Chapter 12.2

Question 1

precedent

Answer 1

a principle established in a legal case that should be followed by courts in later cases where the material facts are similar. Precedents can be either binding or persuasive

Question 2

doctrine of precedent

Answer 2

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

Question 3

statutory interpretation

Answer 3

is the process by which judges interpret the words or phrases in an act of parliament in order to give the words meaning so that they can be applies to the specific case at hand

Question 4

introduction to statutory interpretation

Answer 4

Judges can make law when interpreting the meaning if a statute to resolve a case. This occurs when there is a dispute over the meaning of the words and phrases contained in an act of parliament and the case is brought before the courts to be resolved.

Question 5

what does statutory interoperation help

Answer 5

By giving meaning to the unclear words and phrases, judges clarify what the statute means so it can be applied to resolve the dispute before them. This means judges can broaden or narrows its meaning.

Question 6

how can judge’s do statutory interpretation

Answer 6

• The judges of courts interpretation does not change the actual words or phrases in the statute itself, it only provides a statement about the meaning and application of the statute
• Depending on the superiority of the court, the legal reasoning behind the judges interpretation may set a legal precedent that can be followed in similar cases, the newly established precedent becomes a part of the law and will be read aloung with the statute in future cases

Question 7

reasons for statutory interpretation

Answer 7

• an act not accounting for future precedents
• the meaning of the words within an act changing over time
• the meaning of the words within an act being ambiguous
• mistakes occurring during the drafting process
• legislation being drafted in general terms but needing to be applied to specific circumstances

Question 8

an act not accounting for future circumstances

Answer 8

when an act is being drafted, parliamentary council may fail to acknowledge or adress future circumstances where the law may need to be changes

Question 9

case example of an act not accounting for future circumstances

Answer 9

the Constitution gave the Commonwealth the power to legislate over the naval and
military defences of the Commonwealth, but did not specify the power to make laws regarding
the air force - because at the time the Act was drafted, an air force was not envisaged.

Question 10

the meaning of the words within an act change over time

Answer 10

when an act was drafted and passed, a word contained within the act may have had a set meaning, however over time the word may have come to mean something else or may have developed more than one meaning

Question 11

case example of the meaning of the words of an act change over time

Answer 11

the term ‘de facto relationship’ was once defined as a man and woman living in a
domestic relationship; however, over time the definition of a ‘de facto relationship’ has come to
mean a couple, irrespective of gender, living in a domestic relationship.

Question 12

the meaning of the words within an act being ambiguous

Answer 12

the words and phrases used in an act attempt to cover a broader range of issues, as a result the meaning of some of the wording in an act might be unclear or may carry more than one meaning

Question 13

case example of the meaning of the words within an act being ambiguous

Answer 13

in the Davies v. Waldron case, the phrase ‘start to drive’ in the Road Safety Act
1986 (Vic) had to be interpreted to see whether the term included attempting to turn on the
ignition of a car.

Question 14

legislation being drafted in general terms but needing to be applied to specific circumstances

Answer 14

by drafting an act in general terms its ability to cover a wide range of possibilities is increased, however in practice the act still need to be applied and interpreted to a specific case as a result the question of whether an act was intended to apply to the facts of a given case can arise

Question 15

case example of legislation may be drafted in general terms but needing to be applied to specific cirumstances

Answer 15

in the Deing v. Tarola case, the phrase regulated weapon; as found in the Control
of Weapons Regulations 1990 was quite general and vague. This meant that the meaning of
the phrase had to be interpreted by the court in order to apply the Act to the case-at-hand and
identify whether something specific (a studded leather belt) was something general (a regulated
weapon).

Question 16

mistakes occuing during the drafting of an act

Answer 16

in the process of drafting an act, parliamentary council can make errors or can neglect to adress something of importance within the act

Question 17

case example of mistakes happening during the drafting stages of a act

Answer 17

it was stated that a witness was required to support
a mentally impaired person’s claim that they had been sexually exploited. However, it was overlooked when drafting the Act that it is extremely unlikely that there would be a witness to
such an act

Question 18

parliamentary counsel

Answer 18

lawyers who are responsible for drafting bills in accordance with the policies and instruction of a member of parliament

Question 19

the effects of statutory interpretation

Answer 19

• the words in an act being given meaning
• precedents being set for future cases to follow
• the law being restricted through a narrow interpretation of an act
• the law being expanded through a broad interpretation of an act
• The court’s decision on the meaning of the legislation is binding on the parties.

Question 20

the words in an act being given meaning

Answer 20

by interpreating an act of parliament, the words within a statute are not changed however the definitions of those words are asserted and the way in which they are understood is changed

Question 21

case example of the words in an act being given meaning

Answer 21

In Fisher V bell case, the court interpreted the phrase “offer for sale”, in the restriction of offensive weapons act, ruling that displaying an item in a shop Windows was not an offer but an invitation to treat. this interpretation clarified the legal meaning of the phrase

Question 22

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

Answer 22

once a court has reached a decision on the meaning of a statute, the parties to the case are bound by that decision until one of the parties lodges a successful appeal against that decision

Question 23

precedent being set for future cases to follow

Answer 23

the interpretation of the words in an act forms a precedent which is read as law, alongside the act. this type of law making is carries out by the superior courts and the precedent set will be followed by lower courts when interoperating the same section or provision of the act

Question 24

case example of precedent being set for future cases to follow

Answer 24

The Tasmanian dam case set a major precedent through statutory interpretation. the high court rules that the commonwealths external affairs power allowed it to legislate against Tasmania’s dam project due to international treaty obligations, this has since guided how courts handle cases involving the implementation of international agreements in australia.

Question 25

the law being restricted through a narrow interpretation

Answer 25

if the courts interpret a word or phrase in an act in a away which makes it more exclusive (narrow) this can restrict the scope of the law and provide for greater precision and specification

Question 26

case example of the law being restricted through a narrow interpretation

Answer 26

in the deing V Tarola case, the meaning of the phrase “regulated weapon” became more specific

Question 27

the law being expanded through a broad interpretation of an act

Answer 27

if the courts interpret a word or phrase in an act and make it more extensive (broad) this can result in the law being extended to cover a new situation or area

Question 28

case example of the law being expanded through a broad interpretation of an act

Answer 28

in the brislan case, the high court of australia interoperated the constitutions communication power broadly to include radio broadcasting, even though the wireless telegraphy act did not specifically mention radio, this broad interpretation expanded federal legislative power, allowing the government to regulate new technologies.

Question 29

abrogated

Answer 29

to abolish or cancel a law