Law Flashcards
What does the judiciary do?
Third branch of government, essential element of the separation of powers, as well as rule of law.
- Checks & balances parliament through interpreting statute law.
- High Court = interprets constitutional law.
- Checks & balances executive - by ruling on the lawfulness of government administration & policy.
- Creates common law.
Expectations of Parliament - Law-making…
1) Participatory and responsive to public opinions.
2) Generally reflective of majority views.
3) Equitable (incorporate the rights of individuals and groups).
4) Directly accountable to society (elections).
5) Dynamic (open to change).
Expectations of Courts - Law-making…
1) Independent and not swayed by community (or parliamentary) pressures - independent of judiciary seen as one of the hallmarks of a democratic society.
2) Authoritative and consistent (decisions based on established authorities and legal traditions) and subject to appeal when this is doubt.
3) Equitable (recognise and individuals or groups right to due process and a fair trial).
Why does Australia have a court hierarchy?
1) Allows cases to be allocated to an appropriate court based on complexity, seriousness of the case, and amount being claimed.
2) Consistency: greater consistency in judgements because lower courts must follow binding precedents set by higher courts.
3) Appeals: decisions of courts are not final - if there was a flaw in the original trial individuals have the opportunity to have their case re-heard in a higher court.
What is Criminal Law? Give examples.
Criminal law is actions regarded as anti-social and dangerous to the community. Such actions are prohibited by statutes and prosecuted and punished by government.
E.g. Murder, robbery, rape, drink driving, trespassing…
What is Civil Law? Give examples.
Civil law is the body of law that regulated the ordinary private relationships in a community. These disputes can be adjudicated by civil courts.
E.g. divorce, contract disputes, property boundaries, defamation…
What is a summary offence?
A simple or minor criminal offence, heard through criminal summons in the Magistrates Court - drunk and disorderly & traffic offences.
What is indictable offence?
A serious criminal offence that is heard in District or Supreme Court. Generally heard by judge and jury.
What is statutory interpretation?
The way that courts interpret and apply law.
What are the reasons for statutory interpretation?
1) Word meanings
2) Time and changing circumstances
3) Drafting errors
Word meanings…
Homonyms are same word with different meanings.
E.g. ‘Right’ - opposite of ‘left’ and ‘wrong’.
Time and changing circumstances…
Old laws are written in the language of their time. Remain a law until amended or repealed by parliament.
Language can go out of date - meanings change over time.
- Keeps old laws up to date.
Drafting error…
Mistakes are made despite the precision of statutory construction and detailed processes of law-making.
What is In Futuro?
Latin for ‘in the future’.
Parliament write laws in ways that can take into account future situations.
Parliament leaves it to the courts to interpret statutes to fit new and evolving times. Why laws are written in broad general terms - allows laws to be flexible and adaptable to changing technologies and social values.
What are the methods of statutory interpretation?
1) Maxims - ensure consistency.
2) Rules - declare the law.
3) Acts Interpretation Acts - passed by parliament which provide guidance.
What are maxims?
Maxims are rules of conduct. They are similar to ‘conventions’. They are unwritten rules that guide legal professionals in their work.
Types of maxims:
1) Ejusdem generis
2) Noscitur a sociis
3) Expressio unis est exclusio alterius
What is Ejusdem generis?
Latin for ‘of the same kind’.
Applied to a list of words where a general word appears after a list of specific words of a similar case. This allows courts to decide on a case by case basis id other things are of the same category.
E.g. The Disability Discrimination Act (1992) - states “For the purpose of this Act, an assistance animal is a dog or other animal trained to assist the person with a disability…” Parliament created a category of assistance animals, with dog as the example, but has allowed for future change in the use of animals and for the courts to add meaning to the law without changing the wording.
What is Noscitur a sociis?
Latin for ‘by the company it keeps - to know a thing by it associates.’
i.e. look at the surrounding words for its context.
E.g. The work ‘disability’ when alone can mean many thing - medial, legal (bankruptcy), less able to perform, etc.
What is Expressio unis est exclusion aterius?
Latin for ‘express mention of one excludes all others’.
Parliament may list a series of specific things in a class/category.
Unlike general terms allowing for ejusdem generis, the use of specific terms without a general term following prevents courts from expanding the class/category.
E.g. Taxi Act of WA (1994) - explicitly refers to a taxi vehicle capable of carrying up to 4 passengers - therefore, vehicles such as minibuses or buses do not come under this law.
What are the three main rules of statutory interpretation?
1) Literal rule
2) Golden rule
3) Purpose (mischief) rule
What is the literal rule?
A rule for statutory interpretation in which the courts apply the standard dictionary definition of a work in a statutes.
i.e. the courts use the ordinary meaning of the language within the statute - Act is read literally.
E.g. GST Act define taxi travel. In Uber B.V. vs Commissioner of Taxation of Commonwealth of Australia (2017) - the Federal Court read the GST Act literally giving the works of ‘taxi travel’ their literal/ordinary meaning.
What is the golden rule?
A rule of statutory interpretation in which the court seeks alternative meanings of a word in a statute if the literal meaning results in absurd or unjust outcomes.
E.g. Taxicab once meant ‘one horse vehicle for hire’. If courts use literal interpretation of this word, there would be no taxis or Ubers on our roads despite there being thousands of motorised vehicles for hire.
Definition no longer relevant - golden rule used to help statutes keep up with changing society.
What is the purpose rule?
A rule for statutory interpretation which the court seeks the original purpose of the statute.
i. e. the mischief it was meant to prevent.
- courts may refer to the Hansard to seek purpose of the law.
Purpose rule - extraneous sources…
Dictionaries, specialised legal dictionaries, other Acts, Hansards, and documentary sources may be used to assist in the search of purposive interpretation.
