The Statutes Project examines contemporary developments in legislative practice and statutory interpretation, in comparative perspective. Straddling the divisions of constitutional law, administrative law and legal theory, it aims to shed new light on important public law debates by viewing them in light of the way in which statutes are used as a tool of governance in the modern administrative state.
Many have observed that we now live in an “age of statutes”. The volume and complexity of legislation has increased, and with it, the reach of executive power. Statutes are used in new and challenging ways. The ramifications of this — doctrinal, conceptual, theoretical and practical — are the subject of vibrant debate in other jurisdictions, but remain comparatively unexplored in Australia.
In a legal system so densely populated by statutes, statutory interpretation is of vital importance. Long standing orthodoxies about how statutes should and should not be interpreted by the courts have been questioned, in part due to the volume and complexity of legislation. As a result, important interpretive principles have undergone significant change.
The statutes project will use doctrinal, theoretical and empirical research methods to explore the following themes, in conjunction with leading researchers from Monash University, Deakin University and abroad.
Contemporary legislative practice
- How are statutes used in the modern administrative state? What trends in legislative practice can be observed in Australia, and are they comparable to those seen in the United Kingdom, United States and Canada?
- Do we need to reassess what a statute is, and how it functions, especially in light of contemporary legislative practice?
- How might technological advances (including artificial intelligence) and other developments (such as the outsourcing of legislative drafting) affect our understanding of statute law?
- How do courts interpret legislation in Australia, the United Kingdom, United States and Canada? What similarities and differences emerge, and (how) can they be explained?
- Are existing interpretive practices theoretically and constitutionally sound? In particular, what is the contemporary relevance of parliamentary intention, and can the canons of construction be justified on any other basis?
- What role does the executive play in statutory interpretation? Is there any place in Australian law for deference to executive interpretation of statute law, as there is in other jurisdictions?
The rule of law and rights in the age of statutes
- How can we protect and promote the rule of law in this age of statutes? Does the volume and complexity of contemporary legislation necessarily diminish the rule of law, or does it force us to rethink its demands?
- What are the ramifications of these developments for the individual? What role can the principle of legality play, especially in those jurisdictions which lack a constitutional bill of rights? How should that interpretive principle be understood and applied?
Administrative law in the age of statutes
- What are the ramifications of these developments for judicial review of executive action? How should the substantive principles of judicial review be understood? Is the position in Australia the same as elsewhere?
- To what extent can, and should, courts resist the trend towards broad conferrals of executive power, and other legislative devices which might curtail judicial review?
- What are the ramifications of these development for our understanding of the separation of powers? Is the administrative state valid and legitimate?