legal aos1b Flashcards
statutory interpretation
the process whereby courts/judges apply meaning to key words within Acts or legislation made by parliament to determine the outcome of a case before them
DOESN’T CHANGE THE WORDS THEMSELVES, ONLY THE BOUNDARIES OF THE DEFINITION
reasons for statutory interpretation
-need to determine the specific meaning of words
-changing nature of words
-unforeseen circumstances= at the time passing the legislation, parliament did not foresee a particular issue arising, or the wording was unclear
impacts of statutory interpretation
-interpretation narrowed the definition of the word
interpretation broadened the interpretation of the word
-interpretation created a precedent
-interpretation influenced parliament to amend legislation
studded belt case
-deing was wearing a belt with raised studs and was subsequently arrested and found guilty in Magistrates Court for possessing a regulated weapon
-charged under S6 of the Weapons Act 1990 (Vic) which states that it is illegal to “possess, carry, or use any regulated weapon without lawful excuse”–> court had to interpret the words “regulated weapon” as written in the Control Of Weapons Act 1990 (Vic) and determine if studded belts are included in that category
-appealed in SCTD decision= judge narrowed the interpretation of weapon by excluding items
how does statutory interpretation create law
-any decision created by judges is common law
-when judges make decisions over wording of a statute, this creates common law–> should another case come before the courts in future, same meaning of the words should be applied if OG interpretation was in a superior court= binding precedent= lower courts must follow to ensure consistency and fairness
-exception is if parliament were to disagree with the common law decision and amend the Act to clarify that the meaning of the words does not mean what the courts infer–> precedent set by courts is abolished and amended Act is the principle in operation
strengths of statutory interpretation
-can allow changes to the law to be in an efficient and independent manner because they do not have to face political pressures such as MPs over controversial areas nor do they have to debate for making amends to law
-judges are legal experts in the law, therefore when they are applying meaning to words= done so with expertise= judges can also rely on resources eg. legal dictionaries, other precedents outside of their jurisdiction
-common law should be appealed depending on where in the court hierarchy the decision was made-> if judgement is incorrect, there is an opportunity to correct the decision after it has been reviewed by higher court
-decisions from judges can also influence parliament to codify legislation to strengthen the legal precedent also established
weaknesses of statutory interpretation
-judges cannot freely change the law through statutory interpretation=must wait for a case to come before the courts
-judges must rely on individuals with standing to bring a case to courts to provide statutory interpretation = standing aside= bringing a case can be expensive and timely which may limit an individuals ability
-judges are not democratically elected and come from a narrow socio-economic group= interpretation of statutes may not reflect society whereas MP’s are more representative of the people
-common law can be reversed, overruled by higher courts or abrogated by parliament= judges ability to change meaning of words is limited
what is precedent
a legal principle that incorporates the reasoning behind judges decision when making a judgement
how is precedent found within a judgement
-stare decisis= to stand what has been previously decided which ensures consistency and fairness provided there is an existing precedent
if they choose to create new precedent:
-ratio decidendi= reason for the decision, these are the elements of a new precedent being created
-obiter dictum= statements made by the way and comments made within the judgement that provides context for the judge’s decision but is not binding and does form part of the precedent
donoghue v stevenson
-donoghue’s friend purchased donoghue a ginger beer and when she drank it a decomposed snail was found in the bottom of the glass= diagnosed with an illness=alleged the presence of the snail caused her illness and sued the manufacturer
-main issue was for court to decide whether or not the manufacturer owed a duty of care hw ruled in favour of donoghue and stated there was a duty of care that was owed and also established the neighbour principle and also established the principle of negligence
-case was heard in the UK
reason for precedent
operation of precedent relies on the judge considering material facts of previous cases and the one before them
-material facts= the key facts or details that exist within the previous case that are critical to the current judges decision, FACTS CANT BE IDENTICAL
reasons:
-guidance for judges to be able to look back at previous cases to gain an understanding or idea of the legal rationale to determine their case
-consistency through allowing legal representatives to provide advice for their client on the outcome of their case through referring to past decisions
-not wasting courts resources due to having to preside over the same matter time and time again
how can we tell if something is binding or persuasive
not relevant at the time the precedent was made but a judge in future needs to access the precedent by determining:
-there is no precedent to follow since this is a test case
-they are bound by existing precedent
-they are only persuaded by existing precedent
binding precedent
-an existing precedent that was made by a superior (higher court)
-in the same court hierarchy
-they share similar material facts with the current case
persuasive precedent
-originates from a lower court in the same court hierarchy
-originates from same level court in the same court hierarchy
-originates from a court outside of the court hierarchy
-comment from a judgement that is obiter dictum
four ways in which precedent can be applied
-reversing
-overruling
-disapproving
-distinguishing
reversing precedent
occurs when a decision is appealed to a higher court and the higher court overturns the original court
-clues= same case
overruling precedent
occurs when a superior court overrides a precedent established at trial
-clues= two seperate cases
-eg. a case heard in SCTD–> 10 years later a case with similar facts and materials appealed in SCCOA
disapproving precedent
-occurs when a court disagrees with a precedent established at the same level and chooses not to follow it and creates another precedent–> two precedents are established
-a lower court who is bound to follow a precedent expresses their disagreement but needs to follow the precedent anyways
distinguishing precedent
occurs when a judge is bound to follow a precedent but argues that similar material facts does not exist and therefore it would be unfair to apply the same precedent
strengths of fliexbility of precedent
-if no existing precedent or acts exist, judges can create precedent to resolve a dispute and cover a gap in the law eg. test case Donoghue v Stevenson
-judges who are bound to follow precedent have option of distinguishing their case, arguing that a different material facts exists and therefore do not have to be bound by existing precedent
-through obiter comments judges who are bound to follow precedent can express their disapproval which may alert parliament to amend the law eg. trigwell case
-because there is a court hierarchy superior courts can overrule or reverse a precedent which can ensure common law is up to date and subsequent cases are not bound by outdated precedent
-because there is a court hierarchy precedent that originates from higher courts are established upon legal expertise and knowledge of specialist judges and more likely to be judicially just
-judges on the same level are not bound to follow each others precedent, also applies to the high court which means if they believe an error has been made= able to review and correct it
weaknesses of flexibility of precedent
-for precedent to even be created, a case must be brought before the courts because judges don’t have autonomy to amend/interpret existing law unless a relevant matter is brought to them
-an individual with standing and resources have to bring matter to courts which may limit their opportunity
-judges can only create precedent or common law EX POST FACTO, after the wrong has occurred , this is different to parliament who can make laws for the future
-courts can only develop new laws if no relevant law currently exists, this means courts cannot make laws just because they disagree with legislation
-judges in lower courts who cannot distinguish the material facts of their case or just are a lower court are bound to follow existing precedent which means they can’t correct an incorrect or outdated precedent until a successful appeal is lodged
-parliament is the supreme law making authority and can abrogate common law decision which limits finality of common law
-setting a precedent relies on willingness of judges to step outside their judicial roles= may be controversial because their primary role is to APPLY THE LAW NOT CREATE LAW and because they aren’t democratically elected, may lead to legislation may not reflecting whole community
judicial activism
an approach adopted by judges who:
-consider a range of broad social and political factors
-interpret the wording of Acts or broadly/ with greater flexibility in the way that recognises the rights of the people
impacts of judicial activism
-lead to courts making common law that is deemed radical and may not reflect the views and values of the ENTIRE community
-judges aren’t democratically elected by the people and there are free from political pressure and fear of not getting re elected–> can make controversial changes to the law
-may lead to more appeals on question on law
-lead to parliament abrograting a decision if it doesn’t agree with HC
-reinforce authority of the HC
mabo case
-mabo lodged a TEST case against qld govt and commonwealth in HC to determine legal rights of FNP= HC ruled in favour of FNP–> overturned the common law principle “terra nullius” and legally recognised the rights of FNP ownership to land and set a precedent
-broadly interpreted the law
-cth parliament codified the law the native title act 1993 recongising owndership
