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In the first half of the 20th century most civil actions were for causes of action not much affected by statute: trespass, negligence, libel and slander, breach of contract and the various forms of equitable suit. Most criminal prosecutions were for offences created by statute but whose elements were treated as identified largely by judge-made law. There were great codifying acts; intellectual property acts, facultative acts, and regulatory statutes, but judge-made law was of central and dominating importance. The second half of the 20th century saw the statutory cause of action emerge to prominence, the enactment of laws permitting modification of privately-made agreements, the creation of new rights and obligations and novel forms of criminal offence. Statute became the central and dominating form of regulation of rights and obligations. The proper construction and application of statutes always has been, but now more than ever is, an essential legal skill. This subject seeks to develop and refine those skills.
Principal topics include:
- Construction—a text-based activity but involving more than a dictionary in one hand and the text in the other
- The importance of the constitutional framework and other basic assumptions
- The search for meaning and the metaphor of intention
- The place of Interpretation legislation, including rights Acts
- The canons of construction, their use and abuse ('canons to the right of them; canons to the left of them; on into the valley of death')
- Ambiguity and its resolution, including the use of extrinsic materials
- Inconsistencies, repeals, amendment, consolidation and retrospectivity
- The legislative misfire
- Special rules for special areas
- Rules and regulations—power to make, construction and use in construing the legislation
- Overarching theories and descriptions of the construction process.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an advanced and integrated understanding of the features of statutes and their process of enactment, the interpretation of statutes and the principles governing their interpretation and the proper approach to issues arising in the application of statutes in practice in the 21st century
- Be able to critically examine, analyse, interpret and assess the effectiveness of these principles
- Be an engaged participant in debate regarding approaches to statutory construction
- Have a sophisticated appreciation of the factors and processes involved in statutory construction and application
- Have an advanced understanding of the interaction between issues arising in the application of statutes in the 21st century and the wider legal framework
- Have the cognitive and technical skills to generate critical and creative ideas relating the proper approach to issues arising in the application of statutes in practice
- Have the cognitive and technical skills to independently examine, research and analyse a statute and its construction
- Have the communication skills to clearly articulate and convey complex information regarding interpretation and application of statutes
- Be able to demonstrate autonomy, expert judgment and responsibility as a practitioner and learner in the field of statutory interpretation and application in the 21st century.
Last updated: 9 December 2021