CLAW1001 Chapter Notes - Chapter 3-5: Ultra Vires, Interrogatories, Arbitration Clause
CHAPTER 3: THE PARLIAMENT AND STATUTE LAW
NATURE AND SIGNIFICANCE OF LEGISLATION:
• Legislation: formal declaration of legal rules by Parliament and authorised bodies
o Delegated legislation = regulations, rules, orders, by-laws
o Dominates our commercial + social lives, court’s time increasingly devoted to interpretation
THE MODERN INSTITUTION OF PARLIAMENT: Westminster System
• The Crown: Governor General as Queen’s representative
• Upper House = Senate
o State’s House à House of review
o 12 senators per state to protect interests of less populous states + 2 for territories
o Tends to operate on political lines = majority is essential to Gov
• Lower House = House of Representatives
o People’s House
o Aus is divided into electorates with roughly equal no. voters à each elects a rep.
o Political party w/ majority of members forms government
o Includes members of FEC + PM is typically a member
THE LEGISLATIVE PROCESS:
1. Original idea à from Gov policy, Gov dept, pressure group etc.
2. Drafting of a Bill
3. Three reading stages à 3 per house
4. Royal assent à when passed by both houses, becomes an Act of Parliament (statute)
5. Disagreement: If Senate rejects Bill passed by HOR it is reintroduced after 3 months
a. If rejected again then GG may dissolve both houses (double dissolution)
6. Date of operation à can be retrospective (past date), or set in future
THE INTERPRETATION OF LEGISLATION:
• Role of Courts: interpret + apply legislation, continue creation of common law
• Statutory Interpretation:
o Unlikely legislation can ever be drafted w/ such precision and clarity that interpretation is not required
o “It is the duty of the courts to ascertain and give effect to the will of Parliament”
§ Consider context + purpose/intention
§ Competition and Consumer Act (2010) à “misleading or deceptive conduct” is undefined
• Approach to the Interpretive Role:
o Literal Approach: give literal effect to legislative language à follows wording rather than purpose
o Liberal Approach: filling in gaps and making sense of the statute, consider intention à inferring meaning
o Purposive Approach: courts interpret statute within context of the law à used when ambiguous
o Rules of interpretation:
§ Literal rule
§ Mischief rule: interpret legislation to overcome defect which it was passed to overcome
§ Golden rule: grammatical sense of words is adhered to, unless this would lead to an absurdity
§ Purposive approach
• The Acts Interpretation Acts:
o One per jurisdiction à shortens content by prescribing meaning to frequently used terms
o Contain provisions requiring a purposive approach, and permitting use of extrinsic materials
• Techniques of Interpretation:
o Ejusdem generis: general words at the end of a list of particular words, refer only to those specific ones
o Noscitur a sociis: meaning of a word or phrase is to be derived from its context
o Expressio unius est exclusion alterius: express mention of one thing excludes all others
o Generalia specialibus non derogant: where conflict b/w general and specific provisions, specific prevail
• Extrinsic materials: materials or documents not part of the Act being interpreted
o Common law: shouldn’t be used by judges in determining legislative intention
o Acts Interpretation Act provides that courts may refer to them
PROBLEMS AND PROSPECTS:
• Uncodified System: unwritten
• Bewildering array of legislation à due to precedent
• Legal ‘gobbledygook’ à obscure + pretentious language in expounding the law
• Drafting techniques à thought that more discretion should be left to the courts, rather than having to draft every statue in such detail that
alternative interpretations are not possible
• Deregulation
Document Summary
Legislation: formal declaration of legal rules by parliament and authorised bodies: delegated legislation = regulations, rules, orders, by-laws, dominates our commercial + social lives, court"s time increasingly devoted to interpretation. Lower house = house of representatives: people"s house, aus is divided into electorates with roughly equal no. voters each elects a rep, political party w/ majority of members forms government. Includes members of fec + pm is typically a member. If rejected again then gg may dissolve both houses (double dissolution: date of operation can be retrospective (past date), or set in future. The interpretation of legislation: role of courts: interpret + apply legislation, continue creation of common law. Statutory interpretation: unlikely legislation can ever be drafted w/ such precision and clarity that interpretation is not required. It is the duty of the courts to ascertain and give effect to the will of parliament .
