staturtory interpretation Flashcards
define precedent
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
define 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
how can judges make laws?
- Courts and judges can also make law as part of their role in resolving disputes and hearing cases.
- Judges make law in two main ways:
- Statutory interpretation: When judges interpret the meaning of statutes (Acts of Parliament) to apply them in cases.
- Establishing legal principles or precedents: Judges create legal principles that serve as guidance for future cases, known as the doctrine of precedent.
- Law made through the doctrine of precedent involves judges setting legal rules that other judges follow in similar future cases.
introduction to statutory interpretation
- Judges can make law by interpreting the meaning of unclear words or phrases in a statute to resolve a case.
- This happens when there is a dispute over the interpretation of words in an Act of Parliament, such as determining the meaning of “public place” in a criminal case.
- By clarifying the statute’s meaning, judges provide guidance on how it should be applied to resolve the dispute.
- Judges can either broaden or narrow the interpretation, but this interpretation does not change the actual wording of the statute.
- Depending on the court’s authority, the judge’s interpretation may set a legal precedent, which can be followed in future cases involving similar issues.
- The established precedent becomes part of the law and is considered alongside the statute in future cases.
There are many reasons why courts are required to interpret legislation. These reasons can be divided
into two broad categories
- to resolve problems that occur during the drafting process
- to resolve problems that occur when a court is applying the Act of Parliament to resolve a case.
Resolving problems that occur during the drafting process
- Drafting bills is a complex task.
- Parliamentary counsel must gather information from various documents and collaborate with government agencies and departments to clarify policy proposals.
- The goal is to draft effective legislation.
- Due to the complexities of drafting, some terms and phrases in the legislation may be unclear.
- These unclear terms often require interpretation by the courts before they can be applied in cases.
define parliamentary counsel
lawyers who are responsible for drafting bills in accordance with the policies and instructions of a member of parliament
The reasons why a statute may need to be interpreted because of problems that may occur during
the drafting process
- The bill might not have taken future circumstances into account
- The intention of the bill might not have been clearly expressed
- Mistakes in the drafting of a bill
The bill might not have taken future
circumstances into account
- In the 2021 case of Australian Federal Police v Luppino, a dispute arose about whether a police officer could access a person’s mobile phone.
- The relevant statute permitted police to access data held in or accessible from a “computer or data storage device.”
- The dispute focused on whether a mobile phone qualified as a “computer” or “data storage device” under the statute.
- When the statute was introduced in 2001, mobile phones had limited computing abilities, likely leading drafters to overlook the possibility of a phone acting as a computer or data storage device.
The intention of the bill might not have been clearly expressed
- Sometimes a policy or
instructions regarding the purpose of a proposed
law may not be clearly expressed. - This can lead to
confusion about how it should be interpreted
Mistakes in the drafting of a bill
- Mistakes can occur when drafting a bill, which may be minor or technical.
- Common errors include:
- Missing words in the text.
- Improperly included or missing headings.
- Punctuation issues (e.g., the High Court once had to interpret a clause based on the placement of a comma).
- Another example involves the use of gender-specific pronouns (e.g., “his or her”) instead of gender-neutral language.
Resolving problems that occur during the application
of statutes
- Most legislation is drafted in general terms
- The act may have become out of date and no longer reflect community views and values
- The meaning of the words may be ambiguous
- The act might be silent on an issue and the courts may need to fill gaps in the legislation
- The meaning of words can change over time
Most legislation is drafted in general terms
- Legislation often uses broad terms to cover a wide range of circumstances.
- However, broad terms sometimes require judicial interpretation before they can be applied to specific situations.
- For example, in Deing v Tarola, the court had to determine whether wearing a studded belt was an offence under the Control of Weapons Act 1990 (Vic), which banned the carrying of a “regulated weapon.”
- Another example involves defamation cases, where a person must prove they suffered “serious harm.” The term “serious harm” is broad and not specifically defined, requiring judicial interpretation.
The act may have become out of date and no longer reflect community views and values
For example, while each state has laws banning the use of obscene and indecent language in a public place, what is considered offensive and indecent language changes over time, as is demonstrated in the following scenario.
The meaning of the words may be ambiguous
- Statutes use broad terms to address various issues, which can lead to ambiguity.
- Courts need to interpret these ambiguous words or phrases to determine their meaning in line with the statute’s intention.
- For example, in Davies v Waldron:
- The Supreme Court judge had to interpret “in charge of a motor vehicle” and “start to drive” as per the Road Safety Act 1986 (Vic).
- The case involved determining whether an intoxicated driver sitting in the front seat of a parked car with the engine running was “in charge” of the vehicle with a blood alcohol concentration above the legal limit.
