legal studies unit 4 aos 1 part b

statutory interpretation

the process by which courts interpret and apply legislation

doctrine of precedent

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

methods judges use to interpret statutes

looking at past decisions, looking at intrinsic materials, extrinsic materials

instrinsic materials

things found within the act

extrinsic materials

sources outside the act, such as parliamentary debates, reports from committees etc

what happens once a common law has been established

it doesn’t change the actual wording of the legislation, but changes the meaning and application of those words and becomes a part of the law and will be read along with the statute in future cases

reasons why a court will interpret legislation

resolve problems that occured in the drafting process
resolve problems that occur when a corut is applying the acts of parliament

problems from the drafting process

• technical errors

• may not have taken future circumstances into account

• the intention of the act not clearly expressed

• the same word used inconsistently in different parts of the act

problems applying the act to a court case

• the legislation is drafted in general terms and needs to be interpreted to be applied to the specific circumstances

• the act is out of date

• the meaning of the words may be ambiguous

• the act might be silent on an issue so that the courts need to fill n the gaps in the legislation

• the meaning of words can change over time

effects of statutory interpretation

words or phrases in the act are given meaning

the decision is binding on the parties to the case

precedent is created for future cases to follow

the meaning of the legislation may have been narrowed or broadened, which affects the scope of the law

the court’s decision in relation to a statute applies to the parties in the dispute and future cases, unless it is reversed or overruled by a higher court or aborgated by parliament

how common law is established

when there is no existing law → the judge will be required to make a decision on a new issue and subsequently develop common law

when existing statute needs interpreting → this requires the courts to interpret the meaning of words or phrases in a statute so that it can be applied to the matter at hand

precedent

the legal reasoning behind a court’s decision. it establishes a legal rule that must be followed by lower courts in the same hierarchy in future cases that are similar

reasons for precedent

ensures consistency and predictability as parties can anticipate how courts will apply the law

like cases are decided in a like manner

legal rep are able to give advice on the likely outcome of a case

judges have some guidance

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

the same point of law is not being decided over and over again

binding precedent

superior court decisions are binding on lower courtrs in the same court hierarchy, but they must have similar material facts

the higher court’s decision remains law until it is overruled by a higher court or the law is altered by an act of parliament

ratio decidendi

the reason for the decision

stare decisis

to stand by what has been decided

persuasive precedents

precedents from another hierarchy, or a court of the same/lower standing in the same court hierarchy

can be considered by a judge and used to influence and guide their decision but is not binding

obiter dictum

a statement made by the judge that is not directly relevant to the point of law in question, but can have a persuasive influence on future cases

how persuasive precedents are developed/avoided

adopt or affirm

avoid

RODD factors

reversing a precedent

distinguishing from the material facts

overruling a precedent

disapproving a precedent

applying earlier precedents

courts will sometimes be required to interpret the meaning of the words and prhases used in the past precedents

juries and precedents

juries cannot create precedents because they do not decide on points of law and they do not give reasons for their decisions, and precedents are the legal reasoning behind a court decision

factors that affect the ability of courts to make law

the doctrine of precedent

judicial conservatism and judicial activism

cost and time in bringing a case to court

the requirement for standing

limitations on consistency and predictablity for precedents

• difficulty in locating relevant precedents

• difficulty identifying legal reasoning behind a decision

• difficulty predicting future developments

limitations on flexibility for precedents

• restricts the ability of the lower courts to change the law

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

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

othe limits of precedents

• judges must wait for a relevant case to be brought before them

• judges in superior courts are restricted to making law that is needed to clarify some issue or matter

• judges make laws ex post facto, meaning “out of the aftermath”

• parliaments can always legislate to abrogate common law (except in constitutional matters)

• precedents usually established in appeal courts and thus can be time consuming and costly for the litigants

judicial conservatism

• when judges adopt a narrow interpretation of the law

• they try to avoid major or controversial changes in the law and are not influenced by their own political beliefs or the views of the community

• in recent years, the high court has adopted a conservative approach when resolving constitutional disputes

rationale for judicial conservatism

parliament has more authority and resources for implementing major law reform than judges as they were elected by the people

also, the primary role of judges are to interpret the law, not to rewrite it

judicial activism

• when judges consider a range of changing social and political views and values when interpreting acts of parliament and deciding cases

• judges are willing to make rulings agains the traditional mainstream view to protect the interests or rights of a minority

• is a controversial approach as this can be viewed as overstepping the court’s role and can be seen as their attempt to unduly influence the law

• however, others view it as a legitimate obligation of the court to ensure justice is achieved

cost of taking a case to court

legal representation

court fees

cost of legal rep

a aprty unrepresented is at a disadvantage

the high cost can discourage people who wish to take legitimate issues to court

but also discourgages people who have frivolous or trivial claims

court fees

filing fees, hearing fees, jury costs

time involved in bringing a case to court

coruts can make laws relatively quickly because judges do not have to follow the lengthy procedures of parliament law-making

they can make decisions quickly to resolve a case and create law

however, judges in appeal courts, where most precedents are established, can take months to hear and determine more complex cases

requirement for standing

• courts must wait until a party with standing to pursue a case

• they must also have authority or jurisidiction over that area of law

• high court generally only hear cases where a person has a 'special interest’, meaning that they are more affected than other memebrs of the general public

• this ensures that cases are only pursued through the courts by people who are genuinely affected by an issue and prevents waste of resources

• however, plaintiffs who are willing an able to pursue the matter on behalf of another person or in the interest of the general public are not allowed to do so

main features of the relationship between courts and parliament in law-making

the supremacy of parliament

the ability of courts to influence parliament

the codification of common law

the aborgation of common law

the interpretation of statutes by the courts

supremacy of the parliament

• parliament is the supreme law making body and can pass legislation to either confirm or abrogate decisions made by the courts (except high court constitutional matters)

• parliament also passes laws to create the courts and determine their jurisdictional power

• they can also pass legislation that restrict the ability of the courts to make decisions with respect to certain matters such as maximum sentence they can impose for a certain crime

• however, in accordance with the principle of the 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 its law-making authority

ability of courts to influence parliament

• courts can indirectly influence parliament to make and change the law in a myriad of ways

• e.g. judges may make comments when handing down judgements that encourage law reform

• parliament may also change a law if a lower court is bound by a previous precedent that creates an injustice or a court is unwilling to overrule or reverse a previous precedent

• judicial activism can also influence parliament to change law such as in the Mabo case

codification of common law

• the parliamnet has the power to pass an act that assembles all the relevant law in a particular area, both common and statute law, in an attempt to create one all-encompassing law

• this allows the parliament to reinforce or endorse hte principles established in court rulings, and to expand, clarify, or reform the relevant area of law

• once a common law is codified, it becomes abolished

areas of law recently codified

taxation, consumer, negligence, some criminal law

abrogation of common law

• the parliament has the power to pass legislation that abrogates decisions made through the courts, with the exception of High Court decisions on constitutional matters

• this is necessary in situations where the parliament believes the court have interpreted the meaning of the words or phrases in a statute in a way that not the intention of parliament, or in a way that does not reflect the current meaning of the act of parliament

• however, it could lead to an unjust law if the parliament overrides valid legal principle or court decision