unit 4 aos1 part b- people and the law makers

what is statutory interpretation?

the process of judges interpreting words/phrases in an act/statute in order to give them meaning

reasons for statutory interpretation?

• act doesnt take into account future situations

• intention of bill not clearly expressed

• mistakes in drafting of bill

• most legislation is drafted in general terms

• act may no longer reflect community views and values

• meaning of words may be ambiguous

• act may be silent on an issue and courts may need to fill gaps in legislation

• meaning of words changes over time

example of word that isnt defined clearly in statute?

serious injury- a combination of injuries (section 15 of the Crimes Act VIC 1958)

doesnt specify what injuries like could be considered a cold and a paper cut

what are the effects of statutory interpretation?

• words and phrases are given meaning

• courts decision of legislation is binding/applied on the parties

• precedent is set for future cases

• meaning of legislation can be restricted or expanded

what is an example of statutory interpretation where the meaning of legislation has expanded?

the interpretation of section 52 of the constitution ‘‘external affairs’’ power in the Tasmanian Dam case

what is an example of statutory interpretation where the meaning of legislation has restricted?

studded belt case (deing vs tarola 1993)

explain the studded belt case (deing vs tarola 1993)

a man wore a studded belt and he was charged with unlawfully possessing a regulated weapon defined by the Control of Weapons Act 1990 VIC which included any article with raised pointed studs that is designed to be worn as an article of clothing

the court upon appeal interpreted that a regulated weapon should be defined as ‘‘anything that is not in common use for any other purpose but that of a weapon’’

how do courts make law?

through cases presented to the courts where the court makes a decision in a case that is the first of it’s kind and creates a legal principle, setting a precedent/ doctrine of precedent usually in a case on appeal

who can create a precedent/doctrine of precedent?

only superior courts that usually have power to hear cases on appeal (supreme court trial division, court of appeal and high court

what is stare decisis?

‘‘let the decision stand’’- how the lower courts follow the precedent made by a higher court

what is ratio decideni?

‘‘reason for decision’’- which is the binding part of a precedent

what are material facts?

the key facts or details in a legal case that were critical to the courts decision

why do we have precedents?

• cases with similar material facts are decided in a likely manner

• legal practitioners can give advice on the likely outcome of a case

• decisions made by more experienced judges are followed in lower courts

• same legal point is being decided over and over again

• judges have guidance to make decisions based on previous cases

what are the types of precedents?

binding precedent and persuasive precedent

what is a binding precedent and when is it binding?

a precedent created in a superior court that must be followed by lower courts when:

• the material facts of the precedent is similar to material facts of the new case

• precedent was set by a higher court

what is a persuasive precedent and when is a precedent, persuasive?

when a precedent is not binding and a court can choose to follow it or be persuaded by it when:

• a court in another state/country established the precedent (different court hierarchy)

• a lower court sets the precedent

• same court set the precedent

what does obiter dictum mean?

‘‘by the way’’- comments made by a judge that are persuasive in future cases

how can a binding precedent be avoided from being followed/ develop existing precedents?

• by distinguishing the material facts of the case they are deciding and the case in which the precedent was set

• by reversing an earlier decision made by another court through appeal- making a new precedent by the superior court

• by the superior court changing a previous precedent that has been established by a lower court in a later, different case which creates a new precedent overruling the one set by the lower court

• by disapproving of an existing binding precedent however the lower court must still follow it but it may encourage parliament to change the law/develop the precedent

• by court refining the law to make it more clearer when they apply a precedent to a new case through interpretation

what is a case of avoiding/developing a precedent?

Imbree vs McNeailly 2008- done

mr imbree- fully licensed driver allowed mr mcneailly- a 16 year old learner driver to drive them both and when driving caused mr imbree serious injuries and therefore mr imbree sued mcneailly for damages

a precedent in the cook v cook 1986 case held that an inexperienced learner driver owed a lower standard of care to a passenger who was supervising their driving than an experienced , fully licensed driver and therefore the supreme court followed the binding precedent

mr imbree appealed the case to the high court where they overruled the precedent set, stating that a learner driver should owe the same as fully licensed drivers

what are factors that affect the ability of courts to make law?

• doctrine of precedent

• judicial conservatism/activism

• costs and time

• requirement of standing

how does the doctrine of precedent assist the ability of courts to make law?

• consistency

applying the term ‘‘stare decisis’’ (let the decision stand)- provides consistency and predictability in common law

• flexibility

judges in superior courts can overrule and reverse precedents and lower courts can avoid precedents by distinguishing material facts

• expanding/limiting

judges have power of statutory interpretation

• complementing existing law

by setting precedents, courts can make complementary legislation

how does the doctrine of precedent restrict/limit the ability of courts to make law?

• identifying relevant precedents

takes time and money to find precedents relevant to the case and ratio decideni (legal reasoning) because of large amount of cases/precedents

• binding precedents

lower courts have to follow previous precedents and cant make their own

• flexibility

judges in superior courts may be reluctant to overrule/reverse precedents

• make laws ex post facto

judges can only make new law after an event has occurred- cant make proactive laws only reactive cases with a case presented to them

• parliament can override judge made law

parliament can only not override the High Court

how does cost and time affect the ability of courts to make law?

costs and time discourages people from taking court action and thus courts cant make law because it needs a case presented

also time can impact how quickly law is made and further discourages people from taking court action

costs

• cost of legal rep

• court costs

time

• courts can make law and decisions relatively quickly

• cases can be delayed because of pre trial procedures, complexity of dispute, lack of court resources

what is judicial conservatism?

courts and judges showing restraint to making decisions and rulings that could create significant changes in law

influenced by the separation of powers and parliaments anbility to create law, the need for certain and stable laws and the belief that judges should not make law based on their own view, opinions or political views

what is judicial activism?

the willingness of judges to consider social, political factors, community values and rights when interpreting laws and making decisions

the mabo case and judicial activism?

in order to give First Nations people land rights, the High Court overruled the legal principle ‘‘terra nullius’’, creating a precedent that established the right of First Nations people to claim and potentially be granted native title of their land

what is the requirement for standing?

in order to initiate a case, the party must have standing (locus standi) which means the party must be directly affected by the issues/matters involved in the case

people who have a general interest in the case or have intellectual interest DONT have standing

what is the requirement of standing in regards to the High Court?

in cases challenging the commonwealth law, the party must be affected significantly if the case wins or loses and gains a material advantage or disadvantage more than someone of the general public

what are the features of the relationship between courts and parliament in law making?

• supremacy of parliament

• ability of courts to influence parliament

• codification of common law

• abrogation of common law

the supremacy of parliament meaning?

• parliament can make and change any law within its constitutional power through codifying or abrogating decisions made by courts and passes legislation that establishes the courts and outlines the power they have to hear cases

eg: the Magistrates Court Act has been amended every year since it was passed including amendments to create specialist courts

• parliament can also pass laws to restrict ability of courts to make decisions (whilst upholding sop- independence of court and power to determine if parliament has gone beyond law making authority)

eg: courts are restricted in sentences they can give- maximum sentences are prescribed in legislation

the ability of courts to influence parliament meaning?

• judges can make comments (obiter dictum) when handing down judgements that inspire/initiate law reform

• if a court is bound by previous precedent and makes a decision that causes an injustice/unwilling to overrule/reverse precedent- this can influence parliament to initiate and investigate law change

eg: Trigwell case

• courts decision may also highlight a problem/cause public uproar- influencing parliament to change law

the trigwell case and influencing parliament?

driver who died as a result of crash, swerved two sheep and injured trigwells and farm of sheep was sued

old British legal precedent was followed that landowners did not owe duty of care to road users for damage cased by lifestock straying from land onto highways

judges made obiter dictum that sheep may have been significant cause of crash and farm of sheep was negligent but followed precedent saying ‘‘such law making should be left to parliament’’

Victorian parliament passed legisation to abolish existing common law and make landowners legally responsible for damage negligently caused by animals straying onto highways

what does codification or abrogation of common law mean?

codification

• pass laws that incorporate common law principles established to strengthen law- law made by parliament is supreme and gives parliament power to clarify, expand on or reform law

eg: Mabo case codifies common law

abrogation of common law

• override common law principles through legislation (except high court decisions on constitutional matters) due to it not reflecting current parliament, common law being interpreted in way no longer appropriate

eg: trigwell case- abrogated old british precedent/principle