensituation and of determining just what it meansmay, at times, be very complex. That task is for

the courts to carry out.


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S

tatute law Statute law is made by parliament and any

subordinate bodies to which parliament hasdelegated legislative power.

Statute law can last for ever or until it ischanged.

Statute law can be made retrospective.

Where statute law and common law conflict,statute law will prevail to the extent of theconflict.


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The origins of Parliament

In Anglo-Saxon England, the Great Councils ofbishops, abbots and other leaders advised theKing

After 1066, the Norman Kings continued thetradition with the Kings Council.


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The origins of Parliament

Under the Magna Carta in 1215, King Johnagreed to obtain the common counsel of thekingdom by summoning the Council whenmaking law.

The Westminstermodel of parliamentarygovernment eventually evolved from this.


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Parliamentary sovereignty

By the 17th century, English politics wasdominated by the struggle for law-making

supremacy between the Crown and Parliament.

In the revolution of 1688, King James II wasdeposed.

Eventually Parliament was victorious and thejudiciary accepted that Parliament was thesupreme legislative authority.


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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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In Australia, the principle of Parliamentarysovereignty is modified to the extent that:

the Federal system requires the division of legislativepower between the Federal Parliament and the StateParliaments

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 powersof Parliament.


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The legislative process

The original idea for legislative change maycome 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 parliamentarylaw-drafters into the form of draft legislation,called a Bill.


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The Parliamentary process

The Bill goes through the following stages ineach House:

first reading stage second reading stage

committee stage

third reading stage.


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Disagreement

If:

the Senate rejects a Bill passed by the House ofRepresentatives

the Bill is reintroduced into and passed by the Houseof Representatives after 3 months

the Senate again rejects the Bill

then under s 57 of the Constitution the

Governor-General may dissolve both houses ofParliament (double dissolution) and call anelection.


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Disagreement

If the deadlock continues with the newParliament, the Governor-General can convene

a joint sitting of both houses.

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


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Royal assent

After being passed by both Houses, the Bill ispresented to the Governor-General (orGovernor) for Royal Assent, whereupon itbecomes 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 tobe retrospective, but this power is usedsparingly.


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Delegated/subordinate legislation

The function of the executive branch ofgovernment is to administer and enforce the lawsenacted by Parliament.

However, the range and detail of legal regulationin modern society makes it impracticable forparliament to do that.

Accordingly, a range of legislative power isdelegated by the parliament to the Executive


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Delegated/subordinate legislation

Laws made by bodies other than parliament whichhave been authorised by parliament to make suchlaws and referred to as subordinate legislation.

It is not an original source of law as it derives itseffectiveness from an Act of Parliament, and itsvalidity can be challenged in court.

Subordinate legislation must fall within the ambitof the given enabling Act or it will be held ultravires (void).


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The current process

The regulation is drafted by a public servantand submitted to the Executive Council.

It is then signed by the Governor-General andnotified in the Government NoticesGazette.

It is laid before each House of Parliament, butthis is a passive process if no objection israised, the regulation is passed.


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Reforming the process

The process can be improved through the use of:

sunset clauses which provide a fixed life for a law

regulatory impact statements: agencies must first list aproposed regulations costs, benefits and alternativesavailable to the public

mandatory consultation with affected businesses

more effective parliamentary scrutiny

better public access to laws.


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The need for interpretation

It is unlikely that legislation can ever be draftedwith such precision and clarity thatinterpretation is not required.

Language is by its very nature imprecise.

Example: When John met his uncle in thestreet, 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 ofparliament 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 topieces 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 StMellons 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 theintention 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 StMellons Rural District Council v Newport Corporation [1952]

AC 189 at 191


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Methods of statutory interpretation

Court uses

Common

law rulesStatutory rules

PrecedentCommon law rulesfor statutory

Interpretation

Examples:

Literal approach

Golden approachMischief Rule or

Purposive approach

Maxims

Acts Interpretation

Acts

Objects

Clauses and

definitions

sections in Act


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Rules of statutory interpretation

When a dispute arises, and if the definitionsin the Act are of no help, there are a numberof sources of guidance for the courts:

Common law rules of statutory interpretation

Acts Interpretation Acts

- a purposive reading directing the courts tointerpret legislation in such a way that it reflectsthe intention of the legislators

Maxims


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Common law rules of statutory interpretation

The literal or plain meaning approach

The golden rule approach

The mischief approach

The purposive approach


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Statutory interpretation

The literal or plain meaning approach

The court should give a literal effect tothe legislative language.

The Act is read as a whole and, if itsmeaning is plain, that is the end of thematter.

No attempt is made by the court tointroduce extrinsic material.

Case: Fisher v Bell [1961] 1 QB 394


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Statutory interpretation

The mischief approach

Where words or phrases are ambiguous,vague or uncertain the courts will try todiscover the overall intention of thelegislature by reading the Act as a wholeand ascertaining the state of the law priorto the passing of the Act.

Case: Smith v Hughes [1969] 1 WLR 830


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Acts Interpretation Acts

Each jurisdiction in Australia has an ActsInterpretation Act.

These Acts shorten the content of other Acts by,for example, prescribing meanings for frequentlyused terms.

They also contain provisions requiring apurposive approach to interpretation, andpermitting the use ofextrinsic 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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Use of extrinsic materials

Extrinsic material are materials or documentsnot forming part of the Act being interpreted.

The common law position is that extrinsicmaterials are not to be used by judges indetermining legislative intention.

Section 15AB of the Acts

Interpr

etati

on Act 1901(Cth) now provides that courts may refer to

extrinsic materials, although many judges arestill reluctant to do so.


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Statutory interpretation - maxims

There are a number of guides (maxims) to help thecourts determine the meaning of a word of which threeof the better known are:

Noscitur a sociis

- a word is known by the company it keeps. The meaning of a

word or phrase is to be derived from its context.

Case: Prior vSherwood(1906) 3 CLR 1054

Ejusdem generis (the class rule)

- 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

Expressiouniusestexclusio alterius

- the express mention of one member of a list or class implicitlyexcludes other members of the list or class

topic a lecture 7 - statute law without cases

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