This weeks material has been focusing on the purpose and intention of legislation, and the techniques used by courts to resolve interpretation. There has also been some discussion as to how changing circumstances are accommodated in statutory interpretation.
Following on from last weeks discussion as the purpose of legislation, this time we look at how we determine the purpose. Some legislation has a purpose provision. For other legislation, the purpose can be determined from its long title. And some legislation have Objects provisions. The question that then arises is what is the difference between purpose and intention. This controversial term had been defined as identifying what the intent of the words used by Parliament was – rather than what it intended to say. And since Parliament cannot consider every single circumstance and possibility, what is to be done if the intent of Parliament is not apparent? This is where the interpretive techniques used by the courts comes in.
If when reading a piece of legislation, the court determines that the ordinary meaning of a word or phrase is too broad, they will use the process of ‘reading down’ to constrain the meaning of words. This may be because the knowledge of the Parliament at the time the legislation was created was limited, and the literal interpretation of the provisions in question (in light of present day knowledge) too narrow. If it is believed that a drafting error has occurred, or inadvertent gap in the legislation due to the ordinary meaning of the vocabulary used, a process of ‘reading in’ may be used, to strain the meaning of the provision. Both of these processes rely on examining the purpose, context, history and language of the legislation, to determine what the intent of Parliament was.
As the process of creating and changing legislation is slow, there must be some process that allows the legislation to accommodate for changes in societal values and policy changes. Statutory interpretation allows for this also by away of ambulatory interpretation, dynamic interpretation and ‘spirit of the law’. By using ambulatory formulations in creating legislation, broad provisions are used which then provides the judiciary the scope to take into account changing circumstances. Dynamic interpretation takes a different approach – which is to interpret provisions in the current context – such as looking up the meaning of a word in a current dictionary, rather than in one that was published at the time the legislation was drafted. And in the equitable interpretation – the provision may be shrunk or expanded as needed to achieve the ‘spirit and reason of the law’. However, these techniques to function, a mature legal system is needed, as the Parliament must be confident in how the judiciary will interpret the legislature that it creates.
In the legal profession, just like with any profession, communication and collaboration with others is key. However, just like with professions such as customer service and education, the being able communicate and collaborate effectively with your clients make the different being success and failure. To succeed in the legal profession, you have to have excellent oral and verbal skills. That does not simply mean that you can read, write and speak English. You need to be able to clearly and concisely convey legal advice to your client in a manner understandable to them. You need to be able to present an argument to a judge and jury that persuades them to make a judgement that favours your client. You may need to negotiate with other parties to come to a mutually agreeable outcome, or to push your client’s interests, depending on the circumstances. You may even need to negotiate with your client, as their legal standing may not be what they have in mind. You need to be able to advocate for your client. This requires you to determine what the relevant facts of the matter are, what legislation is relevant, and specific courtroom procedures and rules of evidence.
In order to do your job, you need to have a clear idea as to who your audience is, and how to best communicate with them. For example, in a courtroom – your primary audience is the judge – not the clerk, not the other lawyer. The judge will make the decision on the case, so it is the judge your need to persuade and convince to make a favourable decision. Once you know your audience, you can then make changes to how you communicate to take into account their age, their level of education, their professional background, cultural and religious beliefs, or other biases that may be of relevance. Depending on the audience, you may use techniques such as summarising what they’ve said to ensure understanding and identify any gaps. You might use open ended questions, or perhaps closed questions are more appropriate. Using active listening and the ACTIVES skills will take you a long way. You also need to demonstrate empathy, as this will make your client more comfortable, more likely to disclose all the facts, and improve client satisfaction. In written communication, good grammar, plain English, headings and planning are the key points to remember. That and short sentences are good. And John does not like dot points.
On the topic of collaboration, I can’t say I learnt anything new. I have been involved in a few clubs in either membership or executive roles, have worked on group assessments and in team environments in the past. I suppose the important take home message is to always put in more than you intent to get out. That way everyone benefits. Having a clear idea as to goals, responsibilities, tasks and completion dates is important. Having regular meetings and specific goals or milestones to be able to report on at those meetings is effective. Plus simply keeping open the communications channels so that if a team member gets stuck, they feel comfortable asking for help.
The second chapter of this week’s reading was all about protecting our own well-being, and ensuring that there is an equal balance between study/work and family and ‘me’ time. If there is not enough ‘down-time’ then the chances of burning out are high, and you are of no benefit to anyone, let alone yourself! In other words, make sure you get enough sleep, have a hobby, and a good support network to help you!
Things started getting really interesting this week, now that we’re past all the dry “what is legislation”, “how does it work” and “how is it made” stuff. Now we’re started looking at how to actually work with and interpret legislation (hey, what about that, there’s the name of course – if you swap the words and use a synonym!). In doing so, we start looking at what the words context and purpose mean in relation to legislation. One of the key tasks in statutory interpretation is looking at the context and purpose of legislation in order to ensure that the intent of the legislature is upheld, and do do this we look a the ordinary meaning of the words – that is, how are they perceived by the general public. Many cases have hinged on how the words are ordinarily interpreted, such as the two example cases we studied this week – Mills v Meeking  HCA 6 and Saraswati v R  HCA 21. In the latter case, the outcome hinged on the ordinary meaning of the words “indecent assault”. In the former case, the outcome resulted from an examination of the purpose of the provision, and its context and history.
In statutory interpretation, we use the word ‘context’ to refer to the interpretation of the legislation in the context of the standard public meaning of the text. As the supporting material that can be refereed to varies from item to item, as well as its relevance to the case in question, there is no comprehensive list. However, generally the intrinsic material in the Act would be examining first – such as the long title, purpose statements and Object statements where pertinent. Then the extrinsic material such as the explanatory memoranda, Hansard and second reading speeches might also be examined. Historical circumstances and government policies are used to come to a better understanding of what the intent of the legislature was in creating the provisions in question. We also have to look at the purpose of the legislation or provision in question if there is a more explicit purpose statement. In the example of the Mills v Meeking  case, it as deemed that the purpose of the legislation meant that the legislature had not intended that a vehicle must always be involved in an accident. The context of the provision had been to remove some previous mischief. These two understandings then lead to the outcome of the appeal being dismissed. So in this case, the literal meaning of the provision was rejected in preference to its intent
When interpreting legislation, the purpose and context must always be considered. In some cases, where there is a single and clear purpose, then it is a simple task to examine the context, and ensure that the perceived intent of the legislature is adhered to. When there are multiple purpose statements, and more than one possible meaning, this can be a very challenging affair. The courts will need to be very through in their examination of the context and purpose, to ensure they can come to a conclusion as to the legislature’s intent. And sometimes courts do not reach an interpretation that the legislature agrees with. However, due to the sovereignty of parliament, the legislature has the power to amend the legislation and resolve the issue.
So it is a very complicated system, but it the processes and rules are followed correctly, then consistent and appropriate outcomes should be achieved. And if they are not achieved, the legislature has the authority to make changes that ensure they will be in the future (and in the past if they choose to make retroactive changes – although this is rare).
The focus for this week’s study was on thinking skills, and how to think like a lawyer. To achieve, this I had to learn about some of the frameworks that can be used to think like lawyer. They all have acronyms like MIRAT and IRAC and CREAC. However, other than moving the step around they all consist of identifying the material facts, identifying the legal issues, identifying the legal rules, applying the rules, and coming to a conclusion. This process can be used for any aspect of legal practise, from reading a judgement and identifying the salient points, to developing a presentation of a legal issue, to preparing a response to a situation a client has asked to be analysed. The textbook focused on the CIRAC method where you state the conclusion, identify the material facts, identify the relevant rules, apply the rules to facts, and then restate the rules. And if you’re being creative, before applying the rule(s), you also identify the policies that informed the rules, so that when you apply the rules, you apply them in the way the legislature intended.
Next up was logical reasoning. This is also sometimes referred to as legalistic or literal thinking. The premise is simple and elegant, and therein lies the challenge. Making a proposition that is both valid and sound, and as a result, irrefutable. And naturally, valid reasoning trumps invalid reasoning, as does sound reasoning (as opposed to unsound reasoning). Examples of faulty thinking were demonstrated, so that the causes of invalid and unsound reasoning could be identified in opponent’s arguments and avoided in our own. Some such as hasty generalisation, bias and attacking the person are easily recognisable from everyday life and the media. However, some of the forms of faulty reasoning are more subtle and can be challenging to avoid (such as correlation and causation, some forms of bias and appealing to the majority or the person.
If you don’t apply critical thinking when considering a situation or argument, then it will be hard to clearly identify the real issues at hand, and what can be done to resolve them. You need to be able to identify and analyse the problem. You then need to be able to infer a reasonable and justifiable conclusion that takes into account all the rules and evidence you identified. Most importantly, you then need to be able to communicate this to others (who heard of lawyer who could analyse and solve problems but not stand up in court and explain it!?) And to be able to do this, you need to be able to self-regulate your thinking so that you don’t slip in faulting reasoning yourself. And if you can be creative at the same time, you will be able to present options to your client that they didn’t think they had, and you may be come up with unorthodox solutions and options. You may consider the purpose and policy considerations that lead to a specific piece of legislation, rather than just accepting that its literal interpretation is what the legislature intended. You might approach the problem from a different perspective, and as a result, be able to argue for a completely different outcome.
This week’s focus was on the first of three chapters about how to interpret legislation. In this case, it was more specifically focused on how to find the legislation that is used to actually understand legislation, known as interpretation legislation. Due to the repetitive nature of the legal system, a common set of terms, rules and conventions were collected together and implemented in a single act. The result was the Acts Interpretation Act 1901 for Commonwealth legislation, and similar legislation for each of the states. In the case of Queensland, there of two pieces of legislation that can be sought – the Acts Interpretation Act 1954 and the Statutory Instruments Act 1992, with the later act focused on how to interpret statutory instruments, their presentation, and managing subordinate legislation.
Due to that fact that different words can have different meanings to different people, to ensure this did not come an issue, the various Acts Interpretation Acts all contain dictionaries that define how words commonly used in statutory legislation should be interpreted. For example… how would you measure distance? Time? Age? In the case of distance or time, you may think these are ridiculous… but just take the case of “Johnny lives 10km away from Jill” – is that 10km via twisting roads? Is that 10km because of a valley? According to s 35 of the Commonwealth Act, you would know without question that this was measured in a straight line, on a horizontal plane, unless otherwise stated – otherwise referred to “as the crow flies”. And then there is may vs shall… where may allows for discretion, whereas shall is mandatory. So these acts making understanding all these terms, phrases and concepts quite straightforward.
Finally, these interpretation acts also layout conventions for how legislation operates – such as the commencement date, amendments, repeal, revival, and invalidity. And even though these conventions or rules are laid out in the interpretation acts, they are still sometimes themselves the subject of interpretation by the courts. For example, normally with invalidity, if an amendment to a piece of legislation is ruled invalid, is the original act or provision revived? In Roach v Electoral Commissioner (2007) 233 CLR 162, the court ruled that the original provision should be revived, as the amendment had implicit repeal. If if the amendment had explicit repealed the provision in question, then the court would have probably had to rule differently, as invalidation in this case would have resulted in no provision at all.
This weeks work has been quite interesting, as it is starting to show how legislation is interpreted, and what resources are needed to be able to interpret provisions in legislation. Next week should of even more interest because it is starting to focus on the purpose and context of legislative instruments.
This week was an easier week as far as prescribed reading – only one chapter this week! However, I think this only a reprieve so that we have more time to work on the assignment! It is also the end of the first part of the textbook on ‘knowing’ the legal system. This week focused on two main areas – that of legislation and case law.
Outliers on these two issues, but still highly relevant, were the sovereignty of Parliament (which basically says Parliament holds the ultimate power – as defined by the Constitution) and the doctrine of precedent and why it is important. As part of learning more about the doctrine of precedent, it was good to finally see some arguments as to the advantages and disadvantage of this system – with one of the disadvantages being how hard it is to find relevant precedent to use in making another ruling! However, benefits such as the certainty, equality and consistency that the doctrine of precedent brings with it far outweigh its disadvantages.
For legislation, we needed to know about the parliamentary system that actually proposes, debates ad passes legislation. Different states and territories have different systems – but all have common elements due to a historical basis on the Westminster system. Most states and the federal parliaments have two houses of parliament (referred to as a bicameral system) whereas my home state (Queensland) and the Territories have only one house of parliament (unicameral system). The both the bicameral and unicameral systems have their advantages and disadvantages, but my personal view is that the bicameral system is more representative of the views, values and options of the general public, and ensures that all legislation is properly analysed before enacted. Bills have a specific format, and pass through the house in a very specific and lockstep manner, and if all the checks and balances are satisfied, the bill is passed by both houses of parliament, and then becomes an Act of Parliament upon assent by the Crown representative (Governor General in the instance of Federal legislation).
Whilst legislation is created and amended by parliament, case law is made by the judiciary through their interpretation of legislation and how it applies to a given circumstance. Whilst most areas of law are primarily legislation, there are still some areas, such as contract law, where the primary law is case law. And whilst legislation may exist that is applicable to a specific case, it is the role of the judiciary to determine that, and what the appropriate outcome should be. To make this system feasible, there is a tiered court system – both at federal and state levels. The severity (and financial limit) of the case will determine which court the issue will go to. And if the outcome is not to the desired outcome of the parties concerned, they can usually request an appeal, where the case may got to a court of the same level or higher court. I was surprised to find out how many courts and tribunals there were, and just like with our separation of powers – or overlap of power in the case of parliament and executive government – there is an overlap in the judicial hierarchy – in that the high court of Australia is the highest court of appeal for both the federal and state jurisdictions!
This weeks readings have been very interesting, in as far as learning a little bit about how legislation is drafted, and the process of how it goes from a Bill to an Act. This ties in well with the other course I am studying this term, LAWS11057, which has been talking about the history of the legal system, and the structure of the Australian legal system, and is about to move into the sources of law in Australia.
In Australian, the constitution is the font of all legislative power – it dictates the separation of powers – namely the role and powers of the Parliament, the Executive Government, and the Judicature. Federal power is limited to the areas listed in s51 of the Constitution, and residual power goes to the States.
There are two main drafting styles used when creating legislation – which Lisbeth Campbell descriptively refers to as being ‘fussy’ and ‘fuzzy’ . The ‘fuzzy’ style is traditionally used in civil law, and is clear & easy to understand, and more accessible to the general public, but give judges broad discretion in how to interpret it, and can result in varying interpretations, resulting in inconsistent case outcomes. The ‘fussy’ style is traditionally used in common law as it is precise, comprehensive, specific and detailed, and judicial discretion is contained, but it results is large amounts of law – making it more inaccessible, and is difficult to comprehend as it has more complicated and elaborate provisions. So it is clear that neither style is the ‘best’, and some compromise is needed. Hence the move towards Plain English drafting of legislature.
Plain English drafting has come about due to the dislike in the reading and hence knowledge of law by the general population, and even of those whose profession it is is to work with it – lawyers. It favours a simple and straightforward style, direct and familiar language, removal of unnecessary words and avoidance of long and complicated sentences. These changes make the resulting laws more comprehensible, and accessible, but does have the issue of how to deal with perceived changes to laws due to the changes in wording – but the Acts Interpretation Act 1901 does have provision for this, by instructing that just because the wording has changed, the meaning of the laws should no be interpreted differently. New laws are naturally written in Plain English right from the onset, and courts will most likely adapt and develop new conventions over time as to how they interpret these laws.
Finally, as part of the discussion on draft conventions, political dimensions and parliamentary proceedings, the process of drafting a bill, to it becoming an Act, and thus a enforceable piece of legislation was examined. Unsurprisingly, draft bills have a standard form – such as a Long title, the words ‘Parliament enacts’, and a standard set of words and phrases used in bills. There is explanatory material to supplement the bill, as it must be in the exact form it will be passed in – no side notes or comments! When in a bi-cameral system , the bill must pass both houses of parliament (a unicameral system only has one house, so Bills will usually pass if the party that puts it forward has majority). It will be read three times – the first time to simply introduce or ‘table’ the bill. On the second reading, it is debated – this is when the opinion of the government and the public is with regards to the proposed legislation is made known. On the third reading, the bill is voted upon. It is then sent to the other house if passes, where the process is repeated. If the bill passes both houses, and is settled, it is presented to the Governor General by the Attorney-General for assent, at which point it becomes an Act. Throughout this whole process, there may be changes and amendments to the legislation before it reaches its final form that is acceptable to all parties concerned.
In the unicameral system, since there is only one house of parliament, there are concerns that legislation can be passed without suitable input from the public. Due the nature of a representative democracy, although parliament is ultimately accountable to its citizens, the day to day running of government does not directly involve the public in the decision-making process. Because stages such as review by an appropriate committee are not mandatory, the viewpoints and concerns of the general public and other relevant parties are not considered. A recent piece of legislation which illustrates this point is the Vicious Lawless Association Disestablishment Act 2013, and due to the lack of debate and community consultation, this legislation is now in jeopardy of being ruled invalid by the High Court on the grounds that it is unconstitutional.
In Week 2, I learned about the history of the Australian Legal system, which also necessitated learning about the history of the British Legal system, which our legal system is based upon. I examined the importance of the concepts such as the Rule of law, and the Separation of Powers. I explored the doctrine of Terra Nullius, and how that affected the Indigenous Australians.
The British Legal system underwent many changes, which I remember some of from my school history studies – namely the Magna Carta and how it was a key change how the monarch ruled, and the hierarchy of power (monarch -> barons -> knights -> peasants). I didn’t realise that in conjunction with the monarch and ‘royal justice’ (and as a result of this, I suppose), that a system of Equity was being developed by the Court of Chancery. This is of significance today as Equity is one of the two aspects of modern day justice – the other being common law. After all the fighting between forces supporting parliament and various kings, the other important change in the British legal system was the introduction of the bill of rights – which recognised certain rights of citizens such as freedom from cruel and unusual punishments, freedom from fines and forfeitures without trial, and freedom of speech in parliament. It also established the Westminister system of parliament, which was a major shift in power.
In Australia, the initial form of law was legislature (law of the British Parliament) at the discretion of the Governor of the colony of New South Wales. Approximately 40 years after the colony was established, British Parliament passed the Australian Courts Act, which permitted Australia to use common law ‘as long as the circumstances of the colony would make it possible’ – which was an interesting decision as convicts did not have the right to appear in court. A major change in this would have been the Colonial Laws Validity Act of 1865, which allowed the colonies to make laws as long as they didn’t conflict with those created by the British Parliament. After the short space of a little more than 100 years, Australia’s legal landscape changed to have a three tier system of government (federal, state and local), made it possible for Federal parliament to override UK laws and finally separate from the British legal system in by making British Parliament unable to override State laws, and the highest court in Australia the High Court of Australia (instead of the Privy Council in London).
Not all changes in the legal system during this time period were good. The rights, values and customary law of Indigenous Australians were not acknowledge, and in fact were completely ignored and encroached on. The initial determination of ‘Terra Nullius’ when establishing the New South Wales colony meant that a treaty for land rights did not need to be negotiated, and in 1909, legislation was passed that gave legal authority for the children of Indigenous Australian to be removed from their families, without consent. However, Since the 1960s, there has been a reversal in this behaviour, beginning with legislature that acknowledges their right to vote, including them in the census, and recognising the native title rights of Indigenous Australians through reversing the doctrine of ‘Terra Nullius’. There has also been recognition of customary law, although this is contentious subject even today, and there was a formal apology for the ‘Stolen Generation’
Finally, with the establishment of an Australian Constitution, and the individual constitutions of the states, there is a formal separation of powers into three tiers – that of the Parliament, the Executive Government and the Judicature. The Parliament is responsible for enacting legislation, and the day to day administration of power, the Executive Government is responsible for the creation and amendment of legislation, and the Judicature is responsible for the interpretation of legislation. However, in Australia there is a crossover between the Parliament and the Executive Government, as members of parliament also make up the executive government. This highlights that fact that this is a separation of powers, not a separation of people.
The material for this week has been very interesting, and the focus on the history of the development of the legal system has made it easier to understand why some aspects of the system are how they are. And considering how the last remnant of the monarchs authority now rests with the Governor General (and the State Governors to a lesser extent), it is understandable why there have been calls for a change to a republic – as the current structure seems at odds which what we have been moving towards – which is a separation from the Commonwealth. Time will tell if that move is successful, and if it is a good idea in the first place.
After completing the first weeks worth of readings, research activities, and coming to grips with what exactly is statutory interpretation, I can safely say that I am enjoying the approach to the course taken by the course co-ordinator, Dominic. All the course information is up, and structured in a easy-to-access manner. He has also been prompt in providing an overview of what is expected in the form of assessment, so I can now start working on the assessment with a clear idea as to expectations.
When I started this course, I had no idea as to what a statute was, let alone how to interpret one. I had this vague idea that it was some sort of law or legislation, but that was all. And the nearest I had come to researching legislation was the occasional visit to the ComLaw or Queensland Legislation websites when looking up some piece of law that I wanted to find out how it impacted my family or friends, or had heard about on the news (such as the so called Bikie law, or Vicious Lawless Association Disestablishment Act 2013).
I am starting to understand why the process of statutory interpretation is of such importance, since it is so dependent on the statute in question, and the beliefs and biases of the judges in how they choose to interpret a statute. This is why statutory interpretation is more than just an extra skill for lawyers, but an whole branch of law. There are rules such as the literal rule (Parliament means what it says), the Golden rule (to avoid absurd outcomes) and the Mischief rule (identify what Parliaments intent was). There’s Pounds four methods by which courts can interpret and use statues. Plus the argument of whether judicial activism or legal formalism is the correct approach.
I had fun working through the research side of this weeks work, as I was able to look around the different databases and sites and see where I could obtain information on different aspects of legislation such as the explanatory memoranda and second reading speeches which explained in plain English the contents of a bill, describes the principle of the Bill and the governments purpose in proposing it. I also realised that the AustLii website would have made it much easier to find some privacy related legislation for the Week 1 problem – > AustLii -> advanced search, privacy, Queensland numbered acts, and then click ‘Collapse Multi-sections‘ in the search results (top left) to see all the different acts that mention privacy in some way…
I am still a bit confused about some things such as legal formalism, and judicial activism, but reading some of the reflections that others have already put it is making it clearer to me, and I’m sure I’ll get a better grasp on these concepts in the following weeks.
Just in the first weeks worth of study and reading, my understanding of what law is has changed. No longer is it just an elephant in the room… it is now a concept that has a tangible meaning. It is no longer just a set of rules made by the ‘higher ups’ … but is actually a “system of rules made by the state, enforceable by prosecution or litigation”… which on its own sounds straightforward… until you dig down deeper into the meaning of even that definition… for instance… what is the state? What makes this set of rules different to any other?
This is where understanding what lawyers are, what solicitors and barristers do, and what the different theories behind the law are… not to mention all the different categories of law. When doing the readings on the different types of and different categories of law, it was gratifying to come across categories that I had heard of but didn’t fully understand what they meant… such as administrative law, or tort.
Now, as far as the theories behind law, and jurisprudence… for the most part that makes sense… after all, as the natural law theory posits… there are some things that we as a community had decided are just right and wrong… so the law ensures that these ‘wrong’ things don’t happen. And if they do, there are consequences. And I can also understand the legal positivism views towards law. After all, isn’t the law… the law? But this brings back memories of arguments like which is correct… religion or science… evolution vs creationism… the list goes on. And after reading the section on law and liberal values, all I can say is the positives are straight-forward… and the negatives are doing my head in! Just proves I am not a philosopher… yet!
My final thoughts on this first brief plunge in the depths of the legal system are that I didn’t realise how move variety there was, and how many options there are. I mean, there are the ‘obvious’ careers such as barrister, solicitor, legal academic (law teacher / tutor) and perhaps law librarian, but I hadn’t thought of legal consultants or paralegals (‘law clerks’). Nor had I thought of the community sector… I had really only thought of the high-priced private sector corporate lawyers, the public sector government lawyers, and a few other career areas… but, that is just the tip of the iceberg. There’s plenty more career options and paths… and now I just have to work out what one I want to pursue over the next few years!