Please enable JavaScript.
Coggle requires JavaScript to display documents.
Statutory Interpretation - Week 1 (History & Evolution of Statutory…
Statutory Interpretation - Week 1
Legislation is the predominant source of law applied by judges in the common law world today
"The law of statutory interpretation has become the most important single aspect of legal practice. Significant areas of law are determined entirely by statute. No area of law has escaped statutory modification" Chief Justice James Spigelman NSW Supreme Court
Statutes are difficult to interpret because words are imprecise because words may be interpreted narrowly or broadly, or may have different meanings depending on the context in which they are used.
Statutory Interpretation - An Art no a Science
Role of Courts is to interpret statutes
A court cannot apply the purpose of the legislation in isolation from a statutory provision giving effect to that purpose
A court must interpret the words used in a statute in the light of their context and purpose
A court cannot improve, rewrite or develop a statute
A court must work out what Parliament intended and give effect to it, even if the court (judge) does not personally agree with the statute
Interpretation & Construction are often used interchangeably
Perhaps 'interpretation' could be used to work out the meaning of a single word or phrase, and 'construction' to construe the meaning of a whole section or provision.
"Unless the meaning of a legal text of any kind is self evident, then the text requires interpretation" Chief Justice HCA Murray Gleeson
History & Evolution of Statutory Interpretation
Because statutes were seen as an affront to the common law, courts construed them narrowly
The 'literal' approach to statutory interpretation ostensibly flatters the Parliament by saying it must mean what it says: if the meaning was clear, the court would apply that meaning regardless of the result
Prior to Parliament in UK, statute was a decree of the King
The Golden Rule & the Mischief Rule emerged over time - but were only used when the ordinary meaning created an absurdity or repugnancy
The golden rule could only modify the words to the minimum extent necessary to address drafting errors
The mischief rule allowed consideration of the mischief that was intended to be remedied but only where the mischief was evident from reading the act as a whole
Up until 1980's courts were highly conservative, literal and focused on replicating what could be expected from an English Court
Roscoe Pound
Treat statutes as a superior source of law, applying them fully in rule and in principle and reasoning from them by analogy;
treat statutes as being on par with judge made law, applying them fully and reasoning from them as one would with other judicial decisions
give only direct effect to statutes, favouring a liberal, or broad interpretation
give only direct effect to statutes, favouring a strict, or narrow interpretation
Sometimes not applied fully - depending on each judge's view of their role ie. Spectrum of Judicial Opinion - James Spigelman
Reasoning by analogy - R v L (1991) HCA 'by reason of marriage there is an irrevocable consent to sexual intercourse...is out of keeping...with recent changes in the criminal law of this country made by statute, which draw no distinction between a wife and other women in defining the offence of rape
The shocking decision of Al-Kateh v Godwin CLR held a human could be held indefinitely in executive detention despite having committed no crime - only Kirby in dissent, invoked a presumption in favour of liberty and against indefinite detention as a human right which could only be rebutted by express words