There has been a great deal of discussion about how to increase the competency of students with statutory interpretation, and a Good Practice Guide on what is involved at a curriculum level will shortly be released by the Council of Australian Law Deans. This post suggests some ways we can increase the level of engagement by students with statutes in a way that doesn’t detract from other class content.
As legal academics we all have a strong instinctive understanding of the centrality of legislation to all areas of law, but students may not have yet appreciated this. Partly this is because their textbooks, and much of the discussion in class revolve around the examination of legal judgments, and how the judges create and resolve legal issues. While the judgments are extracted at length, the statutory basis for the discussion is often presented in summary or truncated form (understandably, it takes up a lot of pages to insert legislation). Subconsciously, students are likely to see the legislation as less important.
Students should know how to read statutes, and make interpretive decisions. They are exposed to this, and assessed on it in their first year courses. But they may not be required to practice these skills in later courses and so can the skill can atrophy. Below are a number of suggestions for how those first year skills can be built on by later courses.
- Require students to identify the appropriate section being discussed in as much detail as we ask for the ‘facts of the case’.
- Ask students what a provision means at the beginning of discussions – making them explain the meaning of all the words – not just the ones discussed in a case.
- Require the students to acknowledge the meaning given to terms in definitions and dictionary sections
- Ask them how the context of the surrounding sections/Act as a whole influences the meaning, and how that may have influenced a court interpreting it
- Require students to identify the purpose of each Act/provision as a scene setting exercise before examining cases.
- Encourage students to identify the court sanctioned approaches to interpretation they are using when they attempt to define the meaning of a section, and why they are choosing one approach or factor over another.
At the pointier end of the semester, knowledge of statutory interpretation could also be added to the way assessment is marked:
- Make sure that compulsory sections of exams always include the need to define the meaning of legislative provisions as part of an answer
- Remove marks from assessment answers that fail to identify the relevant provision before moving to the discussion of the legal issue raised
- When an assessment involves the students having to interpret legislation for which there is no clear judicial interpretion/statement, award marks for articulation of the approach to statutory interpretation used in resolving the issue and the balancing of factors.