The contemporary dialogue surrounding statutory interpretation in Australian legal education has tended to focus on the adjudicative experience. Much of the literature on the discrete subject of statutory interpretation is written by experts in public law and by judges. There is however a much wider experience of working with statutes, including the daily practice of transactional lawyers and the application of statutory provisions in contexts that are unlikely ever to see judicial interpretation. In the latter case, it is often by parliamentary design that rights, obligations, and processes for dispute resolution are provided for explicitly outside the context of courts of record. Usually the purpose of such statutes is to promote access to justice. Legislation of this type is therefore a rich context for student learning about the need for and processes of access to justice. Because clues to interpretation, to resolution of ambiguity, or to the meaning of terms cannot be found in the courts, the question for the legal educator becomes how best to teach the reading of a statute outside express judicial guidance through precedent. This paper uses the example of property law to illustrate a statutory interpretation framework within which to use statutes to reveal issues of power, and to understand the operation of legislative responses that promote access to justice.
A Lawyering Approach to Teaching StatutesKate Galloway
Judicial concern with the adequacy of statutory interpretation education in law school has been persistent. In some discipline areas such as property law, the nature of the problem has been slightly puzzling for some in light of the inevitability of working with statutes in a statute-based subject. This presentation articulates what may be a differential experience with ‘statutory interpretation’ from the standpoints of judging and lawyering. Further, it asks whether the well-described focus in legal education on the appellate adjudicative process has contributed to the apparent lack of graduates’ experience in ‘statutory interpretation’. This presentation suggests that teaching ‘statutory interpretation’ needs to encompass both a judicial and a lawyering approach to statutes, and presents for discussion teaching approaches that emphasise the role and application of statutes in a transactional context.
A Lawyering Approach to Teaching StatutesKate Galloway
Judicial concern with the adequacy of statutory interpretation education in law school has been persistent. In some discipline areas such as property law, the nature of the problem has been slightly puzzling for some in light of the inevitability of working with statutes in a statute-based subject. This presentation articulates what may be a differential experience with ‘statutory interpretation’ from the standpoints of judging and lawyering. Further, it asks whether the well-described focus in legal education on the appellate adjudicative process has contributed to the apparent lack of graduates’ experience in ‘statutory interpretation’. This presentation suggests that teaching ‘statutory interpretation’ needs to encompass both a judicial and a lawyering approach to statutes, and presents for discussion teaching approaches that emphasise the role and application of statutes in a transactional context.
This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD
With current new amendments and law adding on in the Indian Judiciary, its important to know and be well aware of the statutes. You can consider this subject as 'Grammar of Law'. Teaches you exactly are the statutes made by the Legislative authorities as well. From use of particular language to construction of words this presentation almost includes all the part of how a statute is made, how they are learned and how exactly are the legal maxims used.
Interpretation of law - Legal Environment of business - Business Law - Manu M...manumelwin
The process by which the courts of law try to ascertain or understand the meaning of the legislation through the wording of enactment is technically called interpretation. The aim of interpretation of a statute is to find out the legislative intention.
Nature of law and administration of justice by Dr. Rajashree J. Jawalesundarsasane
This topic deals with definition and concept of law , kinds and sources of law and Administration of Justice under Jurisprudence. This topic is useful for law students and for general public to understand the basic concepts ,
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD
With current new amendments and law adding on in the Indian Judiciary, its important to know and be well aware of the statutes. You can consider this subject as 'Grammar of Law'. Teaches you exactly are the statutes made by the Legislative authorities as well. From use of particular language to construction of words this presentation almost includes all the part of how a statute is made, how they are learned and how exactly are the legal maxims used.
Interpretation of law - Legal Environment of business - Business Law - Manu M...manumelwin
The process by which the courts of law try to ascertain or understand the meaning of the legislation through the wording of enactment is technically called interpretation. The aim of interpretation of a statute is to find out the legislative intention.
Nature of law and administration of justice by Dr. Rajashree J. Jawalesundarsasane
This topic deals with definition and concept of law , kinds and sources of law and Administration of Justice under Jurisprudence. This topic is useful for law students and for general public to understand the basic concepts ,
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
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Knowledge of Which is Precondition re: and Requisite for
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This country’s planted thick with laws from coast to coast . . . a.docxjuliennehar
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1-1
Definition of Law
Philosophers and scholars throughout history have offered definitions of law. Aristotle, the early Greek philosopher, wrote that “the law is reason unaffected by desire” and “law is a form of order, and good law must necessarily mean good order.” Oliver Wendell Holmes Jr., a U.S. Supreme Court justice of the early twentieth century, said, “[L]aw embodies the story of a nation’s development through many centuries.” Sir William Blackstone, the English philosopher and legal scholar, observed that law was “that rule of action which is prescribed by some superior and which the inferior is bound to obey.” Black’s Law Dictionary defines law as “a body of rules of action or conduct prescribed by the controlling authority, and having legal binding force.”1 Law has been defined at least once by every philosopher, statesman, and police officer.
Law is simply the body of rules governing individuals and their relationships. Most of these rules become law through a recognized governmental authority. Laws give us basic freedoms, rights, and protections. Law also offers a model of conduct for members of society in their business and personal lives and gives them certainty of expectation. Plans, businesses, contracts, and property ownership are based on the expectation that the law will provide consistent protection of rights. Without such constancy in legal boundaries, society would be a mass of chaos and confusion.
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1-2a public versus private Law
Public law includes those laws enacted by some authorized governmental body. State and federal constitutions and statutes are all examples of public laws, as are the state incorporation and partnership procedures, county taxation statutes, and lo ...
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Teaching Social Justice through Statutory Interpretation
1. Statutory Interpretation and
Access to Justice: Text,
Context and Purpose
Kathrine.galloway@jcu.edu.au
ALTA Conference
La Trobe Law School, Melbourne
17-18 July 2015
2. It is the function of the court alone authoritatively
to declare the legal meaning of an
enactment…[In the meantime all that exists is]
non-authoritative, non-judicial conjectures
(usually by practising or academic lawyers) as to
what [the enactment] amounts to.
Francis Bennion, Understanding Common Law Legislation: Drafting and
Interpretation (Oxford University Press, 2001), 17, 19.
3. Transactional lawyers must
make meaning of statutes daily
Courts deal with
statutes up here
Transactional lawyers
deal with statutes down
here
4. Thinking, rethinking about
statutes in land law
Challenge the
emphasis in property
law teaching
Embed iteration of
working with statutes
in property law
teaching
Showcase how
statutes promote
access to justice
6. ‘While much of Australian real property
law has been reshaped by legislation,
little attention has been given to the
principles underlying much of the
legislative reform. An understanding of
real property law requires analysis not
just of leading cases, but also of detailed
legislation.’
Bradbrook et al, Australian Real Property Law (5th ed, 2011), 7
7. Learning property law tends to
be structured like this
Common
law
Statute
Sovereignty
Doctrine of
tenure
Doctrine of
estates
Legislation…
eg
8. Property law practice happens
like this
Instrument
Statute
Registry
Office
Manual
Case law
9. We revert to common law
The conclusion … seems to us to result from
a lawyer's inherent tendency to assimilate
such a right to some category known to
the common law… The question must be
judged having regard to rights and interests
created by the law of today, without, it
seems to me, trying to fit them into the law
of feudal tenures and estates.
Commissioner of Main Roads v North Shore Gas Co
Ltd (1967) 120 CLR 118, 127, 131
11. Teaching aim: integrate statutes
and instruments, informed by
common law, through authentic
tasks
12. This subject context
Iterative development:
working with statutes (2nd year)
Foundation
statutory
interpretation
In depth look at
principles; general
method;
interpretive criteria
13. Subject(s) content
Land law 1
Property
Land
Doctrines tenure & estates
Co-ownership
Priorities
Land law 2
Torrens
Mortgages
Leases
Easements, covenants
14. Subject approach: Broad statutory
framework [context]
Statutory land title regulation
Freehold
Property
Law Act
National
Credit
Code
Land Title
Act
(Torrens)
Community
Titles
Non-freehold land
Land Act
Retirement
Villages Act
Native Title
Act
Residential
tenancies
Trusts
Act
Mineral
Resources
Act
Water Act
Retail shop
leases
15. A journey through each statute
[purpose]
Version,
commence-
ment
Purpose,
objects
Structure
Geographical
extent
Persons and
things
covered
Adapted from Francis Bennion, Understanding
Common Law Legislation (Oxford, 2001), 184-5
16. Reading, interpreting particular
text S184(3) Land Title Act
…[indefeasibility]
subsections (1) and (2)
do not apply…if there
has been fraud by the
registered proprietor…
Bahr v Nicolay (No 2)
(1988) 164 CLR 604, 614
‘…actual fraud,
personal dishonesty or
moral turpitude lie at
the heart of the fraud
exception [to
indefeasibility]’
18. Towards an integrated
approach
Common
law terms
Statutory
regulation
Private
covenants
Tend to be
omitted in
teaching
Usually a starting
point
Tend to be considered
after common law
20. Reading the instrument of
mortgage (echoes approach to
statute)
Commence-
ment
Interest
secured
Structure of
instrument
Persons and
things covered
•Parties
•Respective
obligations
Does the
Property Law
Act apply?
How/why?
Who has the power, and where are the
protections: statute common law
21. Reading the instrument of lease
Commence-
ment; term
Premises leased
Structure of
instrument
Persons and
things covered
•Parties
•Respective
obligations
Does the
Property Law
Act apply?
How/why?
Who has the power, and where are the
protections: statute common law?
26. Identify statutory tools for social
justice
Self-
representation
Address specific
context
Equal access to
information
Establish
regulatory body
Alternative
dispute resolution
Establish tribunal
(now QCAT)
27. Read and make meaning of text:
‘intellectually manipulate the
relevant materials’
Covenant:
instrument
Property Law
Act
Residential
tenancies
legislation
Common law
Quiet
enjoyment
Short form
covenants,
Schedule 3
s183 Telex v Thomas
Cook
28. New context: retail shop leases
Retail Shop Leases Act
Economic
hardship
Small
business
Power
imbalance
29. Integrate unseen statute and
instrument
• Problem centered on the instrument
• Does the statute apply?
• Does the instrument comply?
• What are the consequences?
30.
31. Exercise requires students to
Establish how statutes
work together
Read, apply
subordinate legislation
Deal with uncertainty
Make meaning of
unseen provisions
Appreciate the effect
of power imbalance &
role of statute
32. More statutory tools for justice
Disclosure
requirements
Advice
requirements
(legal, financial)
Minimum standards
Unconscionability
provisions
Alternative dispute
resolution
Specialist tribunal
(now QCAT)
33. Case study
shows
Need to prioritise
statute law
Consistent, scaffolded
iteration of statute’s
context through
structure
Attention to text
through authentic
application
Social justice via
statute