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Lecture 4

LWB145 Lecture Notes - Week 4.docx

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Department
Law
Course
JSB171
Professor
Unknown
Semester
Spring

Description
LWB145 Week Four Lecture Notes Statutory Interpretation Statutes as a Source of Law  Today marks the first of several lectures on a very important law topic: statutory interpretation.  Almost every subject done at uni and every area of practice will involve what is called primary and subordinate legislation.  Many legal disputes are regarding whether or not a provision in a statute applies to the circumstances or not.  Remember – this is not just relevant to civil disputes. Consider, for example, Patel v The Queen which was concerned with whether s 288 of the Criminal Code applied to the conduct of Jayant Patel or not.  Most of your advisory work in a law firm will involve advising clients on how provisions of Acts or Regulations apply to their circumstances.  You cannot avoid statutes, or the need to read them. They are the primary source of the law nowadays – even case law largely involves interpreting how statutes apply.  You will need to read cases to see how the courts apply the rules for interpreting statutes.  The courts are the primary source (alongside the Acts Interpretation Act (Qld) and Acts Interpretation Act (Cth)) of the rules for interpreting statutes.  All jurisdictions have an AIA or similar document. The old name for this was Acts Shortening Act, and the purpose is to deal with a set of rules that apply to the interpretation of all Acts in that jurisdiction so as not to repeat those rules in each Act.  Things covered by AIAs include: o Meaning of commonly used expressions o Rules as to the computation of time o Commencement of legislation o Rules about how to interpret Acts o The use of extrinsic and intrinsic material in the interpretation of legislation  Do not confuse the two AIA Acts! If you are looking at Queensland legislation, use the AIA (Qld) and if you are looking at Federal legislation, use the AIA (Cth).  In order to be able to know whether the provisions of an Act apply to your client’s facts, you need to know how to read and interpret them. Why Rules of Interpretation were Developed  The basic problem is that, particularly with issues that arrive on your desk as a lawyer, how a statute applies to your client’s facts is not always clear.  This partly has to do with the nature of the English language. Differing interpretations can be logically made to the same words due to their ambiguity.  Thus, opposing lawyers can both take completely different but equally plausible views about how the same provision applies to your circumstances or their circumstances. It is easy to try to make the provisions ‘fit’ your circumstances.  Due to the widespread vagueness and ambiguity with legislation, the courts have developed rules for interpreting or fixing the meanings of provisions.  These rules play two roles: o They (ideally) create certainty by allowing lawyers advising clients to know how a court is likely to approach the interpretation of a provision; and o To an extent, they limit the possible range of meanings a provisions can have (thereby, again, promoting as much certainty as possible).  Unfortunately though, the ideal and the reality do not always match and it is not always possible to predict how the judges will approach matters.  Note that we need not worry about this for this particular subject because it is a beginner’s level. In many cases, a clear answer can be attained, and it would be a mistake to think that the meaning is never clear even if it sometimes seems that way. Basic Components of Act Revisited  The first thing we need to do before we even look at the rules the courts have developed for interpreting Acts and their provisions is to identify all the components. Basic Components of an Act  Long Title and Short Title The long title provides a detailed overview of the Act and puts it somewhat into context. The short title is simply the shortened name for the Act which is also the most commonly used name.  Preamble or Objects provisions The preamble (or in some cases an objects section) provides a general overview of the Act and its purpose.  Chapter, Part, Division and Subdivision headings Similar to chapters in a book, the headings in an Act give an idea of the legal content which is set out in each section under the relevant heading. The ranking of these headings is Chapter > Part > Division > Sub- division.  Marginal Notes (section headings) Section headings were also called marginal notes because they were once a part of the margins in Acts and therefore not actually considered as being part of the Act (see intrinsic material below). Extrinsic and Intrinsic Material  The long title, short title and all headings except marginal notes (section headings) are what are known as ‘intrinsic material.’ The term intrinsic material mea
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