U4 AOS2 The People, The Parliament, and The Courts (3) Flashcards
(35 cards)
Can the High Court hear matters on appeal?
The High Court can hear matters on appeal however special leave (permission to appeal) must be sought for the High Court to hear the matter, and in deciding whether it will hear the case the High Court considers whether the matter is a question of law in the interest of the public, whether there are differences in opinion regarding the law between courts and whether hearing such an appeal is in the interests of administrative justice.
List the reasons for statutory interpretation
Broad words applied to a specific set of facts, the changing nature of words, and unforeseen circumstances.
Explain broad words applied to a specific set of facts as a reason for statutory interpretation with reference to a case
Deign v Tarola [1993] (‘The Studded Belt Case)
Deing was found guilty in the Magistrates’ Court for wearing a belt with metal studs, which was considered a regulated ‘weapon’ under the Control of Weapons Act 1990 (Vic). Deing appealed to the Supreme Court, and the focus was on interpreting the term ‘weapon’ to determine if it applied to his specific situation: a belt with metal studs. Justice Beach, the presiding judge, concluded that a ‘weapon’ should be something primarily used for causing harm and not for regular purposes. Since Deing’s belt could also be used normally, it didn’t fit this definition of a weapon, leading to his conviction being overturned.
Explain the changing nature of words as a reason for statutory interpretation, with reference to a case
Commonwealth v ‘Kevin and Jenifer’ & Human Rights and Equal Opportunities Commission [2003]
Kevin, born biologically female, underwent gender reassignment surgery to identify as male. He married Jennifer in 1999, prompting a challenge from the Attorney-General who argued that Kevin’s gender identity did not fit the traditional legal definition of a ‘man’ for marriage purposes. The Family Court was tasked with determining whether Kevin qualified as ‘a man’ within the framework of the law. Although the Marriage Act referred to a ‘man and a woman’ union, it lacked a specific definition of ‘man.’ The Family Court’s decision to validate the marriage underscored the importance of interpreting the term ‘man’ in a contemporary manner, considering Kevin’s changed gender identity.
Explain unforeseen circumstances as a reason for statutory interpretation, with reference to a case
Mansfield v Kelly [1972] (‘Private Public Drunkenness’)
The defendant faced charges of being drunk in a public place while inside his parked car on a public road. The central legal issue revolved around the interpretation of the term ‘public place’ as outlined in Section 13 of the Summary Offences Act 1966 (Vic). The court’s deliberation focused on whether this definition encompassed private vehicles parked on public roads. Ultimately, the court adopted a broad interpretation, ruling that ‘public place’ did indeed extend to include private cars situated on public roads, highlighting the need for legal principles to adapt and evolve in response to unforeseen scenarios.
List the effects of statutory intepretation
Create precedent, broadening and narrowing the law’s application.
Explain create precedent as an effect of statutory interpretation, in reference to a case
Deign v Tarola [1993] (‘The Studded Belt Case)
Through statutory interpretation Justice Beach created a precedent – a definition of
‘weapon’ which will provide greater clarity of what a ‘weapon’ is in future cases. In later cases in the Magistrates’ Court and County Court the legislation and this
precedent defining ‘weapon’ will be read together to determine whether those charged with carrying a regulated weapon have an item that breaches the law.
Explain broadening of the law’s application, as an effect of statutory interpretation, with reference to a case
Carr v Western Australia [2007]
The majority of judges in the High Court rejected Carr’s argument. The Court defined
‘interview’ as any conversation between police and a suspect, therefore the video recording of the conversation in the cell was admissible evidence in a trial and his conviction was upheld. This broad interpretation of ‘interview’ in this example of High Court statutory interpretation means in future cases any video recording of a conversation between police and a suspect will be admissible evidence.
Explain narrowing the application of a law, as an effect of statutory interpretation, in reference to a case
Carr v Western Australia [2007]
Justice Kirby was in the minority in Carr’s case as he interpreted ‘interview’ more narrowly as a formal question-answer interaction between the police and a suspect. Had the majority of the Court given ‘interview’ the same narrower interpretation as Justice Kirby, the video of Carr’s admission would not have been permitted as evidence in his trial. Although Justice Kirby’s reasoning did not form a precedent to be applied in future cases (as he was not in the majority) this is an example of how judges may narrow the operation of legislation when engaged in statutory interpretation.
List the factors that affect the ability of the courts to make law
The doctrine of precedent, judicial conservatism and activism, cost and time of bringing a case to court, and the requirement for standing.
Weaknesses of the doctrine of precedent to the development of law
They can only develop new law where there is no preexisting statute of common law, or it isn’t clear how the law should be applied;
To develop law, they must be a superior court of record and lower courts are unable to develop law;
Strengths and weaknesses of judicial conservatism in the development of law
Weaknesses:
The common law can remain unchanged irrespective of changed community values;
The development of the common law can be restricted despite opportunities through the presentation of test cases before the higher courts;
Strengths:
It leads to small, incremental changes in the law as the judges strongly believe it is the role of parliament to create law, so they tend to narrowly interpret the law to apply it strictly to the case before them;
Strengths and weaknesses of judicial activism
Strengths:
They feel a responsibility to consider their secondary role as lawmakers and develop areas of the common law that reflect community values;
As the High Court is not bound by any previous decisions, judges in this court are able to engage in such activism and radically change the law;
Weaknesses:
Progressive judges may constantly seek to modify and develop the law which can cause inconsistency and confusion;
Courts must still wait for a relevant case to come before them before actively changing the law;
Weaknesses of costs and time in bringing a case to court
The reluctance of parties to pursue a matter through the courts due to the costs and delays means there is less opportunity for judges to develop the common law;
Courts make laws ex post facto, and therefore rely upon appropriate test cases being brought before the court in order to exercise their role as lawmakers;
Strengths and weaknesses of the requirement for standing
Strengths:
Only parties who have been genuinely affected, an aggrieved party, can pursue the matter thereby reducing the number of claims going to court, and in turn, the costs, and delays in the court system;
Weaknesses:
* Appropriate test cases may not come before the courts because those with standing are discouraged from pursuing their case to the higher courts;
Sometimes aggrieved parties don’t have the time or money to pursue the matter through the courts limiting other groups/individuals from pursuing the matter according to their political agenda which may slow the development of the common law;
In reference to the requirement for standing, describe what Section 8 outlines
Section 8 (the Infertility Treatment Act 1995 (Vic)): in order to receive treatment, a woman must be married or in a de facto relationship with another person.
In reference to the requirement for standing, describe what Section 22 outlines
Section 22 (the Sex Discrimination Act 1984 (Cth)): it is unlawful to refuse to provide a person with a service based upon that person’s marital status.
Describe the facts of RE McBain [2002] as an example of the requirement for standing
McBain a doctor providing IVF services brought a case before the Federal Court in 2000 claiming an inconsistency between s. 8 of the Infertility Treatment Act 1995 (Vic) and s. 22 of the Sex Discrimination Act 1984 (Cth).
McBain argued he was unable to provide IVF to Leesa Meldrum (a single woman seeking IVF treatment) if he abided by the Victorian law. The Federal Court held that the Commonwealth law should prevail, enabling single women to access IVF.A group of Catholic Bishops wanted to challenge this decision, on the basis of their religious beliefs. They didn’t want single women to access IVF. The High Court had to decide if the Bishops had standing.
It was held the Bishops did not have standing as they had no legal, economic or special interest in the case. Chief Justice Gleeson stated ‘People who were not parties to litigation do not have a claim of right to have judicial decisions quashed because they are erroneous’. The Catholic Bishops’ religious beliefs did not give rise to a ‘special interest’.
Strengths and weaknesses of the supremacy of parliament in law-making
Strengths:
Parliament can make laws at any time they wish to in a broad range of areas;
Parliament also has the ability to research whole areas of the law and ensure legislative change reflects the will of the people;
Weaknesses:
Each Parliament is limited by their jurisdiction. They can only make laws in the area of law-making in which they have the power to do so;
List the methods the courts can use to influence parliament
Court providing feedback to parliament, and through statutory interpretation.
Courts providing feedback to parliament as a method of the courts influencing parliament
As parliament makes laws in futuro, laws can in turn end up being in very broad terms in order to capture more fact in situations, it is up to the courts to provide feedback to parliament in relation to the application and relevance of legislation they interpret and apply to the cases before them.
Statutory interpretation as a method of the courts influencing parliament
Judges can provide ratio decidendi (reason for their decision) and obiter dictum (comments made by the way), which can outline whether the current legislation is relevant, covers all circumstances and/or has a real-life application including, some specialized courts such as the Coroners Court being able to be more explicit and even develop recommendations for new legislation.
Strengths and weaknesses of courts providing feedback to parliament as an influence on law-making
Strengths:
Courts complement parliament in developing areas of law through their judgements and expressing suggestions for law reform by parliament
Weaknesses:
Parliament doesn’t have to respond to the recommendations or suggestions from the courts and this only occurs on rare occasions in superior courts;
Courts cannot initiate such cases and must wait for a relevant case to come before the court;
Strengths and weaknesses of the interpretation of statutes by courts as an influence on law-making
Strengths:
The courts are able to broaden the application of the law to real life cases through statutory interpretation;
Through interpretation the courts can fill gaps and provide definitions to words which develops new law;
Weaknesses:
Judges may be conservative in their approach which may limit the development of the law;
Judges can only interpret legislation and give meaning to the words in legislation when a relevant case comes before the courts; they cannot proactively change the operation of a statute;
