Teaching Social Justice through Statutory Interpretation
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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.
![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.](data:image/gif;base64,R0lGODlhAQABAIAAAAAAAP///yH5BAEAAAAALAAAAAABAAEAAAIBRAA7)
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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
- 5. LEARNING PROPERTY LAW Common law statute law
- 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
- 10. TEACHING TO REFLECT PRACTICE Rethinking the common law | statute nexus
- 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
- 19. Embodiment of statute in every- day transactions
- 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?
- 22. THINKING ABOUT SOCIAL JUSTICE Statutes in context
- 23. Specific contexts: residential tenancies Residential Tenancies legislation ‘Home’ unknown to law Poverty Inquiry 1975 Historical context
- 24. Observe machinations of change Statutory reform govt lawyers Evaluate, identify injustice; advocate Call an inquiry Processes of parliamentary reform Return to start
- 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?
- 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