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Legislative Interpretation I Notes

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This is an extract of our Legislative Interpretation I document, which we sell as part of our Australian Legal Foundations Notes collection written by the top tier of Griffith University students.

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LEGISLATIVE INTERPRETATION I * * * * * *

statutory interpretation
statutory construction
o the interpretation of words, clauses and sections
We need it when words are not clear, or the intentions of Parliament are
not represented in those word
Judiciary BUT lawyers engage in it
Rules to interpret rules
o everyone is interpreting to the same end
Legislation
o communicating to courts, administrators and other citizens
SS? represents views of the people
SS? outlives the generation it was created to serve
SS? the meaning of words can change * "communicate" in the postal act
o telegrams etc when it was originally written,
but texts/phones now
SS? words inadequately convey ideas
SS? words are symbols for our ideas
SS? meaning of words can be unclear The need for interpretation: * clarify the meaning of sections, clauses or even individual words in
legislation * give "legal" meaning, or new meaning, to words which have changed over
time * lawyers construct ambiguity for clients to advance their claims * role of judges to make common law is something we see less of
o most cases are about legislative interpretation
SS? wording in the constitution
SS? what constitutes a 'right'
The Role of the Court in Interpretation
... the construction of statutes is now, probably, the
Kirby, J (13th July
single most important aspect of legal and judicial work. 2002)

... The world of common law principle is in retreat.
It now circles in the orbit of statute





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Issues in interpretation: * whether a person is in breach of an Act * meaning and scope of particular words * ambiguous and ill--expressed passages * absurd clauses or words represented in outcomes * whether legislation is to apply retrospectively
o comes down to the construction of words
TOOLBOX FOR INTERPRETATION:
Common Law Rules
(used in Australia -- KNOW THIS RULE) * Literal approach
o objective, neutral, unbiased
o the legislation means exactly what the literal words mean
o plain and ordinary meaning
SS? Whitely v Chappel (1869) * D voted in the name of a dead person * found NOT GUILTY of impersonating "any person
entitled to vote" * A dead person is not entitled to vote therefore he
was not guilty under that section of the law
o COURT IS SOLELY CONCERNED WITH
WHAT IS WRITTEN BY PARLIAMENT NOT
WHAT THEY INTENDED BUT DIDNT
WRITE!
SS? if they wanted to say anything
different they would have
SS? interpret it literally
o can lead to unjust and absurd outcomes
SS? "one armed swimmer" * law says they must touch the wall with two hands * the one armed swimmer won the race convincingly
o cannot win because they didn't touch with
both hands!









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The Engineers Case -- Amalgamated Society of Engineers v
Adelaide Steamship Co Ltd * "The more the decisions are examined, and compared
with each other and with the Constitution itself, the
more evident it becomes that no clear principle can
account for them. They are sometimes at variance
with the natural meaning of the text of the
Constitution; some are irreconcilable with others, and
some are individually rested on reasons not founded
on the words of the Constitution or on any recognized
principle of the common law underlying the expressed
terms of the Constitution, but on implication drawn
from what is called the principle of 'necessity', that
being itself referable to no more definite standard
than the personal opinion of the Judge who declares
it" - Knox, CJ
Appealing to judges because it takes the blame off them
Can often clarify nothing
SS?
* *


Golden Rule
(not used in Australia) * A variation on the literal approach
o the literal approach should be preferred unless
SS? it would lead to some absurdity, repugnance or
inconsistency with the rest of the case * Grey v Pearson (1857) VI HLC 61, 107
o "whosoever being married shall marry
another..."
SS? a married person cannot marry whilst
still being married
o can be interpreted as "shall attempt to marry"
in order to remove the absurdity of the
interpretation should it be taken literally
SS? CLARIFICATION OF THE
LEGISLATION ON FACE VALUE, AND
READ IT IN SUCH A WAY TO REMOVE
ABSURDITY




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