Legal System 3 - Sources of Law 2 Flashcards
What is the primary role of the judiciary?
To apply the law
If the law is unclear, judges must…
interpret the law
What is statutory interpretation?
It is the process that judges undertake to interpret the meaning of a word, phrase or section within a statute
What are the four rules of statutory interpretation?
- Literal Rule
- Golden Rule
- Mischief Rule
- Purposive approach
What does the literal rule say?
Courts must give the words used in a statute their ordinary meaning
What does the golden rule state?
Words in a statute are given their ordinary and literal meaning unless that would produce and absurd or repugnat outcome
The golden rule allows the court to depart from the…
literal rule
What does the mischief rule state?
Courts may consider the “mischief” that a statute was designed to remedy
Example: street prostitution forbidden, prostitute is inside house, behind window
What is the purposive approach?
Courts consider the purpose of the Act when interpreting
What are rules of language?
Rules that judges may apply to assist them in interpreting unclear, ambiguous or vague words in the context of other language used within the same statute
What are the key rules of language
ejusdem generis
expressio unius est eclusio alterius
noscitur a sociis
What does the eiusdem generis principle state?
If an Act includes specific words that are followed by general words, the general words are taken to refer only to things of the same kind
What does the expressio unius est exclusio alterius principle state?
If an Act expressly lists certain things, this implies that other things are excluded
What does the noscitur a sociis principle state?
The words used within a statute derive meaning from the words surrounding them
What are presumptions of statutory interpretation?
Certain things are implied in all statutes. However, these presumptions are rebuttable
What are examples of key rebuttable assumptions
- statutes do not alter the common law
- statutes do not apply retrospectively
- statutes do not bind the Crown
What two main categories of aids to statutory interpretation exist?
(a) internal aids
(b) external aids
What are aids to statutory interpretation?
They assist judges in construing statute
What are key examples of internal aids?
Short title
Long title
Preamble
Marginal notes
Punctuation
Schedules
Examples within the Act
What are key external aids
Dictionaries
Interpretation Act 1978
Explanatory notes
Hansard
Academic writings
Treaties and conventions
What does the rule in Pepper V Hart state?
Hansard may be consulted as an external aid to statutory interpretation where
- the provision is ambiguous, obscure, or leads to an absurdity
- there is a clear statement by the Minister promoting the Bill
