Lecture 6 LR.
Assignment Guidance
For specific questions, consult Kate.
General issues noticed:
Difficulty finding relevant legislation or cases with specific search terms.
Real-world research often yields results that are only partially relevant.
Initial assumptions about the relevant area of law may be incorrect upon further research.
Scoping the Scene
At this stage, focus on familiarizing yourself with available resources.
Even experienced lawyers may be unsure of what's out there until they research.
Fuzzy picture is okay, mirrors real-life research.
Legal encyclopedias are helpful when starting in an unfamiliar area of law, providing concise summaries.
Simulating Real-Life Scenarios
Assignment simulates real-life legal research.
Client information evolves and may contain inaccuracies or irrelevant details.
Issues narrow as you interact with clients and opposing parties.
Broad initial research is crucial to identify potential issues.
Assignment Assessments
Some research from the first assignment will be relevant to the second.
Keep notes of other potentially relevant findings.
The second assignment will provide more specific facts and directions.
The goal is to identify all possible arguments, even those against your client.
Precedential Value
Focus on finding information for your client.
Assess relevance.
Acknowledge if sources are indirectly relevant.
Questions on the assignment
Kate is a guide, also you aren't limited to her advice.
Ask Kate to figure out what you find.
Sources of Law
Cases (Common Law):
The 'law part' of a case is the ratio (binding precedent).
Legislation (Statutes):
Statutory Interpretation involves determining the meaning of words, phrases, and provisions within an Act.
Rules of Statutory Interpretation
Consider how words meanings change over time.
Consider the historical context.
Why a law was enacted or repealed.
Legislative intent.
Purpose or object (interchangeable terms).
Always consider the literal meaning (text) of the words, as those are the words of Parliament.
Doctrine of Separation of Powers.
Interpretation Act of WA, Section 18.
Acts Interpretation Act for the Commonwealth, Section 15AA.
Determining Purpose
Express purpose section in the Act.
Long title of the Act.
Headings within the Act.
Definition or interpretation section (glossary) defining key terms.
Surrounding provisions (other words in the section or nearby sections).
The Act as a whole.
The legislative scheme as a whole.
Historical Context
What was the law before the current law?
Why was it changed?
What problem or defect was the existing law failing to address?
Categories of Considerations
Intrinsic Material: Information from the Act itself.
Extrinsic Material: Information outside the Act.
Extrinsic Materials: Examples
Hansard (parliamentary debates).
Second reading speeches.
Legal Encyclopedias.
Explanatory memorandum (though sometimes brief).
Commission reports.
Recommendations from standing committees.
Public submissions.
Previous versions of the Bill.
Weight Given to Different Materials
Generally, the purpose section in the legislation carries the most weight.
Second reading speeches and parliamentary debates are crucial, especially for new legislation.
Intrinsic vs. Extrinsic
Intrinsic: Persuasive.
Extrinsic: Relevant.
Legislature allows courts to go beyond the words within the Act.
Interpretation Act Provisions
Section 19 (WA): Allows consideration of extrinsic material to determine meaning.
To confirm ordinary meaning.
When the provision is ambiguous or obscure.
When ordinary meaning leads to an absurd or unreasonable result.
This section lists examples but is a non-exhaustive list.
Acts Interpretation Act
Section 15AB (Commonwealth): Similar to WA's Section 19.
Intrinsic material has more weight than extrinsic.
If intrinsic and extrinsic materials suggest conflicting purposes, intrinsic is prioritized.
High Court Guidance
The task of statutory construction must begin with the text itself.
Historical considerations and extrinsic materials cannot displace the clear meaning of the text.
The language employed in the text is the surest guide to legislative intention.
The meaning of the text may require consideration of the context. It includes consideration of the general purpose and policy of a provision, in particular what mischief it is seeking to remedy.
Law of Statutory Interpretation: Summary
Legislation (Sections 15AA and 18) requires guidance by object and purpose.
Give effect to the text (words) of the provision.
Determine purpose and object using intrinsic and extrinsic aids.
Surrounding provisions.
Context of the provision.
Inferences drawn from the immediate context.
*Word-level knowledge is of great importance.
Canons of Construction
General rules that guide the interpretation of legislation.
These are starting points, and they might not always be applicable depending on context and purpose.
Specific Canons of Construction:
Terms Used Multiple Times: A term used multiple times in a single piece of legislation is likely to be construed consistently throughout the Act, but there might be different meanings if there is enough reasons for it.
Different Terms with Similar Meanings: Different terms with a similar ordinary meaning are used in the same act in multiple places and they are meant to differentiate even if they look the same, or, they are meant to clarify. (Modern drafting).
Taxable Income Across Acts:: The term taxable income is to likely be construed as with the same meaning throughout each Acts if this is used across many pieces of commonwealth Acts relating to taxation.
Case: Commissioner of Stamp Duties.
Testamentary Wills Act Example: A will may be revoked by burning tearing or otherwise destroying the will; and whether a big line through a will the word cancelled is burning or tearing. It would not be.
"Clasus rule" - when there are general words followed by particular or specific words (or vice versa), the general words are confined to thing of the same kind as those specified.
R v Harris - the meaning of a word should be determined from any accompanying words: an accused bit off the end of someone’s nose and was changed with wounding under a statutory provision; the courts decided that “wound” was to mean an instrument was used, and no hands or teeth. Is that big picture?
Rule Against Surplusage": A court construing a statutory provision must strive to give meaning to every word of that provision
(High Court decision in “Project Blue Sky)” - that such a sense to be made upon the whole as that no clause sentence or words shall prove superfluous, void or insignificant
If by any other construction there may be a useful alternate interpretation
Authority: Collector of customs
The duty of the duty of the court is to give the words of a statute provision, the meaning legislature is taken to have intended to have
Legal meaning: The legal meaning will correspond to the grammatical meaning of the provision
Where though are you going to look to find in the meaning legislature intended a term or phrase to have
If the term is not defined the literal meaning, everyday (dictionary) meaning of the word is what parliament meant
Don’t go to a legal dictionary if its being used in its ordinary meaning , legal dictionary will give wrong intended ordinary
If a term has a technical meaning or ordinary meaning, will the purpose context or the less legislation that applies
Legal Meaning: Technical vs. Ordinary
Presumptions of Statutory Interpretation
General rules about how a particular issue will be resolved.
Based on the key characteristics underpinning our system of law.
Based on : Separation of powers & How society value particular something
Property rights -> The presumption of the law is that property rights can’t be taken with no compensation
International Law- > obligation under international law
Penalty Provisions -> Should be interpreted in favor of the accused ( not particularly
Retrospectively-> Parliament does not intend to legislation to operate ( highly important
Fundamental Rights- Doesn’t intend to mess with