Topic 1: Overview of the Common Law System in Australia
Understanding the Australian Legal System
Classification of Laws
Primary basis is division between public law and private law.
Public law deals with areas of law where the interests of the public are the overriding factor (e.g.
administrative law, constitutional law, criminal law, industrial law, taxation law).
Private law deals with individual rights and the relationships between private citizens (e.g. law of contract,
law of torts, law of property).
There is overlapping between private and public law (e.g. a battery is a crime (public law) and a tort
(private law)).
Administrative Law
Within administrative law, the parliament makes the law and the executive (the government) carries out
the laws. Parliament can delegate its law-making powers (e.g. to civil servants, councils or other
government bodies). Courts are able to review the actions of those with power.
Constitutional Law
Constitutional law involves the study and practice of the laws and procedures of the Constitutions of
countries and states. Australia has a written constitution which establishes the Commonwealth of
Australia. It regulates the legislative powers of the Parliaments of the Commonwealth and States.
Criminal Law
Crime is a wrong against society. It may be a wrong against the morality of the community, or may threaten
the peace and order of the community, or may conflict with established policy of the governing body of
the community.
The normal breach of criminal law results in a fine or a jail sentence.
Industrial Law
Industrial law has a private and public component, and covers the industrial relationship between
employers and employees, workers’ compensation and industrial safety regulation.
Taxation Law
Individual cases may be private law, but taxation law is an area of public law.
The Common Law
As a System of Law
The Australian system of law is a common law system (along with England, Wales, USA, Canada, New
Zealand, India and Singapore). It depends on an adversarial system and legal precedent, and is a mixture of
customary law, judge-made law and parliamentary law.
The other systems of law are Islamic Law, Civil Law and Roman Law. In the civil system, the judge plays a
more active role (inquisitorial) and codes are used.
As a Source of Law
The common law may also be used to say where our law comes from. It consists of the rules of common
law and the principles of equity. This distinguishes it from other areas of law (e.g. statute law, delegated
legislation and international law).
As a Division of Law
The common law may also be viewed as an area of law with its own rules, remedies and procedures.
It is different from other substantive areas of law. The two other divisions of law are the principles of
equity and statute law.
Topic 2: Development of the Common Law in England
Customary Law in Pre-Norman England
Customary law refers to law that develops from the customs within a particular society or within a group in
a particular society. It has the following characteristics:
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It arises through, and is enforced by, its recognition and general acceptance
It is not based on written law and is passed down through spoken law
It was essential for everyday existence, and directly related to survival (covered areas such as personal
protection and personal property rights)
Customary law varied significantly across the various pre-Norman kingdoms in England, since it varied
with the different habits and attitudes across the kingdom.
Roman Britain
Prior to the Roman invasion in AD 43 (withdrew in AD 410), the Celts ruled Britain. Celtic religion and
customs were not written down, but were recognised, accepted and passed onto future generations.
This Celtic customary law may be contrasted to the codified system of Roman law that developed during
the period of the Roman Republic.
Despite Roman occupation, the Celts used their own customary law (the Roman law only applied to the
Romans).
The Anglo-Saxons
Anglos, Saxons and Jutes
In two centuries after Roman withdrawal, Britain was invaded by the Angles, the Saxons and the Jutes.
The Celtic tribes were pushed west (Wales and southern Scotland).
The Anglo-Saxons and Jutes bough their own customary laws (Anglo-Saxon law also differed between its
tribes), which also differed from the Celtic law. Anglo-Saxon law was applied through general meetings of
members of the tribe, rather than any formalised court proceedings.
A common law in England did not start to develop until after the Norman Conquest (1066).
The Dooms
Following the Danish invasion (9th century), King Alfred attempted to unify the customary laws of the
different Anglo-Saxon Kingdoms. The Dooms of Alfred contained laws covering officials, revenue
collection, methods of proof and the administration of justice, and details on punishments and fines.
Although The Dooms were not a codification of Anglo-Saxon customary law, they did form part of the
process of unification of the kingdom.
They did not have any significant influence on the development of common law because centralisation of
the administration of justice was yet to be achieved.
Following the Norman Conquest
The Conquest
William, Duke of Normandy, defeated King Harold in the Battle of Hastings in 1066, to become the first
Norman King of England.
William I: 1066-87
Anglo-Saxon Law
William did not attempt to make any significant changes to Anglo-Saxon law:
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He promised people could live under the Anglo-Saxon law in place at the time of Edward
He realised it would be difficult to replace Anglo-Saxon law with Normal Law
The Normans did apply their own land law (Continental feudalism), so disputes over large areas of land
were brought before the King’s courts for determination. The decisions of these courts started to be
followed in later trials (precedent).
It was important to develop a body of land law that could be applied consistently to disputes concerning
land wherever that land was situated across England.
Early land law was an important influence over the development of a common law in England.
Centralisation of Government
Following the conquest, William I introduced a ‘strong central government’. The strong central
government provided the basis for a centralised system for the administration of justice in England. It
created the basis for the unification of laws.
This provided the basis for a centralised system for the administration of justice in England, but did not
create common law. This is because the villages were rural and still relied on local customary laws to
provide certainty and stability.
Latin and the Hybrid Anglo-Norman Language
During the Conquest, Latin was introduced as the official language of England (and the Anglo-Norman
language received recognition). This had two effects:
1. Latin introduced technical terms which were used as part of the developing legal language,
contributing to the formation of the new system of centralised justice
2. Anglo-Norman then provided necessary flexibility with legal terminology to enable the
development of the common law within the centralised system of justice
Ecclesiastical Courts
William promised to create separate ecclesiastical and secular courts, resulting in cannon law (church law)
being enforced in ecclesiastical courts.
Feudal Tenure
The introduction of feudal tenure following the Norman Conquest produced a fundamental change in
both the economic basis of English society and the administration of government and justice.
Feudalism developed as a mechanism of protection from invaders, whereby local people sought protection
and subsistence from the local lords and, in return, the local people provided services to the lord.
To maintain law and order, the King sent is warriors throughout England. In addition to having rights
over the land and the local people, the chief lords were responsible for governing and protecting the local
people (subinfeudation).
Feudalism operated as a system of administration based on land tenure and was effective in maintaining
law and order in England.
Henry II: 1154-89
Centralisation of the Administration of Justice
The centralisation of the administration of criminal and civil justice through the use of royal judges during
the reign of Henry II was a significant factor in the future development of a common law in England.
The emergence of a common law would not have been possible without this because:
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It was necessary to proved the institutional structure through which royal judges could develop a
systematic body of rules (which would eventually become the common law)
The development of a common law depended on recognised court proceedings such as the writ
system
Itinerant Justices
The King sent out royal officials to counties to investigate the conduct of local officials. The itinerant
justices had civil, criminal and administrative jurisdiction (called the General Eyre).
The Emerging English Legal System
King Henry II created the platform of the emergence of the English legal system, which provided the
basis for the development of a common law in England. This system was formed by:
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Trial by jury
Creation of central courts
The writ system
The Jury
Background
They were seen as a ‘body of neighbours’ who are ‘summoned by some public officer to give upon oath a
true answer to some question’. Prior to the trial by jury, other processes were in place:
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The Ordeals
Wager of law
Trial by battle
Trial by Jury
By the mid 13th century, there were two types of juries at trials:
1. The presenting jury – provided the court with information
2. The petty jury – determined the innocence or guilt of the person
Central Courts
Central courts did not exist prior to the Norman Conquest, but central administrative institutions did exist
in Anglo-Saxon times. There were two types of central administrative institutions:
1. The royal household – used by Anglo-Saxon Kings to take advice on day-to-day administrative
matters from government officials
2. The national assembly – they would meet when important issues of government arose
Curia Regis (The King’s Court)
The Curia Regis consisted of the king, royal officials and tenants-in-chief who, in return for holding land
from the king under the feudal system, had a responsibility to provide the kings with advice on important
matters of government.
At this time, travelling itinerant justices became common. The General Eyre (later known as Justices in
Eyre) extended the work of the Curia Regis across the country. They effectively spread the jurisdiction of
the Curia Regis across England (this had an important impact on the development of a common law).
Henry II realised that some centralisation of the civil jurisdiction of the Justices of Eyre was necessary to
achieve uniformity. New courts were developed, called the Court of Common Pleas (The Bench).
Court of the King’s Bench
The King’s Bench was principally concerned with the preservation of the king’s peace, but also had some
concurrent civil jurisdiction with the Court of Common Pleas. It also dealt with breach of the peace and
criminal cases.
The King’s Bench initially had five judges, but decisions were not made solely by them. They would refer
matters to the king and his council of royal advisors.
The Exchequer developed its jurisdiction as a revenue court.
The Court of Common Pleas developed into a court that dealt with the emerging common law forms of
action.
The Writ System
A writ is a command to a person from a sovereign directing the person to do something or to refrain from
doing something. A common law action could not be commenced without obtaining the appropriate writ.
If a writ did not exist that covered the particular circumstances of the dispute, no action could be
commenced without the consent of the landholder.
The writs were issued by the Chancellor (the King’s secretary).
The Register of Writs
The early writs were placed on a register. The development of the common law through the writ system
produced a strict, inflexible body of rules. This provided the basis for the emergence of a separate body of
law, the principles of equity.
Rise of Constitutional Law in England
Magna Carta, Rule of Law and Due Process
Magna Carta, 1215
The reign of King Henry II was followed by his sons Richard I and John.
John’s reign created much instability, and the Barons and Knights rose up against the King.
A meeting between King John and the barons and knights took place in 1215 and a verbal agreement was
reached on many issues concerning the role of the crown. This was recorded in the Magna Carta.
Rule of Law and Due Process
Chapters 39 and 40 of the Magna Carta provide the basis for two essential aspects of the rule of law.
1. No person can be charged with a criminal offence or deprived of civil rights or possessions except
through the due process of the law
2. The Crown is subject to the law
These are fundamental aspects of the rule of law that still exist today.
Emergence of Parliament
The word ‘parliament’ was not used in Norman England until the 13th century. The early parliaments were
just an extension of Curia Regis and were used to obtain royal revenue. This is because there was no real
sense of nationhood which was essential for Parliament.
Feudalism did not encourage trade between different parts of the country; however, with the development
of the wool trade, a greater sense of nationhood could be detected.
Provisions of Oxford 1258
The domestic and foreign policies became subject to criticism from barons and nobles.
Civil unrest grew, and cumulated in the Provisions of Oxford 1258, which provided for a 24 member
parliament (half chosen by King and half chosen by baronial council).
This effectively placed the machinery of government under the joint control of the king and the baronial
council. This was a significant step in the establishment of a representative parliament in England.
Model Parliament 1295
As a means of raising the necessary funds for war, King Edward I called a parliament consisting of clergy,
barons, two knights from each county and two elected representatives from each county.
This provided a model for future parliaments. It was unicameral, but it did form the basic structure of
future parliaments (with both commoners and lords).
The Glorious Revolution of 1688
It played a critical role in the rise of constitutional law in England, because three fundamental principles
flowed from it:
1. Liberty
2. Constitutional monarchy
3. Parliamentary supremacy
It took place when King James II fled England in 1688 and was replaced by William of Orange and his
wife Mary.
Constitutional Monarchy
The settlement changed the relationship between the Crown and Parliament, giving both of the m roles in
the functioning of government. The relationship formed a constitutional monarchy (the functioning of the
Crown was subject to the parliament to a greater extent then before the Revolution).
Parliamentary Supremacy
The Crown’s prerogative powers (common law powers) were subject to the statute law enacted by
Parliament. It also meant that the common law was subject to, and could be changed by, statutes.
Equity
Emergence of Equity
The Provisions of Oxford prevented the Chancellor from issuing any new common law writs.
People who were dissatisfied with the lack of relief available at common law petitioned the King in
Council for relief, and the King would refer the petitions to the Chancellor (formalised by King Edward in
1349).
The practise was further formalised into the Court of Chancery in the 15th century. The jurisdiction was
exercised on the basis of conscience (‘based in theory on universal and natural justice rather than the
private opinion or conscience of the Chancellor’).
The Judicature Acts
Separate Common Law and Equity Courts
Common law actions were heard in common law courts and proceedings for relief in equity were heard in
separate courts of equity.
Equity was a supplementary jurisdiction (only available where the common law did not provide an
adequate remedy).
The Acts
The Judicature Acts of 18377 and 1875 provided the solution to this problem by creating a Supreme Court
of Judicature with both common law jurisdiction and equitable jurisdiction.
Common Law, Equity and Statute Law
Where there is conflict between the principles of equity and common law, the principles of equity prevail
(s249 of Supreme Court Act 1995).
Statute law prevails over both common law and equity if this is the intention of parliament in relation to a
particular statute.
The relationship between the common law, equity and statute law is show in the case of Waltons Stores v
Maher.
Topic 3: Reception of English Law in Australia
Cook’s Instructions
The First European Explorers
The Dutch explorer Willem Janszoon captained the first European ship to Australia in 1605. After this,
various other European explorers explored its waters (p. 22 for details).
In 1768, Lieutenant James Cook received ‘secret instructions’ from the British Admiralty to make a voyage
of discovery to the South Pacific.
The Instructions
Cook was given command of the Endeavour to sail to Tahiti and observe the transit of the planet Venus
across the sun in June 1769. After this he was to explore the coastline of New Zealand and the eastern
coastline of New Holland.
Cook’s instructions also provided for the taking of possession of ‘Convenient Situations’ of the continent
in the name of the British monarch.
Cook reached New South Wales in 1770, then sailed north. On 22 August 1770, Cook took possession of
the whole eastern coast of the continent and named the possession New South Wales.
He recorded that the country was inhabited along the entire eastern coast.
Terra Nullius
The Concept
Under the international law, if a territory was considered by a nation to be terra nullius (land belonging to
no one), then the law of the colonising nation would be applied in the new colony.
This occurred in the penal settlement of New South Wales even though there were Indigenous
inhabitants.
If a territory was acquired through cession (by way of a treaty between the existing inhabitants and the
colonising nation), the law of the existing inhabitants would continue to apply.
If a territory was acquired through conquest, the law of the conquered people would continue to apply until
that law was formally changed by the conquering nation.
International Law and Colonisation
At the time of English settlement, the British were influenced by de Vattel’s The Law of Nations (1758).
Under natural law, wandering tribes could not be treated as owning land. Cultivation of land was so closely
connected to land ownership that, where cultivation of the land was not undertaken by the existing people
of a territory, this was an issue to consider in determining terra nullius.
Reception of English Law
Under the doctrine of reception, English law applied in the colony (because it was classified as terra
nullius).
Since the settlement was a penal settlement, the courts were military in nature because the new settlement
had been established to accommodate convicts.
According to Sir William Blackstone in Commentaries on the Laws of England, ‘such colonies carry with them
only so much of the English law, as is applicable to their own situation and the conditions of an infant
colony’.
Doubt existed as to the actual content of the received English law. The doubt concerned whether nonparamount English statutes and principles of equity applied to New South Wales from the time of first
settlement.
The accepted position is that non-paramount English statutes were received in New South Wales at the
time of first settlement; however, the principles of equity were not received.
The Australian Courts Act 1828
Section 24
This section clarified the extent to which the common law and statutes of England applied in the colonies
of NSW and Van Diemen’s Land at the date of the passing of the Act.
It has four major points:
1. Non-paramount English statues enacted after 25 July 1828 did not apply in the colonies; however,
paramount statues passed by the Imperial Parliament to apply in colonies would still apply (e.g. the
Australian Constitutions Act 1842 (Imp)).
2. Any laws and statues in force in England as at 25 July 1828 did not apply if they were inconsistent
with any Charter, Letters Patent or Order-in-Council that may have been issued to apply to the
colonies.
3. All laws and statues in force in England as at 1828 applied in the colonies only to the extent they
were applicable.
4. It was the duty of the Supreme Courts of NSW and Van Diemen’s Land to determine whether the
laws and statues in force in England in 1828 were applicable to the conditions of the colonies.
Reception of English Statute Law
s24 of the Australian Courts Act 1828 provided a date, not a source of the law. It was intended to clarify
the uncertainty that existed during the 1820s in NSW and Van Diemen’s Land.
The date of 25th of July 1828 is the date of reception of non-paramount English statute law in NSW and
Van Diemen’s Land. The date of reception of English common law in the colonies was the date of the
first settlement of Sydney Cove (26 January 1788).
The principles of equity were received upon the creation of the Supreme Court of NSW and the Supreme
Court of Van Diemen’s Land.
The date of reception of non-paramount English statute law in Victoria and Queensland is also 25 July
1828 (it was 28 December in SA, 1 June 1829 in WA, 1 January 1911 in ACT and NT).
Dormant Common Law
The common law can lie dormant until the conditions of the new colony change so that it becomes
applicable to the new conditions of the colony (see State Government Insurance Commission v Trigwell p. 31).
Colonial Laws Validity Act 1865 (Imp)
Background
The British Colonial Office recognised the growth of commerce, trade and free settlement in the colonies
and appreciated the need for local laws suited to the changing colonial conditions.
It therefore enacted the Colonial Laws Validity Act 1865 (Imp), which clarified when a colonial law would be
void for repugnancy. A colonial law was said to be void where it was repugnant to the provisions of an
Act of British Parliament.
Repugnancy – Sections 2, 3 and 4 clarified the position concerning repugnancy (p. 32).
Topic 4: Lawmaking and the Organs of Constitutional Government
Basic Features of the Australian Constitutional System
1. Australia is a federation of 6 states
o Legislative powers are divided between the Commonwealth Parliament and State legislatures
o The Commonwealth and each State has a separate executive government
o There are State Courts and federal courts with the High Court at the apex of the hierarchy
2. Representative democracy at both federal and State levels
o The legislatures (except in QLD) are bicameral with each House elected
o There is universal adult suffrage at both levels subject to certain disqualifications
3. The executive government (also called the parliamentary executive) is responsible to Parliament for the
conduct of government
o In the case of the Commonwealth, the PM and ministers and in the case of the states, the
Premier and ministers
o The PM and the premiers are commissioned because they have majority vote
o They can lose their confidence if:
i. Government loses as confidence vote
ii. Parliament denies supply
iii. Loses the general direction
4. Separation of the judicial and non-judicial powers
o Rigidly maintained by the High Court at the federal level
o Less so at state level
o Promotes the independence of the judiciary
5. Full judicial review
o Legislation (federal and State) can be invalidated on constitutional grounds
o Executive actions can be invalidated on constitutional grounds as well as unlawfulness under
general law
6. Constitutional stability
o The Commonwealth Constitution cannot be amended except by referendum according to s128
o State Constitutions are more easily amended subject to manner and form limitations set by
State legislatures
The Australian Judiciary
Importance of the Judiciary
An independent, impartial, competent, respected and accessibly judiciary is essential for constitutional
government for the following reasons:
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To ensure that government and public authorities do not exceed or abuse their powers
To provide citizens with means of vindicating their rights and protecting their liberties
Generally to maintain the rule of law
Independence
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Requires security of tenure of judges
Non-interference by government in the judicial process
Favourable conditions of service
Impartiality
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Judicial traditions
Common law rules of natural justice
Possibility of appeal
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Vigilant legal profession
Public confidence
Competence
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Sound legal education in law school and in practice
Appointments of merit (not politics)
Competence of the legal profession and other auxiliary services
Fair procedures
System of appeals to correct errors
Public (and academic) discussion of judicial decisions
Respect
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The authority of courts depends on public confidence
Public confidence depends on perceptions of independence, impartiality and competence
Disappointed litigants will accept judgements if the process is fair
Accessibility
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Cost of litigation must not be prohibitive
Move open competition in the legal services sector
Legal aid
The Australian Judicial Hierarchy
Original Jurisdiction
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Original jurisdiction is to hear a case in the first instance
It is typically commenced by a statement of claim in a civil case or a charge laid in a criminal case
This is the stage when the facts are found by trial and the law is applied to the facts
Some courts such as the Magistrates Court exercise only original jurisdiction
Magistrates Court tries minor offences and has power to hear civil cases up to a value of $150 000
The District Court and the Supreme Court exercise both original and appellate jurisdiction
The Court of Appeal (a division of the High Court) exercises only appellate jurisdiction
The High Court hears appeals from State Supreme Court
The High Court also exercises some original jurisdiction in matters specified in s75 of the
Constitution – they are matters with a federal dimension
Appellate Jurisdiction
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This is the jurisdiction to review an original court decision
The appellate court makes a decision based on the record of evidence taken in the original court (it
does not re-try the case)
The appellate court generally looks to see whether there were any material errors of law or error
concerning some crucial fact
An appeal to the High Court from a State Supreme Court requires special leave (s73 of the
Constitution and s35A of the Judiciary Act)
Special leave is not usually granted unless:
o There is a question of law of public and general importance
o It is necessary to resolve differences of opinion between courts as to the state of the law
o The court considers that it is in the interest of the administration of justice
The Hierarchy
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Every state has its own hierarchy of courts with the High Court at its apex
The State Courts also belong to the federal hierarchy of courts
S71 of the Constitution empowers the Parliament to vest federal judicial power in State Courts
The Judiciary Act (Cth) has so vested federal judicial power in State Courts (s39)
In Kable v DPP the High Court emphasised that State Courts are parts of an integrated hierarchy
of courts established by the Constitution
Modes of Lawmaking
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In a parliamentary democracy, the principle method of lawmaking is legislation
Legislation takes two forms: primary legislation and delegated (or subordinate) legislation
Primary Legislation
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Acts of parliament
Enacts general rules that apply to all persons or classes of persons
Legislation alters existing legal relations (rights and duties) prospectively
Also used for many other purposes such as creating statutory authorities
Subordinate (Delegated) Legislation
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Made by the executive branch, usually a minster, local authority or statutory body
Sub-legislation can only be made under authority delegated by an Act of Parliament (they can be
invalidated by exceeding authority)
Usually sub-legislation has to be placed before parliament for approval or disapproval
In practice Parliament has little time to scrutinise it
The usual types include:
o Regulations
o Rules
o By-laws
o Orders
An important type is local authority by-laws
The justification for sub-legislation
1. Parliament has no time to supply all the detail of legislation
2. Parliament has no technical expertise to determine the detail
3. Speed and flexibility (the details may have to be changed frequently)
It is desirable that the policy and principle of the legislation are determined by Parliament, leaving
only the detailed application to the executive
However, the High court has allowed the delegation of very wide lawmaking powers of the
executive
In recent times, Commonwealth and State parliaments have enacted legislation setting standards
for lawmaking
Note that the Act is not a constitutional provision and is often ignored by legislators
Quasi-Judicial Decisions
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Acts of Parliament also grant the executive the power to create rights or impose duties in particular
cases
Legislation is power of make rules of general application
In contrast, a quasi judicial decision only affects specific parties (lawmaking for the particular case)
Examples include:
o Granting or cancelling licences
o Tribunals fixing wages
o Orders acquiring private land for public purposes
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Quasi-judicial decisions must not be contrasted with purely administrative decision that do not
affect the rights of anyone
Rules of natural justice and procedural fairness apply to quasi-judicial decisions
Quasi-judicial decisions may be challenged in administrative law (judicial review)
Judicial Power and Judicial Lawmaking
Definition of Judicial Power
Judicial power has the following elements:
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There must be a controversy or dispute
The controversy must affect existing rights, liberties or property of persons
The court must decide according to pre-existing law
The decision must be conclusive
Judicial power arises by operation of law as opposed to some agreement of parties as in
commercial arbitration
a. Whereas a quasi-judicial decision creates new rights and duties, a judicial decision
determines what rights and duties exist in law
In What Sense to Judges Make Law?
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First, we must distinguish between original courts and appellate courts
The rulings of original courts on the law are not authoritative
Decisions of appellate courts such as the State Supreme Courts and the High Court are
authoritative
They establish precedents that are generally followed
This body of precedents is called case law or judge-made law
We also need to distinguish between:
o Judicial interpretations of constitutions and legislation and,
o Common law precedents
Judicial Interpretation of Legislation
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Legislation often needs interpretation because
o Language is not clear, or
o It is unclear whether a new event, object etc. falls within the language
Authoritative interpretation by appellate courts determines what the law is
The courts’ first duty in statutory interpretation is to give effect to the will of Parliament
If the statutes is found to be unconstitutional, the court is bound to so declare
The court does so by interpreting the Constitution
Common Law Development
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Unlike statute law, common law is the outcome of judicial decision given over many centuries
Even here the courts have a duty not to depart arbitrarily from settled law
Most of the time appellate courts apply established precedent
Sometimes, precedents are distinguishable
However, sometimes a court encounters a ‘hard case’
The Hard Case
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A hard case may arise because:
o There is no clear precedent or statutory provision that governs the case or
o There are conflicting precedents
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HLA Hart (British legal theorist) argued in his book ‘The Concept of Law’ that in a hard case the
judge becomes a sort of deputy legislator and makes a new rule
Ronald Dworkin in ‘Taking Rights Seriously’ disagreed
Dworkin argued that the law consists of both rules and principles. He said that when rules run
out, the court must (and usually does) distil a principle from the whole body of law
In his later book, Dworkin developed this thesis of law as integrity
He argued that the state’s power to make law rests not on force but moral authority
It is the integrity of the law that creates the moral duty of citizens to obey the law
Integrity of the law lies in its coherence
The duty of the judges is to interpret common law precedents and statutes in a manner that
maintains coherence
He compared the law to a chain novel and the judge to a chain novelist
Nobel prize winning economist and philosopher FA Hayek saw the common law as a spontaneous
order
A spontaneous order is not created by any one mind but grows out of the gradual accumulation of
rules
The judges duty is to maintain the ongoing order by providing a rule that is consistent with it
Is There a Practical Need for Judicial Restraint?
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Citizens have a moral right to go about their lives according to the law
An arbitrary change to the law defeats settled expectation
In the case of criminal law this can lead to ex post facto punishment
The law’s primary function is to guide conduct – frequent changes will make this difficult
The moral and political authority of courts depends on public confidence
Defeating legitimate expectations can erode this confidence
Topic 5: Legal Reasoning and Case Analysis
Introduction
Legal reasoning refers to the process through which a judge writes and justifies the conclusion or
conclusions reached in his or her judgement that disposes of the legal dispute between the parties to legal
proceedings in a civil trial.
Law and Logic
Background
Common law legal reasoning involves inductive reasoning, deductive reasoning, and reasoning by analogy.
Inductive reasoning is reasoning from the particular to the general.
Deductive reasoning is reasoning form the general to the particular.
Reasoning by analogy involves the use of similar analogous circumstances to assist in the resolution of the
issue at hand.
Predicate Logic
The syllogism is a major premise and a minor premise leading to a conclusion.
It involves reasoning on the basis of a belief in a general or major premise and a belief in a particular or
minor premise. This leads to a conclusion based on major and minor premises.
Propositional Logic and the Law
Propositional logic involves the use of predicate logic to put the propositions in the form of a syllogism.
Inductive Versus Deductive Reasoning
Deductive reasoning forms part of Professor MacCormick’s theory of legal reasoning.
Inductive reasoning forms an important part of legal reasoning in the common law system.
MacCormick’s Theory of Legal Reasoning
The Constraint of Formal Justice
Differentiates between the formal concept of justice and specific conceptions of justice.
The formal concept of justice require that like cases should be treated alike and different cases should be
treated differently.
Specific conceptions of justice produce rules that are used to determine whether cases should be treated
alike or differently.
A Doctrine of Precedent
A doctrine of precedent is a body of ‘positive law telling us what authority is to be ascribed to legal
precedents’.
Some doctrines of precedent are strict (relevant case authorities are binding to courts on the same level
and inferior), while others are persuasive.
A Theory of Precedent
MacCormick develops a theory of precedent that forms part of the constraint of formal justice. The two
critical elements in this theory are justifiability in law and universability in law.
The constraint of formal justice is a process of reasoning that recognises the need for coherence and
consistency in legally justifiable judicial decisions concerning legal claims.
A ratio decedendi is a ruling expressly or impliedly given by a judge which is sufficient to settle a point of law
put in issue by the parties’ argument in case, being a point on which a ruling was necessary to his
justification of the decisions of the case.
A Theory of Justification
The starting point is that judicial decision making involves claims that are ‘legal claims’ (between litigants
and the court).
The process involves following a deductive argument. The deductive argumentation provides justification
within legal decision making (it is a matter of formal justice in treating cases alike).
The judge must engage in second-order justification, which includes:
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

Consistency with pre-established and binding law
Coherence with established law
Taking account of consequentialist arguments (better than any alternatives)
A Theory of Universalisability
A fundamental requirement is universalisability at law. This requirement of universalisability at law
introduces rationality in the process of legal reasoning (it does not take place in a vacuum).
Doctrine of Persuasive Precedent in an Appellate Court
It may be difficult to identify the ratio decedendi of a decision where separate majority judgements are
delivered.
Principles, Analogies and Coherence
According to MacCormick, a legal principle is a normative expression of the underlying reason for a
specific rule of law. A legal rule is a more specific expression of a general principle of law.
Extension of the law through analogy may occur when legal principles (as normative expressions of
underlying reasons for rules) provides a rational and legally justified basis for any extension of the existing
law by analogy.
Coherence in the law occurs where sets of legal rules are not inconsistent with accepted general principles.
Consequential Reasoning
The issue to consider is the extent to which legal decision can be justified by consequences.
MacCormick rejects the extremes (that decisions should be based on the greatest net benefit, and that
decisions should be made regardless of the consequences), but accepts that some element of
consequentialist reasoning is present in judicial decision making.
There are different kinds of consequences; causal consequence is whatever is caused as a result of the
decision (an ulterior outcome is the effect of that decision), and a juridical consequence is a consequence
that is relevant to the justification of a legal decision.
The process of taking into account juridical consequences involves consideration of the rights that flow
from the application of coherent principles and rules.
Topic 6: Ratio Decidendi and Obiter Dictum
Introduction
Ratio decidendi refers to the legal reasoning that forms the basis of the decision in the case.
Obiter dictum refers to:
1. Any legal rule or principle included in a judgement which does not constitute part of the ratio of
the case, and
2. Any general observation or observations made by a judge in his or her judgement.
Precedent Theory
The Classical Theory
The classical view was that the ratio was the principle of law which the judge considered necessary to the
decision.
MacCormick’s Definition of Ratio Decedendi
‘A ruling expressly or impliedly given by a judge which is sufficient to settle a pint of law put in issue by
the parties’ arguments in a case, being a point on which a ruling was necessary to his justification of the
decisions of the case’.
The ruling of a judge may or may not amount to a rule of law. MacCormick’s definition is concerned with
the ruling of a judge, while Cross (classical theorist) was concerned with the rule of law.
MacCormick explains that ‘what the court holds to be the correct interpretation of the statute is the ratio’;
therefore, Cross’ theory is too wide.
Ratio Decidendi, Rules, Principles and Policies
A principle is applied to ensure internal coherence in an area of the law.
Policy is more goal-orientated and, as such, takes into account external considerations in the legal reasoning
process.
Obiter Dictum
Clear examples of dicta include where a judge gives an example to illustrate a point or where a judge
analyses a legal issue that is not in dispute between the parties. Where a judge makes observations it is
dicta.
Some dicta comments from the High Court can be important indications of the future direction of the law
in a particular area.
Case Analysis
1.
2.
3.
4.
Identify the number of judges
Identify the number of judgements
Identify who is in majority and who is in dissent (can go to the end of each judgement)
Start reading first judgement
a. In an appeal court, the judge sets out the procedural history
b. Statement of legal issue
c. Look for material facts
d. Start reasoning process
e. Attempt to determine ratio for each point of law
5. Try and work out if there is a ratio for the whole case (only consider those in the majority)
a. Must be sufficient commonality between judgements for one ratio
Does Every Case Contain a Ratio?
The ratio decidendi can only be derived form the judgments of those judges who:
1. Form the majority from the point of view of the decision itself; and
2. Also from a majority of judges of the court as a whole.
Two Schools of Thought
One school of thought is that every case does not contain a ratio.
The other school of thought is that every case does contain a ratio.
An Intermediate Position
‘The true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is
bound to apply that decision when the circumstances of the instant case ‘are not reasonably
distinguishable from those which gave rise to the decision’. – McHugh J
The application of the ‘not reasonably distinguishable test’ is not always clear.
Topic 7: Following and Distinguishing Precedent
The doctrine of precedent is concerned with determining whither a court is bound to follow a decision
made by a court in the past. It refers to the binding or persuasive nature of a previous decision within the
same or within a different court hierarchy.
Courts follow precedent as a practice rather than because a rule of law under a doctrine of precedent
dictates that this occurs.
Historical Background to Precedent
There are two historical conceptions of precedent:
1. The traditional or classical common law conception (approach)/the declaratory theory of
adjudication
2. The positivist conception (approach) to precedent
Declaratory Theory of Adjudication
Under the declaratory theory, the common law is based on custom and the decisions of the courts as
reported in the law reports amount to evidence of the law only, rather than constituting the law itself.
Past decisions provide the methodology of the legal reasoning to be used. The legal significance of past
decision resides in their status as examples of proper exercise of the process of legal reasoning.
The approach did accept the authority of past decisions as a whole in the context of custom and the
experience of the courts over a long period of time.
This is not accepted as a legitimate basis of the common law adjudication in Australia.
The Positivist Conception of Precedent
According to legal positivists, decisions of the courts and the statutes of parliament constitute the
common law. They are not mere evidence of the law (this distinguishes it from the previous theory).
This enables the concept of binding precedent to develop.
Precedent in the 19th Century
Precedent in the 18th Century
There were two opposing view taken by judges: the rationalists versus the formalists.
Rational view: whereas the underlying principles of the common law as reported in the law reports is
evidence only of the law, statues represent the positive law of parliament (i.e. the actual law).
Formalist view: the decisions of the courts as reported in the law reports represented the law itself (not
merely evidence of the law).
In novel cases, the formalists would reason by analogy with existing decisions rather than make use of
moral principles (as would the rationalists).
Basically, the role of the formalist judge was to state the law as it was; not what the law ought to have been
(as a rationalist judge would have).
The Status of Precedent at the End of the 18th Century
The practise of following precedent existed at the end of the eighteenth century.
Under stare decisis (the decision stands), a court was required to follow precedent which was on point,
irrespective of the court which decided the precedent.
The Status of Precedent During the 19th Century
Changes to the structure and composition of the courts in England contributed to the emergence of a
practise of following precedent. It was not until 1812 that the decisions of the House of Lords were
properly recognised. It was not until the 1820s that professional judges sat on the House of Lords. A
chaotic system of appeal also existed until the reforms in 1830.
An English Court of Appeal was created in 1875 and this provided a clearer line of appeal to the House of
Lords. In 1898, the House of Lords decided in the London Tramways case that it was bound by its own
previous decisions. These changes provide the platform for the development of a practice of following
precedent within a structured court hierarchy.
This development in turn influenced the development of common law adjudication in 19th century
England because it was not within this context that adjudication took place.
This developing practice of following precedent was influenced by, and coincided with the influence of the
positivist conception of precedent and adjudication. The positivist approach considered that the decision
of judges as recorded in the law reports constituted the actual law itself. This was in contrast to the
declaratory approach where the reported decisions were considered to be only evidence of the law.
Under the positivist approach, a judge was therefore part of the actual development f the common law
because the judicial decisions constituted the law.
During 19th century England the importance of certainty in the law and in English public life generally
emerged. Recognition of the need for certainty in the law was consistent with the positivist approach.
Consequently, the 19th century changes to the court structure and composition, and the emergence of the
positivist conception of precedent had an important and lasting impact on common law adjudication.
Following Precedent: A Doctrine or a Practice?
Three Rules of Precedent
The system of precedent within a particular court hierarchy is a practice rather than a rule of law.
Professor Rupert Cross identifies three rules of precedent:
1. All courts must consider the relevant case-law
2. Lower courts must follow the decisions of courts above them in the court hierarchy
3. Appellate courts are generally bound by their own decisions
Note: Precedent within the same court hierarchy is binding on lower courts but only persuasive on courts
above it.
The Concept of a Rule of Law
The ratio is the reasoning given by a judge to dispose of a disputed legal issue between two litigants.
A judge in a final court of appeal may modify an existing rule of law to dispose of a dispute. The existing
rule of law is then modified through the ratio that is applied in the present matter.
If this difference between the rule of law and ratio is accepted, it is not possible to classify a system of
following precedent within a court hierarchy as a rule of law or a doctrine. Treating the following of
precedent as a rule of law introduces confusion into an understanding of the conception of a rule of law.
Cross’s Rules of Precedent
It is useful to consider whether Cross’s rules of precedent constitute rules of law or statements of practice.
Rule 1: All courts must consider relevant case law.
Consideration of relevant case law could not reasonably be considered a rule of law within the conception
of a rule outlined above.
Rule 2: Lower courts must follow the decisions of courts above them in the court hierarchy.
The true rationale of rule 2 lies in an element of necessity. It is necessary for the smooth operation of the
judicial system. It is a statement of practice.
Rule 3: Appellate courts are generally bound by their own decisions.
The extract from Nguyen v Nguyen (p. 244) sets out the position in Australia: that whether an appellate
court from its own previous decision is a matter of practice, not a rule of law. This is consistent with the
position taken by the House of Lords in its 1966 Practice Statement (Judicial Precedent).
Distinguishing Precedent
Can a Precedent be ‘Avoided’?
The issue of whether a past decision should or should not be followed must be determined in accordance
with proper consideration of identification of the ratio of past cases, any subsequent or relevant rules of
law, and the practice of flowing precedent that is applicable to the circumstances under consideration.
Per Incuriam (‘Wrong in Law’)
A decision made per incurium means the decision has been made ‘through want of care’. A decision given
per incurium may be given in three categories of cases:
1. Where a court has overlooked a relevant case authority
2. Where a court has overlooked a relevant statutory provision
3. Where a court has clearly made an error
A decision made per incurium therefore involves some error by a previous court.
Topic 8: Fundamental Legislative Principles – Theories of Statutory Interpretation
Primary Legislation
The term ‘legislation’ covers primary legislation such as Acts of Parliament.
An Office of Parliamentary Council is responsible for the drafting of legislation in consultation within the
relevant government agency.
Examples of primary legislation as acts of parliament are:
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
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Appropriations of money
Significant questions of policy including new policy or fundamental changes to existing policy
Rules which have a significant impact on individual rights and liberties
Provisions creating offences which impose significant criminal penalties
Provisions imposing taxes
Procedural matters which go to the essence of the legislative scheme
Provisions creating statutory authorities
Amendments to primary legislation
The Legislative Process
Legislative processes in various Parliaments have the same essential characteristics:


The details are set out in the legislative handbook
A legislation program is developed prior to each sitting (Ministers put in bids that a proposed Bill
be added to the legislation program)
o The relevant department must determine whether the proposed matter should be a Bill or
delegated legislation
The passage of the Bill through both houses involves the following stages:




Presentation (or initiation) and first reading
Second reading – the Minister responsible moves that the Bill be read a second time, reads the
second reading speech or incorporates the speech into Hansard and presents the explanatory
memorandum to the House
Second reading debate and consideration of the Bill in detail by the House of Representatives and
by the Senate
Third reading – passage by the relevant house
Fundamental Legislative Principles
Background
In a parliamentary democracy based on the rule of law, there are certain fundamental legislative principles
that must be adhered to in the legislative process. These principles are contained in the Legislative Standards
Act 1992 (Qld).
Queensland is the only jurisdiction in Australia to have enacted such legislation. This is because (1)
Queensland has a unicameral system of Parliament, which arguably reduces the scrutiny in the legislative
process and (2) the Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (The
Fitzgerald Inquiry).
One recommendation of the Fitzgerald Report was the establishment of an Electoral and Administrative
Review Commission (EARC).
They had a statutory function to investigate and report in relation to the operation of the Queensland
Parliament and the whole part of the public administration of the State of Queensland.
Electoral and Administrative Review Commission Report
The EARC Report asked, ‘should fundamental legislative principles be set forth in statutory guidelines?’
It is on page 283.
The Legislative Standards Act 1992 (Qld)
This Act reflects the EARC Report.
Office of the Queensland Parliamentary Council
The Fitzgerald Report stated the need for an independent Office of Parliamentary Council in Queensland.
An independent Office of the Queensland Parliamentary Council was established by s5 of the Legislative
Standards Act 1992. This includes ensuring that Queensland legislative is of the highest standard, which
means compliance with s 4 of the Legislative Standards Act.
The statutory requirement and the establishment of the office show the thrust of the EARC report.
Departure from Fundamental Legislative Principles
There may be circumstances in which departure from fundamental legislative principles is necessary
because public interest requires that a principle be displaced (e.g. acquisition of a person’s assets which
they gained through crime.
The decision to displace one of these principles is a policy decision properly to be taken by the
Government and ultimately by Parliament, and it is their responsibility to bear criticism for disregarding
them.
Parliamentary Scrutiny Committees
The Commonwealth and each State and Territory have parliamentary scrutiny committees. These
committees report on whether any Bill introduced into Parliament:





Trespasses unduly on personal rights and liberties
Makes rights, liberties or obligations unduly dependent on insufficiently defined administrative
powers
Makes rights, liberties or obligations unduly dependent on non-reviewable decisions
Inappropriately delegates legislative powers
Insufficiently subjects the exercise of legislative power to parliamentary scrutiny
This differs from the process in Queensland because any concerns of the committees are published in
Digests available to the public for scrutiny.
Arguably the statutory requirement of the Office of the Queensland Parliamentary Counsel to adhere to
the fundamental legislative principles in s4 provide greater protection for individual rights and liberties.
Delegated Legislation
Background
The authority to make regulations, by-laws and ordinances is ‘delegated’ by the relevant Parliament to a
body or person other than the Parliament.
Legislative Versus Executive Activity
Usually, legislative decisions determine the content of rules of general, usually prospective application
whereas administrative decisions apply rules of that kind to particular cases.
Necessity for Delegation
The reasons are set out in the Donoughmore Committee Report 1932 (p. 294):
1. Parliament can devote more time to essential principles of legislation
2. The subject matter is often of a technical nature that cannot be effectively discussed in Parliament
3. It is difficult to work out the administrative machinery in time to insert into a Bill all the provisions
required
4. It allows for the constant adaptation to unknown future conditions
Delegated Legislation in the Commonwealth
Legislative Instruments
Commonwealth Delegated Legislation is covered by the Legislative Instruments Act 2003. Section 5 (p. 296)
defines an instrument.
Need for Change
The Act introduced some important reforms to the process of delegated legislation in the Commonwealth
context. There are shown in the object section of the Act (p. 297).
The Act is beneficial because it:
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

Establishes a comprehensive regime from the registration, tabling, scrutiny and sunsetting of
Commonwealth legislative instruments
Establishes an authoritative, complete and accessible register of those instruments
Encourages rule makers to consult experts and those likely to be affected by the Bill (where
appropriate)
Gives the Secretary of the Attorney-General’s Department the statutory power to cause steps to be
taken to promote their legal effectiveness, clarity and intelligibility
Contains explanatory statements, making the Register more valuable to users
Will ensure the legislative instruments are regularly reviewed and only remain operative it they
continue to be relevant (sunsetting)
Senate Standing Committee on Regulations and Ordinances
Senate Standing Order 23(1) provides that a ‘Senate Standing Committee on Regulations and Ordinances
shall be appointed at the commencement of each Parliament. It requires that:

All regulations, ordinances and other instruments made under the authority of Acts of the
Parliament shall stand referred to the committee for consideration
The powers of the Committee are outlined on p. 299.
Delegated Legislation in Queensland
The Statutory Instruments Act 1992 is set out on p. 306.
Scrutiny of Legislation Committee
The Scrutiny of Legislation Committee in Queensland is established under s80 of the Parliament of
Queensland Act 2001. Under s103(1), they must consider:
a) The application of fundamental legislative principles to particular Bills and particular subordinate
legislation
b) The lawfulness of particular subordinate legislation
They must monitor the meaning of fundamental principles under the Legislative Standards Act 1992 and
Statutory Instruments Act 1992.
Henry VIII Clauses
A Henry VIII Clause is a clause in an Act of Parliament which enables the Act to be amended by
subordinate or delegated legislation
Section 4(5)(c) of the Legislative Standards Act 1992 (Qld) provides that, ‘whether subordinate legislation has
sufficient regard to the institution of Parliament depends on whether, for example, the subordinate
legislation amends statutory instruments only.’
This provision prohibits Henry VIII Clauses in Queensland.
Theories of Statutory Interpretation
Statutory interpretation is the process by which the courts determine the meaning of a statutory provision
for the purpose of applying it to the situation before them.
Theories of Statutory Interpretation
Ranging from the most restrictive approach to the least restrictive approach, the theories of statutory
interpretation are
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Textualist theories
o Soft plain meaning theory
o The new textualist theory
Intentionalist theories
o Subjective versus objective intention
o Specific intent theory
o Imaginative reconstruction theory
Purposive interpretation theory
Dynamic theories
o Best answer theory
o Pragmatic theory
o Critical theory
Within judgements of an appellate case, different theoretical approaches may be evident.
Statute and Common Law
The relationship between common law and statute law must be seen as the relationship between two
developing and moving bodies of law; and they way in which they interact on each other becomes a matter
of little importance.
Influence of Legislative Change
There has been expansion of statutory law reform in Australia. This means that the courts may have to
interpret the legislation (p. 325 – Murray Gleeson’s speech).
The Spirit or Equity of the Statute
The earliest approach to statutory interpretation in England involved courts considering the spirit or
equity of the statute to determine whether the particular circumstances fell within or outside the spirit of
the statute. This gave a level of flexibility. Equity was used to correct the deficiencies in the statute.
Textualist Theories
Background
Textualist theories are the most restrictive theories. They emphasise the actual meaning of the words in the
text of the statutory provision, not the intention of Parliament concerning the purpose of the statute. They
are also based on the fact that the interpretation does not change over time.
Soft Plain-Meaning Theory
The soft plain-meaning theory considers the plain meaning within its historical context. The history of the
legislative provision plays a greater role in the process of statutory interpretation than the context of the
provision within the statute or the purpose or object of the statute.
The New Textualist Theory (Hard Plain-Meaning Theory)
This theory emphasises that the actual text of the statue provides the only basis for the interpretation
process.
Intentionist Theories
This theory focuses on the intention of the Parliament.
Subjective Versus Objective Intention
The intention of the parliament is seen as being objective. They are seeking the meaning of the words
which parliament used.
Specific Intent Theory
The common law literal approach to statutory interpretation is an example of a specific intent theory. It
requires that the intention must be found by an examination of the language used in the statute as a whole.
It fails to give sufficient weight to the object or purpose of the statute.
Imaginative Reconstruction Theory
Imaginative reconstruction theory ‘reconstructs’ the reason for the enactment of the statute. The common
law mischief approach to statutory interpretation is an example. It requires consideration of:
1.
2.
3.
4.
The state of the common law before the making of the statute now before the courts
The mischief or defect for which the law prior to the statute failed to provide
The remedy resolved by Parliament to cure the pre-existing mischief or defect
The true reason for the remedy
It was usually adopted when a literal interpretation resulted in ambiguity or inconsistency.
Purposive Interpretation Theory
This theory emphasises the importance of the object or purpose of a statute when interpreting the
meaning of a provision of the statute. This approach is specified in the Interpretation Acts of Australia.
Extrinsic material may be used as an aid where there is any ambiguity.
Justice Kirby asserts that there are the following interpretive principles:
1. Purposive interpretation;
2. Contextual interpretation; and
3. Access to extrinsic materials.
Dynamic Theories
Dynamic theories of statutory interpretation cover a variety of approaches from a normative perspective.
A normative theory is concerned with what ‘ought to be’ over a period of time.
They do not restrict interpretation to the plain meaning of a statute at the time of enactment, or to its
purpose or the intention of parliament.
Best answer theories make a connection between law and morality.
Pragmatic theory is that the process of statutory interpretation is multidimensional in that it does not focus
on a single issue.
Critical theories assert that the actual words in the text provide only the starting point for the process of
statutory interpretation.
Topic 9: Interpretation of Statutes (Lecture 1)
Reasons for Interpretation
1. The meaning of words is not plain.
2. The meaning of words is plain when taken in isolation but is not plain when other parts of the Act
are considered.
3. Where the meaning was plain at the time of enactment but doubt arises about new things.
4. The meaning is plain but it leads to absurdity.
Sources of the Rules and Standards Concerning the Interpretation of Statutes
There are two sources of rules and standards; the common law and legislation.
Courts in interpreting and applying statutes have developed certain rules and presumptions.
There are two ways in which legislation may assist or regulate interpretation:
1. Parliament may pass a declaratory Act to clarify doubts about the meaning of the Act
2. Parliament may pass a general Act stating rules and standards for interpreting Acts
The Old Common Law Approach
Initially, the common law had three major rules:
1. The literal rule
2. The golden rule (now considered a qualification of the literal rule)
3. The mischief rule (superseded by the modern purposive rule)
The Literal Rule
Where the language of an Act is clear and explicit, we must give effect to it, whatever the consequences,
for in that case the words of the statute speak the intention of legislature.
Implications include:
1.
2.
3.
4.
5.
The rule applies only when the words are unambiguous (present only one meaning)
Parliament’s intention must be gathered form the Act itself (speculation is unwarranted)
Inconvenient consequences are no reason not to give effect to plain words
Omission may not be made up by ‘writing in’ words
Every word in the statute must be given a meaning
The Golden Rule
The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to absurdity,
or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to avoid that absurdity or inconsistency (but no
further). It was never used without a prior application of the literal approach.
Implications include:
1. Applies in the case of absurdity or inconsistency not more inconvenience
2. Absurdity or inconsistency must be found within the statute
The Mischief Rule
The parts of the rule are set out above. This grew into the modern purposive rule (the purposive rule is
broader). The difference is that the purposive rule may be used even if there is no mischief under the
existing law.
Interpreting in Context
The High Court recognises three levels of context for determining purpose:
1. The immediate context of the provision i.e. the section within which the provision occurs
2. The wider context of the statutes as a whole
3. The widest context including other relevant states and the common law
The following are elements of the contextual approach favoured by most High Court members:
1. Act to be read as a whole
2. Effect must be given to the whole Act
3. Presumption that the words are used consistently
a. If the same word is used in different parts of the statute, there is a presumption that it has
the same meaning in the different provisions
4. Plain ordinary meaning
a. Assumes that words are given their plain ordinary meaning unless statute indicates
otherwise
Internal Aids to Statutory Interpretation
Limitations of the Purposive Rule
1. The purpose itself might be obscure.
2. The purposive rule is inappropriate for the interpretation of statutory provision that define
criminal offences
a. Must be strictly interpreted
b. The rule of law demands that a person must not be punished except for violating a rule
known beforehand
c. The citizen must have certainty as to what she may or may not do to avoid penalty
Topic 10: Interpretation of Statutes (Lecture 2)
In the Acts Interpretation Act (Cth), section 15AA (1) states that ‘in the interpretation of a provision of an
Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or
object is expressly stated in the Act or not) shall be preferred to a construction that would not promote
that purpose or object.
General Rules
The general rules are:
a) No unnatural or unreasonable construction to achieve purpose
b) A general statement of purpose must be treated with caution
c) Reading in (implying) words can only occur in certain conditions:
a. Know the mischief the Act deals with
b. Be satisfied that Parliament overlooked an eventuality that needs to be dealt with to
achieve the purpose
c. Be able to state with certainty the words Parliament would have used if its attention was
drawn to the omission
d. The words actually used in the stated must be reasonably open to the implication
(construction must be text based)
d) Reading down words to avoid undesirable results is only possible where:
a. An alternative (better) meaning is available and
b. Where there is no disagreement about undesirability
Subsidiary/Special Rules
1. Words gain meaning from associated words (noscitur a sociis)
a. Provisions must be interpreted in the context of the Act
2. General words that follow specific words belonging to a class (ejusdem generis)
a. The specified things must possess some common and dominant feature
b. There must be at least two specific items to form a class
3. Rules do not apply if there is an intention not to limit the words
a. The ejustdem generis rule will not apply where it is evident that parliament did not intend
to limit the general words to a class
4. Express reference to some may indicate intention to exclude others (expressio unius est exclusio
alterius)
5. Where general and specific provisions conflict, the special prevails (generalia specialibus non derogant)
6. Interpretation that favours the validity of legislation or its workability
a. In some instances an interpretation may result in the invalidation or the instrument
b. In others an interpretation may make the Act nugatory or ineffective
c. If the court finds that the language is capable of an interpretation that would avoid
invalidity or unworkability it will give that construction
Topic 11: Interpretation of Statutes (Lecture 3)
There are many presumptions in the common law. The following are 6 of the most important.
1. Parliament does not mean to abridge basic rights and liberties
a. Parliament is not to be taken to have intended to violate basic rights and freedoms unless there
is clearly expressed intention
2. Presumption in favour of constitutionality
a. The court will presume that Parliament did not intend to overstep constitutional limits
b. If it does, it will be held invalid
3. Presumption against extra-territoriality
a. Courts presume that the legislature does not intend its laws to operate beyond territorial limits
4. Presumption against retrospective operation
a. Legislature does not intend to make a lawful act unlawful afterwards
5. Presumption against taking property without just compensation
a. Related to the assumption that Parliament does not intend to abridge basic rights and liberties
6. Presumption against binding the Crown
a. The presumption that legislation does not bind the Crown (the government) is not as strong as
it was in the past (because the government has more functions)
Interpreting Penal Statutes
There is the presumption that provision creating criminal offences must be strictly interpreted. This is
because the liberty of the subject is at stake, so courts are careful not to extend a criminal statute in the
absence of clear words.
Constitutional Interpretation
A constitution is designed as a lasting charter of government. A constitution that is easily changed by
parliamentary majorities may not be a constitution at all.
There are three main approaches:
1. Textualism
a. All that is necessary is to give effect to the meaning of the text
b. Can defeat the intentions of the founders and undermine the structure and scheme of the
Constitution
2. Originalism
a. Give primary weight to the intentions of framers, members of proposing bodies and
ratifiers
b. It is difficult to determine the collective intention of the constitution makers
3. Pragmatism
a. A pragmatist will give effect to the text and known intentions
b. They will also look at the consequences
Internal Aids to Interpretation
Internal or intrinsic aids to interpretation refer to the following:
1. Special rules of statutory interpretation e.g. noscitur a sociis
2. Interpretation provisions, definition sections etc.
3. Long title, headings, schedules, examples
Interpretation Provisions
Most Acts contain a section that has a series of definitions of words used in the Act.
Schedules are parts of the act that are used to set out detail.
Acts Interpretation Acts define and explain numerous terms..
Headings, Marginal Notes and Examples
In Queensland, these are considered parts of the Act. Hence, they may be used as internal aids. This does
not apply in the Commonwealth.
External or Extrinsic Aids
Extrinsic materials are documents such as the second reading speech, Law Reform Commission Reports,
Parliamentary Committee Reports, treaties and explanatory memoranda.
The Commonwealth
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Acts do not bind the Crown
o It is now common for Commonwealth Acts of Parliament to provide that the particular Act
binds the Crown in right of the Commonwealth
o S 2(2) of the AIA provides that that act binds the Crown
Section 15AA(1) of the AIA requires that regard must be given to the purpose or object of a statute
when interpreting a provision of a Commonwealth statute
o Despite this wording, many members of the High Court use a contextual approach
Extrinsic material may be used to (p. 389)
o Confirm the ordinary meaning of words in context
o Where there is ambiguity
o Ordinary meaning is manifest absurdity or is unreasonable (s 15 AB (1))
Sections 5 and 6 are important when ascertaining the commencement date of an Act of Parliament (p.
390)
o Generally commences 28 days after royal assent
Sections 18A, 22 and 23 address statutory requirements concerning words and expressions (p. 391).
Headings and schedules are part of the Act
o Marginal notes, footnotes and endnotes are not part of the Act
Sections 35, 36 and 37 cover the reckoning of time and the measurement of distance
Queensland
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There is a common law resumption of interpretation that Acts do not bind the Crown
o However, contemporary QLD Acts provide that the particular Act binds the Crown
S 137 of the AIA states that the common law presumptions of interpretation continue to operate in
conjunction with the key principles of statutory interpretation
o The interpretation that will best achieve the purpose of the Act is to be preferred to any other
interpretation
Use of extrinsic material (p. 406) is viable where:
o the provision is ambiguous or obscure
o Ordinary meaning leads to manifest absurdity or is unreasonable
o To confirm the ordinary meaning of the provision
Part 5 of the AIA 1954 (Qld) sets out the commencement provision relating to Queensland statutes
o An Act commences on the date of assent unless otherwise specified (15A)
Terms and references (part 8 of the AIA)
Headings, marginal notes, schedules and examples (section 14 and 14D)
o Headings, schedules and examples are part of the Act
o A footnote, editor’s note or endnote are not part of the Act
Reckoning of time, age and measurement of distance are set out in sections 37, 38 and 38A of AIA