LAWS104 Lecture Notes - Lecture 7: Socalled, Primary And Secondary Legislation, Footscray City College
LAWS 104 - LEGAL READING, WRITING & READING
Wk. 7 – Statutory Interpretation
IRAC
As law students you will become familiar with problem/hypothetical questions
A problem question involves advising a character how the law is likely to
apply in the circumstances
Students are expected to adopt the IRAC approach towards problem solving
questions.
We have already discussed IRAC’s 4 step process:
Identify the issues arising out of the facts;
Rule - when addressing a particular issue, students must explain the relevant
principle or rule of law and cite an appropriate authority in support;
Apply that rule or principle to the facts; and
Conclusion - reach a conclusion on the most likely outcome in relation to each
issue to provide overall advice to the client.
Issue- this is a reminder to you to identify the issue before discussing the
relevant law and applying it to the facts
Rule or Principle- it does not matter whether you use ‘rule’ or ‘principle’, this
reminds you that you need to explain the law to the reader before you apply it.
Remember you must also provide an appropriate, relevant authority in support
of the rule
Apply- it is necessary to apply the law to the facts of the scenario. In a
problem question this involves applying the rule of law to the specific facts
presented so as to reach a prediction as to what the court will determine
Conclusion - this involves pulling together your discussion under each of the
stages above so that you provide meaningful advice to the person/character in
the question.
By following IRAC, you focus your thinking and writing on the key area of
the assessment- that is demonstrating an understanding of the law and how it
applies in particular fact situations
When writing do not allocate equal words to each of the I R A and C
The important part of any assignment is the analysis or the APPLICATION
The application of the law to the facts in the question should be the bulk of the
assignment.
Compiling a summary that reflects the content of the answer takes time. It is
important to ensure the content is not re-debated in the conclusion
Not every single point needs to be summarised in the conclusion
The conclusion must address the issues raised by the facts in the question
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Do not introduce new material or arguments in conclusion
When stating your overall view of the client’s case, avoid the use of absolutes,
e.g. ‘Sia will win at trial’
The law is not always that clear and litigation is always uncertain.
Lawyers when advising a client will instinctively use the IRAC approach
Legal practice requires an ability to understand the law and apply it to
particular facts
A lawyer must be able to effectively communicate to clients, courts and other
practitioners.
Legislative Process
Before a statute becomes the lawà Passage of a Bill through two Houses of
Parliament (exceptions-Qld, ACT, NT) & Royal Assent (signed by Gov.-Gen or
Gov.)
Proposal for legislation
Most Bills introduced into parliament are first discussed and approved by
Cabinet
Drafting of proposed legislation into a Bill may take several months (most
Bills drafted by Office of Parliamentary Counsel)
Govt. Departments provide comment
Introduction and passage through Parliament
Royal assent
Initiation (Bill introduced by member giving notice that the next day parl. sits,
he or she will seek leave to introduce bill)
First reading (gives Bill place on agenda of the House of Parl. – short title
read. Responsible Minister presents signed copy Bill to Clerk of House
together with explanatory memorandum
Second reading – proposer moves motion that Bill be read for a second time –
explains purpose, general principles and effects of Bill. Bill available to Parl.
and public. Debate usually adjourned to allow time for public discussion and
reaction
Second reading debate – substantial debate of principles of Bill before vote is
taken.
Detailed consideration of text of Bill clause by clause – may be referred to
committee of house for specialist input – recommendations and amendments
made.
Third reading (usually a formality) and Bill passes relevant House
Goes onto other House for same process (except Qld and territories)
After each House of Parliament has approved the Bill…Presentation to Gov.
Gen. or Gov. for Royal Assent
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find more resources at oneclass.com
Act becomes operative at specified date, or date fixed by proclamation, which
is announced in Government Gazette
Detailed discussion of the legislative process is found at:
http://www.aph.gov.au/About_Parliament/House_of_Representatives/Po
wers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-
_Making_laws
Legislative Materials
Legislation -> Primary source of law
Other documents produced through the legislative process can be very helpful
for research
Draft legislation is often made public and submissions are invited
Before a statute is enacted, it is drafted as a Bill
As Bill is read and debated in Parliament, the process may result in an
amendment.
Introducing Statutory Interpretation
Who
Being able to locate and understand legislation is crucial to understanding law
Judges need to interpret legislation in order to apply the law to facts and
determine disputes before the court
Lawyers need to know how to find and understand legislation in order to serve
their clients’ needs
Other professions also need an understanding of legislation e.g. Govt & semi-
govt departments; accountants & financial planners; company secretaries and
directors; town planners; engineers; doctors etc
Students need to be able to locate, understand and analyse legislation for
assessment tasks in every law unit.
What,
The methods to determine the meaning of words used by parliament in
legislation
Courts spend much of their time interpreting legislation
About 50% of all cases and 90% of appeals on points of law involve statutory
interpretation.
Legislation is the most frequently encountered source of legal rules in
Australia
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Laws 104 - legal reading, writing & reading. As law students you will become familiar with problem/hypothetical questions. A problem question involves advising a character how the law is likely to apply in the circumstances. Students are expected to adopt the irac approach towards problem solving questions. We have already discussed irac"s 4 step process: Identify the issues arising out of the facts; Rule - when addressing a particular issue, students must explain the relevant principle or rule of law and cite an appropriate authority in support; Apply that rule or principle to the facts; and. Conclusion - reach a conclusion on the most likely outcome in relation to each issue to provide overall advice to the client. Issue- this is a reminder to you to identify the issue before discussing the relevant law and applying it to the facts.
