Statutory Interpretation and Access to Justice: Text, Context and Purpose

Kathrine.galloway@jcu.edu.auALTA Conference

La Trobe Law School, Melbourne17-18 July 2015

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.

Transactional lawyers must make meaning of statutes daily

Courts deal with statutes up here

Transactional lawyers deal with statutes down here

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

LEARNING PROPERTY LAWCommon law statute law

‘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

Learning property law tends to be structured like this

Common law Statute

Sovereignty Doctrine of tenure

Doctrine of estates Legislation…eg

Property law practice happens like this

Instrument

Statute

Registry Office

Manual

Case law

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

TEACHING TO REFLECT PRACTICE

Rethinking the common law | statute nexus

Teaching aim: integrate statutes and instruments, informed by common law, through authentic tasks

This subject context

Iterative development: working with statutes (2nd

year)

Foundation statutory

interpretation

In depth look at principles;

general method; interpretive

criteria

Subject(s) content

Land law 1

Property

Land

Doctrines tenure & estates

Co-ownership

Priorities

Land law 2

Torrens

Mortgages

Leases

Easements, covenants

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

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

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]’

WORKING WITH INSTRUMENTS

Transactional law

Towards an integrated approach

Common law terms

Statutory regulation

Private covenant

s

Tend to be omitted in

teaching

Usually a starting point

Tend to be considered after common law

Embodiment of statute in every-day transactions

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

Reading the instrument of lease

Commence-ment; termPremises leasedStructure of instrument

Persons and things covered• Parties• Respective obligationsDoes the Property Law Act apply?

How/why?

Who has the power, and where are the protections: statute common law?

THINKING ABOUT SOCIAL JUSTICE

Statutes in context

Specific contexts: residential tenancies

Residential Tenancies legislation

‘Home’ unknown

to law

Poverty Inquiry 1975

Historical context

Observe machinations of change

Statutory reform

govt

lawyers Evaluate, identify

injustice; advocate

Call an inquiry

Processes of parliamentary

reform

Return to start

Read the statute

Purpose Scope

Structure…

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)

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

New context: retail shop leases

Retail Shop Leases Act

Economic hardship

Small business

Power imbalanc

e

Integrate unseen statute and instrument

• Problem centered on the instrument• Does the statute apply?• Does the instrument comply?• What are the consequences?

But there’s no law

on this!!

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

More statutory tools for justice

Disclosure requirements

Advice requirements (legal, financial)

Minimum standards

Unconscionability provisions

Alternative dispute resolution

Specialist tribunal (now QCAT)

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