1. Judging, Lawyering, Teaching: A lawyering approach to
teaching statutes [email protected] Staff Seminar, Bond
University Law Faculty 8 July 2015
2. CONTEXT (Re)thinking Statutory Interpretation
3. [LACC should] review the present Academic requirements in
the light of the prevailing practices in Australian law schools, to
ensure that statutory interpretation is given the prominence and
priority which its daily importance to modern legal practice
warrants. 2007, Victorian Chief Justice, with Chief Justices of
Australia, NSW
4. Relax! I teach a statute-based subject!
5. Since 2007 Approaches to interpretation (LACC, 2009) Good
Practice Guide Statutory Interpretation (Brown et al, 2011) Report
to LPAB re stat interp (2013) Report to LACC, CALD re stat interp
assessment (2014) Review of Academic Requirements (LACC, 2015) CALD
Good Practice Guide Statutory Interpretation (CALD expert
committee, forthcoming)
6. Reflecting on practice Consider the emphasis in the CALD
Good Practice Guide for stat interp Contrast this with the
experience of transactional lawyering Filling the gaps in legal
education
7. JUDGING CALD Good Practice Guide to Teaching Statutory
Interpretation (2015)
8. Judges perception of lawyering The conclusionseems toresult
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
9. Statutory interpretation is more than simply a skill; it is
a discrete body of law. CALD Good Practice Guide, 11
10. Multi-factorial approach PURPOSE CONTEXT TEXT Judging is a
practice of doing, not articulating the underlying theory or
structure being appliedThe general method is ever- present in the
case law. CALD Guidelines, 13
11. 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.
12. LAWYERING Statutory Interpretation | Working with
Statutes
13. Transactional lawyers must make meaning of statutes daily
Courts deal with statutes up here Transactional lawyers deal with
statutes down here
14. Lawyering too, is the practice of doing Instrument Statute
Registry Office Manual Case law
15. + lawyering is non-adversarial Many statutes are designed
not to be used by the courts eg Retail Shop Leases Residential
Tenancies Consumer protection statutes
16. TEACHING TO REFLECT PRACTICE Rethinking the common law |
statute nexus
17. Teaching tends to look like this Common law Statute
Sovereignty Doctrine of tenure Doctrine of estates Legislation eg
What is a mortgage (C/L) Equity Property Law Act Land Title
Act
18. What if we swapped common law|statute lexical priority?
Statute Instrument Common law
19. Case study Iterative development: working with statutes
(2nd year) Foundation statutory interpretation In depth look at
principles; general method; interpretive criteria
20. Subject(s) content Land law 1 Property Land Doctrines
tenure & estates Co-ownership Priorities Land law 2 Torrens
Mortgages Leases Easements, covenants
21. Step 1: Broad statutory context Statutory land title
regulation Freehold Property Law Act National Credit Code Land
Title Act 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
22. Step 2: 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
23. Step 3: Reading particular text S184(3) Land Title Act
[indefeasibility] subsections (1) and (2) do not applyif 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]
24. Step 4: Self-guided location of provisions in unseen
statutes (eg BCCM) How does a community titles scheme come into
existence? What are their components? What is an entitlement? What
are owners entitlements contribution? What are owners entitlements
interest?
25. ADDING AUTHENTICITY: WORKING WITH INSTRUMENTS Transactional
law
26. 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
27. Embodiment of statute in every- day transactions
28. Reading the instrument of mortgage/lease (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 rights, where are
responsibilities: statute common law
29. Clarify: instruments operate within nested legal contexts
Common law Land Title Act Property Law Act Consumer Credit
Code
30. Read and make meaning of text: intellectually manipulate
the relevant materials eg: Covenant: instrument Property Law Act
Residential tenancies legislation Common law Quiet enjoyment Short
form covenants, Schedule 3 s183 Telex v Thomas Cook
31. A lawyering approach to teaching statutes Judging v
lawyering Afford lexical priority to statutes Explicit, holistic
statute reading every time Self-guided reading Integrate
instruments into student learning