Intructions FOR Statutory Interpretation PDF

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Summary

instructions for statutory interpretation when looking at cases....

Description

BLANK SCAFFOLD FOR STUDENT WORK STEP 1- ESTABLISH JURISDICTION Issue Rule

Did the events occur in the relevant jurisdiction? Common law presumption of interpretation is that legislation does not have extraterritorial effect (Green v Burgess [1960] VR 158). Cite Coco v R (1994) 179 CLR 427 as authority that common law presumptions may be rebutted by the statute itself. Relevant legislation is ##.

Application Conclusion

STEP 2- ESTABLISH THAT LEGISLATION WAS IN FORCE AT THE RELEVANT TIME Issue

Was the legislation in force at the time that ## occurred?

Rule

Legislation presumed not to be retrospective. (Australian Education Union v General Manager of Fair Work Australian (2012) 246 CLR 117). Cite Coco v R (1994) 179 CLR 427 as authority that common law presumptions may be rebutted by the statute itself. Delegated legislation cannot be retrospective: Legislation Act 2003 (Cth), ss 12 and 48; Interpretation Act 1987 (NSW), s 39

Application Conclusion

STEP 3- ESTABLISH THE CENTRAL PRINCIPLE OF INTERPRETATION THAT APPLIES Issue Rule

What is the relevant approach to interpretation of this legislation? Section 15AA Acts Interpretation Act 1901 (Cth) provides that: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. OR Section 33 Interpretation Act 1987 (NSW) provides that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. Note that these principles apply to legislation and delegated legislation. See: s 13 Legislation Act 2003 (Cth). See: ss 5(1) and 3 of Interpretation Act 1987 (NSW).

Application Conclusion

It may be too early here to tell what the purpose of the relevant legislation is.

STEP 4- IDENTIFY THE RELEVANT OPERATIVE PROVISION TO BE INTERPRETED Issue Rule Application Conclusion

What is the relevant operative provision that must be interpreted?

You do NOT need to reach a conclusion here (this is because you need to interpret the words/phrases in the provision first – steps 5,6,7 and 8).

STEP 5- IDENTIFY THE RELEVANT WORD(S)/PHRASE(S) IN THE OPERATIVE PROVISION THAT NEED TO BE INTERPRETED Issue

What is ordinary meaning of [this word/phrase], taking into account its context taking into account its context and the purpose of the legislation?

Rule/Application Conclusion

STEP 6- CHECK THAT THE MEANING OF THE WORD/PHRASE MEETS THE PURPOSE OF THE LEGISLATION Issue Rule

Does the meaning of the word/phrase meet the purpose of the legislation?

Application Conclusion

STEP 7- (IF NECESSARY) APPLY STRAINED CONSTRUCTION TECHNIQUES Issue

If the interpretation of the word/phrase does not meet the purpose of the legislation, can you use techniques for strained construction?

Rule Application Conclusion

STEP 8- Repeat relevant steps 5, 6 and 7 for each word/phrase that needs to be interpreted in the relevant operative provision.

STEP 9- CONSIDER RELEVANCE OF OTHER COMMON LAW PRESUMPTIONS (ie other than presumptions relating to extra-territoriality and retrospectivity) Issue

Is there a relevant common law presumption here, and, if so, has it been rebutted by the express terms of the statute or by implication?

Rule Application Conclusion

STEP 10- (IF NECESSARY) CONSIDER RELEVANCE OF COMMON LAW LATIN MAXIMS Issue Rule Application Conclusion

Are any of the common law Latin maxims relevant?...