U4 AOS2 The People, The Parliament, and The Courts (3)

Question 1

Can the High Court hear matters on appeal?

Answer 1

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.

Question 2

List the reasons for statutory interpretation

Answer 2

Broad words applied to a specific set of facts, the changing nature of words, and unforeseen circumstances.

Question 3

Explain broad words applied to a specific set of facts as a reason for statutory interpretation with reference to a case

Answer 3

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.

Question 4

Explain the changing nature of words as a reason for statutory interpretation, with reference to a case

Answer 4

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.

Question 5

Explain unforeseen circumstances as a reason for statutory interpretation, with reference to a case

Answer 5

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.

Question 6

List the effects of statutory intepretation

Answer 6

Create precedent, broadening and narrowing the law’s application.

Question 7

Explain create precedent as an effect of statutory interpretation, in reference to a case

Answer 7

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.

Question 8

Explain broadening of the law’s application, as an effect of statutory interpretation, with reference to a case

Answer 8

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.

Question 9

Explain narrowing the application of a law, as an effect of statutory interpretation, in reference to a case

Answer 9

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.

Question 10

List the factors that affect the ability of the courts to make law

Answer 10

The doctrine of precedent, judicial conservatism and activism, cost and time of bringing a case to court, and the requirement for standing.

Question 11

Weaknesses of the doctrine of precedent to the development of law

Answer 11

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;

Question 12

Strengths and weaknesses of judicial conservatism in the development of law

Answer 12

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;

Question 13

Strengths and weaknesses of judicial activism

Answer 13

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;

Question 14

Weaknesses of costs and time in bringing a case to court

Answer 14

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;

Question 15

Strengths and weaknesses of the requirement for standing

Answer 15

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;

Question 16

In reference to the requirement for standing, describe what Section 8 outlines

Answer 16

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.

Question 17

In reference to the requirement for standing, describe what Section 22 outlines

Answer 17

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.

Question 18

Describe the facts of RE McBain [2002] as an example of the requirement for standing

Answer 18

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’.

Question 19

Strengths and weaknesses of the supremacy of parliament in law-making

Answer 19

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;

Question 20

List the methods the courts can use to influence parliament

Answer 20

Court providing feedback to parliament, and through statutory interpretation.

Question 21

Courts providing feedback to parliament as a method of the courts influencing parliament

Answer 21

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.

Question 22

Statutory interpretation as a method of the courts influencing parliament

Answer 22

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.

Question 23

Strengths and weaknesses of courts providing feedback to parliament as an influence on law-making

Answer 23

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;

Question 24

Strengths and weaknesses of the interpretation of statutes by courts as an influence on law-making

Answer 24

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;

Question 25

Strengths and weaknesses of the codification of common law

Answer 25

Strengths:
It enshrines the legal principles established by the courts, meaning future court cases cannot remove the principle of law created in the precedent;

Weaknesses:
Parliament may develop an area of the law through statute which may limit the ability of judges to continue to expand the area of law through common law;

Question 26

Strengths and weaknesses of the abrogation of common law

Answer 26

Strengths:
Parliament is able to abolish legal principles developed through the courts they disagree with or believe no longer reflects society’s values;

Weaknesses:
It may be time-consuming or controversial for parliament to abrogate a law that may be considered outdated, and this can prevent parliament from legislating with regards to other matters;

Question 27

List the reasons for law-reform

Answer 27

Changes in community values, advances in technology and, the protection of society.

Question 28

Describe changes in community values as a reason for law-reform

Answer 28

Overtime what society values shifts, and effective laws need to adapt to reflect community values to ensure consistent laws that will be accepted by the majority.

Question 29

Describe advances in technology as a reason for law-reform

Answer 29

As Parliament makes laws in futuro, they are not able to foresee all future technological advances therefore technology often leads to a rise of new social issues as the implications of new technology are only known once there is an issue.

Question 30

Describe the protection of society as a reason for law-reform

Answer 30

Parliament has obligations to develop legislation to protect society. Laws are established to develop a code of conduct surrounding violence against individuals, damage or theft of property and the way members of the community interact. In particular, parliament must change the law when it is clear that existing laws do not adequately protect those who cannot protect themselves.

Question 31

Explain changes in community values as a reason for law-reform using a case example

Answer 31

Until 1949 male homosexual sex was punishable by the death penalty in Victoria. However, in 2015 Victoria made changes to the Sentencing Act 1991 (Vic) to recognise that homosexual sex between consenting adults should never have been a crime and developed a new scheme to expunge historical convictions. The Commonwealth Parliament legislated to enable same-sex marriage through a plebiscite in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Commonwealth).

Question 32

Explain advances in technology, as a reason for law-reform, using a case example

Answer 32

In response to the advancements of driverless cars, the Victorian Parliament recently passed the Road Safety Amendment (Automated Vehicles) Act 2018 establishing that similar to the permit scheme upon which human learner drivers apply, in this system the ‘automated driver system’ is learning to drive. The permit holder is taken to be ‘driving’ when the car is in autonomous mode and the permit holder is liable for any offences outlined under the Road Safety Act 1986 that relate to being in charge of a motor vehicle.

Question 33

Explain the protection of society, as a reason for law-reform, using a case example

Answer 33

After accused James Gargasoula allegedly drove his car through the Bourke Street Mall resulting in a number of serious injuries and deaths, in 2017, Gargasoula was released on bail, The Victorian government acknowledged the need for stricter bail laws. Parliament passed the Bail Amendment (Stage One) Act 2017 to ensure greater protection for the community through ensuring decision makers, including magistrates and judges, are required to give higher priority to community safety when making decisions outlining that bail should be refused for offences such as rape, culpable driving causing death or armed robbery.

Question 34

List three requirements for petitions

Answer 34

There is no minimum number of signatures as once the organizers feel the petition has a satisfactory numbers of signatures, in which it is forwarded to a local member of parliament to be tabled at the next sitting of parliament;

Every paper petition must contain the same information that is, what is being sought, and the circumstances, including the authenticity of the signatures;

They must be addressed to one of the houses of parliament and relate to a matter within the law-making power of the parliament, and be tabled in parliament by the member who receives it;

Question 35

Petitions

Answer 35

A formal written request containing a collection of signatures to parliament seeking legislative change that will make direct contact with the relevant minister and be tabled at parliament, in which those signing it will support the requested change in law.