hello and welcome to your third lecture for week one of statutary interpretation in this lecture we will consider one very fundamental idea which is really what is the relationship between the common law and statutory interpretation broadly speaking in order to do that we will look at the fundamental aims of statutary interpretation within the common law in order to First understand that we'll have an understanding of some case law and I'll take you through the principles of statutory interpretation and if and its fundamental aims after that we'll look at how that applies to various forms of legislation we'll look at What legislation means and how that impacts the way in which courts can deal with it and finally we'll look a little at a little bit of legal theory in order to contextualize everything so let's first begin with the aims of statutory interpretation statutory interpretation fundamentally has one Central aim notably the general aim as determined by the court or rather the Australian high court in Dixon versus to in 1904 was to determine and give effect to the intention of the parliament as disclosed by the language of the statute note that in this case the court clearly not only determined that the fundamental aim was to give effect to the intention of parliament but they also determined that the best way to do so was through an interpretation of the text of a statute this was in line with what we will study in week three which was the literal rule of interpretation present in the common law at that point in time judges attempted to give effect to the intention of parliament through a deference to the ordinary meaning of words as that was the most accurate and objective way of reaching the intended interpretation or the intended meaning of a statute by Parliament while much has changed since 1904 notably the literal Rule and textual interpretation has given way to the modern approach of statutary interpretation notably through which the court may use context and purpose to make its determinations um however the central aim of statutory interpretation Remains the Same as clarified in attorney general for Canada versus Harlot and carry in 1952 the Canadian High Court clearly says the Paramount rule remains that every statute is to be Expo expounded according to its manifest or expressed intention broadly speaking this continues to be the case in Australia we just use a different method to get there previously we would use the text now we use the text context and purpose of the statute the reason we do that is because and and the way in which we can do that is because of the specific layout of statutes right statutes within themselves have a range of intrinsic materials that allow us to determine purpose context and intent notably a statute will consist of the table of contents the title of an act a preamble and purposes Clause the data percent the words of enactment headings and margin notes sections and subsections and a definition section followed by schedules notably definition sections the title of the act the Preamble and the general General structure of the act of the table of contents allows us to determine the general purpose of the statute that's a broader contextual inquiry one that was not made in the literal the literal rule would literally have been forgive the repetition but the it would have been the court looking at the words and giving affect to the meaning of each word in its ordinary sense however now we have a broader consideration this broader consideration however doesn't mean that the Court could at any stage um overrule the express intention of parliament so now that we know the aims of statutory interpretation let's have a look at the sources of law within Australia what really can the court interpret an engagement broadly speaking the two sources of law in Australia the first is by parliament in the form of legislation or statutes the second is uh judgment law or or case law which through a principle of star decises in the common law binds cours in the future and that's a traditional part of the common law notably in the first lecture video we studied how there's an ascendency of statutes statutes are in their ascendency and are largely becoming the most important source of law within the Australian context in light of it's it's very important for us to really understand What legislation means legislation is basically a complex concept that refers to both primary and secondary legislation primary legislation is specifically statutes a statute is simply a technical term for an Act passed by the parliament secondary legislation refers to delegated legislation or sub ordinary legislation which refers to legislation that may be passed by different departments and ministries of the government such legislation may be found in legislative documents called statutory interpretations also known as rules regulations and orders note for the purposes of this lecture that the rules of interpretation are applied in relation to statutes and are also applicable in relation to delegated or subordinate legislation so what is the relationship then between legislation and the common law toly speaking this is a foundational question that needs to be considered in some detail the broadest way in which the common law regulates statutary interpretation or rather the relationship between the common law and and and legislation is to through foundational principles the first is parliamentary sovereignty and the second is separation of powers parliamentary sovereignty confers upon Parliament the power to make any law in which Parliament pleases it means that Parliament can make or repeal any that it wishes that is a sovereign function of parliament no other government body can do it unless Parliament expressly delegates that power to another body accordingly secondary legislation is a delegated form of legislation where Parliament delegates legislative tasks to the executive the court is not permitted to make or pass statutes under any circumstances broadly speaking separation of powers therefore means that the relationship between the common law and legislation is bound by the terms of parliament Parliament makes laws and the court must Faithfully interpret these laws without imputing an intention that is not expressly held by Parliament therefore if Parliament passes a law about the cutting of 100 gum trees the court cannot interpret gum trees as coconut trees and order the executive to cut a 100 coconut trees instead let's complicate this relationship a little bit and have specific questions which could elucidate this relationship further first could a court find a text centered meaning that is different from the author centered meaning of the legislature the answer to this question is within the common common laws relationship with legislation no the reason for that is because of parliamentary sovereignty they cannot find the meaning of the text to be different from what the author IE Parliament intended the meaning to be can the legislature for instance amend the text in such a way that the original intended meaning has been changed if so what does the later statutory Amendment do to an intervening courts interpretations broadly speaking in the Common Law Courts would have to defer to the version of the statute that has been amended the amendment must be taken into account and this is because of the doctrine of parliamentary sovereignty Parliament can make or repeal or amend any law which they PS and courts must give AFF effect to the intent behind the amendment or the repal so broadly speaking you can see that these two principles of parliamentary sovereignty and separation of powers govern the entire interaction between the common law and legislation they hold courts to account have more on that as we move on but as a final Point let's have a look at what the role of the court is then in the case of Project Blue Sky versus Australian broadcasting Authority in 198 1998 the court considered foundational questions of statutory interpretation and most importantly determined what the role of the what was in an interpretive process the court held that the role it played was to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have in other words the context of the words must be taken into account the underlying purpose of the statute must be considered and the literal meaning is to be given affet to this is the principle of statutory interpretation within the common law as envisaged in the Australian context the court cannot go beyond the bounds of this therefore in Australia we have a situation where interpretation is formal in nature and not activist in nature formal inter interpretation is a subset of a theory of law called judicial positivism positivists argue that law and morality do not have any connection they argue that you cannot get an is from an all accordingly they argue that law as an analytical concept is stripped of moral content they further argue that due to the fact that it's strip of moral content any law that is passed by parliament is in fact valid so long as the procedure to pass it has been adhered to accordingly courts cannot invalidate laws on the basis of the fact that they are immoral in nature this theory of law argues that judges therefore must interpret any law in a way that Parliament or any lawmaking body intends that to be positivists give you one very clear example to to explain this Theory they argue that ambiguity doesn't really matter in this instance because judges when there's severe can make law in line with the intent of parliament so let's take the example of a of a sign in a park that says cars not allowed we are in a park in Melbourne presumingly uh the Botanical Gardens and we see a sign where we're walking along with a little sort of like remote control car that cars are not allowed we ignore this sign and begin to drive our remote control car around the park a forest ranger Catches Us says well no you cannot drive this park around you find $100 in line with the laws of Australia which is or rather the laws of other rules set by Council we refuse to pay it and say well your sign says you cannot drive cars in a park I'm driving a remote control car this goes to court the question before judge is does the word car include a remote control car broadly speaking positivists argue that in an instance like this you look at the intention of Parliament and you come to the best possible solution which is in this instance Parliament intended and passed this law through all the material that we have in front of us victitious of course that the purpose of of of of of not allowing for cars in in the park was for Public Safety and it's because cars can hurt people remote control cars can also hurt people and therefore they will be banned it may not be very moral to ban remote control cars because well remote cars are a fun way of playing children play with them we want children to have fun but that moral content is in impractical for the law to deal with however positivists will concede that in a in a moment like this where there's ambiguity judges can make law in penous so they have to first look at the meaning of a word if the meaning of the word or the semantic meaning is certain regardless of the consequences of interpreting the law judges must interpret it Faithfully in line with the ordinary meaning however if there is unclear meaning judges have some interpreted wegle room according to positivists but that interpretive wiggle room must be in line with the intention of parliament or the expressed purpose of parliament this is very different from interpretivists interpretivists are known as activist judges so interpretivist judges are often very activist interpretivists classically in the Australian context Justice Kirby for instance would be an interpretivist basically argued that sometimes the meaning of a text could be different from the meaning of a statute uh as intended by Parliament and judges can give rise to give effect effect to this textual meaning as opposed to the express intent parament they use a central example to deal with this Ronald Walkin for instance argues that basically paints a picture for you in a fictitious scenario imagine you're on a train from Melbourne through the ocean to Tasmania you have packed a bag for this new sort of train that has been built that goes underwater and takes you to Tasmania in about 15 minutes you're exceptionally excited and in your angst you basically pack a banana as per rules within Australia you can't carry bananas from Victoria to Tasmania you didn't intend that banana to be in your back and when uh a ticket inspector comes to check people's bags he finds this banana interpretivists argue that you cannot deny the existence of that banana similarly they argue within a statute if the text brings out the meaning of something that government probably had no intention to put in there well that meaning is still something that in that judges can give eff effect to this may sound really abstract at this point in time but it's essential for you to work with me on this analogy because this has had profound implications on the development of legal systems notably in the United States the interpretation of the Constitution has moved in line with interpretivist policies broadly speaking in Row versus Wade the reason why there was a right to abortion was because judges looked at the word the right against self-incrimination in the Fifth Amendment of the US Constitution and determined that a right against self-incrimination was meaningless unless you had a right to privacy because self-incrimination in essence is keeping thoughts private not being compelled to say what you have on your mind because it could incriminate you this penumbra right of privacy as they they termed it was then utilized to give right right other rights to Citizens like bodily autonomy because if you have a right to privacy you have a right to your body it's the most private element of of your existence and if you have a right to your body you have a right to put what you want into your body which includes contraceptives and that was in 196 the 1960s they used an interpretive concept to give people the right to take contraceptives and finally in the 70s they use an interpretive concept to confer upon American women the right to aund so while these theoretical Concepts may see seem somewhat alien to us they're important to engage with Australia is very positivist in the way it engages with law it deals with a very formalist interpretive method as we'll see over the next 12 weeks but other countries like the United States deal with interpretivist methods of interpretation so broadly speaking all of this is critical for us to keep in mind as we move forward through this course for the purpose of this first week there's just an important recap at this stage Before I Let You Go note that in this week we've covered why statutory interpretation is important we determin that it's important because statutes are subject to ambiguity whether semantically or syntactically lawyers are and judges are responsible for interpreting these statutes and accordingly they're responsible for giving for alleviating this ambiguity principles of statutary interpretation we also learned some of the more foundational Concepts within statutory interpretation we went through what a statute was we went through ideas of of legal Theory and determined the relationship between courts and the common law these are all Concepts that will come back to through the course of the next few lectures for the time being um I bid you farewell and I'll see you in the next week next week we're going to look at the process for enacting legislation within Australia the week we'll look at constitutional issues that emerge from the enactment of legislation and will further move on to determine how best to understand the broader scheme of legislative enactment within an Australian context thank you