Legislation

Statute law (legislation) now constitutes that part of the law which most dominates our social and commercial lives. Legislation is the formal declaration of legal rules by parliament and people or bodies authorised by parliament. While there are clear procedures to be followed to create a statute, the task of applying it to a given situation and of determining just what it means may, at times, be very complex. That task is for the courts to carry out.

Statute law
Statute law is made by parliament and any subordinate bodies to which parliament has delegated legislative power. Statute law can last for ever or until it is changed. Statute law can be made retrospective. Where statute law and common law conflict, statute law will prevail to the extent of the conflict.

The origins of Parliament

In Anglo-Saxon England, the Great Councils of bishops, abbots and other leaders advised the King After 1066, the Norman Kings continued the tradition with the Kings Council.

The origins of Parliament

Under the Magna Carta in 1215, King John agreed to obtain the common counsel of the kingdom by summoning the Council when making law. The Westminster model of parliamentary government eventually evolved from this.

Parliamentary sovereignty
By the 17th century, English politics was dominated by the struggle for law-making supremacy between the Crown and Parliament. In the revolution of 1688, King James II was deposed. Eventually Parliament was victorious and the judiciary accepted that Parliament was the supreme legislative authority.

Parliamentary sovereignty

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has under the English constitution the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.
Dicey, Law of the Constitution, 1927

Parliamentary sovereignty
In Australia, the principle of Parliamentary sovereignty is modified to the extent that:


the Federal system requires the division of legislative power between the Federal Parliament and the State Parliaments Parliament cannot legislate to limit its future sovereignty (although it can bind itself as to the manner and form or procedure for passing legislation) in practice, political considerations restrain the powers of Parliament.

The legislative process

The original idea for legislative change may come from:
     

government policy a government department a parliamentary committee a law reform body criticism of legislation in a judgement a pressure group.

Drafting of a Bill
The original idea is translated by parliamentary law-drafters into the form of draft legislation, called a Bill.

The Parliamentary process

The Bill goes through the following stages in each House:
   

first reading stage second reading stage committee stage third reading stage.

Disagreement
If:
  

the Senate rejects a Bill passed by the House of Representatives the Bill is reintroduced into and passed by the House of Representatives after 3 months the Senate again rejects the Bill

then under s 57 of the Constitution the Governor-General may dissolve both houses of Parliament (double dissolution) and call an election.

Disagreement
If the deadlock continues with the new Parliament, the Governor-General can convene a joint sitting of both houses. If the Bill receives a majority vote, it is presented to the Governor-General for assent.

Royal assent
After being passed by both Houses, the Bill is presented to the Governor-General (or Governor) for Royal Assent, whereupon it becomes an Act of Parliament.

The date of operation

The Act will commence:
  

from the date specified in the Act or a date to be fixed by proclamation or if the Act is silent as to its commencement:
from the date of Royal Assent (State Acts) 28 days after Royal Assent (Federal Acts).

Parliament has the power to declare an Act to be retrospective, but this power is used sparingly.

Delegated/subordinate legislation
The function of the executive branch of government is to administer and enforce the laws enacted by Parliament. However, the range and detail of legal regulation in modern society makes it impracticable for parliament to do that. Accordingly, a range of legislative power is delegated by the parliament to the Executive

Delegated/subordinate legislation
Laws made by bodies other than parliament which have been authorised by parliament to make such laws and referred to as subordinate legislation. It is not an original source of law as it derives its effectiveness from an Act of Parliament, and its validity can be challenged in court. Subordinate legislation must fall within the ambit of the given enabling Act or it will be held ultra vires (void).

The current process

The regulation is drafted by a public servant and submitted to the Executive Council. It is then signed by the Governor-General and notified in the Government Notices Gazette. It is laid before each House of Parliament, but this is a passive process if no objection is raised, the regulation is passed.

Reforming the process

The process can be improved through the use of:


sunset clauses which provide a fixed life for a law regulatory impact statements: agencies must first list a proposed regulations costs, benefits and alternatives available to the public mandatory consultation with affected businesses more effective parliamentary scrutiny better public access to laws.

The need for interpretation

It is unlikely that legislation can ever be drafted with such precision and clarity that interpretation is not required. Language is by its very nature imprecise. Example: When John met his uncle in the street, he took off his hat.

The need for interpretation

The duty of the courts is to ascertain and give effect to the will of parliament as expressed in its enactment. In the performance of this duty the Judges do not act as computers into which are fed the statutes and the rules for the construction of statutes and from whom issue forth the mathematically correct answer They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing.
Donaldson J, Corocraft Ltd v Pan American Airways Inc. [1968] 3 WLR 714 at 732

Liberal or literal interpretation?

We do not sit here to pull the language of Parliament and of ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.
Denning LJ, Magor and St Mellons Rural District Council v Newport Corporation [1950] 2 All ER 1226 at 1236

Liberal or literal interpretation?

The general proposition that it is the duty of the court to find out the intention of Parliament and not only of Parliament but of ministers also cannot by any means be supported. The duty of the court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.
Lord Simonds, Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 at 191

Methods of statutory interpretation

Court uses Statutory rules Common law rules

Acts Interpretation Acts

Objects Clauses and definitions sections in Act

Common law rules for statutory Interpretation Examples: Literal approach Golden approach Mischief Rule or Purposive approach Maxims

Precedent

Rules of statutory interpretation

When a dispute arises, and if the definitions in the Act are of no help, there are a number of sources of guidance for the courts:


Common law rules of statutory interpretation Acts Interpretation Acts - a purposive reading directing the courts to interpret legislation in such a way that it reflects the intention of the legislators Maxims

Common law rules of statutory interpretation

The literal or plain meaning approach The golden rule approach The mischief approach The purposive approach

Statutory interpretation
The literal or plain meaning approach
 

The court should give a literal effect to the legislative language. The Act is read as a whole and, if its meaning is plain, that is the end of the matter. No attempt is made by the court to introduce extrinsic material.

Case: Fisher v Bell [1961] 1 QB 394

Statutory interpretation
The golden rule approach


An extension of the literal approach, and is used when the plain meaning results in an absurdity, an injustice or an inconsistency with the intentions of parliament.

Case: Lee v Knapp [1967] 2 QB 442

Statutory interpretation
The mischief approach


Where words or phrases are ambiguous, vague or uncertain the courts will try to discover the overall intention of the legislature by reading the Act as a whole and ascertaining the state of the law prior to the passing of the Act.

Case: Smith v Hughes [1969] 1 WLR 830

Acts Interpretation Acts

Each jurisdiction in Australia has an Acts Interpretation Act. These Acts shorten the content of other Acts by, for example, prescribing meanings for frequently used terms. They also contain provisions requiring a purposive approach to interpretation, and permitting the use of extrinsic materials.

Purposive approach

Acts Interpretation Act 1901 (Cth) s 15AA(1) In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.

Purposive approach
Criticism of s 15AA: It is the function of an independent judiciary to interpret the law without interference by the legislature. Nevertheless, purposive interpretation is widely accepted today.

Use of extrinsic materials

Extrinsic material are materials or documents not forming part of the Act being interpreted. The common law position is that extrinsic materials are not to be used by judges in determining legislative intention. Section 15AB of the Acts Interpretation Act 1901 (Cth) now provides that courts may refer to extrinsic materials, although many judges are still reluctant to do so.

Statutory interpretation - maxims

There are a number of guides (maxims) to help the courts determine the meaning of a word of which three of the better known are:


Noscitur a sociis
- a word is known by the company it keeps. The meaning of a word or phrase is to be derived from its context. Case: Prior v Sherwood (1906) 3 CLR 1054

Ejusdem generis (the class rule) - general words at the end of a list of particular words should be
read down in the light of the meaning of the specific words

Expressio unius est exclusio alterius - the express mention of one member of a list or class implicitly
excludes other members of the list or class