DIPLOMA IN LAWLEGAL PROFESSIONADMISSION BOARD

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

26 UNDERSTANDING LEGAL LANGUAGE AND LEGISLATION

SUMMER SESSION 2015-16This 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 2March 2016 Examination 2Texts and Materials 3Intensive Lecture Program 3-4Compulsory Assignment 5Assignment Questions 5Prescribed Topics and Course Outline 6-9

The cover shows Brueghel’s “Tower of Babel”.

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LAW EXTENSION COMMITTEE SUMMER 2015-16UNDERSTANDING 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 contract, commercial, intellectual property, media and tort law.

Patrick has extensive experience in teaching legal research. He has been a lecturer for Sydney Law School’s compulsory undergraduate 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 (2nd ed, LexisNexis, 2013); (with C Stewart & I Vickovich), Principles of Australian Equity & Trusts, Cases & Materials (2nd ed, LexisNexis, 2014) 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.

MARCH 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 an open 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

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 Summer 2015-16 Session are Friday 20 November and Saturday 21 November 2015; Friday 22 January and Saturday 23 January 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 5 December. 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, apart from Architecture LT3, refer to page 53 of the Course Information Handbook for a map of the University of Sydney main campus. Architecture LT3 is in the Wilkinson Building, which is across City Road on the Darlington Campus. Please refer to the map at https://sydney.edu.au/maps/embed/?building=G04.

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DATE TIME ROOM LECTURER TOPICSFriday 20 Nov

9am – 11am

New LSLT 106

Susan Carter

Module One: Introduction to Statutes

Friday20 Nov

11am – 1pm

New LSLT 106

Susan Carter

Module Eight: Language and LegislationReview

Friday 20 Nov

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 21 Nov

9am –5pm

Architecture LT3

Susan Carter

Module Two: Common Law Background to Statutory Interpretation

Module Three: Legislative Approaches to Statutory Interpretation

Saturday5 Dec

2pm – 5pm

At home – on line

Susan Carter and Katherine

Jolley

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

Friday22 Jan

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 22 Jan

1pm – 3.30pm

New LSSR 020

Susan Carter

Module Four: Use of Extrinsic Material

Friday22 Jan

3.30pm-5pm

New LSSR 020

Peter Radan

Module Nine: Interpretation of Instruments other than Legislation - Contracts

Saturday 23 Jan

9am – 12noon

New LSSR 020

Susan Carter

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

Saturday 23 Jan

1pm – 3pm

New LSSR 020

Susan Carter

Module Four: Use of Extrinsic Material - continued

Saturday 23 Jan

3pm – 5pm

New LSSR 020

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 Monday 1 February 2016 Week 10

ASSIGNMENT QUESTIONS

To obtain copies of the assignment questions for the Summer Session 2015-16 of the Understanding Legal Language and Legislation course, please follow the instructions below:

1. Register online with the LEC (see page 27 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.

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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 statute;(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 had 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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