DIPLOMA IN LAWLEGAL PROFESSIONADMISSION BOARD

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

26 UNDERSTANDING LEGAL LANGUAGE AND LEGISLATION

WINTER SESSION 2016This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives 1Lecturers 1Assessment 2September 2016 Examination 2Texts and Materials 3Intensive Lecture Program 3-4Compulsory Assignment 5Assignment QuestionsSample Examination Questions

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Prescribed Topics and Course Outline 9-12

The cover shows Brueghel’s The Tower of Babel.

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LAW EXTENSION COMMITTEE WINTER 2016UNDERSTANDING LEGAL LANGUAGE AND LEGISLATION

COURSE DESCRIPTION AND OBJECTIVES

This elective focuses on the core skill of statutory interpretation, and allows students to develop and build their understanding of how to interpret legislation. As legislation needs to be read in context, and as understanding legislation requires a thorough knowledge of the grammatical tools employed by the legislative drafter, it is strongly recommended that students have completed the optional Language for Lawyers course before enrolling in this elective. The course includes an opportunity for students to develop and refresh their legal research skills. In computer based classes, students will learn how to find extrinsic materials, and consider their use; research the changing history of legislation and consider why this is important in statutory interpretation; and learn how to use research tools to locate words, phrases and sections which have been the subject of prior judicial consideration. The course will examine the common law and statutory principles of interpretation and consider the broader context of statutory interpretation, including the relationship between statutory interpretation and the protection of human rights.

LECTURERS

Mrs Susan Carter, BA (Hons), LLB (Hons) (Syd)

Susan Carter is an experienced commercial solicitor who has worked in private practice, as in-house counsel, and was seconded for a period of government service. Beginning her professional life with the Federal Court, Susan has used her legal expertise both in practical commercial applications and in wider policy issues. A national and international conference speaker, who has served on a number of boards (including the Family Law Council of Australia), Susan is currently involved in legal education, having taught at the University of Sydney before her current involvement with the LEC.

Mr Patrick O’Mara, LLB, BAppSC Information Studies (UTS)

Patrick O’Mara is a legal information specialist at the University of Sydney Herbert Smith Freehills Law Library. He is the Liaison Librarian for LPAB students and teaches legal research in the Legal Institutions and Understanding Legal Language and Legislation courses in the Diploma in Law. He is also the Liaison Librarian for the Sydney Law School in the areas of Constitutional and Public Law, Criminal Law and Criminology, Employment Law, Litigation and Dispute Resolution.

Patrick has extensive experience in teaching legal research. He has been a lecturer for Sydney Law School’s compulsory undergraduate and JD Legal Research courses for over ten years and has also been a coordinator for these courses. He provides legal research assistance on a daily basis to a wide range of clients at the University of Sydney Herbert Smith Freehills Law Library, including academics, students, legal practitioners and members of the public.

Prof Peter Radan, BA, LLB, PhD (Syd), DipEd (SCAE)

Peter Radan is a Professor of Law at Macquarie Law School. He holds the degrees of Bachelor of Arts, Bachelor of Laws and Doctor of Philosophy from the University of Sydney, as well as a Diploma in Education from Sydney College of Advanced Education. He has been a teacher with the Law Extension Committee since 1984. His most recent published books include (with C Stewart) Principles of Australian Equity & Trusts (3rd ed., LexisNexis, 2016); (with C Stewart & I Vickovich), Principles of Australian Equity & Trusts, Cases & Materials (3rd ed., LexisNexis, 2016) and (with J Gooley & I Vickovich) Principles of Australian Contract Law (3rd ed., LexisNexis, 2014).

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ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be received by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Course Information Handbook. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

SEPTEMBER 2016 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics set out below in this subject guide.

The examination will consist of four questions. Students will have to complete all four questions. There may be internal choice within some of the questions.

The examination will be a closed book examination.

Please note: All questions in relation to the examination should be directed to the Legal Profession Admission Board, not the Law Extension Committee.

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TEXTS AND MATERIALS

For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.

Course Materials

Guide to Presentation and Submission of Assignments (available on the LEC Webcampus) Other materials as advised in class

Prescribed Texts

DC Pearce & RS Geddes, Statutory Interpretation in Australia, 8th ed. LexisNexis, 2014 (If students can obtain a second hand copy of the 7th edition (2011) that should be sufficient.)

Recommended Texts

Michael Meehan, Graham Tulloch, Grammar for Lawyers, 3rd ed. LexisNexis, 2013 Herzfeld, Tully, Prince, Interpretation and Use of Legal Sources – The Laws of Australia, Thomson

Reuters, 2013 Herzfeld and Prince, Statutory Interpretation Principles, 1st ed. Thomson Reuters, 2013

LEC Webcampus

Once you have registered online with the LEC, you will have access to all the facilities on the LEC Webcampus including any materials that the lecturer may make available to students. These course materials can be found in the Course Materials section of the LEC Webcampus.

INTENSIVE LECTURE PROGRAM

This course will be taught in intensive mode over two periods during the session to allow for a longer, workshop style of presentation. Accordingly, there will be no separate weekend schools.

The dates for the Winter 2016 Session are Friday 17 June and Saturday 18 June 2016; Friday 29 July and Saturday 30 July 2016. Each day will be a full day, running from 9.00am to approximately 5.00pm. To provide opportunity to practice problem solving and language skills there will also be an on-line discussion on Saturday 2 July. This session is optional, for those students who are interested. To participate, students will need access to a computer with an internet connection.

The venues for the lectures are set out in the lecture program on the next page. Lectures will be held on the main campus.

For details as to the location of these venues, refer to page 52 of the Course Information Handbook for a map of the University of Sydney main campus.

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DATE TIME ROOM LECTURER TOPICSFriday 17 Jun

9am – 11am

New LSLT 106

Susan Carter

Module One: Introduction to Statutes

Friday17 Jun

11am – 1pm

New LSLT 106

Susan Carter

Module Eight: Language and LegislationReview

Friday 17 Jun

2pm – 5pm

Law Library Computer Training Room 2

Patrick O’Mara

Module Seven: Legal Research Workshop: Introduction to legal research including discussion of referencing and citation; finding and researching primary and secondary sources of law.

Saturday 18 Jun

9am –5pm

New LSLT 106

Susan Carter

Module Two: Common Law Background to Statutory Interpretation

Module Three: Legislative Approaches to Statutory Interpretation

Saturday2 Jul

2pm – 5pm

At home – on line

Susan Carter and Katherine

Jolley

An optional problem solving and language skills seminar – questions will be provided.

Friday29 Jul

9am – 12noon

Law Library Computer Training Room 2

Patrick O’Mara

Module Seven: Legal Research Workshop: Finding and researching primary and secondary sources of law (continued)

Friday 29 Jul

1pm – 3.30pm

New LSSR 100

Susan Carter

Module Four: Use of Extrinsic Material

Friday29 Jul

3.30pm-5pm

New LSSR 100

Peter Radan

Module Nine: Interpretation of Instruments other than Legislation - Contracts

Saturday 30 Jul

9am – 12noon

New LSSR 100

Susan Carter

Module Five: Statutory Interpretation and the Protection of Human Rights; Common Law Presumptions and Statutory Rights Instruments

Saturday 30 Jul

1pm – 3pm

New LSSR 100

Susan Carter

Module Four: Use of Extrinsic Material - continued

Saturday 30 Jul

3pm – 5pm

New LSSR 100

Susan Carter

Module Six: Insights from Legislative Drafters

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COMPULSORY ASSIGNMENT

In Understanding Legal Language and Legislation, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignmentsfor the assignment grading and assessment criteria. Students who fail to satisfy the compulsory requirements will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

Completed assignments should be lodged through the LEC Webcampus, arriving by 11:59pm on the following date:

Compulsory Assignment Sunday 7 August 2016 Week 12

ASSIGNMENT QUESTIONS

To obtain copies of the assignment questions for the Winter Session 2016 of the Understanding Legal Language and Legislation course, please follow the instructions below:

1. Register online with the LEC (see page 26 of the Course Information Handbook for detailed instructions). Once you have registered, you will have access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment questions for this subject.

SAMPLE EXAMINATION QUESTIONS

We will work through these questions at our on line session on Saturday 2 July. Depending on our discussion, we may not get through all of these questions.

Question 1

Fred Jones was a high rating morning talk show host on a popular Sydney radio station. Responding to listeners’ concerns he began campaigning about the position of members of the public injured by cars whose owners were uninsured. He conducted a highly emotionally charged interview with Mavis, an 85 year old great grandmother who had been knocked off her walking frame by a careless driver in the airport car park. Unfortunately the driver of the car was a backpacker returning home, and the car (left abandoned at the airport) had a net value of only $100 (after all parking charges had been paid.) There was considerable public discussion about this case and the huge medical bills Mavis was left with.

While interviewing the NSW Minister for Traffic one morning on this topic, Fred Jones asked the Minister how he was planning to protect citizens such as Mavis. The Minister replied, “Fred, I can assure you that my government will introduce legislation into the current session of Parliament to fix this loophole and provide for Mavis and all citizens injured in any way by uninsured drivers.” Three weeks later the Minister for Traffic introduced the Protection of Injured Citizens Bill into the Legislative Assembly. On the occasion of the reading of the Bill a second time, the Minister commented:

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This Bill is designed to address an emerging problem whereby the good people of NSW are injured in traffic accidents, only to find that the drivers responsible for the accident are uninsured. Sometimes this is through inadvertence, but increasingly it is caused by drunk drivers whose insurance is voided because of their drinking, or the cars are being driven by backpackers, who have often left the country before the matter has been finalised. Accordingly this Bill will establish a fund to meet claims from citizens injured by uninsured drivers. The fund will rely on compulsory levies on licensed establishments and backpacking hostels.

The Explanatory Memorandum prepared in relation to the Bill provided, in part, as follows:

Definitions... Injury The definition of injury has been deliberately drawn to ensure that there is a necessary connection between the operation of the uninsured vehicle and the damage sustained. Injuries caused by persons running into stationary vehicles (for example while skate boarding or roller skating), or caused by persons using the vehicle for other activities (such as shooting from the back of a ute) should be excluded.

The Bill was passed by both houses and received the Royal Assent on 5 January 2011. It provided in part as follows:

2. Purpose The purpose of this Act is to establish the Protection of Citizens Fund to ensure that the needs of any person injured by the driver of an uninsured car will be protected. 3. Definitions ‘claim’ means a claim for damages in respect of the death of or injury to a person caused by the owner or driver of a motor vehicle not the subject of a current certificate of third party insurance. ‘Fund’ means the Protection of Citizens Fund created by this Act. ‘injury’ means personal or bodily injury caused by the owner or driver of a motor vehicle in the use or operation of the vehicle and includes injuries which result from: (a) The driving of a vehicle; (b) A collision with the vehicle; (c) Loss of control of the vehicle by the driver; (d) A defect in the vehicle; (e) The maintenance or parking of the vehicle.

‘Motor vehicle’ includes cars, trucks, buses and all other methods of conveyance with an internal combustion engine (whether petrol, diesel or other fuel.) 18. Claims Any person suffering an injury may make a claim against the Fund.

Advise the following whether or not they may make successful claims under the Act.

Mary:

Mary had received a unicycle for Christmas, and spent all January practising. By Australia Day she was ready to show off her new skills to her friends and decided to ride her unicycle to her friend’s picnic at the beach. Unfortunately while manoeuvring through the car park the driver of an uninsured vehicle, not seeing Mary, flung his car door open – and colliding with Mary, knocked her to the ground, breaking her leg and causing her to lose two front teeth in the process.

Joshua and Jeremy:

In March 2012 Joshua decided to take a break from preparing for exams and attend the Gay Mardi Gras parade in Sydney with his friend Jeremy. An uninsured visitor from New Zealand, participating for the first time on her new motorcycle with the Dykes on Bikes, overwhelmed by the excitement of the parade, loses control of her bike and crashes into Jeremy, breaking his arm. Joshua, escaped injury from the motorcycle, but later in the parade, was struck in the eye by a packet of condoms thrown from the back of the Safe Sex Float. Joshua required surgery to re-attach his retina. The float used an uninsured flat-bed truck as its base.

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Dominic: Dominic was crossing the street unaware that a car was approaching. The car was a new eco car with a quiet hybrid engine – part internal combustion engine fuelled by pellets made from recycled shopping bags and part electric. The uninsured driver of the car knocks Dominic down, breaking his hip. In your advice:

Assume this is a valid law of NSW. Ignore any other legislation or common law of which you may be aware which could address

these facts Do not address any issues to do with the law of negligence or the law of insurance. In particular

it is not necessary to address any issues with respect to principles of causation.

Question 2

The Daily Chronicle, a popular newspaper circulating throughout NSW, began a campaign for a “Friendlier NSW”. As the editorial of February 2011 explained:

We need to become tourist friendly – encourage visitors to our shores that they will be met with a smile and a warm welcome. We also need to make sure that our visitors feel safe – physically safe, and also safe from being tricked and conned. We are facing a scourge of cons and petty thefts directed to tourists – we call on the government to stop this now.

This campaign was supported by an online petition calling on the government to introduce measures to stop thefts and deception aimed at tourists. This petition received considerable support, especially in marginal electorates.

In March 2011 the Minister for Tourism introduced the Tourist Protection Amendment Bill in the Legislative Assembly. It was designed to amend the existing Petty Offences Act (2000) NSW by, as she explained in her Second Reading Speech:

Introducing specific measures to protect tourists, and indeed to keep all the people of NSW safe from petty tricks and deceptions which at the moment, seem to fall outside the offences which can be prosecuted. A small theft is still a theft. A small con is still a con. There should be no tolerance in NSW for property crimes or crimes of deception.

The Tourist Protection Amendment Bill provided in part as follows:

2 PurposeThe purpose of this Act is to introduce amendments into the Petty Offences Act to protect tourists from frauds and deceptions which will impair their time in NSW.

Division 5 Frauds, unlawful possession, etc.

39 Fortune telling A person who by pretending or professing to tell fortunes or by using any deception, artifice or trick obtains or attempts to obtain any money or valuable thing, or any benefit, from another person is guilty of an offence. Penalty: Two hundred dollars.

The Bill is duly passed by the NSW Parliament and receives the Royal Assent on 31st July 2011.

John has just finished his first year of tertiary studies, and unable to find a vacation job, is unsure how he is going to fund the balance of his degree. He decides to advertise for funds. On 1st November 2011 he places the following ad in The Daily Chronicle:

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“Today is the last day for sending your one dollar to PO Box 1234, Newtown”.

Forty thousand local residents responded to the advertisement, providing a total to John of $40,000. Following complaints, John was arrested and charged under s 39 of the Petty Offences Act (2000) NSW as amended by the Tourist Protection Amendment Act 2011. Advise John.

In your advice:

Assume all the legislation mentioned in this question is fictitious. Use and apply the law of statutory interpretation.Assume any necessary mental element (mens rea) is present and requires no discussion or reference at all in your answer.

Question 3

On July 1 2011 the Governor of NSW assented to the Use of Public Spaces Act. The Act provided in part as follows:

Long TitleAn Act to promote the use of public spaces; to ensure that they remain clean, pleasant and inviting at all times; to ensure that they are welcoming for all human activity and not become a place for animal activities; and all other associated purposes.

3. Definitions‘Responsible’ includes having charge of, being the originator of being the last human actor in a chain of events which results in the thing, event or occurrence in question.

12. Use of public spacesAny person responsible for any litter in any public place, garden or other space shall be liable for a fine of up to $10,000.

Prior to the passage of the Use of Public Spaces Act the NSW Comptroller of Parks had reported to the Government, in a report which was tabled in both Houses of Parliament, which included the following comments:

Spring is a particularly difficult time for us in terms of park management. Increasingly we have problems with animals using our parks as breeding grounds, and maternity wards. The protective behaviour of the animals at these times often leads to such displays of aggression as make it difficult for human users of our parks. I think we are all familiar with the swooping behaviour of magpies in Spring – but these are often the least of our problems.

Timmy and Johnno were University students living in a share house. The lease prohibited pets, but they loved cats, and so kept Trixie, their pet moggy. On 1 September 2011 their landlord scheduled an inspection of the rental premises. That morning, Trixie, rather than being keen to go exploring outside the house as she usually was, wanted to simply curl up on her favourite cushion. Worried about the inspection, Johnno took Trixie, cushion and all, to a small enclosed bike shed in a corner of the local park, and left her there, where he thought she would be safe. Returning later in the day he found Trixie, cushion, a litter of 9 baby kittens, and an interested park ranger.

Advise Johnno.

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PRESCRIBED TOPICS AND COURSE OUTLINE

Module One: Introduction to Statutes

Reading: Pearce & Geddes: Chapters One and Four

Recommended:Michael Meehan, Graham Tulloch, Grammar for Lawyers, 3rd ed. LexisNexis, 2013

Aims and Objectives

At the end of this module students should understand the following:(a) The importance of legislation;(b) The difference between legislation, delegated legislation and administrative

pronouncements which are often described as ‘quasi-legislation’;(c) The structure of a statute;(d) The basic principles of reading legislation; and(e) The interaction between case law and statute and the role of case law in

interpreting legislation.

Students will also have had an opportunity to:(a) Practice breaking sections down into their component elements; and(b) Examine the importance of a sound grammatical understanding in understanding

legislation.

Module Two: Common Law Background to Statutory Interpretation

Reading: Pearce & Geddes: Chapter Two

Aims and Objectives

At the end of this module students should understand the following:(a) The historical development of statutory interpretation;(b) The literal approach, the golden rule and the purposive approach to statutory

interpretation;(c) How these tools are used today;(d) That there is a range of common law presumptions and interpretation tools which

are used in conjunction with the statutory approach to interpretation; and be familiar with the most important of these, including the Latin maxims noscitur a sociis and ejusdem generis and expressio unius est exclusio alterius and generalia specialibus non derogant; the presumption against surplusage; and

(e) Be able to select the appropriate presumption or tool to interpret legislation.

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Module Three: Legislative Approaches to Statutory Interpretation

Reading:Acts Interpretation Act 1901 (Cth)Interpretation Act 1987 (NSW)Pearce & Geddes: Chapter Six

Aims and Objectives

At the end of this module students should understand the following:(a) The interpretation acts of the Commonwealth and the States;(b) The range of matters covered by the interpretation acts;(c) The approach to construction required by the interpretation legislation;(d) The interpretation of this legislation by the High Court (an exercise in statutory

interpretation in itself); and(e) The meaning of ‘purpose’ and the difference between the purpose of the statute

and the purpose of the person whose actions are subject to the statute.

Students will also have had an opportunity to practise statutory interpretation problem solving.

Module Four: Use of Extrinsic Material

Reading:Acts Interpretation Act 1901 (Cth)Interpretation Act 1987 (NSW)Pearce & Geddes: Chapter Three

Aims and Objectives

At the end of this module students should understand the following:(a) How extrinsic material is created; (b) The common law rule with respect to the use of extrinsic material;(c) The statutory rules with respect to the use of extrinsic material; and(d) The limits on the use of extrinsic material.

Students will also have had an opportunity to practise statutory interpretation problem solving using extrinsic material.

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Module Five: Statutory Interpretation and the Protection of Human Rights; Common Law Presumptions and Statutory Rights Instruments

Reading:Pearce & Geddes: Chapter FiveStatutory Interpretation and Human Rights Spigelman CJHuman Rights (Parliamentary Scrutiny) Bill 2010

Aims and Objectives

At the end of this module students should understand the following:(a) The common law assumptions around the protection of human rights which

underlie the judicial interpretation of statutes;(b) The range of legislative initiatives to protect human rights; and(c) How statutory interpretation may be affected by legislative statements about

rights.

Students will also have the opportunity to consider the arguments for and against a formal Bill of Rights.

Module Six: Insights from Legislative Drafters

Reading:Legislative Drafting and Statutory Interpretation Hilary Penfold QC

Aims and Objectives

At the end of this module students should understand the following:(a) The process of drafting and enacting legislation;(b) How the process of drafting legislation informs the process of interpreting

legislation; and(c) The need for precision in language when drafting (and considering) legislation.

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Module Seven: Legal Research Workshop

Aims and Objectives

At the end of this module students should understand the following:(a) The conventions of legal citation and referencing;(b) The range of legal research tools and how to use them;(c) How to find sources of legal information;(d) How to search for case law and statutes;(e) How to search for extrinsic material to assist in statutory interpretation; and(f) How to search for legislation which was in force at a particular point in time.

Students will also have the opportunity to practise these skills.

Module Eight: Language and Legislation Review

Reading: Michael Meehan, Graham Tulloch, Grammar for Lawyers, 3rd ed. LexisNexis, 2013

(Recommended – not required) Other materials/exercises to be provided

Aims and Objectives

At the end of this module students should understand the following:(a) The need for precision in language when interpreting legislation;(b) The conventions of punctuation and grammar and how these relate to legislation.

Students will also have had the opportunity to practise these skills.

Module Nine: Interpretation of Instruments other than Legislation – Contracts

Aims and Objectives

Legislation is not the only instrument which requires interpretation – a number of other legal instruments, such as contracts, also require interpretation. This module provides an opportunity to consider how some of the principles we have been considering relate to the interpretation of contracts, and the different techniques used to interpret contracts.

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