U4 AOS1 part b

Statutory Interpretation

When judges interpret words or phrases within a statute to determine what parliament intended to say and add meaning to the word or phrase.

reasons for statutory interpretation

problems that occur as a result of the drafting process

problems that occur when court is applying the act of parliament to resolve a case

Problems in Drafting Process (statues)

mistakes - words are missed, not included, punctuation

doesn’t cover all circumstances - not able to predict all circumstances

intention is not clear - confusion on how it should be interpreted, undertake research

resolving problems in statues

general terms - words are too broad/narrow

out of date - societal views and values change

ambiguous meanings - have more than one meaning

silent on issue - courts need to fill in gaps, or not forseen when drafting bill

meaning can change over time - fertility act defacto relationship was initially man and woman is now gender inclusive, text was a passage to be read is now texting, currency now needs to include digital currency.

Aids in Interpretation

determine parliaments interpretation

use variety of resources to determine what was intended

legislation contains section that defines key words, also section that sets out purpose or objectives of the legislation

refer to other materials outside of legislation (dictionary, records, reports)

effect of statutory interpretation

precedent set for future cases

decision is binding until there is an appeal

words or phrases in disputed acts are given meaning so the relevant statue can be applied

meaning of law can be restricted or expanded, narrow meaning after interpretation or have broad meaning covering wide range of circumstances

Precedent

Legal principle developed by courts, serving for the future, found in law reports, and can form common law and case law.

reasons for precedent

cases are decided in a like manner

legal rep can give advice on likely outcome

judges have guidance

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

point is decided on once, not multiple times (waste of resource

principles of precedent

stare decisis - to stand by what has been decided

ratio decidendi - forms binding precedent on all future similar cases

obiter dictum - statements support the ratio decidendi of case, act as persuasive precedent in future cases

how precedent words

binding - courts must follow a set precedent if it has been set in higher court in the same court hierarchy and the case facts are similar

persuasive - courts at times do not follow a set precedent but may be persuaded by precedent set. these may come from same hierarchy or another

precedent can change

distinguishing - decide precedent set does not apply to case they are hearing

disapproving - judge in lower court disapproves precedent set in higher court, sending a message that it may need to change (obiter dictum)

overruling - judge in higher court may overrule precedent that was made in an earlier different case. this eliminates earler precedent that existed.

reversing - same case has taken on appeal to higher court, agree with lower court, change decision. new precedent have been set and needs to be followed

effects of changing precedent

process of reversing, overruling, distinguishing and disapproving precedent, the following has occurred in some laws:

• laws have expanded over time

• meaning have been broadens or narrowed

Doctrine of Precedent

Rule that decisions of higher courts are binding on lower courts with similar facts, ensuring consistency and predictability in the law.

Ex post facto

Latin term meaning 'out of the aftermath,' used to describe a law established after an event has occurred.

Consistency and Predictability (doctrine of precedent)

Doctrine of precedent allows parties to anticipate how the law may apply to their situation, providing an idea of the outcome.

flexibility of doctrine of precedent

through reversing, overruling, distinguishing and disapproving, precedents change over time to allow the gradual expansion of common law. superior courts can reverse or overrule previous precedents in a later case and can avoid following a precedent by distinguishing between material facts of the case and of precedent set

assists in ability (doctrine precedent)

deciding case to make law, interpret, determine, establish precedent. binding or persuasive on courts.

stare decisis ensures consistency predictability in common law, lower courts must follow precedents set

common law is flexible because judges in superior courts can overrule, and reverse. lower courts can avoid them through distinguishing material facts. signal disapproval

setting precedent courts can make law to complement current legislation

limits the ability (doctrine of precedents)

lower courts must follow binding precedent even if outdated or inappropriate

judges in higher may be reluctant to change, preferring parliament to change the law. courts of same standing rarely overrule their own precedents

judges can only interpreted legislation and establish precedent when appropriate case is brought. parties must be willing to pursue dispute through appeals process

courts can clarify the meaning of legislation after a dispute over its meaning has arisen (es post facto)

parliament can abrogate common law, unless it involves conditional interpretation

Judicial Conservatism

Judges adopting a narrow interpretation of the law to avoid major changes, maintaining stability, and showing restraint in decision-making.

assists in its ability (judicial conservatism)

reflects the idea that courts should show restraint when making decisions that court lead to significant changes in the law

judges exercising conservatism helps. maintain stability in the law because judges are cautious and show restraint when making decisions that could lead to significant changes in the law

conservatism can lessen the possibility of appeals on a question of law

limits its ability (judicial conservatism)

restricts ability to make major and controversial changes in law

judges may not consider a range of social political factors when making law

may be seen by some as not progressive, factoring 21st century views or values when decision cases

Judicial Activism

Refers to judges considering social and political factors when interpreting the law, leading to more radical changes, but can be seen as overstepping their role.

assist in it ability (judicial activism)

allows judges to broadly interpret statues in a way that recognises the rights of people and may lead to more fair judgement

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

limits ability (judicial activism)

lead to courts making more radical changes in law that do not reflect the community values or are beyond communities level of comfort

judges are limited in being progressive or active given the nature of their role in decision cases within confines of case and exisiting law. parliament as supreme court can abrogate any decision it does not agree with

may lead to more appeals on a question of law, meaning that more of the courts resources and time are being uses.

cost

fees required to pursue a court case

legal representation costs

to ensure a party wins their case they must invest in legal representation to ensure case is prepared and presented in the best possible manner.

e.g. lawyers must research into case, analyse evidence and documents, present legal arguments and evidence to the court in accordance with strict rules or evidence and prodecure.

a party unprepared will be disadvantaged, discouraging people who wish to take legal action. at the same time however costs involved can discourage people who have trivial claims from using courts to pursue those claims.

court fees

lodging a civil case with a court incurs several costs. these can be expensive.

for example

• leave to appeal to vic supreme (appeal 2423.20)

• hearing fees cost 896.80 for every day/part day, after first day

• if party requests jury in supreme court, costs 1636.00 for first day, 303.60 per day for days 2-6, and 543.60 from day 7 onwards

time

law made quickly

judges required to follow lengthy procedures like those involved in process of developing, drafting and passing bill through parliament.

assist (time)

law made quickly

not required to follow lengthy processes like those involved in the process of developing, drafting and passing a bill thorugh parliament when deciding cases

limit (time

some courts especially appeal courts where most precedents are established, can take months to hear and determine more complex cases.

parties can be delayed in getting a case ready for trial

assist (costs)

costs involved (legal representation, filing and hearing fees)

able to manage disputes to narrow issues in dispute, saving the parties costs and allowing them to proceed all the way to trail for a final determination

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

limit (costs)

deter litigants who cannot afford these costs, who do not qualify for legal aid, from pursuing their case and their rights in court.

high costs can deter parties from pursuing the appeals process

prohibitive nature of costs may mean that old or bad precedents are never challenged or brought to the court for review

requirement of standing

is 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. courts must wait untill a party pursues a case before they can create precedent and make law. essential in cases that are challenging commonwealth law in the high court. this is because the court only hears cases when a person has special interest.

purpose of requirement of standing

to ensure cases are only pursued through the courts by people who are genuinely affected by an issue or matter and to ensure the cases have merit and it discourages frivolous actions. this prevents waste of court resources on cases were the plaintiff is not directly affected. this can prevent plaintiffs who have general interest in case from pursuing it on behalf of another person or in the interest of public. also prevent people who have greater financial capacity, time, oral skills and confidence from pursuing matters on behalf of another who is less willing

assists (requirement of standing)

ensures cases are only pursued through the courts who are genuinely affected

encourages people not affected to seek other avenues of redress rather than court

limit (requirement of standing)

people who have interest have no right to pursue legal action on behalf of public or common interest

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

relationship between parliament and the court

have interconnected role in law-making. working together the law is flexible and can be applied to any situation that may arise. (interpreting statues) judges can not only clarify the meaning of legislation but broaden or narrow its meaning. have constitutional authority to interpret meaning of constitution and alter the division of law making power between commonwealth and states.

parliament has power to confirm, add or change common law and override court decisions.

feature of relationship: supremacy of parliament

has power to pass legislation to either confirm or abrogate decisions made by courts. responsible for passing legislation to create the courts and determine jurisdictional power.

also pass legislation to change jurisdiction of courts. amendments to create specialists and divisions.

also able to pass acts of parliament that restrict the ability of the courts to make decisions with respect to certain matters. in accordance with principles of separation of powers, parliament must allow the courts to remain independent and retain power to determine if parliament has passed its laws beyond its authority.

feature of relationship: courts to influence parliament

can indirectly influence parliament to amend or create a law. judges make comments when handing down judgements, either as a reasoning for their decision or as obiter dictadictum. investigate the law and possibly initiate a law reform

feature of relationship: codification of common law

to collect all law in one topic together into a single statute. parliament can pass an act that assembles all relevant laws in a particular area to try create one all encompassing law. allows parliament to pass legislation that reinforces principles established in court rulings. gives opportunity to clarify, expand or reform relating area of law.

feature of relationship: abrogation of common law

parliament has power to abrogate decisions made in the courts or common law. may be necessary in situations where parliament believes courts have interpreted the meaning of a statute in a way that it was not meant to be read or the does not reflect the current meaning of the act of parliament. can be argued that power to cancel laws could lead to unjust laws if the parliament overrides a valid legal principle or court decision.