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Interpreting Statutes

Edited by Suzanne Corcoran and Stephen Bottomley

CONTENTSREVIEWS

Interpreting Statutes was cited 4 times by the High Court in Momcilovic v The Queen [2011] HCA 34 (8 September 2011)


Interpreting Statutes
has been written for lawyers and judges who must interpret statutes on a daily basis, as well as for students and scholars who have their own responsibility for the future.
This book takes a new approach to statutory interpretation. The authors consider the fundamental importance of context in statutory interpretation across various fields of regulation and explore the problems, which arise from the frequent disjunction between regulatory design and subsequent statutory interpretation. As a result, they bring to the fore fundamental theoretical questions underlying interpretive choice and expand our appreciation of how critical interpretive issues are to the proper functioning of our legal system.

 

The book is divided into two parts. The first covers several areas dealing with fundamental theoretical issues. The second deals with particular areas of the law, such as criminal law or corporate law, addressing the utility and functionality of the general theories from different legal perspectives and illustrating the fact that different interpretive principles may take precedence in different areas of the law. It reveals the complexity of statutory interpretation when applied to actual practice in a particular area of law.

 

Despite this complexity and the unique problems of statutory interpretation within each area of law, some major themes emerge including: the strong influence of constitutional interpretation; tension between common law rights and statutory innovation; questions about the interaction of domestic law with international law; tension between settled judicial principles of interpretation and principles embedded in legislation; issues concerning the interpretation of delegated legislation; and questions about gap filling and discretion in the interpretation of statutes and codes.

CONTENTS

Foreword by Michael Coper/Acknowledgments/List of Contributors/Table of Cases/Table of Statutes

Introduction
Susan Corcoran

Part I Fundamental Themes

Theories of Statutory Interpretation
Suzanne Corcoran
The Architecture of Interpretation: Dynamic Practice and Constitutional Principles
Suzanne Corcoran
Statutes and the Common Law: The Continuing Story
Paul Finn
The Interpretation of the Constitution
Leslie Zines
Ethical Interpretation and Democratic Positivism
Tom Campbell

Part II Specific Areas of Law

Human Rights and Statutory Interpretation
Hilary Charlesworth
Conceiving of Tradition: Dynamics of Judicial Interpretation and Explanation in Native Title Law
Anthony Connolly
A Framework for Understanding the Interpretation of Corporate Law in Australia
Stephen Bottomley
Employment Law — A Test of Coherence Between Statute and Common Law
Phillipa Weeks
Codifying the Criminal Law: Issues of Interpretation
Miriam Gani
Interpreting Law Enforcement Immunities: The Relationship Between Judicial, Legislative and Administrative Models
Simon Bronitt
Interpretive Approaches of the Tribunals and Courts in Discrimination Law
Peter Bailey, Rachel Callinan and Anna Dziedzic
Interpreting Family Law: A Case for Legislative Principles and Presumptions Regulating the Making of Parenting Orders
Juliet Behrens
Health Legislation: Interpretation Coherent with Conscience and International Human Rights
Thomas Faunce

Index

REVIEWS

[Despite] theoretical inadequacies, it must be acknowledged that there is a great deal in this book that lawyers, judges and law thinkers generally will find of interest and use. …
... practitioners in employment law, family law, criminal law and others, will benefit from the essays dealing specifically with those areas.
This book is an excellent beginning. It offers hope for the future of a coherent theory of statutory interpretation in Australia.

Max Leskiewicz, (2006) 26 Qld Lawyer

Aside from a good legal dictionary, about the only book of common application to every legal practice is a good book on statutory interpretation.
Corcoran and Bottomley's work, Interpreting Statutes takes a different approach to the several other Australian texts on statutory interpretation. Rather than approaching its subject on a holistic basis, the book presents a series of essays, each directed at explaining a theoretical premise of interpretation, or the application of interpretative theories to a particular area of law. ...
... [E]ach chapter is interesting in its own right, and the first part of the book is of general academic interest...

Stewart Maiden, Victorian Bar News, Autumn 2006

The rationale of the book is the consideration of the fundamental importance of statutes and their interpretation across various fields of regulation. Importantly, the book does not seek to duplicate the work of text books on statutory interpretation such the excellent Pearce and Geddes, Statutory Interpretation in Australia, now in at least its fifth edition. Rather, it seeks to explore the big theoretical questions as to the role of legislation in Australian society, particularly, its system of legal regulation. Inevitably, constitutional questions arise …
The book is divided into part 1, a general section which considers statutory interpretation in a general context and part 2 which contains essays dealing with the topic in the context of particular subject areas. Of the essays in part 1, Corcoran’s own contributions dealing with theories of interpretation, generally, and with her preferred approach of dynamic statutory interpretation are of particular interest. …
The essays in part 2 address subject areas as diverse as codification of the criminal law; human rights law; native title; employment law and discrimination. Professor Stephen Bottomley’s essay, which looks at the interpretation of corporate regulatory provisions, provides insights which can be applied to many other areas of regulation. He takes the proposition that law takes its meaning and effectiveness from the parliaments that write it and the courts which interpret it and turns it on its head.
First, Professor Bottomley lists the large number of sources of corporate regulation which extend to ASIC policy statements and ASX listing rules. More importantly and more surprisingly, he points out that this large body of law takes it meaning from and is interpreted by every person who uses it including company directors, corporate advisers, regulators, even persons seeking to evade its provisions. While courts and their decisions are both authoritative and influential, courts only get to make such interpretations, relatively infrequently, compared to the acts of interpretation of regulators or persons advising company directors and the very many other users. Bottomley points out that, if attention is only focussed on the way in which courts interpret statutes, much of the process by which statutes are interpreted (and obtain their force and effectiveness in society) will be missed.
Each of the essays in this collection provides valuable insights for the working lawyer who seeks to understand his or her craft and the context in which it is practised. It is yet another valuable little contribution to legal scholarship from the Federation Press.

Stephen Keim, Queensland Bar News, December 2005

This is a book containing many interesting thoughts but not one that is likely to be carried around by practitioners for instant inspiration in court as it is more a work dealing with the philosophy of interpretation rather than its actual practice.

Australian Law Journal (Nov 2005) Vol 79

   

Published 8 June 2005
Publisher The Federation Press
Hardback/352pp
ISBN 9781862875562
Australian RRP $125.00
International Price $115.00
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Law - Legal Interpretation
Law - Jurisprudence / Legal Theory


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