SAC 3B

statutory interpretation

the process undertaken by judges to give meaning and apply the words of an Act of Parliament to specific fact situations

does not add or remove words, or change phrases in the statute, only meaning

reasons for statutory interpretation

resolving problems that occur during the drafting process of the bill

• bill may not have taken future circumstances into account

• intention of the bill may not have been clearly expressed

• mistakes in drafting of the bill

resolving problems that occur during the application of statutes

• most legislation is drafted in general terms

• the act may be out of date and no longer reflect community values

• meaning of words may be ambiguous

• act may be silent on an issue - courts need to fill gaps

• meaning of words can change over time

reasons - bill might not have taken future circumstances into account

• AFP v Luppino = dispute over whether a mobile phone was classified as a ‘computer’ or ‘data storage device’ under the Act

• act was introduced in 2001

• court ruled that mobile phone can be classiied as a ‘computer’ or ‘data storage device’ for the Act’s purpose

reasons - mistakes in the drafting of a bill

• words may have missed in the text, a heading may not be included

• gender specific words used (he,his) where they should be gender neutral - s.197 Arson Crimes Act 1958

reasons - most legislation in broad and general terms

• this is so it can cover a wide range of circumstances

• Deing v Tarola case - court had to determine if wearing a studded belt was an offence under the Control of Weapons Act 1990 (Vic), which banned carrying a ‘regulated weapon’

reasons - meaning of words change over time

• words like ‘vehicle’, ‘mental illness’ ‘document’ and ‘consent’

• Attorney General v Kevin & Jennifer (2004) - the word ‘man’ was interpreted to include trans men under Marriage Act

reasons - meaning of words may be ambiguous

• some words can be unclear or have multiple meanings

• courts need to interpret the words to determine their meaning in relation to the intention of the statute

• AFP v Luppino - meaning of computer was ambiguous as left undefined in the Act

Deing v Tarola Case

• 20 yr old man was charged with unlawfully possessed a regulated weapon under the Control of Weapons Act 1990 (Vic) for wearing a studded belt

• original Magistrate’s hearing - magistrate hecided a studded belt was a regulated weapon

• Deing appealed the decision

• supreme court allowed the appeal and held that the studded belt was not a regulated weapon

• Supreme Court ruling established a legal precedent that items that are not in common use as a weapon cannot be classed as a weapon under the Control of Weapons Act

effects of statutory interpretation

• word or phrases in the disputed legislation are given meaning

• court’s decision on the meaning of the legislation is binding on the parties

• a precedent may be set for future cases to follow

• meaning other legislation can be restricted or expanded

effects - words or phrases contained in the disputed legislation are given meaning

• words or phrases are clarified & given meaning

• allows statute to be applied to resolve the case

• ‘regulated weapon’ is now clarified in Deing v Tarola

  • resulted in Deing’s conviction being squashed

effects - courts decision on the meaning of the legislation is binding on the parties

• parties to the case are bound to the decision of the statute’s meaning until a party lodges a successful appeal against the decision

effects - precedent may be set for future cases to follow

• if interpretation is made by a superiour court, the decision forms a precedent that is then read together with the Act

• will remain as precedent until it is abrogated or changed by higher court

effects - meaning of the legislation can be restricted or expanded

• if a court interprets a word/phrase narrowly, could restrict scope

• a broad interpretation of a word or phrase in a statute can extend the meaning of legislation

doctrine of precedent

requires lower courts in the same hierarchy to follow the reasoning for the decision of a superior court when they are deciding future cases if the material facts are similar

court hierarchy

ranking of courts based on the severity and complexity of cases they hear/trial

reasons for doctrine of precedent

• ensures common law is consistent and predictable

• like cases are decided in a like manner

• judges have guidance as they can refer back to previous cases and decide accordingly

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

binding precedent

a precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts

e.g Magistrates Court is bound to follow precedents set by High Court

ratio decidendi

‘the reason’

the binding part of a court judgment - the legal reasoning behind the decision or statement of law to be followed in the future

stare decisis

‘let the decision stand’

judges should stand by previous decisions to ensure common law is consistent and predictable

persuasive precedent

the legal reasoning behind a decision of a lower/equal court within the same jurisdiction or a court in a different jurisdiction, that may be considered relevant even though it is not binding

can be used as a source of influenced because it is good reasoning

obiter dictum

‘by the way’ - comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are not binding)

if a judge is not bound to follow the earlier precedent, they may decide to….

adopt the precedent

choose not to follow the existing precedent

RODD

reversing

overruling

distinguishing

disapproving

reversing a precedent

same case upon appeal

when hearing the same case on appeal from a lower court, a judge in a superior court may disagree with and decide to change the previously established precedent set by the lower court in that case

new precedent becomes the one to follow in future cases

Magistrates cannot reverse precedent

overruling a precedent

different and later case

when a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent

e.g. precedent set by Supreme Court in Case A can be overruled by Court of Appeal in Case B

distinguishing a precedent

a lower court decides that the material facts of a case are sufficiently different from those of a case in which a precedent was established by a superior court so they are not bound to follow it

can create new precedent

disapproving a precedent

when a court expresses dissatisfaction with an existing precedent but is still bound to follow it

does not allow the lower court to avoid following the precedent or create new precedent, it may be used during an appeal to indicate the original judge’s dissatisfaction with the precedent or encourage parliament to change the law

DPP v Brown

• original case in county court - judge expressed disapproval for following the precedent established by DPP V O’Neill which held that personality disorders do not constitute a ‘mental impairment’

• court of appeal - offender’s appeal was upheld as DPP v O’Neill was overruled and personality disorders were included in ‘mental impairment’

can juries create precedent?

no - they only deliver a verdict and do not give reasons (ratio decidendi) for their decisions

cost factors

initiating a court case can be costly and may deter those litigants who cannot afford these costs

• cost of legal representation

• court fees (disbursements)

discussion:

high costs may mean only meritorious and legitimate claims are pursued all the way to appeal courts

courts can only make law in areas which they have a case on - meaning the deterring nature of costs limits ability to make law

may mean old or ‘bad’ precedents are never challenged or brought to the court for review

time factors

• courts have the ability to make law relatively quickly once a dispute has been brought before them

• judges are not required to follow lengthy processes like parliament

• however, the complexity of a case may mean it takes months to hear and determine

• courts can experience delays and backlogs

standing

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it

• purpose: ensure cases are only pursued through courts by people who are genuinely affected by an issue or matter

  • prevents waste of court resources where the plaintiff is not directly affected by the matter or the outcome

  • discourages frivolous, unmeritorious cases

• High Court - only hear cases where a person has a special interest (more affected than general public) in challenging Commonwealth law

how standing affects opportunity of courts to make law

parties without standing do not have the legal right to pursue the claim in court

can prevent plaintiffs who have a general interest in a case from pursuing the matter on behalf of someone or the general public

means potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost

doctrine of precedent - enabling law-making

allows for the creation of a consistent and predictable body of judge-made law that evolves over time

allows for some flexibility as judges in superior courts can overrule and reverse precedents and lower courts can avoid them by distinguishing them

lower courts can also signal their disapproval of a precedent

• may result in an appeal to allow precedent to be overruled

doctrine of precedent - restricting law-making

restricts ability of lower courts to change the law in cases where they are bound to follow a previous legal reasoning

• may lead to an unjust outcome if courts are bound to follow ‘outdated precedent’

• lower courts can express disapproval which may encourage appeal - no precedent created

judges in superior courts may be reluctant to reverse or overrule existing precedents

judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them

judges must wait for a relevant case to be brought before them and generally only superior courts can make law

• courts are reliant on parties being aware of their right to pursue a matter in the courts

judges make law ex post facto - retrospectively

parliament can decide to legislate to abrogate common law (except High Court constitutional decisions)

judicial conservatism

when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases

judges;

• adhere strictly to the principle of ‘stare decisis’

• are unlikely to take opportunities to make law - show restraint or caution when making decisions and rulings

• tend to perceive themselves as an adjudicator of the law rather than a law-maker and generally prefer to leave law-making to the parliament

• ensure their decisions are not based on their own political beliefs or the views of the community

judicial conservatism - assists ability to make law

• helps maintain stability in the law - judges are cautious and show restraint making decisions

• lessens the possibility of appeals on a question of law

• allows the parliament which has the ability to reflect community views and values to make more significant changes to law

judicial conservatism - limits ability to make law

• restricts ability of courts to make major and controversial changes in the law

• can discourage judges from considering a range of social and political factors when making law

• may be seen by some as not being progressive enough and not factoring twenty-first century views or values when deciding cases

judicial activism

when judges consider a range of social and poltiical factors when interpreting Acts of Parliament and deciding cases

judges;

• are more likely to take opportunities to make law (eg. Mabo in overturning 100 year old precedent)

• adopt a more liberal approach to statutory interpretation making them more likely to extend the meaning of the law and recognise the rights of people

• may choose not to follow a long line of precedent (NZY overruling of Al-Kateb)

• are more likely to override precedent or alternatively distinguish the case before them which allows them to create new law

• consider the changing political beliefs and the views of the community

judicial activism - assist ability to make law

• allows judges to broadly interpret statutes in a way that recognises the rights of the people

• allows judges to consider a range of social and political factors and community views when making a decision, which may lead to more fair judgments

• allows judges to be more creative when making decisions and making significant legal change

judicial activism - limits ability to make law

• can lead to more appeals on a question of law

• can lead to courts making more radical changes in the law that do not reflect the community values or are beyong the community’s level of comfort

Mabo Case

• Case name & year – Mabo v Queensland (No. 2) (1992) in the High Court of Australia.

• Background facts – Eddie Mabo and other Meriam people from the Murray Islands challenged the State of Queensland’s claim to their land, arguing their traditional land rights pre-dated colonisation.

• Legal issue – Whether the doctrine of terra nullius (land belonging to no one) applied to Australia at the time of British settlement.

• Court’s decision – The High Court (6–1 majority) recognised native title for the first time in Australian law, overturning terra nullius and ruling that traditional land rights could exist if they had not been extinguished by valid government acts.

• Significance & judicial activism – Demonstrates judicial activism as the Court departed from precedent, reinterpreted common law to reflect contemporary values, and significantly shaped Australian property law without legislative direction.

supremacy of parliament

• parliament is supreme law making body with the ability to make and change any law within constitutional power

• they can therefore confirm or abrogate decisions made by the courts

• parliament is also responsible for passing legislation to create the courts and determine their jurisdictional power

  • Magistrates Court Act 1989 (Vic)

  • parliament can also pass legislation to change the jurisdiction of courts so the types and severity of the cases heard by the court can be changed

• parliament is also able to pass Acts of Parliament that restrict the ability of the courts to make decisions with respect to certain matters

  • e.g maximum sentences

• in accordance with separation of powers, parliament must ensure that it allows the courts to remain independent and retain the power to determine if the parliament has passed laws beyond power

ability of courts to influence parliament

• judges may make comments when handing out judgments - either as obiter dicta or reasons for decisions

• when judges disapprove of a precedent when they are bound to follow a superior' courts’ precedent, might influence parliament to make law to change it if is considered ‘bad’ or ‘outdated’

• court’s decision may also highlight a problem or even cause public outcry that may lead parliament to change the law

codification of common law

codification is to collect all law on one topic together into a single statute

• creating one all-encompassing law

• allows parliament to pass legislation that reinforces or endorses the principles established in court ruling

• also gives parliament the opportunity to clarify, expand on or reform the relevant area of law

• e.g Mabo case - parliament passed the Native Title Act 1993 (Cth)

• in 2005 - Victoria Parliament amended the Crimes Act 1958 (vic) to codify common law relating to self-defence and therefore abolished the common law

abrogation of common law

to abrogate is to formally override or cancel a legal principle of rule established by judges (common law) through a statute

• may be necessary in situations where the parliament believe the courts could have interpreted the meaning of words incorrectly or in a way that does not reflect the meaning of the Act of Parliament

• however, can be argued that the power to abrogate common law could lead to an unjust law if parliament overrides a valid legal principle which has been established and considered by multiple independent judges