Statutory Interpretation Lecture Notes

Statutory Interpretation (SI)

• Fourth lecture in a series (weeks 7-10).
• Week 11: Non-examinable lecture (skills development).
• Week 12: Q&A and final review.
• Drop-in sessions scheduled between Torts and FAL exams.

Overview of SI

• Review of Statutory Interpretation (SI).
• Diagrams used in seminars to guide students on the overall process.

Key Components of Statutory Interpretation

• Text.
• Purpose.
• Extrinsic Materials.
• Presumptions.

Detailed Breakdown

• Text:
  • The statute itself.
  • AIA (Acts Interpretation Act).
  • Dictionary definitions.
    • Definitions within the Act.
    • Section 1.A = (example).
  • Latin Maxims (e.g., ejusdem generis).
• Purpose:
  • SAA (Statement of purpose) + limitations.
  • Eltors Taylor (case).
  • Meeky (case).
• Extrinsic Materials:
  • 15AB.
  • Common law - CIC Insurance.
• Presumptions:
  • Fundamental rights.
  • Property rights.
  • Flaherty & Girgis - re-enactment.
  • Beckwith - penal provisions.
  • JADROVE (case).

Extrinsic Materials

• When to use extrinsic materials: Apparent conflicting messaging, but not really.
• Use intrinsic materials early.
• Start with the text.
• Use extrinsic materials before or after determining purpose.
• Mistake: Focusing solely on 'purpose'.
• Two different analyses of purpose.

Reminder - Accessing Extrinsic Materials

• Section 15AB(1)(a): Confirm meaning, considering text and purpose.
• Section 15AB(1)(b)(i): Determine meaning if ambiguous or obscure.
• Section 15AB(1)(b)(ii): Determine meaning, considering text and purpose, if result is manifestly absurd or unreasonable.
• Common law: CIC Insurance (mischief rule only).
• Common Law is utilized because the tests in 15AB are hard to satisfy.

Flowchart

• Text -> 15AB(1)(a) -> Purpose -> Presumptions

• If 15AB(1)(b)(i) or Common law (CIC Ins) leads to Extrinsic Materials, then also:

  • 15AA Purpose

Early Use of Extrinsic Materials

• If using extrinsic materials 'early' in the process, don't forget to also use 15AA purpose.

Compulsory Stage

• Section 15AA (purpose) is a compulsory stage.
• Keifel CJ in Lloyds Underwriters v Cross: Use extrinsic materials to understand the purpose in the text of the Act (stage 2) so we can understand the meaning of the text (stage 1).
• Using extrinsic materials to fully understand the text that parliament enacted.

Completion of Substantive Rules

• Aids in the interpretation of words/phrases in a statute.
• Think of statutory interpretation in terms of clear and unclear cases.
• Clear cases are not interesting.
• Unclear cases are interesting and push the boundaries.
• Use the rules to make arguments about how the statute should be interpreted in unclear cases.

Goals and Ambitions

• Assessment focus.
• Convenor/University goals vs. your goals.
• University is not just about assessment; broader goals about learning and growth.
• Health and well-being; social and life experience and balance.
• Finding strengths and enjoyment at University.
• Allow making mistakes and learning, adopting a growth mindset.

Applying the Process

• Using HIRAC (Issue, Rule, Application, Conclusion) for practical application of the law.
• Past Exam Papers.
• Seminar problems include:
  • The Drones Problem.
  • Waterfront.

Myths and Misunderstandings

• "I can just go to classes and then I will be able to do the assessment."
• "I just need to get a summary from somewhere and show up to the exam."
• "It's an open book exam. I will look it up."
• Actively attempt past exam papers.
• Brain will learn the process and be faster.

Time Management

• Complete summary of legal rules.
• Start tackling past exam papers.
• Even w/o summary, attempt to prepare for seminars and practice with past papers.
• Retrofit/augment the details of the relevant rules when time permits.

Statutory Interpretation Process

• Check the Act is in force at the relevant time and state conclusion.
• ‘Silent check’ of language to see if the Act might apply retrospectively.
  • Rare case but strong presumption against it.
• Check: whether the facts raise interference with fundamental legal rights (liberty, property).
  • If ‘yes’ analyse language for rebuttal.
• Isolate the word and state the legal issue:
  • ISSUE: What is the meaning of ‘vehicles’ within the Act?
• Text in context: (modern approach)
  • Trawl all over the text and the Act and think about what arguments can be made about the meaning of the word.
    • definitions (in the Act, in the AIA and/or in a dictionary) and
    • the maxims (if relevant)
    • prior statutory use & re-enactment/ interpretation (weak presumption)
• Purpose using s 15AA
  • Trawl all over the text and the Act and think about what arguments can be made about what the Act tells you about its purpose and thus the scope of the isolated word in its statutory context.
    • STOP THINK: HOW CLEAR IS IT FROM THE TEXT HOW THIS ISOLATED WORD APPLIES TO THE FACTS BEFORE YOU
• Extrinsic materials.
  • Consider whether anything the parliament has said or done in the process of enacting this Act/provision (as evidenced by extrinsic materials (15AB(2)) will assist to make arguments about how we can understand the isolated word either to ascertain meaning, (if you can use these s15AB(1)) or the mischief that the parliament was intending to address with Act/ provision that includes this isolated word (via common law) (OR consider both as alternative arguments)
• Your conclusion – internally consistent with your arguments – and apply your last presumption:
  • Do you have a penal provision which will be strictly construed (weak), If so, it could narrow the meaning of the isolated word?

Exam Preparation

• The previous slide has enough structure to help you to a pass/low credit but insufficient detail to get you good marks.
• Use it to attempt the ‘process’ for the Waterfront problem.
• Practice under mock exam conditions when you have a handle on the rules.

Using Your Summary

• The structure of the lectures in weeks 7 - 10 is preserved in the slide.
• Synthesise this ‘process’ with the rules that you have summarised.
• Add the comments on this slide into your longer summary.
• Practice past exam papers using your summary of both the process and the rules.
• Writing out (by hand) an answer to a past exam paper has immense value.

Feeling Overwhelmed?

• Everything you do from this point will help
• Just find 2 hours to prepare an outline for week 11 seminar – Attempt to plan the Waterfront Problem.
• Print out the problem – you will spot the issues more readily off-screen
• Use pen + paper (ie, scribble paper in the exam writing time) to identify the words to be interpreted and to map out a structure for the issues & vaguely what you will argue.
• Think about what are the possible competing or supporting arguments and who they will help.
• Take your handwritten plan to class.
• Seminars will really help prep for exam. Don’t miss them.

HIRAC and Structure

• Very important.
• Will be emphasised in seminars.
• Revert back to HIRAC if you don’t know how to start or what to do next.
• Reminders and application of HIRAC process to the SI context.

Issue Spotting

• Issue spotting is identifying (‘isolating’) the word(s) to be interpreted.
  • May be multiple issues and/or sub-issues.
  • Prioritise the more contentious.
  • May be a ‘term’ rather than just single words (eg, “essential oil” 2022 exam or “other goods” in Waterfront problem).
• Issue spotting determines your overall structure.
• Provide headings capturing the issues; state the issues as questions; and answer the questions through your IRAC analysis!

Rules (R in IRAC)

• Summary comes into its own.
• Ready-made statements of rules (with quotes in quotation marks of the law – and sources – cases or AIA sections) that you can copy to exam book to demonstrate your knowledge.
• Need to provide recognisable sources of the rules but NOT AGLC.
  • Statute name (‘AIA (Cth)’ with do) and section number “s 15AB(1)(b)(ii)”
  • Case name eg, ‘Project Blue Sky’

Competing Arguments & HIRAC

• The same legal rule might provide competing arguments!
• Consider:
  • Some parts of the text of an Act (say the objects clause) might support one interpretation of the ‘word’.
  • But other parts of the text of an Act (say, the section heading) might support an opposing interpretation of the ‘word’.

Repetitive Rules

• The first time you need to rely on, and explain a rule, explain it in full with all the nuance relevant to that instance.
• Thereafter, refer marker back to the initial explanation.
• Next time you need to refer to s 15AA, you can simply refer to the rule again like this…"Turning to the purpose approach in s 15AA (as explained above) …"
• Be sure (in subsequent analyses) that you go on to apply it!!!

Application

• This involves some thinking!
• This is where you get all the marks … yes, really!
• Not enough to just state the rule and leave it to examiner to apply!
• How does the rule apply to the word that you are interpreting in the context of the relevant facts?
• How might you make arguments about how the rule applies?
• What will each side argue?
• Quote from the exam paper (statute, facts, extrinsic materials) “blah blah”.

Argument

• Arguments can be:
  • Competing arguments (ie, arguments raised by opposite sides in a dispute)
  • OR supporting arguments (ie, a series of arguments raised by one side).
• Keep in mind who will be relying on each argument.
• Think about what is the leading (strongest) argument on each issue.
• Always consider both sides of the argument.

Weaker Rules

• Weaker rules tend to generate ‘supporting arguments’.
• Examples:
  • Arguments based on Latin maxims.
  • Arguments based on ‘weak’ presumptions
    • Penal provisions strictly construed (Beckwith)
    • Re-enactment constitutes judicial approval (Flaherty v Girgis)

Conclusions

• Advise is is guilty of an offense?
• “Yes, if it is an easy case” – Not in exams
• “No, if it is a hard case” – This is in exams.
• Logically – is there likely to be a single right answer? No – it is going to be argument.

More on Conclusions

• Good to have, but 'don't really matter' as there is no absolute right answer in conclusion for most exam questions.
• Conclusions might be possible and important for sub-issues as well as issues.
• Sub-conclusions can be framed as ‘answers’ to the issues and sub-issues that were posed as questions.
• In SI, the final conclusion ideally relates back to a conclusion about the relevant section in the statute and clear advice.
• Ideally the final conclusion should be consistent with how your arguments went.
• Try not to be glib or formulaic … avoid worn out phrases like “on balance …” Tell us why you’ve decided one way of the other.

Law Exams & Exam Papers

• Relatively unrealistic scenarios written so you have an opportunity to show us what you know.
• The FAL exam contains fictitious elements. Ignore that they are fictitious and get down to the task
• Focus on SHOWING US WHAT YOU KNOW:
  • About process of stat interp
  • About rules of stat interp
  • About structure & reasoning & argument
• Examiners are sympathetic people (seminar leaders + me) + who are looking to give you marks.

Next Week

• Valuable information/skills about:
  • Finding legislation and parliamentary materials when you need to
  • Finding cases that interpret words and phrases in legislation.
• A skill to use throughout your own degree.
• NOT EXAMINABLE
• FINAL WEEK Q & A. No new material. I will provide some provocations if there are no questions.