LAWS1111: Legal Method

Course Note Pool:

Lecture 1

Development of the Common Law in England

What is Common Law?

An adversarial system with an impartial judge overseeing the process, and previous case reports are used as precedents that constitute the body of the common law. Originally a reference to one “common” law throughout all of England.

System based on writs issued by the king/chancellor, initially very strict and inflexible, which led to the creation of a separate body of equity law related to ethical fairness, which is supplementary to common law, and takes precedence where the two clash. Statutory law was a later addition that can overrule either of them, and is issued by the parliament.

What is Civil Law?

Inquisitorial, used as the basis for most of Europe/Asia (non-Commonwealth world) – Judge takes a much more active role, past cases granted less authority.

What is an Injunction?

Court order to stop doing something issued by a judge.

What is a Specific Performance?

Court order to take a specific action issued by a judge.

What is Customary Law?

The unwritten customs of a specific tribe or people – vary wildly from region to region, initially based on survival, religion, etc.

How did Common Law come about?

Norman invasion led to a centralisation of government, which served as a foundation for a common law throughout all of England. System of writs was gradually introduced identify specific actions that could be taken. All writs added to register and became usable in future cases. Found too strict, led to creation of equity via the chancellor/court of chancery -> only relevant if common law compensation inadequate, later joined into a single court.

Note on Equity

When equitiable estoppel granted in case where a contract wasn’t ruled to exist, it DID NOT create a contract – it operates separately and supplementarily to contract law.

Lecture 2

Reception of English Law in Australia

General Notes

  • The Colonial Laws Validity Act will be important – bring a printed copy to the exam, and make sure I understand it.
  • Any statutes ending with (Imp) are passed by the Imperial Parliament (The British parliament sitting a special session relating to colonies).
  • Australian law was ENGLISH law, NOT British law – just the Law of England and Wales
  • Older case examples reflect the law at the time (Pre-Mabo)

Captain Cook

  • Was instructed by the British Admiralty to investigate the “South Land” due to his reputation as a navigator.

Terra Nullius

  • “Land belonging to no-one”
  • Important concept of 18th Century International Law (See Blackstone)
  • Based on European Cultivation of Land (merely inhabiting insufficient)
  • Allowed land to be settled and inherit all laws of settling nation, as opposed to requiring cession or conquering, which would leave native laws in place initially
  • Settled lands gained “Only so much of English Law as is appropriate” for the colony (Blackstone) – initially effectively restricted to criminal and military law

Privy Council

  • Final court of appeal for colonial legal appeals
  • Members overlapped with House of Lords, but were not identical
  • High court appeals could still be made to privy council till 1975
  • State Supreme court appeals could still be made to privy council till 1986 (Australia Act)

House of Lords

  • Final court of appeal for domestic English legal appeals
  • Abolished in 2009, replaced with the UK Supreme Court

What laws did Australia Inherit?

  • Was doubt until 1828 when all non-paramount statues and common law prior to that date were declared relevant by an Imperial


  • Equity did not transfer over – that required a Supreme Court
  • This did not provide a source of the law – merely a cut-off date – the source was the actual settlement itself
  • Dormant common law remained irrelevant until applicable, at which point it became law

Colonial Laws Validity Act

  • Made any laws passed contrary to an Imperial Statute invalid to the degree with which they conflicted that statute.

Lecture 3

Federation, Political Institutions and the Judiciary; Case Law and Court Hierarchies

Colonial Laws Validity Act

  • Clarified repugnancy and asserted the supremacy of Imperial Statutes
  • Continued to apply post-Federation


  • Note: introductory level stuff, not that relevant
  • Pre-federation process – focus on drive from colonies to states
  • Passed by British parliament in 1900 – aka Federation
  • Western Australia was added after a last minute referendum via a clause in the constitution
  • New Zealand was another potential candidate
  • The Commonwealth (Federal) Parliament can only pass a statute in areas within its express of implied constitutional power.
  • Eg. Criminal Law is unique to each state, as is health (State Hospitals)


  • Australia moving away from Britain/British Control
  • Treaty of Versailles – first international treaty signed by the Australian Government
  • Balfour Declaration – Britain and its dominions were considered equals, led to Statute of Westminster Act

Statute of Westminster (1931) and Statute of Westminster Adoption Act (1942)

  • Initially resisted, but adopted in 1942 to seek protection from the US rather than the UK
  • Act to remove Doubts
  • Schedule contains actual statute
  • Did not apply to the states
  • Section 2(i) Voids colonial Laws Validity Act, backdated to 1939
  • No law passed after 1939 by the Federal Parliment can be repugnant to an Imperial Statute
  • Federal Government can repeal/amend any Imperial Statute

Example – Captain Cook Cruise case

  • Only sailed within state of NSW and its waters, subject to NSW Parliament, not Federal
  • Used limitation of liability based on Imperial Statute
  • Commonwealth had amended/repealed that statute, but the state couldn’t
  • Interpretation – “part of THE law” included all applicable Imperial Statutes, while “part of A law” wouldn’t have
  • Therefore statute of Westminster Adoption included the ability to repeal/amend Imperial Statutes that affected the states
  • If a state parliament had passed a statute specifically applying within that state, it would NOT be part of THE law of the Commonwealth, as it would not apply throughout the Commonwealth of Australia

Australia Act (1986)

  • Removed Colonial Laws Validity Act at a state level
  • Very similar to Statute of Westminster Adoption Act, but applied to “state” rather than “dominion”
  • Agreed by UK, Australia, and all State Parliaments
  • Existing statutes all still applied until amended/repealed

The Senate

  • State based, all states have equal numbers, to protect the interests of the smaller states
  • Now more party based, states interests are less relevant than which party controls it
  • See Barwick CJ’s opinions of the senate
  • 6 year terms, elections every 3 years for half the senators

Areas of Exclusive Power for the Commonwealth (Federal) Parliament

  • Defence
  • Feign Policy/Dealing with Foreign Powers
  • Currency
  • Etc.

Concurrent Powers

  • Shared by both Commonwealth and State
  • If clashes *do* occur, Commonwealth takes precedence is as far as the conflict goes

Residual/Exclusive Power

  • “Everything Else”
  • State Authority – eg. Education, Criminal, Health

Double Dissolution

  • Triggers on second time senate rejects, fails to pass, or passes a bill with unacceptable amendments
  • Requires 2 failures separated by at least 3 months
  • Results in a Federal election (all senate/house of representatives re-elected)
  • Must be at least 6 months before the next scheduled election

Joint Sitting

  • Senate + House of Representatives sitting together to vote on a bill
  • Can be forced by the Double Dissolution Trigger
    • What does “Rejects or Fails to Pass” mean? When does 3 months start?
    • Parliments pass statutes – NOT “the Government”, which has a much wider scope
  • Queensland is unicameral – bills always voted the way the government in power wants them to be. Review Constitution of Queensland for more information.
  • Judicial – legally binding power
  • Non-Judicial – Not legally binding (eg. Arbitration)
  • Only a Superior Court can create a binding precedent (must be recorded)

Lecture 4

Legal Reasoning, Case Analysis, Ratio Dicidendi and Obiter Dictum

Inductive vs Deductive Reasoning

  • Basic idea of what they are is required
  • NOT required when describing/forming the ratio
  • Inductive – Particular -> General – “Must be some common thread”
  • Deductive – General -> Particular

QUESTIONS ABOUT RATIO/OBITER WILL BE IN THE EXAM. Not that Hinchy confirmed that during the semester … oh no of course not!

Identifying Obiter

  • Keywords such as “observation”
  • “If x had…..”

NB: Ratio is not an exact science. Even high court judges can interpret different ratios from the same case.


  • About extracting “the rule of law” that dealt with the facts/decision
  • Ratio *MUST* be linked to the decision/point of law
  • The ratio establishes precedent rather than the actual decision – as it’s the rule of law that establishes the actual decision
  • A “Principle of Law” – general underlying principle (eg. Neighbour principle)
  • “any rule of law”/”the rule of law” refers to a specific rule of law, NOT a general principle
  • “line of reasoning” – obiter dictum that led to the judges decision
  • Each judgement on a point must be specific – different levels of generality can only occur in multiple judgements
  • Use MacCormick’s definition of ratio
  • Ruling, rather than “rule of law”/principle
  • Only wide enough to settle the point in dispute – must link directly to the point in dispute
  • One case can have multiple disputed points, if so, each point has its own ratio
  • Trial court mostly just applies rules of law, high court ratio’s may not be existing rules of law, therefore ratio is not just a rule of law
  • Judges interpretation of an existing statute/rule of law can be the ratio

Obiter Dictum

  • All past decisions referenced
  • Any issues not before the court
  • Any examples given
  • All observations made
  • Anything but the facts, the points in dispute, and the ruling

How to find the Ratio

  • How many judges sat on the case?
  • Determine who is in the majority/dissent
  • Determine any joint judgements
  • Find the point(s) of law in dispute by looking at the legal facts
  • Read first majority judgement, facts, etc.
  • Analyse that judgement for its ratio
  • Repeat steps 4/5 for all majority judgements
  • Try to find common ratio for the case
  • NB: Dissenting Judgements DO NOT contribute to the ratio

Lecture 5

Determinig Ratio and Obiter

Ratio Notes

  • If the judge considers one or more rules and chooses to simply apply one, the rule itself is the ratio.
  • If a new rule or modified rule is created to settle the dispute, that new rule is the ratio (common in court of appeals)
  • Ratio is much simpler than a principle – it is as specific as it needs to be to resolve the point in dispute
  • Reminder: Multiple legal issues = multiple ratios
  • Matters of substance are ONLY those relevant to the legal issue
  • Identify each judgement’s ratio separately (for judges in the majority) and make sure that a majority of the overall judges have a consistent ratio – otherwise there is none

Policy Considerations

  • General considerations for society/community (Public Health, Insurance, etc.)
  • External to the parties of the dispute
  • Policy considerations can include factors like ‘effect of a ruling on a particular profession’

Carbolic Smoke Ball case

  • In the case of an offer to the world at large:
  • The detriment in performing the act is the consideration
  • And performing the conditions specified constitutes acceptance

Lecture 6

Does every case have a ratio?

Ratio Notes

  • When considering ratio, there are two senses of majority required – the majority of judges who rule in favour of the final decision, and the majority of those judges with a consistent ratio. Both are required
  • Must identify a sufficient commonality between both senses, with the second more specific majority being required to number a majority of all judges ruling
  • Dissenting judges CANNOT contribute to the ratio
  • Mason – every decision has a ratio, even if it isn’t given – at least it’s valid for the case it decides
  • Privy Council – every case doesn’t have to have a ratio – it must be identifiable or discernable
  • McHugh – (Opinion, not statute) – If you can’t identify a ratio, the decision still stands for all other cases that are not REASONABLY DISTINGUISHABLE

Lecture 7

Fundamental Legislative Principles and Theories of Statutory Interpretation

Is following Precedent a Rule or Practice?

  • Hinchy says Practice
  • Some disagree
  • Phrase “Doctrine of Precedent” still acceptable regardless
  • Requires discernable ratio or McHugh’s “not reasonably distinguishable”

What is Adjudication?

  • all the actions of a judge throughout the entire court process, leading up to and including the final judgement

Declaratory Theory of Law

  • Law was social wisdom, known by the people
  • Judges merely declared what this law was – they did NOT make it
  • Much more willing to question past decisions – only if a decision was generally accepted did it have any authority, and then only due to general acceptance
  • Law reports constituted a record of “generally accepted” law that existed
  • “Past decisions claim authority not in virtue of having been decided or settled, but in virtue of having a place within a recognized body of common acceptance”
  • Searches for reasoning behind the decisions, rather than their ratios
  • Doesn’t have much support now – contemporary legal reasoning refers to declaratory theory as a ‘fairy-tale’

Positivist Concept of Precedent

  • “Under the positivist conception of adjudication, precedential cases stand for or embody general rules” (ratio)
  • Promotes certainty and predictability
  • Pre-18th century, not much law written down or recorded – difficult to reference past cases, and there was no strict court hierarchy
  • Stare decisis (pronounced “starry desisis”) – the decision stands
  • 1820’s – House of Lords moved from members of parliament to actual judges
  • 1830’s – appeal system reformed
  • 1898 – House of lords decides its own appeal decisions bind even it, to prevent uncertainty
  • 1966 – House of lords decides it can overturn its own appeal decisions in the interests of fairness (court of final appeal needs to be able to do this)
  • Judges became law makers, rather than simply law staters (partially responsible for the development of common law)

Cross’s Rules

1. All courts must consider relevant case law
2. Lower courts must follow the decisions of courts above them

  • Otherwise the system just doesn’t work
  • eg. Qld Supreme Court could not extend a principle if it had not been so first by the High Court on an area that they had ruled on (if the case was reasonably distinguishable but had no definitive ratio)

3. Appellate courts are generally bound by their own decisions

  • State appeal courts generally bound (varies from state to state)
  • High Court never bound (final court of appeal) but most don’t get leave to appeal to the High Court – makes state appeals courts final court of appeal for most – they need leave to correct past errors without requiring High Court intervention

Avoiding or “Wrong” precedents

  • per incuriam – “through want of care” or “wrong in law”
  • If the decision was just plain wrong compared with existing law, it cannot be a binding precedent – it is per incuriam, and can be disregarded
  • Requires some error in legal decision making – need to identify a fact that was overlooked or an error to justify considering a case per incuriam

General Notes

  • Full Court of *state* = Court of Appeal
  • High Court overturning previous rulings – Development of Law (or re-development)
  • State Court of Appeal overturning previous rulings – Can not develop the law, merely change past decisions in the interest of fairness

Lecture 9

Fundamental Legislative Principles and Theories of Statutory Interpretation

  • Use single quotation marks – double quotation marks are within the single
  • Placement of quotation marks before punctuation when you have a partial quote
    • After punctuation when you quote a sentence
  • Essays may be back around … yeah, Hinchy doesn’t know
  • Delegated legislation (eg. regulation)

The legislative process

  • Importance of legislation and statutory interpretation within the common law system in Australia
    • More purposive approach to statutory interpretation in courts now
  • Chief Justice of NSW: ‘… Significant areas of the law are determined entirely by statute. No area of the law has escaped statutory modification.’
  • Primary versus delegated legislation
    • Civil Liability Act 2003 (Qld) is an example of primary
    • Civil Liability Regulation 2003 (Qld) is an example of delegated
  • Regulation-making power is under s 74(1) of the Civil Liability Act 2003 (Qld): ‘The Governor in Council may make regulations under this Act’.
  • Section 48 of the Constitution of Queensland 2001 establishes an Executive Council for State
    • EC exists to advise Governor on exercise of the powers of the Governor in Council
  • Governor is Sovereign’s personal rep etc.
    • See PPT slides

Civil Liability Act 2003 (Qld)

  • Not a codification – statutory modification
  • Judge’s interpretation of a section of statute could be the ruling/ratio
  • Regulation contains all the details
  • General principles are set out in the Act itself
  • Act goes through parliament (is the law)
  • Regulation does not go through parliament
  • General principles of drafting a proposed Bill
    • It must be decided whether the legislative proposal should be drafted in general principles or in ‘black-letter’ provisions
  • General principles – easier for those affected to comprehend the legislative chance
    • However, general principles creates more uncertainty, particularly in relation to any future court decisions interpreting said statute
  • Explanatory memorandum accompanies a bill (extrinsic material)
  • Initiation of the bill and the first reading
  • Second reading speech (extrinsic material)
    • Minister sets out main policy reasons – can be used in statutory interpretation
  • Second reading debate
  • Consideration in detail
  • If no amendments are proposed, the third reading is a formality
  • Royal assent and proclamation

Fundamental Legislative Principles

  • Fitzgerald Inquiry —> an independent Office of the Queensland Parliamentary Counsel
    • Electoral and Administrative Review Commission (EARC) – no longer exists
  • EARC Report, para 1.6: ‘Should fundamental legislative principles be set forth in statutory guidelines?’ (see p. 282 to 284 of text)
  • In consequence of EARC Report: Legislative Standards Act 1992 (see p 284-5 of the text)
  • NB: Modern statutes in Commonwealth and Qld context have an purpose or object section
  • Fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law
  • Henry VIII clause is a clause in a statute that allows the statute to be amended by a subordinate or delegated legislation
  • Departure from fundamental legislative principles: see p. 286-7 of text

Delegated Legislation

  • Legislative versus executive activity: the general versus the particular
  • Amendments through Acts of parliament
  • Necessity for delegation
  • Commonwealth delegated legislation now covered by Legislative Instruments Act 2003 (Cth)

Theories of Statutory Interpretation

  • Theories of statutory interpretation
    • Textualist theories
      • Restrictive
    • Intentionist theories
    • Purposive interpretation theory
    • Dynamic theories
    • Lease restrictive
  • Examples of these theories: Chapter 13 of text
  • There is overlap between the different theories
  • Relationship between statute law and common law
    • “Legislative concern with issues of tort, contract and equity has transformed litigation. An increasing part of the ordinary work of judges of all courts, including the High Court, turns on the interpretation and application of statutes; some of extraordinary complexity. The relationship between common law and statute is symbiotic.”
      • Symbiotic relationship
  • Influence of legislative change
    • obiter dicta comments of Kirby J in Harriton v Stephens [134]-[144] concerning the influence of legislative change in area of the tort of negligence in Australia provide a current example of the importance of the relationship between statute law and common law and the influence of legislative change on the development of the common law in Australia
  • Role of HC is to declare what the common law is – however, Civil Liability Acts confuse this role
    • May fragment the Common Law in Australia (between the states)
  • For example of obiter dicta: 326-8

Textualist theories

  • Emphasise the actual meaning of the words in the text of the statutory provisions
  • Place emphasis on meaning of text than on intention of parliament concerning that meaning or the purpose of the statute
  • Based on fact that interpretation of a provision in a statute cannot change over time
  • Statutory interpretation is an exercise in ascertaining plain meaning of the words of the statute
  • Soft plain-meaning theory
    • The theory considers the plain meaning within its historical context
  • New textualist theory
    • Emphasises the actual text of statute (only basis for interpretation)

Intentionist theories

  • Focus on the intention of parliament
  • Does ‘intention’ in this context refer the subjective or objective intention of the parliament?
  • Lord Nichols: ‘”intention of Parliament” is an objective concept, not subjective … the intention which the court reasonable imputes to Parliament’
  • Lord Reid: ‘We are seeking the meaning of the words which Parliament used.’
  • (1) The specific intent theory (eg. the common law literal approach – no longer used)
  • Higgins J: Look at intention of parliament, which is found through the language used by parliament in the statute’s context (What does language mean, its ordinary and natural sense)
  • (2) Imaginative reconstruction theory ‘reconstructs’ the reason for the enactment of a statute (eg. common law mischief approach to statutory interpretation

Purposive interpretation theory

  • Emphasises the importance of the object or purpose of a statute when interpreting the meaning of a provision of the statute
  • Approach specified by various Interpretation Acts in Australia
  • It is not based only on the purpose or object of the statute
  • Justice Kirby advocates a purposive interpretation theory which acknowledges the use of context and extrinsic material

Dynamic theories

  • (1) Best answer theory
  • (2) Pragmatic theory
  • (3) Critical theory
  • Hinchy thinks context is most important (sections around the disputed statute section)
    • as well as the historical context …
  • Court must give an interpretation (can’t just give up and say this is too hard)

Lecture 10

Interpretation of Statutes

General Notes

  • Statutory Interpretation is as much an art form as a skill – it can’t be truly mastered
  • Course focus is on Statutes/Legislation, Subordinate Legislation (Regulations) and the Constitution – not covering contracts, wills, etc. although they are a fairly similar skillset

Need for Interpretation

  • Not actually needed that often – statutes are generally clear, and there is no point in trying to misinterpret a clear statute. Eg. Mandatory retirement age for High Court judges is clearly spelt out
  1. Unclear/Ambiguous wording (eg. “Persons of notoriously bad character”) – criminal charges in particular need to be clear if people are to be punished for breaking them
  2. Meaning of words is plain in isolation, but inconsistent when the act is considered as a whole (one section permits an action, another restricts it – internal conflict)
  3. Meaning was plain initially, but unclear factoring in new circumstances (new technology raises questions about terminology or applications)
  4. Meaning is plain but absurd (eg. Applies to area surrounding a zone but not to the zone itself)
  • Literal vs. Purposeful interpretation – eg. “vehicle” in reference to recreational parkland – purposeful would interpret it to permit bikes, scooters, etc. but literal interpretation would not

Sources of Rules

1. Common Law

  • Disputes resolved by the courts (separation of powers)
  • Rule of Law – even the law-makers are ultimately answerable to the law
  • Certain rules and presumptions initially developed in common law

2. Legislation

  • Declaratory Act to clarify or remove doubts regarding an act (these are particularly common if Parliament feel that a judge interpreted an act “wrong”)
  • Acts Interpretation Acts – rules and standards for interpreting an Act (Note: This is just an Act, its not binding on other Acts that specify they depart from it, can be amended, etc.)
  • Acts Interpretation Acts override *some* common law rules, but others still apply – depends heavily on context
  • Common Law allows use of extrinsic materials even in the absence of ambiguity (whereas the AIA only refers to using them to resolve ambiguous issues)

The Literal Rule

  • If language is clear, use a literal interpretation
  • Don’t guess the meaning of the phrase, just use the actual words
  • Only applies when the words themselves are unambiguous
  • Intention must come from the Act – no extrinsic materials used
  • Inconvenient/Absurd consequences are still valid – at least until the Act is amended

The Golden Rule

  • As per the Literal Rule, unless absurd or repugnant with the rest of the statute. If so, you can override the absurdity
  • Only applies for actual absurdity, not mere inconvenience
  • Absurdity must be found and identified within the statute itself – not when combined with other statutes or extrinsic material
  • “Absurdity” is something that would effectively defeat the purpose of the statute

The Mischief Rule

  • Initially established in 1584 – Heydon’s Case
  • Originated because Parliament met infrequently – resulting in a lengthy delay between legislation or amendments being able to be passed
  • At that point, there was no real law regulating the economy, redistributing wealth, etc. – the only real law was the common law
  • Acts were generally just modifications to the common law
  • In case of Absurdity/confusion, ask:
  1. What was the old common law?
  2. What mischief did it allow?
  3. What remedy has Parliament provided?
  4. What was the true reason for the remedy?
  • Evolved to include the general prior state of law (look at judgements, the common law, etc.)
  • Ultimately evolved into the purposive approach

The Purposive Approach

  • Current approach mandated by statute that courts are supposed to use"
  1. What was the subject matter?
  2. What was the objective Parliament sought?
  3. Would this objective still be achieved with a modification that made the statute clearer?
  4. If so, what modification would be required to remain true to the purpose?
  • Example application: An unqualified prohibition that defeated the aims of the statute
  • Look at the act as a whole, all relevant law, and extrinsic material

Interpreting in Context

  • The original Purposive Approach was applied when a statute was ambiguous
  • Now looks at context even before ambiguity is encountered
  • “Ambiguity can only really arise out of context” is the justification provided
  • Problems with this: Can lead to non-lawyers being unable to rely on literal interpretation of statutes – even when there is no ambiguity on the face of the statute itself, the courts may still find some within other statutes or common law rulings

What is “context”?

  • Traditionally “the rest of the Act”
  • High Court recognises 3 levels:
  1. Immediate Context (a particular section) – sub-sections are read together
  2. The Statute as a whole
  3. Other relevant statutes, common law rulings, extrinsic material
  • Note: Modern statutes identify the purpose of the statute at the beginning of the Act, older ones won’t

Limits of the Purposive Approach

  1. Purpose of the statute can be vague or obscure (eg. A heavily amended act may not have a consistent purpose – example being the ones relating to taxation where the only consistent purpose is getting money out of people)
  2. Purposive is inappropriate for certain things such as criminal law – crimes MUST be strictly interpreted – people must KNOW what the criminal law is at the time of the offense

Lecture 11

Interpretation of Statutes

Hierarchy of Statutory Interpretation

  1. Basic Rules
  2. Subsidiary Rules
  3. Presumptions

Statutory Purposive Approach – Basic Rules

  • Acts Interpretation Act (Cth) Section 15 AA (1) – 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.
  • Acts Interpretation Act (Qld) Section 14A
    • (1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
    • (2) Subsection (1) does not create or extend criminal liability, but applies whether or not the Act's purpose is expressly stated in the Act.
    • (3) To remove any doubt, it is declared that this section applies to an Act passed after 30 June 1991 despite any presumption or rule of interpretation.
  • Example of Queensland Act – overwrites the presumption of taxation laws to be interpreted strictly and in the taxpayers favours
  • (3) Probably doesn’t actually do anything – the presumptions were always only used only if there was no compelling reason to ignore them
  • Presumptions or “rules of interpretation” are just general guidelines used by judges, not actually set out in statute
  • “Purposive” only relevant if 2 or more interpretations are possible (after a full reading of the Act and investigation if any ambiguity could be read into it) – if only one is possible, the old literal rules apply
  • An interpretative construction must be a reasonable interpretation, not an unnatural contradiction
  • The statement of general purposes (found in modern Acts) must be interpreted with caution, and read as part of the Act as a whole. Can be so vague and general as to be useless
  • Interpreting ‘and’ to mean ‘or’ would require a convincing textual reason elsewhere in the Act to avoid being an unnatural interpretation
  • Conditions for reading in missing words (as per McHugh J):
  1. Know the mischief the Act deals with
  2. Be satisfied that Parliament overlooked an eventuality that needs to be dealt with to achieve the purpose
  3. Be able to state with certainty the words Parliament would have used if its attention was drawn to the omission
  4. (As per Speigelman CJ) The words actually used in the statute must be reasonably open to the implication –construction must be text based.
  • Some words must be “read down” (downgraded) to avoid undesirable results where an alternative, better meaning is available, and there is no disagreement about desirability (aka everyone can agree that the literal interpretation would be undesirable)
  • Eg. Protectionist Act making Chinese Laundries less efficient held to only apply to commercial laundry activity, not ironing own shirt after hours (though a literal interpretation would cover that as well if not read down)

Subsidiary Rules (aka “rules for guidance”)

  • Depends on context
  • Probably not affected by the AIA (Qld) 14A (3) as they’re not technically presumptions
  • Noscitur a sociis – Words gain meaning from associated words – provisions must be interpreted in the context of the Act. Applies to specific words taking their meaning from context
  • Ejusdem generis – General words gain their meaning from the class of specific words preceding them. Applies where a general word follows 2 or more specific items of a definable class. Only applies when a class can be definitively established (if one or more items doesn’t fit, it doesn’t apply)
  • When neither rule applies, meaning is drawn from context/purpose
  • Does not apply where Act makes evident that it does NOT intend to limit the words to the class. (eg. “whether by fire, flood, storm, tempest, act of God, or by reason of any other cause or circumstance whatsoever whereby the peace order, good government or public safety is imperilled’ is probably not limited to the class of preceding items)
  • Expressio unius est exclusion alterius – An express reference to one excludes others not referenced.
  • Generalia specialibus non derogant – When the general and the specific conflict, the specific prevails. Can occur within or between Acts, uses common sense
  • Does this mean the general get explicitly overwritten by the specific? NOT ALWAYS – applied with GREAT CAUTION, only really used to confirm/support a conclusion already reached or strengthen an argument
  • If the specific Act is later, it repeals the earlier
  • If the general is later, it requires analysis of the two to see if they can co-exist. If this is impossible, then the specific prevails
  • If within the same Act, it will generally identify which prevails. If not, then the specific provision prevails, if equally general, the later provision prevails
  • Interpretation favours the validity of legislation and its workability – eg. If a literal interpretation would make the Act useless or invalid on Constitutional Grounds, a new interpretation will be looked for to save its validity/functionality, such as reading it down to avoid Constitutional conflict

Lecture 12

Interpretation of Statutes

Selected Presumptions

  • Only a small subset of the important ones
  • Referenced to as “assumptions” or “rules” as well as “presumptions”
  • Presumption is overturned if a contrary intention is evident in the Act – only used to clear up ambiguity left in the Act

Why Presumptions are needed?

  • Parliament is not to be considered “evil” unless the language is clear
  • No written English constitution during development of the common law – Parliamentary power had no real limits beyond political or cultural limitations
  • Common Law interpretations traditionally used to keep Parliament in line by judges, in part via these presumptions (making it harder for them to be “evil”)
  • Rationale – “the principle of legality” – Parliament not taken to violate basic rights and freedoms unless specifically stated in unambiguous language
  • Aspect of the rule of law – all rules must be able to be clearly known beforehand
  • Not rebutted by general words of implications – must use express unambiguous language

1. Presumption in favour of constitutionality

  • Not relevant in England (No constitution)
  • Established in relation to colonial constitutions
  • Presumed that Parliament did not intend to overstep its limits
  • Read the Act down to the extent of the inconsistency
  • Sever the unconstitutional part of the Act, but keep the rest
  • Unless intention is clear, should not be read as attempting to exceed

2. Presumption against extra-territoriality

  • As above, but applies to state/national territory limitations
  • Derived from ‘comity of nations’ – on nation would not legislate for another
  • Particularly important to state legislation, powers divided between commonwealth and the state

3. Presumption against retrospective operation

  • Legislation presumed not to apply retrospectively
  • Consistent with basic right not to be punished for an act that is lawful when committed
  • Nullum crimen, nulla poena sine praevia lege poenali (Latin, lit. "No crime, no punishment without a previous penal law")
  • Constitutional Barrier – High Court ruled (Polyukhovich 1991) that Parliament cannot enact a law that retrospectively punishes specific persons (but still acceptable for people in general)
  • Relates to separation of powers – ‘Bills of Attainder” – Act to punish specific persons/groups for acts that were lawful when they occurred. NOT a feature of state constitutions, son only applies to FEDERAL Criminal Law, not States

4. Presumption against taking property without just compensation

  • very STRONG provision
  • Crown attempted to claim land to get Limestone deposits without compensation, claim failed
  • Constitutional barrier – s51 – cannot acquire property without fair compensation. (Only applies to FEDERAL, not states)
  • Related Presumption – Legislation presumed not to interfere with vested rights, and will narrowly interpret any Acts that do

5. Presumption against Binding the Crown (or Government in general)

  • Not as strong now as in the past
  • Crown traditionally limited to police functions, but now have a much wider array of responsibilities – need more limits
  • Can now be replaced much easier than in the past (French J – 1991)

Interpreting Penal Statutes

  • Criminal statutes must be strictly interpreted, and in favour of the offender
  • Do not extend a criminal statute/offense without clear words – would be a restriction of liberty
  • Ordinary rules apply, but if ambiguity remains, it is then resolved in favour of the defendant
  • Even if an oversight, the court should not extend its application without express language

Penal Statute Presumptions

  • Not given extra-territorial relation without clear wording
  • Law does not require people to do something that is impossible (if an Act requires contradictory or impossible acts, that interpretation will not be applied)
  • Crown not liable for Criminal Penalty (Queen can do no wrong)
  • Presumption against self-incrimination unless expressly specified (1963 – breath testing found to be voluntary due to lack of express provision)

Interpreting Criminal Codes

  • Criminal Code replaces common law completely (based on common law though)
  • Retrospective Criminalisation “basic human right” under International Law
  • Except under Nuremberg exception (for acts that were already considered offenses under International law)
  • Courts do NOT look to the Common Law to interpret the code, only the words of the Code and the AIA
  • Criminal Code treated like any other statute – interpretation can look to common law for definitions of technical terms
  • All principles of statutory interpretation are applicable

Constitutional Interpretation

  • The Constitution was an Act of British Parliament
  • Designed as a lasting charter of Government – requires referendum to modify (majority of people and majority of states)
  • Britain has a living constitution rather than a physical paper one – works on opinions/beliefs of the inhabitants and the common law

Theories of Constitution Interpretation

  • Highly Controversial, philosophical, and political
  • Courts most likely to choose the interpretation they feel is just

1. Textualism/Literalism

  • Favours the literal meaning of the text
  • Sceptical of Judges reading in the “intent” of the founders
  • Official doctrine of the High Court in 1920 (Engineer’s Case)
  • Can defeat the intention of the founders and undermine the constitution
  • High Court has since retreated from Literalism, as it tends to prevent the recognition of important implicit elements of the constitution (free speech, due process, etc.)

2. Originalism

  • Gives weight to the intention of the founders/ratifiers of the constitution
  • Collective intention of makers difficult to determine – individual intentions can conflict, debates/proceedings may not help
  • 100+ year old document – could not have had intentions with regards to the future and changes in society
  • It must either ignore these “bad consequences” or ignore the intentions – therefore is inconsistent

3. Pragmatism

  • Gives effect to text and known intentions where possible
  • But also looks at the consequences of this
  • Not allow original intent to cause harm that founders could not have foreseen at the time
  • Probably the version currently used by the High Court

Exam Reference Guide

Ratio Decidendi

  1. Identify the court, number of judges, and which ones constituted the ratio. If it involves more than simply applying an existing law, identify this too
  2. “MacCormick’s model of ratio decidendi is conceptually the most compelling explanation of ratio. According to MacCormick, ‘[a] ratio decidendi is a ruling expressly or impliedly given by a judge with is sufficient to settle a point of law put in issue by the parties’ arguments in a case, being a point on which a ruling was necessary to his [or her] justification (or one of his [or her] alternative justifications) of the decisions in the case.”
  3. Identify the issue(s) in dispute from the material facts – reference by paragraphs
  4. Identify the ratio(nes) – once again, reference MacCormick and the location
  5. Identify the legal reasoning involved in reaching the ratio – if time permits, identify examples of obiter

Statutory Interpretation

  1. Identify that the statute applies – if no information is given on commencement, identify that you assume it has commenced
  2. Identify the issues of the question that need to be solved
  3. Read the section as a whole, identifying ambiguity, then the entire Act (or excerpt) as a whole, identifying if that changes anything – working with only plain, ordinary meaning of the words (including dictionary definitions)
  4. Identify any internal aids that can be used for Commonwealth statutes/Queensland statutes passed prior to 1991, or alternatively state that “since the Act operates in Queensland and was passed after June 30th 1991, we should not look to presumptions or rules of interpretation for additional information (s14A(3) Acts Interpretation Act 1954 (Qld))
  5. Identify the need for the purposive approach as specified by the Acts Interpretation Act that applies in this case:

(a) “Since the Act operates in Queensland, ‘the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation' (s14A(1) Acts Interpretation Act 1954 (Qld))
(b) “Since this is a Commonwealth Act, ‘in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act…shall be preferred to a construction that would not promote that purpose or object’ (s15AA(1) Acts Interpretation Act 1901 (Cth)”
6. Identify the need to look to beyond the Act if required.

(a) “Since the Act operates in Queensland, consideration may be given to extrinsic material if ‘the provision is ambiguous or obscure…the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable…[or] to confirm the interpretation conveyed by the ordinary meaning of the provision (s14B(1) Acts Interpretation Act 1954 (Qld))”
(b) “As this is a Commonwealth Act, extrinsic material may be used to ‘confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision…or to determine the meaning of the provision when the provision is ambiguous or obscure; or the ordinary meaning… leads to a result that is manifestly absurd or is unreasonable (s15AB(1) Acts Interpretation Act 1901 (Cth)”

7. “The courts have established that it is necessary to look beyond the Act itself to identify or clarify any ambiguity. ‘The use of the word ‘ambiguity’ in the context of statutory interpretation is not restricted to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It extends to circumstances in which the intention of the legislature is for whatever reason, doubtful.’ (Spigelman CJ in Repatriation Commission v Vietnam Veteran’s Association (2000) 48 NSWLR 548 at 577-8)”
8. Having identified the approach and any ambiguity, identify the potential arguments for each possible interpretation in relation to how well they would be supported by the apparent purpose.
9. Conclude which construction better promotes the purpose of the Act based on that reasoning.

Relevant References

Walton Stores (Interstate) v Maher (1988) 164 CLR 387 (equity – 17-18)
The Law of Nations or the Principles of Natural Law, Emerich de Vattel (International Land Colonisation and terra nullius 24-25)
Mabo v Queensland (No. 2) (1992) 175 CLR 1 (terra nullius overruled 34-40)
Commentaries on the Laws of England, Sir William Blackstone (reception of English law 27)
Australian Courts Act 1828 (Imp) s24 (Clarification + cut-off date for non-paramount 28)
Colonial Laws Validity Act 1865 (Imp) (Australian laws repugnant so far as they conflict with law of England 32-34, 66)
Australian Constitutions Act 1850 (introduction of Legislative councils and upper/lower houses, 67)
Commonwealth of Australia Constitution Act (1900) UK (Australian Constitution, 87-88)
Statute of Westminster Adoption Act 1942 (Cth) (Cth statutes no longer repugnant 90-105)
Kirmani v Captain Cook Cruises Pty Ltd (No 1) (185) 159 CLR 351 (Cth statutes no longer repugnant 90-105)
Australia Act 1986 (passed by all states, Britain, Cth – overrides Colonial Laws Validity Act, removes privy council 105)
Donoghue v Stevenson [1932] AC 562 (principle and ratio example)
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (ratio example)
Declaration of Principles on Judicial Independence 1997 (tenure of judges/ability to appoint temporary judges 163-164)
Legislative Standards Act 1992 (Qld) (General standards Queensland legislation should try and adhere to)
Statutory Instruments Act 1992 (Qld) (Identification and limitations placed on regulation, delegated legislation, and other identified statutory instruments)
Harriton v Stephens [2006] HCA 15 (9 May 2006) [134]-[144] (Kirby’s comments on relationship between statute and common law 326-328)
Acts Interpretation Act 1954 (Qld)
Acts Interpretation Act 1901 (Cth)