First Year Law Intensive June Legislation an Introduction

Transcription

1 First Year Law Intensive June 2015 Legislation an Introduction

2 Legislation What is It? Legislation is one of the two important sources of law in common law systems along with judge-made or common law. Legislation is law passed by the Parliaments: Commonwealth/Federal legislation applies throughout Australia interpreted by the Federal courts or State/Territory courts exercising Federal jurisdiction State/Territory legislation applies in the particular jurisdiction interpreted by the courts of that jurisdiction.

3 Finding Legislation Link to law library There finding legislation has links to jurisdictional websites (official). Also (unofficial). Tips: consolidated is up to date. May need point in time for law at a particular date. Austlii s note up feature can help to find cases dealing with specific statutes.

4 Legislation takes two forms: Legislation What is it? Cont Acts or Statutes passed by both houses of Parliament (one house in Qld). Delegated legislation also known as Regulations, Statutory Rules, By-laws etc. Statutes will frequently delegate to a person or body the ability to make delegated legislation. Not required to be passed by Parliament, though Parliament can disallow. Statutes take precedence over delegated legislation.

5 Legislation v Case Law Legislatures can be proactive courts must wait for a dispute to come before them. Legislation can be comprehensive in coverage. Statutory rules are expressed in fixed verbal form. Statutes take precedence over inconsistent case law. Judges interpret statutes interpretations can be precedents.

6 Legislation How Much? Although there have been changes in political philosophy over time from, eg, a protectionist and interventionist economic stance to a free market philosophy, this has not caused a reduction in the volume of legislation. 1960: 111 Commonwealth Acts for 584 pages. 103 Statutory rules for 855 pages. 2009: 136 Commonwealth Acts for 6110 pages. Fair Work legislation alone 1246 pages. 394 selected (ie, not all) legislative instruments for over 6000 pages.

7 Interpretation Legislation Each jurisdiction has interpretation legislation that plays important role in reading all other legislation, eg: Commencement Meaning of official/frequent terms Impact of amendment and repeal Interpretative approaches. The appropriate interpretation legislation must be used for the appropriate jurisdiction, eg: Commonwealth Acts Interpretation Act 1901 for Commonwealth legislation NSW Interpretation Act 1987 for NSW legislation.

8 Section - an example 14 Declaring a property to be a declared World Heritage property Making declarations (1) The Minister may declare a specified property to be a declared World Heritage property by notice in the Gazette if: (b) the Minister is satisfied that: (i) the property has, or is likely to have, world heritage values; and (ii) some or all of the world heritage values of the property are under threat.

9 Citing a Section The previous underlined section would be cited as: Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 14(1)(b)(i) [Not Parts, divisions etc] Said: section fourteen, subsection one, paragraph b, subparagraph one. OR Section fourteen, one, b, one The abbreviation is ss is used for multiple sections so ss (sections 14-15) An Act s number is not used in the citation. Section(s) is only spelled out at the start of a sentence. Capital letters (eg. s 3A) usually indicate amendment.

10 Approaching Interpretation 1. Read the provision, giving the words their ordinary meaning in the context they appear. Does this reveal ambiguities? Break down the provision into elements. 2. Consider the purpose of the statute and mischief (can consult extrinsic materials) does this reveal alternative readings or ambiguities? 3. If there are or ambiguities or an absurd result, consult extrinsic materials. 4. If an absurdity is it a drafting error to use the golden rule? 5. If alternative constructions, chose that which (best) achieves the purpose.