...ANALYSIS OF SKETCH OF A THEORY OF STATUTORY INTERPRETATION: JIM EVANS TABLE OF CONTENTS Summary 3 History 4 Legislative Meaning 5 Analysis 6 Objective of the Author 6 The two prongs of interpretation 6 The meaning of the enactment 6 Legislative intent and its scope 8 Exceptions and side constraints as implications of legislative will 10 Conclusion 11 Sketch of a Theory of Statutory Interpretation: Jim Evans Summary In this article the author advocates his belief that statutory interpretation should be determined not only by an interpreter's understanding of the meaning of the legislature, but also by his understanding of the will of the legislature. By the will of the legislature the author means the practical judgment or decision that a certain rule should be part of the law, not the further purpose that the legislature may hope to achieve by that, which may be described as the meaning of the legislature. Sometimes these two sources of understanding pull in different directions, or conflict each other. The author then postulates that respect for the meaning intended by the legislature and respect for the will of the legislature are two different things. He clarifies however, that this does not imply that they always lead in different directions, and in fact, in most cases they work together for two reasons. Firstly, the statute will almost always accurately express the will of the legislature for most cases, unless there has been...
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...2424A STATUTORY INTERPRETATION: THE MEANING OF MEANING RMIT University, Melbourne School of Accounting and Law, Symposium on Statutory Interpretation Chapter House, St. Paul‟s Cathedral 13 August 2009. The Hon. Michael Kirby AC CMG RMIT UNIVERSITY, MELBOURNE SCHOOL OF ACCOUNTING AND LAW SYMPOSIUM ON STATUTORY INTERPRETATION CHAPTER HOUSE, ST. PAUL’S CATHEDRAL 13 AUGUST 2009 STATUTORY INTERPRETATION: THE MEANING OF MEANING The Hon. Michael Kirby AC CMG THE MAIN TASK OF MODERN LAWYERS Although we still describe ours as a common law system (to distinguish it from the countries of the civil law tradition), the label is now looking somewhat dubious. The distinctive feature of contemporary Australian law derives from the overwhelming importance of the laws made by or under parliament. I refer to statutes, regulations, by-laws, executive instruments, rules of court and all the other ways in which the written law now manifests itself. In my youth, the statutory law of the State of New South Wales was collected in twelve manageable volumes, supplemented by a threevolume index1. These books included many important statutes commencing in the colonial period, some of which, like the Crimes Act 1900 (NSW), still apply today. Past Justice of the High Court of Australia (1996-2009). President of the Institute of Arbitrators & Mediators Australia 1 R.J. McKay (ed.), The Public Acts of New South Wales 1924-1957, Vols.1-15, Law Book Co. Sydney 1958. 1 The volumes...
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...of this decision. The delegate ruled that he satisfied resident requirement as outlined in s 21(2)(c) of the Act. The Minister was not happy with the AAT decision and an appeal was lodged which was consequentially dismissed. Reasons The main legal issues in this case was to determine whether, under the provisions of s29, one could apply for citizenship when the spouse was a citizen of Australian during the time of application or during the entire 4 years as outlined in s22(1)(a) and 12 months prior to the application date as required in s22(a)(c). The minister argued that the correct interpretation of the legal text is that Mr. Han could only qualify for citizenship if his spouse, Ms. To, was a citizen for the entire period of 4 years and 12 months before application as required by the act. However, Mr. Han disagreed with this interpretation arguing that the correct interpretation of the text was that the spouse was only...
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...analyse the Australian Government’s proposed reforms for protecting and promoting human rights for the more vulnerable groups in Australia. A bill of rights alone will not protect the rights of the people. But nor will a majoritarian democracy. Contemporary democracy stands for more than just the primitive notion of according full power to the popular majorities of Parliament by the vote. It requires the recognition of Parliamentary sovereignty, and furthermore it calls for the preservation of the principles of rule of law, judicial independence and more importantly the rights of all individuals. Although the Government’s recently launched National Human Rights Framework promises a selection of human rights protection mechanisms, in light of its failure to provide a bill of rights that many Australians want, it is an inadequate attempt at promoting and protecting the more vulnerable groups. Even though the Framework claims that it reserves the function of statutory interpretation for the courts, in reality it empowers the Parliament with the capacity to “guide”[1] the courts into enacting legislation. The Government’s downplay of judicial influence cannot be ignored and this points to a discussion of whether Australia needs a bill of rights. The role of the courts also need to be evaluated with respect to the other branches of government, the legislature and the Executive, in an effort to attain a healthy balance between judicial independence and Parliamentary sovereignty for...
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...Assessment Task Essay 2 Question: “Administrative law doctrine is an accumulation - a wilderness almost - of single instances, most cases turning ultimately on fine and often unique points of statutory interpretation or factual analysis.” McMillan – ‘The Role of Judicial Review in Australian Administrative Law’ AIAL Forum No.30, 47. The above quote suggests that judicial review in Australia is not based on any general principles which are capable of guiding judicial decision making or of being used to impose a coherent vision of the role of judicial review on the cases. Do you agree? Analyse the law relating to standing and access to the courts plus one of the following areas of law in order to demonstrate the extent to which the above quote...
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...Introduction This report will be based on the following which is the process when making an act of parliament the different stages they have to go through when a new law is being brought out and also the rules of statutory interpretation. For the merit, the methods of law making will be compared and contrasted and also the applying the rules of statutory interpretation. For the final part of this report, the role of the Judiciary in the formulation and interpretation of legal rules. How (most) laws are made * Most new laws passed by Parliament result from proposals made by the government. * Proposals aim to shape society or address specific problems. * Normally, they ‘re created over a period of time An issue or problem emerges on the government's agenda Originally, a government's plan is well-informed by the general election. Politician parties compete for support from British voters by campaigning on their view for the country and how they would make things better for the UK and change things. The political party which wins the election then forms the government, and bases its legislative agenda on its election manifesto. But, where no single political party decisively wins the election - as happened in 2010 - two or more parties may form an alliance government. They might have to negotiate a joint vision and agree on which new laws to champion in the future of the parliament. Once in government, other events and effects also compete for ministers' attention...
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...SAFETY & ENVIRONMENTAL HEALTH LAW 265 Semester 1 2015 Additional Information 4 step examples of Statutory Interpretation Question Assume that research has shown that a person using a mobile phone while driving has a 25% higher chance of having a road accident. The W.A Parliament passes a law called the Use of Mobile Phones and Other Electronic Devices Act 2013 W.A. Section 14 of the Act says: Section 14. ‘No person shall talk on a mobile phone when driving a motorcar, truck, motorcycle or similar vehicle’ Django is charged with a breach of section 14. While riding his bicycle to university one day he was listening to his girlfriend who had rung him on his mobile phone to tell him about her day. He argues: 1. He was not talking on his mobile phone 2. He is not driving a motorcar, truck, motorcycle or similar vehicle Using the rules of statutory interpretation and the four-step process, explain to Django whether he is breach of section 14 by discussing each of his arguments in turn. Step 1 Area of Law: Common law rules of statutory interpretation Step 2 Principles of Law: Students should discuss: Literal approach – define it. IRC v Hinchy and other cases Golden Rule – define it Alder v George and other cases Mischief rule – define it Smith v Hughes and other cases The Ejusdem Generis rule-define it Hy Whittle Ltd v Stalybridge Corp and other cases Step 3 Application of the Law: If the literal rule was applied, this would be the answer If the golden...
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...of the Law Lords to statutory interpretation has been radically changed by the Human Rights Act. Judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.’ Student Number: 111244061 Candidate Number: 56307 In the English legal system, Statutory interpretation is seen as the way by which judges give meaning to the statutes by the parliament. Even though Judges have a wider choice of options in interpreting statues, the situation is now different after UK’s membership of the European Union (EU) through the European Communities Act (ECA) 1972 and after the incorporation of the European Convention on Human Rights (ECHR) by the Human Rights Act (HRA) 1998. Judges are now bound to interpret the statues in such a way that is compatible with the provisions of EU law according to Sec 2(4) of ECA 1972 and also should give effect to the spirit of the conventions as required in Sec 3 of HRA 1998. Convention jurisprudence now has an significant and straight role to play in statutory interpretation due to section 3 of HRA 1998. The Convention confers a huge number of fundamental rights, including the right to life, the right to liberty and security, and so on. The United Kingdom became a participant to the Convention many years ago but Parliament did not cope with domestic law until 1998, when the Human Rights Act was passed. So the Convention was not, prior to that Act, directly related to statutory interpretation. It could not be a...
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...Do Judges Make Law? A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the law is the body of principles recognized and enforced by the state in the application of justice. The law is mainly made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law. A judge is a public official appointed or elected to hear and decide legal matters in court, Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In carrying out this task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution Do judges make law? To ask the question “do judges make law?” Implies that perhaps to some extent they do make law. A great deal of controversy has centered on this question as to how far judges can legitimately make law although a great number such as lord Bentham have referred to it as a “childish fiction” thus judges cannot make law. Many other scholars more so those that are followers of the realist school of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. It can however not be denied looking closely at the present legal system that judges have played a dominant role in moulding the doctrines of the...
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...Certainty in the law is a concept for which the Administration of Justice strives. Judicial precedent promotes certainty in case law while Statutory Interpretation promotes certainty in legislation. Discuss these statements with reference to the principles and rules of Judicial Precedent and Statutory Interpretation. Illustrate your answer by reference to cases. Individuals have different perceptions, and businesses operate in a market-based system, where production is fuelled by profit maximization. Conflict will inevitably arise. Law helps societies maintain social order, which enables individuals to interact, and provides a framework within which businesses operate (Kelly, Holmes and Hayward). The law impacts different aspects of our lives. There are rules to govern property, health, and a range of human activities. Vernon Rich describes laws as “written expressions of the enactment or decree of legitimate governmental authority, which formally define standards of behaviour and provide for punishment by the government for those who disobey” (63). Since the consequences of disobeying laws can be severe, judges and legislators strive for certainty in case law and legislation, to ensure the most just ruling. Although critics argue that judicial precedent and statutory interpretation have limitations, they undoubtedly promote certainty in case law and legislation. Case law, or common law, is law enacted by judges based on decisions made in the cases they...
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...LEGAL METHODS OUTLINE COMMON LAW REASONING • Role of precedent • Law is not unchanging • Distinguishing cases based on the individual facts to come to new conclusions o Judges give more or less weight to different factors • Narrow/broad interpretations of common law rulings • Rules vs. Standards o Rules: more stringent result (binding) ▪ DEMAND that a decision maker respond a certain way to the presence of triggering facts. ▪ ROL is ostensibly neutral and general; however ▪ Severe impartiality can lead to inhumane results (Think Palsgraf and ct costs) ▪ Consider: The Restatement has no precedential power…do cts sometimes neglect careful analysis of problems b/c of their willingness to defer to the restatement? ▪ Bright line rules: The more the law is settled, the more likely it is that people won’t litigate. Highly predictable outcomes. o Standard: more general interpretation (more leeway in end result) ▪ If there are multiple criteria for analyzing the law, almost always use the standards approach. ▪ direct application of a background principle or policy ▪ Standards mean that there will probably be a lot more for the jury to decide (their sympathies come into play) • Legal doctrines that collide => different levels of generality o Deciding the facts that turn the case • Power...
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...Supreme Court. The statute in question in this case is 42.09(a)(3) of the Texas Penal Code (1989) which states that “A person commits an offense [of desecration of a venerated object] if he intentionally or knowingly desecrates a state or national flag.” This statute makes it a criminal offense to intentionally disrespect an American flag or any other state or national flags. This statute, like all statutory law, was created by the legislative branch of government. Mr. Johnson eventually won on appeal in the highest court in the state, the Texas Court of Criminal Appeals. Prior to his win, Johnson’s initial appeal was denied by a lower court, the Texas Court of Appeals, Fifth District. The Fifth District court agreed with the lowest court, the Dallas County Criminal Court, which convicted Johnson. The citation for the U.S. Supreme Court’s decision is Texas v. Johnson, 491 U.S. 397 (1989). The Supreme Court’s decision in Johnson determined that the Texas statute in question was unconstitutional and the statute was subsequently overturned. The Court stated, “If there is a bedrock principle underlying the First Amendment, it is...
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...Introduction to Commercial Law “The law isn’t perfect but it certainly beats whatever is in second place.” ~ Kojak 1974 The common law system is based on the English model which has been inherited by various countries whose development has been influenced by British colonialism, in particular Commonwealth countries. Given that the law reflects the general character of the society in which it exists, it is not surprising that over a period of 200 years there is a lack of complete uniformity between the laws of those countries influenced by British settlement. Nevertheless, the British common law / equity systems have more in common than they have elements of difference, with models sharing common values, institutions and principles. There are, of course, other types of legal systems throughout the world, such as those who have adopted the civil law system, which has its heritage in Roman law, or those based in religion (syariah law) or politics (such as socialist law). However, this essay will focus on the British common law / equity system which have been adopted by various Commonwealth countries throughout the world, including Singapore. The expression ‘common law’ is used to describe a legal system based on the English model. This expression is also used to describe case law – the law developed by the courts as distinct from the law enacted by parliament. The common law in this sense owes its existence to the creations of generations of judges who...
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...FACTS • RELEVANT ISSUES • KEY LEGAL PRINCIPLES • APPLICATION OF THE LAW TO THE FACTS • TENTATIVE CONCLUSION WHAT TO DO: 1) Identify KEY FACTS of the problem Unlike judges, when you answer a problem or case study you do not need to summarise the facts of a problem. What you should do is identify the key facts. 2) Identify RELEVANT ISSUE of the problem From the key facts, you should then be able to identify the relevant issues in the problem you are considering. 3) Identify KEY LEGAL PRINCIPLES Once you have worked out the issues, ask: (a) does a statutory provision apply to this situation and, if so, does it provide a specific answer to the problem? AND (b) are there any cases which have dealt with a similar fact situation/legal issue to the one you are considering? You should provide the name/section of any relevant legislation and the names of any relevant cases in your answer. Note similarities to (follow) or differences from (distinguish) prior cases When reading a problem it is a good idea to jot down the names of cases that you have studied, where the facts/legal issues were similar, if not identical to the ones in the problem you are considering. Often the facts of a problem may be similar to but a little different to those in a decided case. Think about whether any factual differences matter. Whether or not any differences matter will depend on the scope of the legal principle that the relevant case stands for. It is...
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...I. The case for change 1. Adult social care is a construct of the law. Its intrinsic elements, including the responsibilities of those who commission and provide care and support, the range of support available and the rights of people who use care and support, are defined by the law that underpins it. Well-crafted legislation makes a fundamental difference to the ease of implementation on the ground and the clarity provided for professionals and the public. 2. Unfortunately, the current legal framework is anything but well-crafted and has been roundly criticised as opaque, complex and anachronistic. Over 60 years, a patchwork of legislation has grown and evolved. There are well over a dozen existing Acts of Parliament and there is much overlap and duplication between the various statutes. In addition to the primary legislation, there is a vast array of regulations, directions, circulars and guidance. The net result is complexity and confusion for those who have to navigate through the law – including social workers, care users and carers. 3. The Law Commission acknowledged this problem and conducted a three-year review into social care legislation. In May 2011, it published its report with 76 recommendations for reform to Government. 3 As part of its review, the Law Commission completed an Impact Assessment and this document draws heavily on their analysis. 4 The Government has published its formal response to the Law Commission alongside the Care and...
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