U4 AOS 1 KK7-10

Question 1

Precedent (definition)

Answer 1

A principle established in a case that should be followed by courts in later cases where the material facts are similar

Question 2

Doctrine of precedent (definition)

Answer 2

The rule that reasons for decisions of higher (superior) courts are binding on lower courts in the same hierarchy in cases with similar material facts

Question 3

Statutory interpretation (definition)

Answer 3

The process by which judges give meaning to the words/phrases used in an Act of Parliament so that they can be applied to resolve the dispute before them

Question 4

Statutory interpretation (intro)

Answer 4

• Judges can make law when required to interp the meaning of a statute to resolve a case
• Where there is a dispute regarding the meaning of words/phrases in an Act, judges can clarify their meaning and give meaning to them

Question 5

Statutory interpretation (reasons)

Answer 5

1. Resolving problems that occur during the drafting process
2. Resolving problems that occur during the application of statutes

Question 6

Statutory interpretation (parliamentary counsel - definition)

Answer 6

Lawyers responsible for drafting bills in accordance w/ policies and instructions of a member of parliament

Question 7

Statutory interpretation (drafting process - intro)

Answer 7

• Parliamentary counsel gains info from many docs and works w/ gov agencies and depts to clarify proposals and draft effective leg
• Inevitable that some terms/phrases will be unclear and in need of interp before they can be applied by courts

Question 8

Statutory interpretation (drafting process - example - future)

Answer 8

• May have failed to take future circum into acc
  
  • e.g. AFP v Luppino [2021] had to decide if police could access data from phone under the 2001 act stating a “computer” or “data storage device”, phones didn’t fit then

Question 9

Statutory interpretation (drafting process - example - mistakes)

Answer 9

• Mistakes could have been made in the bill’s drafting
  
  • Missed words, headings, punctuation (HC once had to consider comma’s effect on meaning), gendered lang

Question 10

Statutory interpretation (drafting process - example - intention)

Answer 10

• Intention may not have been clearly expressed
  
  • Policy or instructions regarding bill purpose can lead to confusion if unclear

Question 11

Statutory interpretation (application - example - generality)

Answer 11

• Most leg. is drafted in general terms
  
  • Covers wide range of circum
  • Studded Belt case -> “regulated weapon” req interp

Question 12

Statutory interpretation (application - example - out of date)

Answer 12

• May be out of date, not reflect comm values and views anymore
  
  • Laws banning obscene lang in public, lang can change over time

Question 13

Statutory interpretation (application - example - ambiguous meaning of words)

Answer 13

• Interp words/phrases to find meaning according to statute’s intention
  
  • e.g. “in charge of a motor vehicle” and “start to drive” had to be interpreted in Davies v Waldron [1989] to determine if intox driver in running car driving seat was guilty of being in charge

Question 14

Statutory interpretation (application - example - silent)

Answer 14

• Act could be silent on an issue, courts are to fill the gaps
  
  • Due to unforseen circum
  • i.e. leg prohibiting firearms, are replicas and water guns included?

Question 15

Statutory interpretation (application - example - word meaning)

Answer 15

• Meaning of words could change over time
  
  • i.e. currency, mental illness, vehicle, document

Question 16

Statutory interpretation (effects)

Answer 16

• Gives meaning to disputed words, allows application of statute to case
• Court’s dec on leg’s meaning is binding on parties, must follow until a succ. appeal
• Could set precedent, dec forms a prec. to be read with the Act in deciding future cases
• Leg meaning can be expanded/restricted (Deing v Tarola versus Tassie Dam)

Question 17

Doctrine of precedent (intro)

Answer 17

• Est a legal principle/rule that can be used to provide guidance when deciding future cases
• Doctrine (process) depends on court hierarchy, HC decision on appeal is binding on all Aus courts

Question 18

Doctrine of precedent (reasons for)

Answer 18

• Predictable and consistent common law
• Upholds rule of law (certainty in law appl)
• Like cases decided in like manner
• Legal reps can advise on likely outcome
• Judges have some guidance
• Dec. made by exp. judges are followed by those lower
• Same point only decided once -> time and resources saved

Question 19

Doctrine of precedent (binding) MORE

Answer 19

• Est. in superior courts
• Ratio decidendi -> ‘the reason for the decision’
  
  • Statement outlining the decision and

Question 20

Doctrine of precedent (ratio decidendi) MORE

Answer 20

‘The reason for the decision’
- Statement outlining the decision and legal reasoning behind it
- Will be followed in future

Question 21

Doctrine of precedent (stare decisis) MORE

Answer 21

‘To stand by what has been decided’
- Principle that describes the process of lower courts following the reasons for higher court decisions

Question 22

Doctrine of precedent (persuasive) MORE

Answer 22

• Reasoning that may be cons. relevant and therefore used as source of inf. or followed
• Can be set by lower, level or diff hier court
  
  • (usually same level judges follow prev dec, HC may not if cons. not ‘good law’ anymore)
• ‘Obiter dictum’

Question 23

Doctrine of precedent (obiter dictum) MORE

Answer 23

‘By the way’
- Statements/comments made by a j not a part of the reason for dec but still relevant
- Can be persuasive
- Can be a matter contemplated and reflected on during decision-making

Question 24

Doctrine of precedent (choices when not bound)

Answer 24

A judge may
- Adopt the precedent (follow/apply, so the prec is affirmed or considered favourably)
- Choose not to follow the existing precedent

Question 25

Doctrine of precedent (choices when not bound - avoiding)

Answer 25

• Reverse (same case on appeal, sup j can disagree and reverse prev est precedent)
• Overruling (diff case, sup j can decide not to follow prev and est new precedent, prev inapplicable)
• Distinguishing (can avoid thru finding diff in material facts, and where the prec is only binding on cases w/ similar mat facts)
• Disapproving (bound j/mag may express dissat w/ prec, cannot avoid but comments can indicate dissat or influence parl to change law, can be done in sup courts where a higher court/parl is preferred to change law)