Project Blue Sky: Statutory Interpretation In Australia

I’m going to discuss two theoretical doctrines of interpretation’s limits, which are based on specific methods of “original intent” and “living document” constitutional interpretation. The first of them, original intent, maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding. Obviously, the defined method of explanation is undoubtedly good, as allows answering not only on a question, what sense has been enclosed in the given norm but also to what the legislator really aspired, accepting it. In this case work of the lawyer, the judge should remind work of the professional-restorer which by the most careful studying of the source, analogues, an epoch, time, techniques of the letter etc. restores the original. For all that I can’t agree with this idea because there can be the situation when the judge is beyond the maintenance of the source text and gives his own view of the legislator’s intentions. It goes without saying, explanation does not bring and cannot bring additions and changes in effective law standards. It urged only to explain and specify what is formulated in a norm, to open a legal will of the legislator. Naturally, standard interpretation cannot be found out in a separation from surrounding conditions, but it should not mean at all, that during the

Judge Tracey had regard to Project Blue Sky Inc v Australian Broadcasting Authority, in relation to issues with the construction of statutes. The case proposed that in order to define the purpose of a legislation, the extent and aim of the whole statute and the language of the relevant provision should be taken into consideration. Similarly, in “The Engineers Case” the court stated that the language of a statute should be examined in its ordinary and natural sense in order to understand the intent of Parliament behind making it.

The adversarial nature of Australia’s court system deal with facts and legal implications. Here lies the establishment of such principles that make the law

Manifesto sees the decision of the supreme court as “clear abuse of judicial power” (1).

Under the "plain-meaning" rule, if the intention of the legislature is "so apparent from the face of the statute that there can be no question as to its meaning, there is no need for the court to apply canons of construction" Overseas Education Ass'n v. Federal Labor Relations Authority, 876 F.2d 960 (D.C. Cir. 1989). A statute must be construed according to its plain meaning except in extraordinary conditions, which are not present here. Dept. of Housing & Urban Dev. v. Pucker, 122 S. Ct. 1230, 1233 (2002). Silence in a statute regarding a particular topic does not render the statute unclear or ambiguous unless the statute is susceptible of more than one reasonable interpretation. In re Welfare of R.S., 805 N.W.2d 44 (Minn. 2011). Before considering whether the canon of statutory construction should be applied, the district court would first need to determine whether the statute in question is ambiguous. Courts have generally held that a statute is ambiguous when reasonably well-informed persons could understand the language in either of two or more senses State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964). The district court does not indicate that it is applying the canon of statutory construction nor does it state that any portion of the Act is ambiguous such that it promulgated an additional category of private

State v. Gaines, 346 Or. 160, at 171-72 (Or. 2009). In Gaines, the court held that amendments to O.R.S. § 174.020 provided a methodology in interpreting statutes for the court. Id at 171. Gaines held that when a court is to determine a statute’s meaning the court will first look to the statutes text and context to interpret its meaning. Id. Additionally, Gaines held that the legislative history of a statute can be utilized when proffered by one of the parties. Id at 171-72. The Gaines court held that it is up to the determination of the court as to how much weight would be given to the legislative history in its analysis. Id at 172. Finally, if the statute is still ambiguous after analyzing the text, context, and legislative history, then the court may utilize “general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id at 165.

The courts are able to change the law through precedent but are limited by only having influence on the specific cases that are taken to the courts. Parliament is the main branch of government that both makes and reforms the law through the passage of bills. The parliament is able to set up parliamentary committees and law reform commissions, but has no say in the running of these commissions. The NSW Law Reform Commission prepares reports to review the issues identified in the reference, and make recommendations to Government for legislative reform. They do this through a preliminary submission, if required, to give stakeholders an initial opportunity to address the terms of reference and highlight the key issues. This will be followed

While Scalia detests this modern method, Brest argues in favor of it. Brest contends that although the founders intended the amendment process to accommodate the changing needs of an advancing society, it serves this purpose poorly. He claims that the amendment process is too slow and unwieldy to adapt the Constitution to a society which constantly must apply the Constitution to situations the founders could not have even imagined. Moreover, the changes required by society often are not extensive enough to warrant an amendment. Therefore, slightly changing the interpretation of a clause can better accommodate these minor, but necessary changes. Brest argues for gradual, more organic evolution of the Constitutional through adapting its interpretation; in contrast, Scalia says that we must use the routes of change provided for this very purpose in the Constitution itself, as anything different would be irreverent to the fundamental principles of our Constitution.

As aforesaid, there are inconsistencies in Scalia’s judgments where textualism is adopted, it is not dictionary-centred. In Coy v Iowa, Justice Scalia, in determining whether the defendant, accused of sexually assaulting two 13-year-old girls, was entitled to a face-to-face confrontation by virtue of the Sixth Amendment, cited Shakespeare’s Richard II. Textualism supposed to be dictionary-centred but Scalia chose to cite old literature instead. The Six

1. When interpreting legislation, the Courts use several approaches to aid their interpretation. Describe how the literal, golden and mischief rules of interpretation operate.

‘The natural and reasonable desire that statutes should be easily understood is doomed to disappointment. Thwarted, it shifts to an equally natural and reasonable desire for efficient tools of interpretation. If statutes must be obscure, let us at least have simple devices to elucidate them. A golden rule would be best, to unlock all mysteries. Alas there is no golden rule. Nor is there a mischief rule, or a literal rule, or any other cure-all rule of thumb. Instead there are a thousand and one interpretative criteria. Fortunately, not all of these present themselves in any one case; but those that do yield factors that the interpreter must figuratively weigh and balance.’ – Lord Bingham

This essay will conclude there is no conceptual room for a corrective approach to scrivener’s error in a textualist theory of statutory interpretation. To do so I will seek to establish two main premises, from which necessarily follows my conclusion: The first main premise states that an error cannot be judicially corrected in an intent-skeptical theory of textualism. I will establish this by supporting Siegel’s axiomatic rejection of correction and by critiquing Manning’s attempt to find justification for correction in textualism.

‘It is well-known that the Separation of Powers doctrine is sine qua non for maintaining the rule of law however, an absolute separation of power does not exist in the Australian legal system.’

of it. "The law and the opinion of the judge may not always be one and the

This essay will elaborates the law making system in the United Kingdom, whilst consider the role of the House of Commons, The House of Lords and the Monarch in the law making process. In order to analysis the law making process, those content, which will be provided, are the different types of the bill and the primary legislation and secondary legislation and each of them will has the references. The different bills are included the Public bills, Private bills, Hybrid bills and Private Members’ bills. For the primary and secondary legislation, both will explain every stage that include the First and second Reading, Committee and Report stage, Third Reading. Then, this essay will compare the two legislations with advantages and drawbacks. In addition, an clearly introduction of common law will be give, also the hierarchy of the courts will be assess base on the question of which courts must are bound to follow precedent. For European Union law, it will be explained with examples. Finally, an assessment of the European Convention on Human Rights and Classifications of law will be provided.