Making Sense of Statutes (LAWS90261)

There has been a massive increase in the volume of statute law in Australian jurisdictions over the past century, with the result that statutes now play an important role in most areas of law and in the resolution of most appellate court cases. Yet there is widespread disagreement about the approach that should be taken to interpreting statutes. For example, should that approach focus on the text of the statute, the intentions of the legislature or the statutory purpose? Where textual considerations conflict with the statutory purpose, which should prevail? It is their differing answers to these questions that distinguish the main theories of statutory interpretation: textualism, intentionalism and purposivism.

Even more fundamentally, many of the key concepts in statutory interpretation are not well understood. For example, the High Court of Australia tells us that the duty of the court is to give the words of the statute their “legal meaning”, but what is “legal meaning"? Similarly, what is statutory purpose, and how does it differ from legislative intent? For that matter, what is meant by “legislative intent”, and is there any such thing as an intention of the legislature as a whole?

This subject aims to explore these issues in depth, building on students’ understanding of statutory interpretation developed in previous subjects. This subject will have a theoretical focus, analysing fundamental concepts employed in, and theoretical debates about, statutory interpretation. It will use this theoretical focus to critically evaluate the approach taken by Australian courts, and to shed light on the way in which statutes operate in the contemporary Australian legal system.