Welcome to LAW112 Residential School VANESSA VAZQUEZ ACKNOWLEDGMENT
Welcome to LAW112 Residential School VANESSA VAZQUEZ ACKNOWLEDGMENT OF COUNTRY I would like to acknowledge the traditional custodians of this land, the Wiradjuri people and recognise their continuing connection to the land on which we meet. I would also like to pay my respects to Elders past, present and future and to any Aboriginal people who are present. 2
Whos who of CSU Vanessa Vazquez Kim Bailey AnnetteKristi Alison Annette Haley Goodwin McCusker Gerard Gainsford McEwen
Now, your turn! 3 Learning Outcomes for Residential School Statutory Interpretation: be able to interpret statutes and common law and identify legal problems in scenarios and cases Legal Research: be able to plan and apply effective strategies in legal research of case law and legislation-based scenarios Case Analysis: be able to identify and explain the facts pertaining to cases and ratio decidendi within the Australian judicial system Apply legal Skills: be able to present persuasive and informed arguments based on leading precedents
Indigenous Australians and Law: understand the place of Indigenous law and customs in the Australian legal system and begin to explore the relationship between Indigenous Australians and the law Assessment Workshops: be prepared for assessment success in the remaining assessments! 4 Statutory Interpretation The most important single aspect of legal practice Chief Justice Spiegelman, NSW Supreme Court 5
In this session, we will cover: - Rule of Law and Separation of Powers - How an Act is made - The anatomy of an Act - Groups : Parliamentary Drafting Exercise 6 Rule of Law
Athenian philosopher, Aristotle famously expressed a preference for the rule of law rather than the rule of men. It restrains and civilises power and is a safeguard, not a menace. Magna Carta, 1215 crown could no longer exercise despotic power Cl 5 of the Constitution: and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth. A shield against the arbitrary exercise of power. Judges are independent from the people and institutions whose actions are
challenged: Chief Jusitce Latham, Australian Communist Party v The Commonwealth of Australia (The Communist Party Case) (1951) No one is above the Law Presentation title - to add as footer, select 'Insert > Header & Footer' 7 Separation of Powers The Constitution Legislative Power House of Representatives
Executive Power Judicial Power Governor General High Court Government Departments Other Federal Courts Senate
- Legislature/Parliament - Cth & State Govts - Bicameral i. Lower House ii. Upper House iii. Governor General/Govenor 9 The Queens Representative The Governor General & Governors
- Appointed by Queen on recommendation of the Prime Minister or Premier of State - Queen has the power to dismiss Governors - Head of State plays some role but Parliament reigns supreme
Except when it doesnt ' 10 Governor-General John Kerr Dismisses Prime Minister 11 November 1975 - Could not maintain supply chain Role of the Judiciary- Chief Justices Garfield Barwick & Anthony Mason Breach of Separation of Powers? Exercise of the Reserve Powers
11 12 How to Make an Act What is in an Act?
Number Date Long Title Short Title Preamble Sections/subsections paragraph/subparas clauses/subclauses Chapters/Parts/Divisions/Subdivisions Table of contents and Index
Purpose or Objects Clause Definitions Schedules 14 Drafting a Bill Aim: Draft class legislation regarding the use of technology in the LAW112 Residential School. Think about: Legal effectiveness, practicability, timeliness, certainty, comprehensibility, acceptability, brevity, debatibility, legal compatibility. Structure:
Name, long title, short title, preamble Consequences EG what action constitutes a warning or removal of the item? Punitive dimension? EG penalties? Positive dimension? EG How rules support good learning? Specific Technology referred to? Eg laptops? Phones? Adjustments/exceptions to ensure substantive equality or formal equality? Lets pass it! Drafting Tips Plain language:
simple, precise, direct and familiar no unnecessary words sentences should not be long winded or with qualifications or exceptions! Active voice (not passive) Help readers purpose, sections, notes, examples, summaries, overviews In Conclusion: - Difficulties in drafting legislation construction of purpose and meaning Statutory interpretation rules help decipher meaning
in context Coming up next: - General Principles, the general method & central interpretative criteria construction of purpose and meaning Statutory interpretation rules help decipher meaning in context Presentation title - to add as footer, select 'Insert > Header & Footer' 17 Click on central icon to add picture, or select Insert > Pictures, or drag and drop from File Explorer.
Statutory Interpretation This case is a simple one. The Act means what it says, and, what is more important, it does not mean what it does not say. Secretary, Department of Health v Harvey (1990) 21 ALD 393 (Meagher JA). 18 In this session, well cover: General Principles General Method Central Interpretative Criteria Group Activity: My Rule Rocks!
General Principles - Multifactorial assessment where more than one construction available - Not selective application but a judgment based on all relevant criteria - Object is to determine the intention of the legislature - Context of the provision and legislative purpose
General Method Work up from problems, not one-size-fits all Locate the provision Read it in context Identify relevant and multiple interpretative criteria for the problem Critically analyse how and to what extent those factors assist in determining the legal meaning of a provision Formulate opposing and available constructions of the provision in
light of the indications of meaning gathered so far Compare constructions make a judgment as to which carries more weight and is to be regarded as expressing the legal meaning Central Interpretative Criteria Intrinsic guides of the provision and Act concerned The relevant Commonwealth, State or Territory Interpretation Act Acts Interpretation Act 1901 (CTH) Interpretation Act 1987 (NSW) Interpretative requirements of other relevant Acts of application such as a Charter of Rights Pre-existing, related or similar statutes and common law doctrines Interpretative principles and presumptions developed by courts including the principle of legality; presumption against retrospectivity; implied repeal Extrinsic materials
Precedents in comparable cases Other contextual factors include the effect of any alternative construction (absurdity or injustice) My Rule Rocks why is your statutory interpretation rule is the best? Look up commentary Look up journal articles Look up case law Argue your case in 2 minutes. Who has the most important rule? 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. i.e. if two constructions choose the best one that would fit the purpose. See also: Section 33 Interpretation Act 1987 (NSW) 24 Extrinsic Aids - Section 15AB and common law approach of extrinsic material Parliamentary debates Executive documents Law reform commission reports Explanatory memoranda
Second reading speeches / parliamentary debates Parliamentary committee reports International treaties and agreements Note Limitation! Section 15AB Acts Interpretation Act 1901 (Cth) these materials can only be taken into account if provision is ambiguous or ordinary meaning produces an absurd result. 25 Extrinsic traditional Common Law Approaches Literal - Plain and ordinary meaning of words ..even if we think the result to be inconvenient or impolitic or improbable Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28
CLR 129 161-2 Golden Rule - Depart from the ordinary (or grammatical) meaning to avoid an absurd result: Grey v Pearson (1857) 6 HL Cas 61, 106 Purposive - Determine the purpose of Parliament in passing legislation or the particular provision in question. Origins in the mischief rule: Heydons Case (1584) 3 Co Rep 7a, 7b. 26 Context in Legislation Interpretation with reference to:
- accompanying words - other parts of legislation - interpretation legislation Dictionaries are your friends Consistent use of words is assumed All words assumed to carry meaning Words should be interpreted in accordance with current meaning Express mention may draw attention to absence elsewhere Provisions may be interpreted with reference to: - other legislation - the audience - existing law 27
Rebuttable Presumptions Used in Interpreting Legislation Statutes do not operate retrospectively Parliament does not: - interfere with common law rights - abrogate the privilege against self-incrimination - abrogate legal professional privilege - deprive people of access to the courts Re-enactment of a provision approves a previous judicial interpretation Legislation does not bind the crown Penal provisions are strictly construed Property rights are not taken away without compensation Legislation does not have extraterritorial effect Parliament intends to legislate in conformity with international law These are rebuttable only where there is clear and unambiguous words
Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340, 353-4. 28 In Conclusion: Statutory Interpretation Multifactorial assessment Interpret provisions based on text & context (intrinsic) Refer to extrinsic materials if appropriate Consider your interpretation in light of the purpose Weigh and conclude
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