Introduction to Law: Reading Legislation

[Music] this is the New South Wales courts act 1787 an act of the UK Parliament at Westminster written before the first fleet sailed for Australia in order to grant power for some of the institutions which would be needed by a new colony so very far from London have a look at handwritten dense and tightly packed text and not a paragraph break inside once upon a time that's how most legislation looked and you know what it wasn't really a problem you see back in the day most law was still a common law made by judges and so lawyers were far more familiar with the law reports recording cases than they were with legislation because they didn't have to read Acts of Parliament very often and because the acts tended to be reasonably short this one's six pages long there was really no difficulty times have changed I remember when this particular Act was written England still wasn't even a democracy in any real sense nowadays both the UK and Australia are fully blown democracies so it makes sense that most of our laws are now made in Parliament by representatives who were elected by the people in recent decades there has been an explosion of legislation during your law studies and during your practice of the law you will be using legislation pretty much every day of the week now many people just learn to read legislation on the fly and that's a pity because modern statutes are set up to be very informative and very easy to read if you know their secrets in this video we're going to look at some of those secrets get everyone Anthony Merrick here and this is the third video in module 2 our introduction to law this video is really all about skills I know you can read I know you're smart enough to handle complex texts but learning how to read legislation takes time technique and practice if you can get it right now get the basics under your belt you'll be set for success miss out on this stuff though and you'll be playing a permanent game of catch-up so let's get cracking the first thing we need to talk about is actually binding legislation not so long ago that meant a trip to the law library to find the act you are after and then a trip to another area within the library to find all of the updates since the last reprint of that act and then a weird process of sitting surrounded by all those separate books and leaflets reading bits from each fortunately those days are over and you have instant access to every piece of legislation you could ever want your first port of call for finding legislation will most likely be the Australian legal information Institute website which most people call Asli you can find it at wwsz edu a you now Ostler gives you access to every piece of legislation in the Commonwealth and every piece of legislation in every state and territory as our example today we're going to be using the enhancing online Safety Act 2015 that's a Commonwealth piece of legislation finding it on Asli is pretty simple from the homepage we select cth for Commonwealth and then we scroll down to find Commonwealth consolidated acts it's pretty important to select consolidated acts and not numbered acts numbered acts are something slightly different you'll learn more about in other parts of this course or perhaps in more advanced courses essentially number dates are the acts that are passed one by one by the Parliament whereas consolidated acts means that base act and all of the amendments that have been made to it since that's the one we want to see because that's the updated legislation we then select the letter B and a scroll on down to the enhancing online safety act 2015 click on that and there we have it over on the right you can download the whole act if you want or you can just stay on Asli and hyperlink to the specific section you might be interested in Asli works exactly the same way for state and territory legislation it is easy as the only thing with Asli though is that it's not a government website and so the legislation provided by Asli it's not the official version if you need the official version we go to the federal register of legislation at WWDC solution gov au every state and territory has a similar website to this and that's usually at WWDC Slayton got whatever the state name is abbreviated gov today you on the website of the Federal Register we click acts enforce and then en for enhancing and then there we have it the enhancing online Safety Act this one is the official version so that wasn't too hot so already you have two different skills you can find legislation on Asli and you can find legislation on the official register why don't you pause this video for a few minutes and see if you can go find the National Gallery act 1975 on each of those websites nothing go away so how'd you go got it sorted excellent now there's one more thing I want you to know about the Federal Register it also lets you see what we call the historical versions of the legislation some pieces of legislation like say that customs act 1901 have been amended hundreds and hundreds of times what that means is that if you pick a date at random say the 1st of January 2014 the Act might have looked different then to how it does today so if you're dealing with a legal issue that occurred on the 1st of January 2014 whether it be no point looking at the legislation as it is today would there because you might end up relying on a section that wasn't even there on the 1st of January 2014 so what do we do well from the legislation page we can hit this view series link now this tells us that this legislation was once called the enhancing online safety for children Act 2015 that was its name right up until the 22nd of June 2017 at that point the enhancing online safety for children Amendment Act 2017 came into force and one of the things that did was change the name of the Act so if we were dealing with an issue from prior to 22 June 2017 we'd have to open up this amending act and make sure that the specific sections we were interested in weren't changed by that later legislation some of the states make this even easier let's jump on to the Queensland legislation website and pull open my old favorite the Evidence Act 1977 now we can click timeline and put in whatever date we like let's say that 23rd of September 1994 my 21st birthday if then brings up the Evidence Act as it was on that particular day what a great tool have a go yourself now jump back onto the Federal Register and see if you can find out what the National Gallery Act 1975 looked like on the 10th of March 2000 all right so now we know how to find legislation and we know how to find legislation for a specific date having found our legislation we now get to the tough beat how do we actually read one the format of legislation has changed over time but most statutes you're going to come across will follow a pretty simple pattern with practice you'll be able to scan a new piece of legislation very very quickly and come up with the bits of information you need let's look at something the first thing we'll look for is what we call the short title you'll probably already have the short title because that's almost certainly what led you to the act in the first place the short title is exactly what it sounds like it's the title of the act when we write down the title of the Act including this year in legal writing we always write it in italics then you'll sometimes see a set of brackets and an abbreviation of the Australian jurisdiction so see th Commonwealth QLD for Queensland W a for Western Australia and so on those are important because if you're looking for the evidence act 1995 Commonwealth you don't want to inadvertently end up with the Evidence Act 1995 New South Wales or the Evidence Act 1977 Queensland so the short title is important the second thing you will see is what we call the long title yes strangely enough the long title it's the title homi longer the long title in some ways is a bit of a historical but it does still serve a purpose because when long titles are done well they tell you a bit about what the act is trying to achieve now this one is a dreadfully useless long title I hope nobody got paid for dreaming up this one but if we look for instance at the United Nations Food and Agriculture Organization Act 1944 the long title is an act to approve the acceptance of the constitution of the Food and Agriculture Organization of the United Nations and for other purposes so this tells us more than the short title as it tells us that this legislation is the legislation we needed to pass in order to join the UN Food and Agriculture Organization next let's go to the contents page don't just go racing straight to the section you need not even if you know the number of that section that's a massive mistake which students and even lawyers make big mistake instead let's start by surveying the territory so to speak now the largest acts have divided up into chapters this Act isn't long enough for that chapters are divided up into parts this Act has ten parts numbered one to ten every part has a different part to play part of the pun so we're scanning the contents page we can see the architecture of the Act part one contains a bunch of the administrative and preliminary provisions that are necessary to make the Act work we'll talk more about those shortly part two seems to create something called the e-safety Commissioner part three provides for the investigation of complaints part four focuses on social media and so on now part four on social media is quite a big part and so it's divided into divisions there are four divisions an introduction a division about tier 1 services a division about tier 2 services and a division about non compliant social media services so what does that tell us well clearly if we're providing advice to a social media service we'd need to know if they were a tier 1 or a tier 2 service and when we look closer we can see why you see those divisions about tier 1 and tier two services bear in mind we don't even know what those terms mean yet those divisions about tier 1 and tier 2 services are then divided into subdivisions before we get down to sections look at the subdivision B in each term for Tier one that looks like a nice friendly subdivision doesn't it it mentions requests tier two though it seems a lot less friendly we see reference to notices and formal warnings so it seems like if you're in Tier one you're seen as lower risk we're going to come back to those tiers but you can see there's some clues that for us already can you see though that by understanding the way the legislation is divided up and by reading the contents page carefully you can get a sense of how whole act works social media services are regulated and there seems to be two tiers for lower and higher risk services and there's someone called an e safety commissioner who's likely to have something to do with regulating those tiers all of this we can work out without even going past the contents page now before getting to the meat of the legislation there are a few other things we need to look at first the commencement provision you might be able guess what it does it tells us when the legislation took effect you see legislation doesn't always start on the day it received Royal Assent oftentimes the commencement is delayed and there's a sensible reason for that because it can be helpful to give industries and police and anyone else who's going to be affected a chance to get ready for the new scheme so it's important to know exactly when a piece of legislation started its operations and it's important to check and compare that date to the date that's relevant to your scenario because if whatever happened in your scenario happened before the commencement of the legislation well the legislation is quite irrelevant it's actually a common trick played by some lecturers some nasty nasty lectures to set an assignment question with a date that will catch our students who never bother to catch too well check the commencement Clause beat them at their own game it only takes a second next I want to talk about a great innovation which has crept into Australian legislation in the last couple of decades as terrific it comes in two forms a section called purposes or objects or what's called a simplified outline both of them have pretty much the same function they tell in plain English what the Act is trying to do and how the act is going to go about it the enhancing online Safety Act has such a section it tells us that the Act creates the e-safety Commissioner which we'd already guessed and then it tells us a little bit more about those tiers I mentioned so tier 1 Services get asked to remove cyberbullying material and tier 2 services get told to remove it it's also clear that the individual who posts cyberbullying material can be required to move that material even better part 4 of the Act has it's very own simplified outline which is kind of an excerpt from the more general one and then it has a statement of parliamentary expectations now this says in very plain language the Parliament expects social media services to comply with basic online safety requirements and as a section showing what those are so useful can you see that we still haven't looked up whatever specific section brought us to the act but we're learning more and more about the act itself and what it accomplishes next we can see a definition section now in some acts you'll find this section with the title interpretation and in other acts you'll find it as a dictionary usually at the end of the Act they will do the same thing they tell you what specific words mean in a specific context of this act very important that you have a look at those definitions because you don't want to be giving the normal English meaning to a word only to later find out that it has a very specific meaning in this particular act now in this legislation there are another four sections that clarify the meaning of other terms considered so important they get their own section rather than being lumped in with the rest of the dictionary so section 5 tells us exactly what we mean by cyberbullying material and we can see in subsection B paragraph Roman two the cyberbullying material has the effect of seriously threatening seriously intimidating seriously harassing or seriously humiliating an Australian child important to know exactly what cyberbullying is before we go reading an act intended to try to prevent it when you say now we're still not quite ready to delve into the substance of the act itself but we're getting there and we're learning heaps about it with every step next we find a curious little section that says the act binds the crown see the starting position for legislation is that it usually doesn't apply to the government or to government agencies where you can see though that we hardly want government agencies to be allowed to bully children so many acts including this one include this short little provision that says in effect this Act also applies to agencies of the government remember in the second video in module one the history video we talked about how Federation was important because it allowed the country to make extraterritorial legislation legislation that applied beyond Australia's borders well this legislation is an example see Facebook doesn't live in Australia who really knows where Facebook lives and we don't really care if Australian children are being bullied we want to protect them so in this section it clearly says that the Act extends to things outside Australia so a social media site outside Australia or a person posting bling material from outside Australia can still receive a demand from the east safety commissioner and can still in theory at least be punished for offences under this act now that's unlikely to bother individuals who are not located in Australia but it'll certainly bother businesses who intend to do business in Australia okay one more thing before we get stuck into the key provisions of the act itself and that's this section 12 you see Australia is a party to an international agreement called the United Nations Convention on the Rights of the Child now international agreements are not automatically Australian law the government has to actually pass legislation to make those agreements binding on you and me as individuals in this case what the Parliament has said is hey II safety commissioner when you're going about your duties bear in mind the Convention on the Rights of the Child keep that in mind when you make decisions under this act and carry out your duties as much as you can in a way that's consistent with that convention for us as law students it means if we want to know how this whole system is going to work we're also going to have to become familiar with that Convention and how it works all right finally we're ready to look at the core provisions can you see how much we would have lost if we just gone straight to those provisions I mean your firm might have been approached by a social media company saying that they've received a formal warning under Section of 37 of the Act but if you went straight to that section of 37 you wouldn't have learned any of the things that the legislation continued in the short title in the long time in the contents in the commencement provision in the simplified outlines in the definitions binding the crown extraterritorial application and the relevance of an international agreement how could you possibly expect to get it right you'd be behind the eight-ball from the start but we've done the hard work and now we can turn to the provision itself we're going to start with that section I mentioned a moment ago section 37 consider the following situation how can we help well I run a small social media site called tight rope basically it's for people in the magic and acrobatic performance industry we're not Facebook but it's got a reasonable following and it's a good way for people to form partnerships and get gigs together okay so you know how all the magic tricks are done strange that you mention that really it turns out that on one of our discussion boards recently one of our members has been accusing another one of telling secrets breaking the magician's code now other people on the site are calling that person rude names and refusing to work with them or even to acknowledge them I figured these things happen online right particularly if a person was actually telling secrets but even if not sometimes people aren't entirely like grown-ups anyway the person stopped using the site and I thought that was the end of it next thing I know I got some random letter from the government telling me to remove references to this person from the site I just kind of shrugged it off after all they've left right next thing I know I've got one of these warnings talking about pretty serious sorts of consequences well I don't really understand it hoping you do now looking at the letter would tell you it was a formal warning under Section 37 of the enhancing online safety act if you rushed off to section 37 let's do that you'd find it's actually not very helpful at all all it says is the Commissioner may issue a formal warning if the person contravene section 36 meaningless but that takes us back to section 36 huh that's not much more help what it says is a person must comply with a requirement under a social media service notice to the extent that the person is capable of doing so and there's a penalty there 100 penalty units we'll talk about those later to make sense of that we've got to work out what's a social media service notice well we have an idea that we because we've been clever enough to read the Act properly we also have an idea who the Commissioner is if we jump back to the contents page we can see straight up that section 35 ought to tell us what a social media service notices we open it up and there it is right there it seems the social media service notice is a notice requiring the social media service to remove bullying material within 48 hours of the notice being issued all right so let's stream those three sections together shall we if you get a social media service notice under section 35 you're supposed to remove the material within 48 hours if you don't then you may have committed an offense under section of 36 and if you've contravened section 36 that's when a formal warning might be issued under section 37 see how slow careful reading helps here to put it all together interestingly though there are some things that need to happen before a social media service notice Commission have a look again at the first part of section of 35 when you watch the following little well hang on before a formal warning can be issued a few other pieces of the puzzle have to fit together first the first thing we need to find out is whether you've got a tier 1 or a tier 2 social media site do you have any idea of what I'm talking about yes when I registered the site with the taxes I got a letter from the e Safety Commissioner in the site business it as a tier 2 site I have the certificate here somewhere it means I have to have a complaint policy which I do but I've never really thought that about it I have a little stuff like this okay so you're a tier two site did the person who was being attacked the one that may have actually revealed the magician secrets actually make a complaint about the material - no let's go back to the e Commissioner the way I read it they can't even begin the process unless the person makes a complaint to you first can you see how a careful reading of the statute gave us a good solid understanding of the scheme so that when we finally got to the key provision section 35 we could read it intelligently now don't get too wrapped up in the details of that section now later in in in this module we're going to look at some techniques for analyzing those sorts of provisions the point is that those key operative provisions are surrounded by other helpful provisions and you need to get your head around all of them for the act to make sense now there's a few other bits of the legislation that I want to explain before we go much further first like many other acts this Act needs to create some supporting infrastructure for the rest of the Act see the scheme is that if the person makes a complaint about bullying online and the social media service does nothing about it well that person should be able to complain formally and get something done to get the material removed of course that means that a government agency has to be created and rules have to be established for how it operates that's what most of the rest of the legislation does part seven creates the office of the e-safety commissioner and gives them a bunch of powers part eight talks about how it's financed part nine talks about how they can deal with information and part ten includes a bunch of detail provisions giving the e-safety Commissioner the powers they will need in order to operate I'll be straight with you most of this is not exactly an interesting read but it's vital in order for the skin to operate next I want to talk briefly about penalty provisions remember a few moments ago we ran into section 36 it's the one that said a person must comply with a requirement under a social media service notice to the extent that the person is capable of doing so and it added a penalty 100 penalty in us what's this all about well I'm going to assume that you don't need the concept of a penalty explained to you if you do the crime this is the time but there are a few things that need explaining the first thing to ask is will what's the penalty unit a penalty unit is an amount of money as you may know the value of money changes constantly with inflation so $100 in the 1970s would have been a couple of weeks wages a hundred dollars in the twenty teams is only enough to fill your car up with petrol and by Coke Zero so obviously if they listed fines in terms of dollars the parliament would be forever going back and changing the value of those fines otherwise what was intended to be a hefty fine 20 years ago would be meaningless now makes sense so instead they put it all as penalty units and then they have another piece of legislation just one piece of legislation which sets the value of a penalty unit currently 210 dollars so our 100 penalty unit fine is actually a fine of 20 one thousand dollars if the value of a penalty unit changed that only need to change it in that one place and the fines would automatically update everywhere else in the entire statute for its cool huh the second thing to know about penalties is that the penalties set out in the legislation it's almost always the maximum penalty so it's not the case that any breach of this section is going to cost you twenty one thousand dollars instead twenty one thousand dollars is the highest fine that a court could impose in the worst type of this offending now some legislation does impose a mandatory penalty or a minimum penalty that thank heavens this is pretty unusual I mean those decisions really are better left in the hands of judges who can consider all of the circumstances of the offending and the offender all right now I realize you're getting a deluge of information here and you're probably going to have to watch this video a couple of times but bear with me for just a couple more it's two more useful things you need to know within the statute the first is what we call a regulation making power or an enabling provision you see not all statutes are made by the Parliament sometimes the Parliament makes the general rules or the framework for a law and then it allows public servants to fill in the gaps so for instance the parliament might say that a person needs to apply for a particular license using the approved form but then it will say that the minister or the secretary of the department can approve the form that makes a whole bunch of sense I mean as we've already said in the previous video Parliament only has so much time and it would be a waste of that time to have Parliament constantly diverted by those small details in the act that we've been looking at the regulation power is right here in Section 108 now you can see the minister is given pretty broad powers to make rules relating to this act but there are a few sensible things the minister can't do how's the Commonwealth Parliament is keeping for itself minister can't create offences can't provide powers of the rest can't impose taxes can't spend money and can't override the rules made by the Parliament itself so you can see that even though unelected of public servants will probably be making rules under this legislation the minister will be responsible for them through the system of responsible government and the elected members of parliament have kept the most important powers for themselves okay last but absolutely not least every piece of legislation also has an accompanying section called the notes or the endnotes now these notes are not actually a formal part of the legislation themselves but they're an important source of information about the legislation in Oslo you can access the notes by clicking this link up towards the rock top right-hand side of the screen and in the pdf version of the Act then notes Australia I found strangely enough at the end the first thing the endnotes do is show you any piece of legislation passed by the Parliament which has amended or otherwise affected this piece of legislation and the dates that those changes commenced most of the time I skip past that at first and go right on to the next part of the invites where it breaks down every single section of the Act which has been affected by other legislation and tells you how now our main focus has been on section 35 and you can see here that section 35 is not listed which means no other act of parliament has changed or affected so we're good to go if however we've been focused on section 71 we can see that it is listed as having been amended by act 51 of 2017 see there's one of those numbered acts okay we can skip up here and see that act 51 of 2017 was the enhancing online safety for children Amendment Act 2017 and we can see that its amendment commenced on the 23rd of June 2017 so this is another way to be absolutely sure that those parts of the Act you're referring to were actually in force at the time that you're interested even before watching this video would you have ever believed how much different information is packed into a piece of legislation when as law students and as lawyers it's absolutely vital that you know how to read and interpret all of those different aspects of the legislation in the next video we're going even deeper we're going to look at different guides and tools that are available to help you to be absolutely sure at least as sure as possible that you're reading the legislation in the same way that the court would giving the same meaning to every word and every sentence these are the fundamental skills of a lawyer and you're building them every minute

Channel: Anthony Marinac

Views: 4,385

Rating: 4.9540229 out of 5

Keywords: law student, law study, legal research, reading legislation, statutory interpretation, AUSTLII, Federal Register of Legislation, statutes, regulations, legislative instruments, parliament, extrinsic materials, intrinsic materials, commencement provisions, noting up

Id: urQmB-cqI88

Length: 36min 51sec (2211 seconds)

Published: Wed Apr 18 2018