Video #7: Statutory Interpretation

[Music] this is Derrick William Bentley Bentley was 19 years old and intellectually impaired he was high-functioning but clearly unable to process information or language with the competence of a normal 19 year old on the 2nd of November 1952 Bentley and an accomplice named Christopher Craig tried to burgle the warehouse Craig had brought with him a pistol was part of their kid they were disturbed by a police officer and there was a standoff the police officer demanded that Craig give him the gun Bentley yelled out let him have it and Craig fired wounding the police officer another police officer came to help and Craig shot him - killing him instantly Craig was 16 at the time and so could not suffer the death penalty but Bentley was hanged as his accomplice at 19 nearly 70 years later we still don't know for sure what Bentley meant when he said let him have it did he mean Craig give the officer your pistol like he's demanding well did he mean let him have it shoot him you see that's the awful beautiful thing about our language words and phrases can be more than one meaning words are almost never completely ambiguous and even subtle rearrangements of words or punctuation can completely change the meaning of what we write unfortunately the law is no different so when you're reading a statute how can you be a hundred percent sure that the meaning you are giving to those words is the same as the meaning the drafter or the parliament intended well that's the skill of statutory interpretation get everyone Anthony Mehra Nokia this video the last one in module 2 is a brief overview of statutory interpretation statutory interpretation gives us rules and principles which will never completely eliminate ambiguity but hopefully give us much more certain ways to read the law now there are a number of ways to approach this task one common approach particularly in the United States of America is to say well here are the words and they mean what they mean that's it pretty limited then frankly in my view pretty stupid approach because as we've just shown words hardly ever just simply mean what they mean in Australia the Parliament has actually written into the law in the Commonwealth and in the states that when we read legislation we should take what is called a purposive approach that means when reading a statute we should have in the back of our mind the question what is this act trying to accomplish what is the section trying to do and we should read the words of the section as far as possible in a way that is consistent with that purpose now that doesn't mean we just get to ignore the words of the statute altogether of course we can't just say oh well this is the purpose of the legislation so we'll go with that regardless of what the actual words say but when reading those words don't you think it makes sense to have in our mind not only what the words say but also what the Parliament was trying to achieve when it wrote them the thing is of course that when we say that we really open ourselves up to a whole new argument because how do we tell how do we know exactly what the intention of the statute is especially if the statute itself is capable of bearing more than one meaning well the law considers that there are a number of different guidelines available to help lawyers the courts and members of the public to understand intentions of a piece of legislation those are divided into intrinsic AIDS which are found within the legislation itself and extrinsic aids which are found in other documents as an expert lawyer you will need to be able to use both types of guides effectively so let's have a look at them starting with the intrinsic materials because we've met a lot of those in our previous video intrinsic materials are particularly powerful because they've all been passed by the Parliament itself and granted assent by the crown so they have every bit as much power as the words of the statute itself the first intrinsic guideline that I want you to think about is the long title now remember from the last video unfortunately in this day and age most long titles I really however if you come across a good one it will tell you right then and there what the overall intention of the legislation is for example the Australian Human Rights Act 1986 Commonwealth has the following long title an act to establish the Australian Human Rights Commission to make provision in relation to human rights and in relation to Equal Opportunity and employment and for related purposes see how the long title tells you pretty much all you need to know this is an act designed to protect human rights rather than to restrict them it has a particular focus on equal opportunity and employment and it establishes a new government body the Australian Human Rights Commission which is obviously going to have responsibilities in that area now that won't necessarily tell you the reason for a specific section of course but if you know the purpose and intentions of the Act as a whole that'll certainly help you to understand what contribution any specific section might be making to that overall purpose the second thing to look for is of purposes or objects section now these sections really only started creeping into our legislation after the purposive approach to statutory interpretation became dominant essentially in these sections the Parliament is saying to the lawyers and to the courts look we know that when you interpret this legislation you're going to be thinking about what our intention was when we passed the Act so to save you some trouble we figured we might just write it down right here in the act it's helpful they think let's have a look at a really great example now the environment protection and Biodiversity Conservation Act 1999 Commonwealth I love this act and not just because I hope to work on its implementation it has such a good purposes of course first it tells you the objects those are a to provide for the protection of the environment especially those aspects of the environment that are matters of national environmental significance and be to promote ecological sustainable development through the conservation and ecologically sustainable use of Natural Resources and C to promote the conservation of biodiversity and D to provide for the protection and conservation of heritage ie to promote a cooperative approach to the protection and management of the environment involving government's the community land holders and indigenous people F to assist in the cooperative implementation of Australia's international environmental responsibilities G to recognize the role of indigenous people in the conservation and ecologically sustainable use of Australia's biodiversity and H to promote the use of indigenous peoples knowledge of biodiversity with the involvement of and in cooperation with the owners of that knowledge but then the act goes even further and tells you in brief how the act is going to do these things you can read just that one section and still come away with a pretty good overview of this piece of legislation and if you don't read that one section well I reckon you're going to struggle just a bit to understand any little piece of what is really a very large piece of legislation now remember when we looked at the enhancing online safety act in the last video we came across a couple of simplified outlines of the legislation these are not quite as straightforward as purpose clauses because simplified outlines tell you more about what the Act is trying to do rather than why the act is trying to do it or how it's meant to be accomplished however those sections the perb the simplified outlines are still very useful because they show you how the various pieces of the legislative puzzle fit together they show you what each or each division is trying to contribute to the overall goal again that can be very helpful in determining the intended meaning of a specific section the next one sounds too obvious to even mention however the dictionary or the interpretation section or the definitions section they're all the same in each act are obviously there to tell us how to read the legislation they give us the specific meaning which the Parliament intended to attach to specific words now looking beyond the obvious this is necessary for a couple of reasons for one thing legislation will often use technical terms which are very important in the area being regulated but which might not be immediately apparent to the average reader obviously it can be helpful to have those meanings pointed out perhaps more importantly though some words have specific legal meanings for example in normal English the word determine means to figure something out so you say you're gonna determine what the taxi fare will be and that means you're gonna figure it out in legal writing though determined sometimes means finish or end so if you determine a contract or determine someone's appointment will determine a license it doesn't mean you're figuring those things out it means you're ending them or cancelling them a definition in the Act can obviously be helpful here definitions in legislation also take on another form called an inclusive definition this is where the definition doesn't actually tell you the meaning of the word however it gives you an indication of things that are included in the definition usually this is a non exhaustive list but it's almost always helpful in working out what the Parliament actually intended the word to me incidentally what happens if the Parliament doesn't define word in the dictionary well in that case the word bears its standard English me that used to mean its meaning in the oxford english dictionary but nowadays many australian courts rely on the Macquarie dictionary the final intrinsic guide that I want to mention is the headings each section has its own heading at each division in each part of each chapter now depending on whether the drafter was any good those headings can sometimes be extremely helpful as guidelines to what the section is intended to me there are many examples of good helpful section headings I've opened more or less at random the research involving human embryos Act 2002 section 11 you can see is headed offense use of embryo that is not an X s AR T embryo now I'm not familiar with that acronym I'm going to guess that it means an assisted reproductive technology embryo but the act isn't going to keep me guessing because on that same contents page you can see there's a section called meaning of access AR T embryo perfect see how helpful a good section heading can be okay so much for the intrinsic guidelines what are the extrinsic guidelines and how can we use them extrinsic guidelines as you might expect are found outside the statute itself that means that in most cases the parliament has not passed them and so they don't have as much inherent strength as the intrinsic provisions having said that their use does have statutory backing and their contents often make them very helpful indeed let's start with the most helpful one of all the explanatory memorandum you might remember that we've come across the e/m in video 2 of this module where we learned that the Minister tables the explanatory memorandum at the same time that the bill itself is being tabled so during the first reading we also learned that the explanatory memorandum is supposed to be a plain English version of the bill let's look a little more closely at explanatory memoranda and see what they can tell us so first things first how do we actually find an explanatory memorandum because doesn't matter how useful the contents are if you can't get your hands on them honestly it's really easy you choose your jurisdiction let's go with Western Australia then you could W a legislation and then down the bottom here we have W a builds explanatory memoranda then we go to the relevant letter in this case W then select our bill the workplace reform bill 2013 click on that and then over here we can download the PDF simple ok what if the Federal Register of legislation is more your style well it's easy there too from the main page instead of selecting ax you select builds because remember the explanatory memorandum was tabled when the legislation was still just a bill then we'll click en for enhancing and scroll down here's our friendly bill and just above it is the 2017 bill which you might remember amended it so we've got two explanatory memorandum we can look at we start by clicking the bill and then we click the explanatory memorandum link and there it is easier than finding a decent cat video now in case that's not enough there is one more place you can find the explanatory memorandum and that's on the parliaments own website we go into the home page and click bills now it's just a tiny bit tricky for a moment because the parliaments default search assumes you're looking for current legislation and we're not so under search all bills we select more options to muck about with the search settings we unclick all of the current bills and instead click Royal Assent because we already know this bill that's passed and assented to we then select the forty-fourth parlor because the date ranges are right for our bill which was introduced in 2014 we stick enhancing in is our keyword and there's our bill in the results we can just click explanatory memorandum and go straight to it not quite as simple as the others but now you've got three separate research strategies under you go cool okay we've got our explanatory memorandum let's open it up and see what's inside the first thing that the M does is to give you a general outline of what the bill does and how it came to be so straight away we read that this was an election commitment in the 2013 election it then outlines in general terms the scheme that is going to be set in place this is just about the perfect way to understand very quickly a complex piece of legislation the e/m then talks about how much all of this is going to cost to set up and then on an ongoing basis next there's quite a long discussion about the bill's impacts on human rights I bet you never knew that every piece of legislation that goes through the parliament has to be assessed and explained in terms of its impact on human rights but isn't that awesome next there's the regulation impact statement this is quite long but it really answers two questions first why do we need a new law is there some other way we can achieve the same thing without making new laws and second why is this law the best way to go as we scroll through you can see that this is really really detailed and most people will read most legislation without even bothering to open the explanatory memorandum I mean are they nuts finally we get to the notes on clauses where they go through every single section in the legislation one by one and explain why that section needs to be in there and what it's supposed to accomplish can you see how if they're done well the explanatory memorandum can be mind-bogglingly useful when it comes to understanding legislation yet a great many students and even a great many Lewis read legislation without even once opening the a.m. when seriously be smarter than that okay the next extrinsic guideline I want to talk about is the second reading speech which in some jurisdictions is called different things like the introductory speech remember the second reading speech it's the speech given by the minister when they kick off the second reading debate and the purpose of the second reading debate is to debate the policy or the reasons behind the bill so the second reading speech is where the minister explains to the Parliament what the government is trying to achieve with this legislation and how it's all supposed to work now obviously that's going to be pretty helpful when it comes to interpreting the legislation however there is a big however that you have to bear in mind when it comes to the second reading speech you see the second reading speech is always political in nature and it represents the political views of a political party it's also made before the second reading debate and before the consideration in detail before the other chamber gets to have a chop at the bill so you need to be aware of the political realities of the second reading speech it's often not going to be particularly fair and balanced and the bill might well have changed substantially by the time it's actually passed having said that it is often the clearest and most straightforward outline of the government's intentions in passing the bill it's therefore usually a good place to start okay so how do we find one well the process varies slightly from state to state but if I show you how it's done in the Commonwealth you should be able to fairly readily adapt that to your home jurisdiction to find the second reading speech we start out by taking exactly the same approach that we did to find the explanatory memorandum on the Parliament House website we click on bills then muck about with the search terms to select the right Parliament and look for bills that have received Wireless sent and sticky in a search term to make life easier click the title to bring up the bills page and then down here you can see the ministers a second reading speech easy-peasy but next thing I want to talk about is called the axe interpretation act how boring does that sound every state has an equivalent although in some states that's just called the interpretation Act now I'm describing this as an extrinsic guide because it's not found in the Act itself but this one's a bit different because it actually is an Act of Parliament so it carries that level of strength so what is the axe interpretation Act well it's kind of like the master key that unlocks all other legislation in fact there's way more in the axe interpretation Act that I can possibly take you through right now but here are a few highlights these are from the Commonwealth version of the Act section 2 capital G talks about months you see months can be tricky because they're not all the same length so let's say you've got a month to appeal a decision and that decision is made on January the 31st well there is no February the 31st so when is the month up well this section sorts out that confusion and the answer is you'd have until the end of February the 28th in most years or February 29 in leap years let's have a look at section 13 section 30 makes it clear that things like headings are in fact part of the Act they're not just helpful bits and pieces that are inserted into the Act but are separate from the provisions they have the same strength as the provisions they are a legislative part of the Act section 15 capital a capital a is one that we've already been talking about without you really knowing it this section says really clearly that the courts should prefer an interpretation of legislation that would best achieve the purpose of the legislation so this is where the law says you should be using a purpose of approach to legislative interpretation and then there's section 15 capital a capital B which is like a companion to that section and it says that extrinsic material can be used to help interpret an act so the rules that we've been talking about for this whole video this is where they're found then there are some other interesting ones section 23 says that words referring to any gender are taken to also refer to any other gender and that words which are singular are also taken to be plural so if there was for instance a law that said you may not kill a person you can't get out of it by killing two people and arguing hey but I didn't kill a person section 36 section 36 is really nifty what if an actor says that you need to respond to a government request within seven days after receiving that request you receive the request at 9:00 a.m. on Monday the 10th so is Monday the 10th day one out of seven or does the count start from the next day section 36 answers this question the count starts from the next day and a bunch of similar questions about how to calculate time for the purposes of the legislation section 37 capital a is about birthdays so we know you become an adult when you turn 18 well let's say that you were born at 8:07 on the 27th of december when do you become 18 is it 807 on the 27th of December 18 years later or is it the start of the 27th or are you still a child on the 27th then you become an adult on the 28th well section 37 capital aces you reach your new age every year at this start of your birthday cool huh this is just a smattering of the things that the axe interpretation Act does it also includes definitions for a whole bunch of words commonly used in legislation it includes other basic principles for reading and understanding legislation basically despite its boring title this is a colossally useful little act and you really want to spend some time getting to know it next let's talk about international instruments these are things like agreements which Australia as a country enters into they can be as simple as a specific agreement between Australia and one other country or they can be as complex as a large United Nations treaty involving virtually every country in the world now just because Australia signs a treaty doesn't make that treaty Australian more treaties can affect the law in Australia in two broad ways the first is that sometimes the Parliament will take that international law and pass it as Australian law if that happens that it's obviously binding because it is the law the second way is a bit more subtle but we've already run into it once remember in the enhancing online safety act there's a provision which tells the Safety Commissioner to carry out their function with half an eye on the UN Convention on the Rights of the Child well it makes sense that in that case when reading and interpreting the enhancing online safety act we too should be referring to that convention so if the government says that a piece of legislation is being implemented in order to carry out obligations which Australia has under a treaty then the treaty itself becomes an extrinsic guide to understanding that legislation so those are the extrinsic materials there are others but I'd say those are the key ones so at this point we've talked about the fact that when reading legislation we look to the intention of the ledger rather than just the bare words and to find that intention there are a range of helpful sources both within the legislation those are the intrinsic sources and outside the legislation the extrinsic sources there are still just two more things to think about when it comes to reading legislation the first involves a bunch of little sayings known as the canons of interpretation no not the sort of canons that fire cannon box these are some old traditional rules regarding how laws should be read now it's important to understand that these rules are very old and they come from a time before the purpose of approach to statutory interpretation was common as a result they were once much more useful and much more common than they are now however they do still get use and it's still a good idea to know them let's look briefly at a few the first one is nos that are associates this means that the meaning of a word is derived from its context now that's a pretty much common sense and we do this in the English language every time we use a word that can have more than one meaning so for instance the word Park is sometimes a place where children play on the play equipment and families go for picnics and Park is also something that you do to a car when you're finished driving if there is a sign that says do not park beside the road then the context tells us that they're banning vehicles from stopping they're not banning play equipment the next one is a Usedom generous this one's quite nifty it means that general matters are confined by specific letters okay that's pretty meaningless right what it really means is that if a piece of legislation has a list and at the end of the list there's a kind of a catch-all then the catch-all is limited to the things of the same type as the rest of the list the usual example everyone gives these vehicles so if piece of legislation says that cars trucks buses and other vehicles are prohibited from a pedestrian mall during daylight hours what would be meant by other vehicles would a baby carriage be counted as a vehicle a pair of rollerskates a mobility scooter a remote-control car well a used em generous would suggest that we're talking about vehicles which carry people and which are normally driven on the road so even though from one perspective you could say that a baby carriage rollerskates mobility scooters and remote-control cars could all be considered vehicles a Usedom generous suggests that they'd be okay to use in the pedestrian war next we have a pair of Latin Maxim's which you might come across and which mean virtually the same thing expressio unius EST exclusio alterius and expressing facets sr8 as item they both mean loosely that the clear expression of one thing excludes those things which have not been expressed let me make that a little clearer let's say you have a piece of legislation that says an application may be made on the authorized for seems simple enough now let's say someone wanted to make their application on a dinner napkin or the back of an envelope they might say well hang on that legislation doesn't say that I can't make my application on the back of an envelope well expressio and expressin they fix that up those principles make it clear that if the parliament has clearly expressed one way of doing things the effect of that is that they have excluded the other ways of doing things really though good drafting practice should sort this out if the drafters had just written an application must be made on the authorised form then we wouldn't have a problem the final latin maxim that will consider is generally especially Ali was not derogate this one tells us that if general and specific provisions of legislation contradict one another the more specific provisions are the ones which take precedence so let's go back to our earlier example with the vehicles imagine that there were two provisions the first is a general provision which says vehicles are not allowed in the pedestrian mall during daylight hours the second is a specific provision which says emergency service vehicles are allowed in the pedestrian mall during daylight hours in the course of their duties now pretty clearly those provisions don't go together I mean each of them contradicts the other because if emergency vehicles are allowed in then it's no longer the case that vehicles are not allowed in the mall right so generally our resolves this by telling us that the more specific provision takes precedence so the result is the vehicles are pre vehicles are prohibited from the pedestrian mall unless they are emergency vehicles in the course of their duties so those are Latin Maxim's honestly in this day and age it's pretty rare to rely on them because modern drafters tend to draft legislation far more effectively in a way that removes the need for these Maxim's gosh we've covered a lot of material in this video we're nearly done I promise we're nearly done but there are still a few more things I can tell you which will help you to better understand the legislation that you'll be dealing with as a student the next one I want to mention is called noting up now you've already learned that when the meaning of a provision is disputed the most likely outcome is that the parties will end up sorting it out in court so the court will look at the provision and listen to arguments from both sides and it'll decide what the provision means and then it will usually publish that decision now it makes sense doesn't it that if you want to know the meaning of that same provision you're gonna want to know if the court has already looked at it I mean if the court has already decided what a certain provision means then in some ways the work is already done you can go to that decision read the provision and know a whole lot more about its into tation than you could ever guess on your own so it's really important to find out if a provision has ever been considered by the court we call this process noting up until you've noted a provision up you can't be confident that you understand it properly the quickest and easiest way to note up a provision is honestly you open the provision you're interested in and you click note up that runs a search throughout all sleaze database for any cases or any other statutes or any journal articles which mentioned our provision the difficulty with this method of noting up is that it can be pretty indiscriminate the search returns every case in which our provision has ever been mentioned that doesn't necessarily mean that in each of those cases the court actually sat down and considered the meaning of the provision our provision might have been completely incidental to the dispute in most of those cases so you can spend a long time working your way through the results to try to identify the cases that are actually useful to you okay we're nearly at the end now the last thing I want to talk about is delegated legislation we've come across delegated legislation a few times in this module already this is the bits and pieces legislation that's not actually made by the Parliament but rather is made by the public servants under the parliaments authority things like regulations how do we read and interpret these well in most cases the process is going to be exactly the same as for the principle legislation the second reading speech and explanatory memorandum for the main legislation will still be useful and sometimes the regulations even get their own explanatory notes so you read those regulations just as you would read the principal legislation there are however two differences to be kept in mind first you need to consider the sunset provisions which might affect legislation what are these well when the Parliament itself makes law the law is permanent it stays in effect until Parliament changes it or repeals it however delegated legislation is a bit different in most jurisdictions delegated legislation has a lifespan of 10 years after 10 years the regulation automatically ceases to have effect and the public servants have to consider all over again whether to make those regulations so in looking at a regulation it's doubly important to check the commencement date of the regulations if the regulations commence more than 10 years ago they might not still be in effect second you have to keep in mind that delegated legislation is just that it's delegated let's go back to the enhancing online Safety Act 2015 you might remember from the last video that section 108 provides the authority for the minister to make delegated legislation now if we look at that section again we can see a couple of interesting things first up there isn't a general license to the Minister to make whatever rules he or she wants the rules must be required or permitted by the Act or else necessary or convenient for the Act to be effective so if the minister decided to try to make legislative rules that had virtually nothing to do with the Act then those rules can be challenged now that's pretty unlikely though the second bit of section 108 is a bit more restrictive I've already mentioned it in the last video the minister can't make delegated legislation which creates an offence or penalty gives anyone the power of arrest search or seizure imposes a tax spends public money or changes the Act itself so a regulation which did any of those things would therefore be invalid what all of this means is that as part of interpreting delegated legislation you need to actually confirm that they'll delegated legislation is within power that it's not breaking any of the rules established by the Parliament that means going back to the principal act and finding the equivalent of section 109 the section which authorizes the delegated legislation to be made now I've got to say 999 times out of a thousand the delegated legislation will be within power and it'll be fine but your client deserves for you to make the effort to check anyway well so here we are at the end of module two we've really covered a lot of ground in these four videos but it's been worth it now all of a sudden you understand more about the Parliament than probably 90% of all Australians you understand a lot about the process of making legislation which means that when you read and act you're thinking about the process behind it and not just the words on the screen you've learned how to actually read that legislation not just reading it as a document but looking for all the extra clues and guidelines which will allow you to read it deeply and finally you've had a brief introduction to statutory interpretation here's the thing though from this point forward you will fall into one of two categories of student some of you will take all this information and you'll apply it every single time you deal with a statute and it'll take you longer to read statutes but you'll get it right and then there are those of you who will remember some or even most of this material without actually using it I personally guarantee that if you're in the first group the students who remember and use and apply this material then you will be a more successful law student and a more successful lawyer now in module 3 we're going to leave the Parliament and statute behind for a while and focus on the other key source of law courts and the authoritative cases that they pass so at the end of module 3 you'll have a strong overview of all the key sources of Australian law until then though I suggest you go and grab a chocolate or something and reward yourself you've earned

Channel: Anthony Marinac

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Length: 42min 3sec (2523 seconds)

Published: Wed Apr 18 2018