MONASH UNIVERSITY — FACULTY OF LAW

PUBLIC LAW AND STATUTORY INTERPRETATION

(LAW1112)
Semester 2, 2019
READING GUIDE

I UNIT GUIDE
This document should be read in conjunction with the LAW1112 Unit Guide on the
Unit’s Moodle webpage, and with the information under each topic heading, also on
the Unit’s Moodle page. See the information on attendance and the learning and
teaching style in this unit.

II PRESCRIBED TEXT

The prescribed textbook for the Unit is:

Lisa Burton Crawford, Janina Boughey, Melissa Castan and Maria O’Sullivan,
Public Law and Statutory Interpretation: Principles and Practice (Federation
Press, 2017) (‘Textbook’)

Additional readings are provided for your enhanced learning. There are also further
readings listed at the end of each chapter of the textbook.

II MOODLE BOOKS AND PRESCRIBED READINGS

For each topic covered in this Unit, there is a Moodle Book (the green book symbol at
the start of each topic in the Moodle Unit page). The Moodle Book will assist you to
navigate that topic, the material that will be covered, and the cases, videos and other
readings you are required to engage in before and after lectures.

The Moodle books also include questions that will be the subject of discussion in
lectures.

You are required to read all sections of this Moodle Book, and any other cases, videos
or other material, that are asterisked in this Reading Guide (eg. *Textbook et al, pp
100–105).

All asterisked material is assessable!

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Asterisked case extracts, articles and book chapters (other than the Textbook and
legislation (see below)) are available through each topic’s Moodle Book.

You are expected to find relevant sections of asterisked legislation for yourself (after
all this is a key legal skill). Legislation should be sourced from official government
websites or via the usual reliable databases. Links are available via the Law
Resources Library guide (http://guides.lib.monash.edu/law). You are encouraged to
use these facilities, independently of specific instruction from the lecturers.

Where the asterisked reading is a case, you are only required to read the relevant
sections/pages/paragraphs. But it is advisable that you locate and read at least some
full cases, to familiarise yourself with the nature of public law decisions.

There are other cases and materials listed in the reading guide below that are NOT
asterisked. They are listed to help students who seek further clarification or deeper
understanding of the topic. They are also listed because your lecturer may refer to
them in lectures. Usually, they will be discussed in your prescribed textbook, which is
prescribed reading. Some are also available on Moodle, where indicated.

Additional useful texts on public law include:

 Gabrielle Appleby et al, Australian Public Law (Oxford University Press, 2011)
 Elizabeth Ellis, Principles and Practice of Australian Law (Thompson Reuters, 3rd
ed, 2012)
 David Clark, Introduction to Australian Public Law: Principles of Australian
public law (Butterworths, 4th ed, 2013)

There are many excellent law journal articles written on virtually every topic in this
reading guide. The following journals contain particularly relevant materials: the
Constitutional Law and Policy Review, the Federal Law Review and the Public Law
Review. The Australian Government Solicitor’s Litigation Notes are also worthwhile
(at http://www.ags.gov.au/publications/litigation-notes/index.html).

Additional useful texts on statutory interpretation:

 Michelle Sanson, Statutory Interpretation, (Oxford University Press , 2nd

edition, 2016)
 Pearce and Geddes, Statutory Interpretation in Australia (Lexis Nexis, 8th
edition 2014)
 Claire Macken and Kath Hall, Legislation and statutory interpretation (Lexis
Nexis, 4th edition, 2015)

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 PART ONE: PUBLIC LAW

Topic 1: Introduction and Foundational Concepts

1.1 What is Public Law?

1.2 Public Law and Other Legal Disciplines
1.3 The Rule of Law
1.4 Constitutionalism
1.5 Case study: Should we obey bad laws?

Prescribed materials
* Textbook Chapter 1
* Textbook pp 64-79
* Video – What is the Rule of Law?
* Video – A Man for All Seasons: The Devil and the Law
* Video – Constitutionalism
* Editorial, ‘Rule of law crucial but not beyond challenge’ – The Age (17 March
2017) link on Moodle
* Duncan Ivison, ‘Why should we obey the law?’ - The Conversation (19 March
2017) link on Moodle

Additional reading
Lisa Burton Crawford and Jeffrey Goldsworthy, 'Constitutionalism' in Cheryl
Saunders and Adrienne Stone (eds), Oxford Handbook to the Australian Constitution
(Oxford University Press, 2018), pp. 1-18 (available via the Moodle book for week
one ‘Introduction and Foundational Concepts – pre-class materials).
Appleby xii-xviii; chapter 1

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 Topic 2: Relationships and Structures

2.1 Democracy: government and the people

2.2 Federalism
2.3 The Separation of Powers
2.4 Responsible Government
2.5 Australia’s Legal Relationship with the World

Prescribed materials
* Textbook Chapter 2
* Video – What is democracy?
* Economist Intelligence Unit, Democracy Index 2018 -
https://www.eiu.com/topic/democracy-index (scan the webpage, watch the video,
open the whitepaper and scan the global tables (pp. 36-40) and read the
explanation of its criteria (pp. 46-50)).
* Transparency International, Corruption Perceptions Index 2018 -
https://www.transparency.org/cpi2018 (scan the webpage, watch the video, look at
the Global Analysis under the heading ‘The CPI in Detail’, and scan the full data
set).
* Video – What is government?
* Video – Australian federalism
* Video – Australia and the international legal order

Additional readings
Appleby 9-20, 100-118, ch 3, 320-323; ch 11
Eric Windholz, ‘Federalism in Australia: A Concept in Search of Understanding’
(2011) 17 The Journal of Contemporary Issues in Business and Government 1

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 Topic 3: The Origins and Evolution of Australian Public Law:
Recognition of Indigenous Australians in Public Law

3.1 Introduction
3.2 Australia’s first public law, and the fiction and rejection of terra nullius
3.3 Reforming the Constitution

Prescribed materials
* Textbook Chapter 3 (Topics 3.1 and 3.2 (pp. 47-52) and Topic 3.5 (pp. 64-68).
* Video - The receipt of English law into Australia, and the fiction and rejection of
terra nullus? https://youtu.be/9oC7VWNZ_OM
* Final Report of the Referendum Council -
https://www.referendumcouncil.org.au/sites/default/files/report_attachments/
Referendum_Council_Final_Report.pdf - in particular -

 Uluru Statement from the Heart (p. i);

 Introduction and Recommendations (pp. 1-2);
 Assessment of Reform Proposals (pp. 11-15); and
 Findings and Conclusion (pp. 36-39).

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 Topic 4: Parliament and Legislative Power

4.1 What is Parliament?

4.2 The British Parliament and Parliamentary Sovereignty
4.3 The Structure and Processes of Parliament
4.4 Legislative Power
 State
 Federal
 Territory
 Can Parliament Enact Extreme Laws?
4.5 Parliament’s Non-Legislative Power

Prescribed materials
* Textbook chapter 4
* Australian Constitution ss 1, 7, 24, 51, 52, 53, 57, 92, 117
* Constitution Act 1975 (Vic) ss 16, 16A, 62–65
* Constitution Act 1902 (NSW) s 5
* Australia Acts 1986 s 2(2)
* Extracts on Moodle: Can Parliament Enact Extreme Laws?
* Video - What is parliament?
* Video – How a law is made?
* Video - Parliamentary sovereignty and plenary legislative power
* Website link - The right to vote is not enjoyed equally by all Australians –
Australian Human Rights Commission

Additional readings
Appleby pp. 38-42, 100-108, 138-141, 141-155, 175–178
Website link - About the Australian Parliament
Website link - About the Parliament of Victoria
Understanding Parliamentary Privilege – ABC News, 23 August 2016

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 Topic 5: Executive

5.1 Who is the Executive and What does it Do?

5.2 Key institutions in detail
5.3 Sources of Executive Power
5.4 Overseeing the Executive
5.5 Case Studies

Prescribed materials
*Textbook chapter 5
* Australian Constitution, ss 61, 64
* Video – The Executive
* Freedom of Information Act 1982 (Cth)

Case Studies (as advised by your lecturer)

Case Study 1: Primary Legislation, Delegated Legislation and Administrative

Decisions
* Classification (Publications, Films and Computer Games Act 1995 (Cth), ss 4-12
* Guidelines for the Classification of Films and Computer Games

Case Study 2: The power to issue parking tickets at Monash University

* Road Safety Act 1986 (Vic)

Case Study 3: Tampa, CPCF and the Limits of “Prerogative” Powers

* Video – Introducing the Tampa Case
* Ruddock v Vadarlis (‘The Tampa case’) (2001) 110 FCR 491
* CPCF v Minister for Immigration (2015) CLR 514

Additional materials
Appleby pp. 155-163, 167-197, ch 7
Royal Commissions Act 1902 (Cth)
Hon J J Spigelman AC, ‘The Integrity Branch of Government’ (2004) 78 Australian
Law Journal 724

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 Topic 6: The Courts and Judicial Power

6.1 Judicial Independence and the Role of the Court

6.2 The Australian Judicial System
6.3 The Separation of Judicial Power
6.4 The Nature and Scope of Judicial Power
6.5 Case study: Judgement at Nuremberg

Prescribed materials
* Textbook chapter 6
* Hon Marilyn Warren AC, ‘Does judicial independence matter?’ (2011) 85
Australian Law Journal 481
* Justice Emilios Kyrou, The independent low profile third arm of government’
(2017) (December) Law Institute Journal 32.
* Australian Constitution, Ch. III
* Judiciary Act 1903 (Cth), s 39B
* Prosecution opening – ‘Crimes in the name of the law’ -
https://www.youtube.com/watch?v=zVGq1h9FUDY
* Third Reich Chief Justice (Ernst Janning) Speech – ‘For love of country’ -
https://www.youtube.com/watch?v=xGfHkdR3tXs
* The judgment – ‘We stand for justice, truth, and the value of a single human life’ -
https://www.youtube.com/watch?v=wgvR67Ktwio

Additional materials
Appleby pp. 38-48; 250–279, 291-314, 478-486
Federal Court of Australia Act 1976 (Cth), s 5
Federal Circuit Court of Australia Act 1999 (Cth), ss 3, 4, 8
Family Law Act 1975 (Cth) s 21
Constitution Act 1975 (Vic), s 85
Australian Constitution, ss 71, 77(iii)
Australian Constitution, s 122
Nicholas v R (1998) 193 CLR 173, 208-9 (extract on Moodle)

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Your lecturer will inform you whether you will be focusing on Topic 7 or 8 in
class. Please check with your lecturer.

Topic 7: Public Law in Practice:

Executive Detention of Asylum Seekers

7.1 The key principles: Chu Kheng Lim

7.2 Indefinite executive detention: Al-Kateb v Godwin
7.3 Offshore executive detention: Plaintiff M68/2015

Prescribed materials
*Textbook chapter 7
*Podcast – JustCases Episode 3 (Al-Kateb v Godwin, with Patrick Emerton)

Additional readings
Appleby pp. 281-284; 369-390

Topic 8: Public Law in Practice:

Human Rights in Public Law

8.1 Human rights and their relationship with public law

8.2 The recognition and protection of human rights in Australia
8.3 ACT and Victorian Human Rights Legislation
8.4 Federal Rights Scrutiny Legislation
8.5 Reform

Prescribed materials
*Textbook chapter 8
* Video – Should we have a constitutional bill of rights?
* Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
* Charter of Human Rights and Responsibilities Act 2006 (Vic)

Additional readings
Appleby pp. 380-90, 391-398-409
Video – What is the Victorian Charter (link in Moodle to FOL video)

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Jeffrey Goldsworthy, ‘Losing Faith in Democracy: Why Judicial Supremacy is Rising
and What to do About it’ (2015) 39 (5) Quadrant 9
Dan Meagher, ‘The judicial evolution (or counter-revolution) of fundamental rights
protection in Australia’ (2017) 42(1) Alternative Law Journal 9
Bill Swannie, ‘Rights without remedies’ (2017) (June) Law Institute Journal 36.
Tessa Van Duyn, ‘Gaining Teeth' (2018) (March) Law Institute Journal 44.
Simon Rice. ‘Who Says we need a Human Rights Act?’ (2018) 43(3) Alternative Law
Journal 153.

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 PART TWO: STATUTORY INTERPRETATION

Topic 9: Our Statutory Universe

9.1 Our Statutory universe

9.2 The Nature of a Statute
9.3 The Task of Statutory Interpretation
9.4 The Significance of Parliament’s Intentions
9.5 An Overview of the Process and Principles of Statutory Interpretation

Prescribed materials
*Textbook chapter 9
* Video - taking your knowledge of statutory interpretation to the next level
* Video - Our statutory universe
* Video - The Basics: What Is A Statute?
* Video - The Structure of a Modern Statute

Additional readings
Sanson pp 90-94

Topic 10: Text, Context and Purpose

10.1 Text
10.2 Context and Purpose

Prescribed materials
*Textbook chapter 10

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 Topic 11: Presumptions and Protecting Rights

11.1 Commonly used presumptions

11.2 Presumption against retrospectivity
11.3 Presumptions of mens rea
11.4 The presumption against abrogation of rights: the principle of legality
11.5 Interpretive clauses in charters of rights

Prescribed materials
*Textbook chapter 11
* Video - Presumptions of Statutory Interpretation
* Video – Latin Maxims

Additional materials
Dan Meagher, ‘The Common Law Principle of Legality’ (2013) 38 Alternative Law
Journal 209
Hon J J Spigelman AC, ‘The Common Law Bill of Rights’ (First Lecture in the 2008
McPherson Lectures, Statutory Interpretation and Human Rights, University of
Queensland, Brisbane, 10 March 2008).

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 Topic 12: Principles of Statutory Interpretation in Practice

In weeks 9, 10 and 11 each lecture stream will be divided into 2 “workshop” classes.
Students will be allocated to attend one workshop per week only. The workshops will
be given by that stream’s lecturer.

The purpose of these workshops is to give students the opportunity to practice

applying the theory and principles of statutory interpretation to problem questions.
Much of the theory and many of the principles of statutory interpretation will have
been learned in Foundations of Law. They will be built upon by recorded content in
respect of which students will be expected to engage in self-directed learning in week
6, and which will be revised and reinforced in lectures in weeks 7 and 8.

For each workshop there is a set of “pre-lecture”, “in- lecture” and “post-lecture”
learning activities. These are available on the Moodle site. There is a section for each
workshop.

Undertaking the “pre-lecture” learning activities is essential to being able to

participate in the workshop discussions and to obtain maximum value from them.
It is essential that students have read the workshop material before attending and
made notes on the relevant checklist/worksheet.

The lecturer(s) will not be going through the reading material but will focus on
guiding students through the process of applying legal principles to the problems set
out in the reading materials.

12.1 Reading the Legislative Materials: A Checklist

12.2 Practical Exercise 1: Uber BV v Federal Commissioner of Taxation
12.3 Practical Exercise 2: Brad News and the Public Health and Wellbeing Act
12.4 Practical Exercise 3: National Sports Fund and ACSCA

Prescribed Materials
*Textbook chapter 12
* Materials for practical exercises 2 and 3 (on Moodle)

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