Discuss about the Statutory Interpretation Law.
There are several different complicated stages involved in the legal system, and it also has different areas of jurisdiction as well as a enormous group of rules and regulations that need to be followed. In this context it is very significant for a legal system to safeguard that there is fairness for all who are related with the legal system, whether plaintiffs, defendants or other parties (Zines, 2008). Mainly, there are two ways in which it can be made sure that the legal system has the required fairness. First of all, there are the general presumptions and procedures that are introduced for the purpose of making sure that a fair trial or court hearing takes place. The other remained in this regard is the system of law that has been introduced with a view to make sure fairness in society. This is called the Law of Equity. Equity had a significant impact on different sources of law in Australia, both primary and secondary (Ratnapala, 2007).
According to a basic principle, just as not only be done but it should also seen to be done. This is necessary for the purpose of regaining the trust of the society in the legal system. Unless the victims, witnesses and the society unaware of the efforts that have been made to bring to justice, the persons who are responsible for crimes and other wrongdoings, there is an apprehension that justice will become an abstract concept. It is very significant that in the eyes of the public, accountability is introduced in the legal system by the law. For example, there are certain key elements of justice that are present in the legal system of Australia. These include the presumption of innocence, unbiased judges, and the provisions relating to the protection of the witnesses in cases where it is required (Howard, 1985). The intention behind the presumption of innocence is that it should apply across all countries and cultures, as a basic human right.
A system of laws is required by the modern society to function properly. For the last many centuries, jurists and legal philosophers have tried to define the term law and these definitions have been significantly impacted by the social, political, moral and religious opinions of the contemporary culture. In the same way, the legal system in Australia has also been influenced by the economic, political, moral and religious considerations including equity that had an impact on the English legal system. In Australia, the political and legal systems function at a two-tiered base at the federal and the state level. For example, the English heritage of Australia has provided the Westminster system legacy of government and the judicial system that is based on the common law or in other words the judge made law (Carvan, 2002). The result is that two main sources of law in Australia are the statute law and the common law. The political and judicial systems in Australia operate in the federal model, set up in 1901. As the government and the judicial decision-making takes place at the federal as well as the state levels, sometimes it results in a confusion among the students or observers of the legal system of Australia regarding how these federal systems can operate cooperatively. However, historically the federal system in Australia has worked fairly well but sometimes; tension has also surfaced between the governments, particularly in areas like health, education, environment and the regulation of financial markets and corporations (Barnes, 1994).
As mentioned above, there are two major sources of law in Australia. The statute law is a form of law that has been impacted by the nine Parliaments (Commonwealth, six states and the two territories). Some examples of the statute law include the Commonwealth legislation like the Competition and Consumer Act, 2010 (Cth) and the Corporations Act, 2001 (Cth). The example of state legislation can be the Crimes Act, 1958 (Vic) Goods Act, 1958 (Vic). In the legal system of Australia, some of the lawmaking powers can be delegated by the parliament to subordinate or delegated bodies like the local councils, university councils or other statutory authorities that have been set up on the relevant legislation. When rules, regulations, ordinances etc. are created by these bodies in accordance with the relevant acts, this is known as subordinate legislation or delegated legislation (Lane, 1997). An example in this regard can be given the situation according to which the rules made by the Australian Competition and Consumer Commission and the ASIC enjoy similar force of law as is the case with the statutes.
The other source of law is the common law which comprises un-enacted laws that are produced by the decisions of the courts even at the federal, state and territory level, including the decisions given by the High Court of Australia, the verdicts given by the Supreme Courts of States and Territories and the pronouncements given by the federal/family courts (Ellinghaus, Bradbrook and Duggan (eds.), 1989).
In case of most of the liberal democratic systems, the Parliament is considered as being lawmaking authority. As the laws that have been made by the Parliament have to undergo parliamentary scrutiny, they are considered as the authoritative sources of law. This form of law is present in several Acts of the Parliament that can be found in Commonwealth and State laws. While traditionally, the contract law as remain the province of the states but with the enactment of Competition and Consumer Act, 2010 (Cth) which substituted the earlier Trade Practices Act, 1974 (Cth), the Commonwealth is also marked an entry into the field of trade and commerce. This legislation has been conscripted in order to fall within the purview of the lawmaking powers of the Commonwealth Parliament that have been prescribed in section 51 of the Commonwealth Constitution. In this way, the Act may regulate the activities of the corporations as defined in section 51(xx). This provision also extends to the commercial and business deeds of the persons who were involved in interstate/overseas trades or are involved in trade with the Northern Territory or the Australian Capital Territory.
The major task of the Parliament is to make the laws. In Australia, there are nine Parliaments (Commonwealth, state and territory) that are involved in lawmaking. Generally, each of these Parliaments have three elements. These are lower house (House of Representatives in case of the federal Parliament. Legislative Assembly (States and territories); Upper house (the Senate in case of the federal parliament and legislative Council at state and territory level) and the Queen or her representative (the Governor General (federal level) and the Governor (State level/Administrator in case of Territories).
The courts are also significant source of law but the impact of this source has been reducing as increasingly more statutes have been passed at the Commonwealth and the state level. However, the courts are frequently required to decide differences where unclear language is used in a particular statute is not clear and needs explaining. All these statutes are written by using a general language that requires specific context. However in some cases, the language used in the statute could be unclear or ambiguous and therefore may have several meanings. In such a case, the statutory interpretation of the particular provision by the courts decides the meaning of the specific clause or the provision. While integrating these statutes, the courts have to keep in mind the provisions of the Acts Interpretation Acts at the federal, state and territory levels. The legislations define several common terms and they also provide that the courts to keep in mind the fundamental purpose of the law. In this regard, however the courts are also allowed to consider extrinsic materials like explanatory memoranda where a doubt is present regarding the meaning that can be attributed to the language used in the statute (Blackshield and Williams, 2006).
As mentioned above, a key source of law in Australia is legislation, both at the federal and the state of the territory levels. In view of the bulk of legislation and the pressure that is present on the time of the Parliament, it is not desirable or possible that the parliaments should make decisions related with the details of this legislation. It is particularly the case when the subject matter of a particular legislation is quite technical or it is likely to change frequently. Therefore in this type of cases, power has been provided to the Parliament to ‘delegate’ or to give away the task of making comprehensive regulations to a subsidiary body (Lane, 1979). Generally this subordinate body is the Governor General or the Governor, a minister of the concerned department who has the responsibility of implementing the legislation or local counsel or any other statutory body. Until then, these bodies may rely on the skill of the experts while creating the regulations that are made according to the Act of the Parliament or in other words the ‘enabling’ statute.
Due to the reason that the subordinate or delegated legislation is made under the authority of the enabling Act, it is required that the rules should be made according to the manner that has been stated by the enabling Act and should fulfill all the formalities (Kercher, 1995). There are numerous mechanisms to ensure that the delegated legislation has been made properly, according to the authority that has been conferred by the Parliament. Delegated legislation can also be reviewed by the courts and they may arrive at the conclusion that the legislation is invalid due to the following reasons. Ultra vires: this happens when the court considers that the delegated legislation extends the power of the authority provided by the enabling Act. In order to establish Ultra vires, it is required be shown that the subordinate legislation is not consistent with the statute law or the common law. The reason is that unless special provisions have been made for delegated legislation to prevail, generally it does not overrule the common law or statute law (Parkinson, 2001). If a court has declared a regulation as ultra vires, the legislation becomes invalid and no longer contains the force of law. Another reason is the lack of formalities. This happens when although the legislation was inside the powers of the subordinate body, however certain formalities have not been fulfilled. The court may declare the legislation to be invalid where, e.g., failure has taken place to follow the compulsory procedure or an attempt has been made to sub-delegate the authority to third-party.
The common law is also a source of law which is mainly derived from the verdicts of the judges. As a result, the source of law is also known as the judge made law. Another source of law is the doctrine of precedent. In this context, precedent means the ruling delivered by a court establishing a point of law. The basis of the doctrine of precedent is a notion according to which “like cases should be decided alike”. The rationale behind this doctrine is to provide certainty and predictability in the laws which allow the persons to plan their trade matters with reasonable certainty that what is being done by them is legal.
References
Barnes, J.W., 1994, “Statutory Interpretation, Law Reform and Sampford’s Theory of the Disorder of Law” Part One, 22 Federal Law Review 116
Blackshield A. and Williams, G., 2006, Australian constitutional law and theory: commentary and materials, 4th ed.,Sydney: Federation Press
Carvan, J. 2002, Understanding the Australian Legal System Lawbook Co.: Sydney.
Ellinghaus, M., Bradbrook A. and Duggan A. (eds.), 1989, The Emergence of Australian Law Butterworths: Sydney, p 70
Howard, C., 1985, Australian federal constitutional law, 3rd ed., Sydney: Lawbook
Kercher,R., 1995, An Unruly Child: A History of Law in Australia Allen & Unwin at 7, 52
Lane, P. 1979, Australian federal system, 2nd ed, Sydney: Lawbook
Lane, P. 1997, Lane’s commentary on the Australian constitution, 2nd ed., Sydney: Lawbook
Parkinson, P., 2001, Tradition and Change in Australian Law, Sydney: LBC Information Services
Ratnapala, S., 2007, Australian constitutional law, foundations and theory, 2nd ed, Melbourne: OUP
Zines, L., 2008, The High Court and the Constitution, 5th ed., Sydney: Federation Press
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