U4 AOS1 part b

Introduction to the Courts

Outline the main roles of the courts:

resolve civil matters
resolve criminal matters
interpret exisiting laws
create and establish precedent

Statutory Interpretation

definition: when judges interpret works or phrases within a statue (legislation/act of parliament). judges are able to interpret what parliament intended to say, also add meaning to the word or phrase.

reasons:

problem that occur as a result of the drafting process
problems that occur when court is applying the act of parliament to resolve a case.

resolving problems that occur as a result of the drafting process:

general terms are used when drafting Bills to cover a wide range of future circumstances (need for judges to interpret unclear areas)

Problems: add more

mistakes can occur when drafting a bill:

words are missed, headings may not have been included during drafting, or punctuation issues

the bill does not cover all circumstances:

when drafting legislation, parliament is not able to predict all future circumstances (e.g. technology)

parliaments intention is not clear:

purpose of law isn’t clear, leading to confusion about how it should be interpreted. situations may undertake research to assist in determining the intention of law.

resolving problems during the application of statues: add more

most legislation is drafted in general terms:

statues can cover a wide range of situations. words used are too broad and need to be interpreted to apply to specific circumstances.

act may have become out of date:

needs to be updated to keep up with society values and views

meaning of the words may be ambiguous:

have more than one meaning - words or phrases may need to be interpreted according to the intention of the statute the legislation may be ambiguous or flawed.

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

act may not over all situations because they were not foreseen when drafting the bill, or there are gaps in the legislation

meaning of words can change over time:

e.g. defacto relationship initially man and woman, now gender inclusive; text initially a passage to be read, now texting on the phone; currency now needs to take into account digital currency

aids in interpretation: add

courts need to determine what was parliament intention when writing this legislation
courts are able to use a variety of resources to determine what parliament intended
legislation contains a section that defines key words
legislation contains a section that sets out the purpose or objectives of the legislation
courts also refer to other materials outside of the legislation itself - a dictionary, record of parliament debates and reports of law reform bodies.

effect of statutory interpretation: (last dot point can be used in analyse the impact of.., all can be used in discuss or evaluate questions)

precedent may be set for future cases to follow
decision is binding on parties, until there is an appeal and the court reverses the decision
words and phrases in disputed acts are given meaning so the the relevant statue can be applied to resolve the case
the meaning of the law can either be restricted or expanded - the word or phrase can have a very narrow meaning after interpretation or it can have broad meaning covering a wide range of circumstances

Case Study: Is a studded belt a weapon?

facts of the case:

20 year old man charged with unlawfully possessing a regulated weapon
control of weapons act 1990
purchased from local market just before being arrested at fast food place
offence to ‘possess, carry, or use any regulated weapons without lawful excuse’
section 5 of act has a long list which includes ‘any article fitted with raised pointed studs which is designed to be worn as an article of clothing’
court was required to interpret wording of act
man appeal to the supreme court that magistrate made a mistake, supreme allowed for appeal and held it was not a regulated weapon
supreme court justice breach researched the literal meaning of weapon as an instrument of any kind used in warfare or combat to attack or overcome an enemy, which included things such as timber or lengths of pipe.
decided that regulated weapon should be defined as anything that is not a common use for any other purpose but that of a weapon. e.g. stockings can strangle but are not commonly used for that purpose.
established legal principle (precedent) that items that are not common use for weapon cannot be classed as a weapon under the control of weapons act.

what is need to be interpreted and why: the definition of regulated weapon needed to be interpreted and decided, as belts aren’t commonly used as weapons

effect the statutory interpretation: the meaning of legislation was restricted, as a belt is not commonly used as a weapon, thus setting a precedent for future cases that “items that are not in common use as a weapon cannot be classed as a weapon under the control of weapons act 1990”

question 9: ‘courts should be able to interpret statues as and when the need arises to meet the changing needs of the community.’ discuss the extent to which you agree with this statement:

yes court needs to be able to upkeep with views of society

courts need standing, cost and time

Precedent

is a legal principle developed by the courts/judges. it means for example serving for the future, it is found in law reports and can form common law and case law which is law made by judges.

doctrine of precedent: the way judges create and apply precedent. are found in law reports, only major cases are recorded permanently. law report judgement includes:

facts of case
decision between the parties
reason given by the judge for the decision reached.

reasons:

cases are decided in a like manner
legal representatives can give advice on the likely outcome of the case
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 resources)

principles:

stare decisis means to stand by what has been decided, this is the main principle of precedent. judges need to stand by what cases to ensure that the law is consistent and predictable
ratio decidendi becomes forms binding precedent on all future similar cases. legal reasoning used by the judge to reach the decision in the case
obiter dictum are also used by the judge, these statements support the ratio decidendi of the case. act as a persuasive precedent in future cases.

how does it work:

binding:

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

persuasive

courts at times do not follow a set precedent but may be persuaded by a precedent that is already set. these precedents may come from a court in the same hierarchy at the same level or from another hierarchy

can it change:

distinguishing

judge may decide that the precedent set does not apply to the case they are hearing. if judge decided the facts in the case are not similar the previous case heard then they do not have to follow the precedent set int he pervious case.

disapproving

when a judge in a lower court disapproves a precedent set in a higher court it is sending a message to higher courts that the precedent may need to change. the set precedent does not change in this case however it allows them to comment on outdated precedents. disapproving encourages parliament to change the law, or encourage parties to appeal the case to a higher court. obiter dictum

overruling

judge in higher court may overrule a precedent that was made in an earlier and different case. this process eliminates the earlier precedent that existed with a new precedent. therefore, the new precedent becomes binding on all lower courts

reversing

same case has taken on appeal to a higher court, the court does to agree with the lower court, thus changing the decision of the lower court known as ‘reversing’
this means a new precedent has been set and needs to be followed in future similar cases.

effects of changing precedent:

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

laws have expanded over time
meanings have been broadened or narrowed

discuss the ability of judges to change laws (6 marks):

The ability for judges to change laws are to a great extent. Judges are able to interpret words or phrases within a statue, in a way of stating what parliament intended to say and also add meaning to the word or phrase through statutory interpretation.

12.4-7 factors that affect the ability of courts to make law

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.

Ex post facto is a Latin term meaning ‘out of the aftermath’. A legal term used to describe a law that is established in relation to an event that has already taken place.

Consistency and predictability:

Doctrine of precedent allows a party to look at past cases and anticipate how the law may apply to their situation, thus giving them an idea of outcome.

Flexibility:

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 an existing precedent by distinguishing between material facts of the case and material facts of which the precedent was set.

assists in the ability of courts to make laws:

In deciding cases the judge can make law (common law). Interpreting existing statues, determining a case where there is no existing applicable law, or where the law does not cover the situation, judges establish precedents. This can be binding or persuasive on courts.
The principal stare decisis ensures consistency and predictability in common law because lower courts must follow precedents set by superior courts in cases with similar material facts.
Common law is flexible because judges in superior courts can overrule, and reverse precedents and lower courts can avoid them through distinguishing material facts. They can also signal disapproval which may result in a party appealing the case so the precedent can be overruled
By setting precedents courts can make laws to complement current legislation.

limits the ability:

Lower courts must follow binding precedent even though they may consider it to be outdated or inappropriate.
Judges in higher courts may be reluctant to change existing precedent (due to judicial conservatism), preferring parliament to change the law. Similarly, courts of the same standing rarely overrule their own precedents.
Judges can only interpret legislation and establish precedents when an appropriate case is brought, which is reliant on parties being willing to pursue dispute through appeals process.
Courts can only clarify the meaning of legislation after a dispute over its meaning has arisen (ex post facto)
Parliament can abrogate common law, unless it involves conditional interpretation.

Judicial Conservatism:

An expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases. for example:

Avoiding major/controversial changes in the law.

Not be influenced by their own political beliefs/views of community.

assists in its ability:

Judicial conservatism reflects the idea that courts should show restraint when making decisions that could 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 the ability of the courts to make major and controversial changes in the law.
Judges may not consider a range of social and political factors when making law.
It may be seen by some as not being progressive enough and not factoring in 21^st century views or values when deciding cases

Judicial Activism: add

Refers to the willingness of judges to consider a range of social and political factors, including community views and values and the rights of the people, when interpreting the law and making decisions.

The extent to which judges should be progressive (or activist), when making decisions and establishing precedents is dependent on the circumstances of the case before the court.

Some view judicial activisms as judges overstepping their role as independent lawmakers.

Others view it as an obligation that must be followed to ensure justice is achieved.

Parliament can also determine a common law ultra vires- the courts have acted outside their powers as parliament is the supreme law-making body, they can state the law invalid.

Mabo case:

Passed native title act to establish procedures for dealing with and settling native title claims.

It was viewed as improper judicial activism- the high court exercising excessive judicial creativity.

assists its ability:

Allows judges to broadly interpret statutes in a way that recognizes the rights of the people and may lead to more fair judgements.
It allows judges to be more creative when making decisions and making significant legal change (like in the Mabo case)

limits its ability:

It can lead to courts making more radical changes in the law that do not reflect the community values or are beyond the community’s level of comfort.
Judges are limited in being progressive or active given the nature of their role in deciding cases within the confines of the case and considering existing law. Also, as parliament is the supreme law-making body, it can abrogate any decisions it does not agree with.
It may lead to more appeals on a question of law. This means that more of the court’s resources and time are being used.

cost and time:

Cost: The 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 their case is prepared and presented in the best possible manner.

For example:

Lawyers must research into case (including researching
previously established relevant precedents that may be either binding or persuasive on a court)

Analyse evidence and documents.

Interview and prepare witnesses.

Present legal arguments
and evidence to the court in accordance with the strict rules of evidence and procedure.

A party that’s unrepresented will be disadvantaged. High cost of legal representation can discourage people who wish to take a civil issue to court, in which precedents can be established and changed. At the same time, however, the costs involved can discourage people who have trivial claims from using the courts to pursue those claims.

Court fees:

Lodging a civil case with a court incurs several costs. These costs can be expensive.

For example:

Leave to appeal to Victorian Supreme
Court of Appeal costs $2423.20.

Hearing fees cost $896.80 for every day/part day, after first day.

If party requests jury in Supreme Court, cost is $1636.00 for first day, $303.60 per day
for days 2-6, and $543.60 per day from 7+ days onwards.

Time: (THESE ARE ALSO THE ADV PART)

Can make law quickly once a dispute has been brought before them.

Judges are not required to follow lengthy procedures like those involved in the process of developing, drafting and passing a bill through parliament, including the bill being examined in general terms and detail by both houses of parliament.

limit:

High costs can deter those who can’t and who don’t qualify for
legal aid, from pursuing their case and their rights in court.
High costs can deter parties from pursing the appeals process.
The high nature of costs may mean that old or ‘bad’ precedents are never challenged or brought to the court for review.

Time:
Some courts, particularly appeal courts where most precedents are established, can take months to hear and determine more complex cases- especially when it is a class action.
Parties can be delayed in getting as case ready for trial.

assist:

Courts can manage disputes to narrow the issues in dispute, possibly saving
parties costs and allowing them to proceed all the way to trial for a final determination.
The high costs may mean that only legitimate claims are pursued all the way to appeal courts.

requirement of standing: add

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 until a party pursues a case before, they can create precedent and make law. Standing is especially 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- more affected than other members of public.

Purpose: 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 (time, money, personal) on cases in which the plaintiff is not directly affected by the matter and outcome of the case. However, this can prevent plaintiffs who have a general interest in a case from pursuing it on behalf of another person or in the interest of the public. Can also prevent people who have greater financial capacity, time, oral skills and confidence from pursuing matters on behalf of another who is less willing

assist:

ensures cases are only pursued through the courts by people who are genuinely affected by an issue or matter preventing the wasting of court resources (time, money, personal) on cases in which the plaintiff is not directly affected by the matter and outcome of the case.
Encourages people not directly affected to seek other avenues (petitions or demonstrations) of redress rather than going to court.

limit:

This means that people who had genuine interest in a case (e.g. when act breaches individual rights) have no right to pursue legal action on behalf of the public or common interest.
It means that potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost.

12.8 relationship between parliament and the courts

Courts and parliament have an interconnected role in law-making. Working together the law is flexible and can be applied to any situation that may arise. By interpreting statues, judges can not only clarify the meaning of legislation, but they can also broaden or narrow its meaning. High court has the constitutional authority to interpret the meaning of the constitution and can alter the division of law-making power between commonwealth and states.

Parliament has the power to confirm, add or change common law and override court decisions. Features of the relationship between courts and parliament are:

The supremacy of parliament: It is the supreme law-making body, therefore has the power to pass legislation to either confirm or abrogate decisions made by courts (except for high court decisions). They are responsible for passing legislation to create the courts and determine their jurisdictional power (hear cases), for example, Victorian parliament passed magistrates court act 1989 to establish its divisions and powers, replacing the previous statue.

Parliament can also pass legislation to change the jurisdiction of courts (changing the types and severity of cases heard by the court), for example, the magistrates act has been amended several times since its passing. The amendments were to create specialist lists (sexual offences list) and divisions (like Koori court, drug court division and family violence court division).

Parliament is also able to pass acts of parliament that restrict the ability of the courts to make decisions with respect to certain matters. However, in accordance with the principle 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. For example, courts are restricted in sentences they can impose on an offender prescribed in legislation.

The ability of courts to influence parliament: Courts can indirectly influence parliament to amend or create a law. Judges can make comments when handing down judgements, either as a reasoning for their decision or as obiter dictadictum. This encourages parliament to investigate the law and possibly initiate a law reform.

The codification of common law: Codification: 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 (common and statute) to try to create one all-encompassing law. It allows parliament to pass legislation that reinforces the principles established in court rulings and gives parliament the opportunity to clarify, expand or to reform the relating area of law. E.G - Vic Parliament amended Crimes Act 1958 (VIC) to codify the common law relating to self defence and in doing so abolished the common law.

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

Note