Constitutional model of the Separation of powers
The
Australian legal system is based on the model of the separation of powers among
the three branches of government:
1.
The
legislature makes the laws
2.
The
executive administers the laws
3.
The
judiciary enforces the laws
This means
there are checks and balance on authority. Each branch has its own
responsibility and powers, and each can place limits on what the others can do.
No one person or group can control all three branches of the government.
1.
The
parliament, elected by the people, is the supreme law-maker.
2.
The
executive administers the law passed by the parliament
3.
The
laws made by the parliament are given effect by the courts, which interpret,
apply and enforce those laws.
Statutory interpretation
Statutory
interpretation is what a judge does when deciding the meaning of a statute. The
judge decides questions of law.
Because the
words in a statute may contain more than one meaning, “interpreting” statutes is
an example of judge made law.
Rules for statutory interpretation
The courts
apply one or more of the following approaches to the interpretation of the
statutes:
1.
Literal
approach
2.
Golden
rule
3.
Mischief
rule
4.
Purposive
approach
5.
Contextual
approach
6.
Use
of extrinsic material for statutory interpretation
7.
Other
rules of statutory interpretation
Literal approach
Under the
literal approach, the court gives a literal interpretation to the words used in
the statute.
1.
The
words in the statutes must be precise and unambiguous
2.
The
literal approach is in line with the separation of powers – the judge must give
effect to the words the parliament has used in the statute, and must not apply
their own personal ideas about justice or public policy.
Golden Rule
The golden
rule follows the literal approach then qualifies it by letting the courts
override the actual meaning of the words used in the statute if it would
produce a result which the parliament would not have intend to have.
Case example: Re Sigsworth, Bedford and Bedford
[1935] 1 Ch 89
Mischief Rule
Under the
mischief rule, a judege can identify the problem which existed before the
legislation was passed and interpret the legislation so as to advance the
remedy set out in the legislation.
The
mischief rule involves:
1.
Understanding
the law before the legislation was passed
2.
Analyzing
the problem which existed before the statutes was passed
3.
Applying
the remedy of the legislation, and
4.
Understanding
the policy behind the legislation
Purposive approach
Under the
purposive approach, courts try to interpret the words in the legislation to
give effect to the purpose of legislation. The purposive approach focuses on
the remedial purpose. It does not authorize a judge to redraft the legislation
to fit the assumed intention of parliament.
Contextual approach
Under the
contextual approach, the meaning of words used in legislation cannot be worked
out by taking a word in isolation and interpreting the word in a vacuum. The
context rule is also called the noscitur
a sociis rule. This is important rule if a word has many meanings because
it can limit the word and stop the statute from being read too widely.
The context
of the word is critical, because a word which is not defined in a statute
usually gets its meaning from all the surrounding circumstances and text. A
word should not be taken out of its context.
Use of extrinsic material
If there is
ambiguity or doubt, legislation sometimes allow for extrinsic material to help
with interpretation. External material can also help with the interpretation of
contracts.
Section
15AB of the Acts Interpretation Act 1901
(Cth) sets out the threshold and other restriction on the using of
extrinsic material.
