APPLYING JUSTICE KIRBY'S SPEECH AND MAKING LEGAL ADVICE TO A CLIENT

[Course]

Applying Justice Kirby's Speech

Introduction

The honourable justice Michael H. Kirby gave a famous speech on interpreting the legislation and statutes. In this speech, the honourable justice took to his task to reply to one author's recommendations regarding statutory interpretation by Australian courts. The honourable justice repeated that the professor identified the need to dig deeper in the cases of statutory interpretation. The professor further identified the need to examine the text, context, and policy (or object) inherent in the interpretation of any legislation. Accordingly, the honourable justice took to his task to apply one of his earlier cases Carr v. Western Australia (2007) 232 CLR 138 (which was decided by a full bench of the High Court) to further interpret the legislation for this case in line with the proposals of the professor.

Relating with Justice Kirby's speech

First, the honourable justice in his speech suggests that the Parliament has redefined the way the legislation was interpreted before. He argues that the new method of interpretation is clear and advocates the use of certain principles for legislative interpretation. First, the legislation per se is to be evaluated for the interpretation of the law rather than looking elsewhere. Then, the legislation reveals the purpose of the Parliament that enacted the legislation. Finally, these statutory clauses can never be interpreted in isolation, rather need to be interpreted in the context in which those have been placed. This context is provided by the very legislation.

In this regard it is clear that Justice Kirby's interpretation of the process regarding statutory interpretation is correct and modern. There is no doubt the very text of the legislation has the most precedence. Then, it is also necessary to elicit the legislative purpose and to look at the relevant sections and clauses in the context. We utilize the same method to interpret any law. Even when we studied the Migration Act, 1958, we utilized the same method of using the bare acts to study the purport and intent of the legislation. Moreover, we were not fettered by the need to study relevant case law to interpret the various provisions of the Migration Act, 1958.

Next, the honourable justice Kirby has argued that today the tendency for the justices is to interpret various laws and legislation in plain English terms. Rather, he professes that is what appears to be the demand and public requirement for the judges as to how to interpret the legislation. Still, he believes that the honourable justices' interpretation remains subtle and complex and it is not possible for it to be plain English which undoubtedly will leave much room for interpretation and shows lee ways of choice for the lawyers.

However, the case law that we have studied during our course confirms the argument of Justice Kirby that the case law is not mere and simple English. Rather the Australian case law is intricate and exquisite which does not leave much room for its ulterior interpretation by ...