1. Week 1 Introduction to LLB107 Notes PDF

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Week 1 lecture notes llb107 statutory interpretation...

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LLB107 Statutory Interpretation Week 1 – Introduction to the Unit Part 1 – Introduction to the unit

Learning Activities Each week in the unit there will be: •

A series of short lecture podcasts and independent learning activities

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2 hour interactive Zoom tutorial beginning in week 2 (See study guide and prepare beforehand).

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Tutorial recording and slides for all students released at the end of each week

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Prescribed reading •

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12 credit points = 12 hours per week. About eight hours reading per week.

1 hour Q&A Forum on Wednesday, 10am-11am (Room Z411)

Textbooks Prescribed: Michelle Sanson, Statutory Interpretation (Oxford University Press, 2nd ed, 2016). Recommended: D Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) – (Dense, expensive but used by most legal practitioners). Lisa Burton Crawford, Janina Boughey, Melissa Castan and Maria O’Sullivan, Public Law and Statutory Interpretation: Principles and Practice (Federation Press, 2017) – Referred to quite a lot in this unit. Assessment 1 - Multiple Choice Quiz (20%) •

Week 4 (Opens Monday 9:00am – closes Thursday 11:59pm).

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Completed online through the Blackboard site.

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20 questions, each worth one mark.

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30 minutes to complete the quiz.

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Assesses lecture content, tutorial content and prescribed readings from weeks 1-3 (inclusive) of the unit.

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This is an individual item of assessment. You are not permitted to communicate with other students about the questions asked on the quiz, or your answers to those questions.

Assessment 2 – Research Memorandum (40%) •

Acting as a trainee solicitor, you will utilise legal research methodologies to identify, locate and evaluate relevant sources to advise the partner of a hypothetical law firm on the appropriate meaning, nature and effect of statutory provisions and their correct application to a given set of facts. You will be required to write up your findings in a research memorandum to the partner, demonstrating your knowledge and understanding of the relevant areas of law and legal problemsolving. Your written communication and referencing will also be assessed.

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Due: Monday Week 10 11:59pm

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Word limit: 2500 words

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Assignment to be realised on Monday of week 7. – Assignment will be answered in week 12 tutorial.

Assessment 3 - Final Exam (40%) End of semester examination covering the topics of the unit. We think it will look like this: •

Open book (you may bring any printed materials into the exam room).

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Statutory Interpretation problem question. – If invigilated, the legislation will be provided in advance of the exam. 1 question worth 40 marks and 30min perusal.

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Legislation given to you in advance of the exam.

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Question worth 40 marks.

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2 hours 10 minutes working time, with 30 minutes perusal.

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Practice materials will be available on BB.

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Tutorial preparation and attendance essential in order to do well on exam. Here the method and structure is taught.

How to do well in this unit Do the following things, in the following order, each week: 1. Work through the weekly learning activities 2. Prepare your tutorial answers 3. Attend the tutorial (or listen to the tutorial recording) Tip 1 - Many weeks in this unit build on the content of previous weeks. If you fall behind, things won’t make sense to you. Stick with us! Tip 2 – What we do in tutorials is very strongly linked to what you have to do in the assessment in the unit. What are the challenges? •

Statutory interpretation is incredibly important…but sometimes it is tough going.

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Some people love statutory interpretation

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Other people like it sometimes, but find it a bit dry at other times

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Regardless of whether you find it interesting or not, it is essential for legal practice.

Part 2 – The importance of statutory interpretation and its relationship with public law Overview •

This lecture introduces: •

the importance of statutory interpretation to the study and practise of law;

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the relationship between public law and statutory interpretation; and

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foundational public law principles.

The Importance of Statutory Interpretation •

We live in an ‘age of statutes’.

One can not understand Australian Law without understanding legislation. ‘Most cases in most courts in Australia are cases in which all or most of the substantive and procedural law that is applied by the court to determine the rights of the parties who are in dispute has its source in the text of a statute’. Stephen Gageler, ‘Common Law Statutes and Judicial Legislation: Statutory Interpretation as a Common Law Process’ (2011) 37 Monash University Law Review 1, 1. ‘[M]ost of what lawyers advise, counsel argue, and courts decide, is the construction and application of statutes’ (Justice Mark Leeming, NSWCA). ‘The common law is today so entangled with statutes that it is difficult to find any legal problem which is able to be defined and resolved solely by resort to the common law’ (Chief Justice Robert French, HCA). ‘Almost all judicial work in Australia depends on construing and applying statutes’ (Justice Hayne, HCA). •

Most legal disputes that arise in Australia involve the interpretation of one or more statutes.

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The ability to interpret statutes is an indispensable skill for the study and practise of the law.

Public Law and Statutory Interpretation •

In this unit, we examine the principles of statutory interpretation together with the principles of public law.

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Public law is a body of legal principles that govern the relationship between the State and individuals. Sub-disciplines of public law at QUT include:

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LLB203 Constitutional Law

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LLH206 Administrative Law

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LLB140 Human Rights Law

Legislation involves all three branches of government: •

Legislation is made by the Parliament

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Legislation is administered by the Executive

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Legislation is interpreted by the Courts

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Public law principles inform the distribution of powers between the three branches of government.

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Statutory interpretation is the ‘field in which the Parliament, the Executive and the courts interact in the discharge of their respective functions’ (French CJ, 2012). •

The principles of statutory interpretation (applied by the courts) reflect the constitutional distribution of powers.

Activity •

Read Lisa Burton-Crawford et al, Public Law and Statutory Interpretation: Principles and Practice (Federation Press, 2017) Chapter 1, paras [1.1]- [1.2] (available on QUT Readings).

Part 3 – Foundational principles of public law The Rule of Law – (area of study known as jurisprudence (theory/philosophy of law) •

The rule of law is a contested concept.

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The rule of law requires the supremacy of law.

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No one is above the law – the law applies to everyone equally.

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The rule of law operates to constrain the arbitrary exercise of government power.

Two conceptions of the rule of law: •

‘Thin’ or ‘procedural’ conception (e.g. Professor Joseph Raz). The conditions required for the rule of law are procedural. There is no necessary connection between law and morality. The thin conception of the rule of law is compatible with the content of laws being immoral or unjust.

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‘Thick’ or ‘substantive’ conception (e.g. Lord Bingham). Connection between law and morality; emphasis on human rights. The law not only requires procedural conditions but also morality. This approach emphasises the importance in protecting human rights and values such as equality and justice.

The Rule of Law in Australia •

The Australian Constitution places legal limits on the powers of the Parliament and the Executive, and those limits can be enforced by the courts. The Australian Constitution is supreme in a legal and moral sense and prevails over other sources of law.

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The rule of law forms an ‘assumption’ of the Australian Constitution. The parliament, executive and courts must adhere to the condition. See Australian Communist Party v Commonwealth and quote from J Dixon. “The rule of law is not only an ideal, it forms an assumption of the Australian Constitution”.

Constitutionalism •

Constitutionalism provides a mechanism for limiting government power. •

Political constitutionalism (UK): the limits on government power are primarily political (eg the electoral process).

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Legal constitutionalism (USA): government power is limited by the law and those limits can be enforced by the judiciary. Not just the political, electoral process.

Constitutionalism in Australia •

The Australian Constitution combines legal and political constitutionalism. •

Representative and responsible government act as the fundamental constraints on government power (political constitutionalism - UK).

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The Australian Constitution uses the principles of federalism and separation of powers to limit government power. These limits are enforceable by the judiciary – high court of Australia(legal constitutionalism - USA). (sometimes described as a ‘washminter system’)

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The Australian Constitution does not include a Bill of Rights.

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The framers thought that human rights and interests of the people would be adequately protected by democratic political processes. (the institution of the representatives and the responsible government).

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In Australia, rights are protected by the common law and statute.

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In Australia, we have a written and rigid Constitution (like the USA, Canada). •

Most of the constitutional rules that limit power are found in the text of the Constitution and are enforceable by the Courts.

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The Australian Constitution is difficult to change. It can only be amended by a referendum: s 128. (The Australian Constitution cannot be changed by only 1 branch of government – since federation of the 44 proposed changes only 8 have been successful).

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As per s 128, it must be approved by a majority of both state and national electives and that ammendements cannot be changed by only one branch of government.

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In USA/UK there is no constitutional document, they operate by convention meaning they can involve and adapt easily with changes in society.

Constitutionalism in Queensland – Focus of this Unit •

The Australian States adhere to a system of political constitutionalism.

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State Constitutions are ordinary Acts of Parliament. State Parliaments have power to change their constitutions. It is much easier to change the Queensland Constitution than the Australian Constitution. •

Changes that concern the structure of the Parliament require a referendum.

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Queensland has three Acts that are part of its Constitution: Constitution Act 1867; Constitution Act Amendment Act 1934; Constitution of Queensland 2001.

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It is much easier to change the Queensland constitution than the Australian constitution.

Activity

1. Read Lisa Burton-Crawford et al, Public Law and Statutory Interpretation: Principles and Practice (Federation Press, 2017) Chapter 1, paras [1.3]-[1.4] (available on QUT Readings). 2. Test your understanding of the Week 1 content with an online quiz The principles of statutory interpretation reflect public law principles....