Someone recently bought our

students are currently browsing our notes.

X

Legislative Interpretation I Notes

Law Notes > Australian Legal Foundations Notes

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.

The following is a more accessble plain text extract of the PDF sample above, taken from our Australian Legal Foundations Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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

PAGE

27

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!

PAGE

28

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

PAGE

29

Buy the full version of these notes or essay plans and more in our Australian Legal Foundations Notes.