U4, AOS2A

Question 1

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Statutory interpretation

Answer 1

• The process by which judges give meaning to the words or phrases in an Act of Parliament (i.e. a statute) so it can be applied to resolve the case before them.
  
  • Judges often look at past decisions, intrinsic material or extrinsic material to guide their interpretation

Question 2

Intrinsic v extrinsic materials

Answer 2

• Intrinsic – within the Act
  
  • Long title, headings
• Extrinsic – outside the Act
  
  • Parliamentary debates, dictionaries

Question 3

2 reasons for statutory interpretation

Answer 3

• To resolve mistakes that occur as a result of the drafting process
• To resolve problems when a court is applying the Act to resolve a case.

Question 4

Problems from the drafting process

Answer 4

• The bill has mistakes
  
  • Missing punctuation, words, headings in the bill
• The bill does not take into account future circumstances
  
  • Australian Federal Police v Luppino – a 2001 statute prohibited the police from accessing data from a ‘computer’ or ‘data storage device’ before phones became more advanced and could store data; dispute arose when a police officer accessed a phone
• The bill’s intention is not clearly expressed

Question 5

Problems from applying the Act to resolve a case

Answer 5

• The Act is written in general terms
  
  • Deing v Tarola – studded belt interpreted as a weapon to convict offender
• The Act is out-of-date
  
  • Laws ban the use of obscene and indecent language in a public place, but what is considered offensive and indecent language can change over time.
• The Act is silent on an issue (i.e. not broad enough to cover all circumstances).
  
  • The word ‘distribution’ in relation to a document may or may not include ‘distribution’ over the internet

Question 6

Effects of statutory interpretation

Answer 6

• Words or phrases contained in the disputed Acts are given meaning
• The decision is binding on the parties and any persons with a similar case in the future
• Precedents are set for future cases to follow (binding or persuasive)
• The meaning of the legislation can be restricted or expanded.

Question 7

The Doctrine of Precedent (DoP)

Answer 7

• The process by which judges follow the legal reasoning behind decisions made by a higher court in the court hierarchy when deciding on similar future cases.

Question 8

Key features of the DoP

Answer 8

• Persuasive precedent
  
  • Does not have to be followed, but may be followed for consistency and is often highly influential
• Ratio decidendi = ‘the reason’
  
  • The legal reasoning
  • Forms the binding part of a precedent
• Obiter dictum = ‘a thing said by the way’
  
  • A judge’s statement/reflections
  • Not part of the reasoning; may be influential
• Binding precedent
  
  • Must be followed
  • Set by the decision of a higher court of the same hierarchy where material facts are similar
• Stare decisis = ‘let the decision stand’
  
  • Underlying principle of the DoP
  • Ensures consistency and predictability

[PROBS]

Question 9

Ways to apply a precedent

Answer 9

• Reversing
  
  • Judge of a superior court hears a case on appeal from a lower court
  • Judge disagrees w the precedent set by the lower court and chooses not to follow it – thereby setting a new precedent for the lower courts to follow
• Overruling
  
  • Different and later case
  • Judge disagrees w a previously established precedent set by a lower court and chooses not to follow it – thereby setting a new precedent for the lower courts to follow
• Distinguishing
  
  • Judge finds a difference between the material facts of a case in which a precedent was set by a higher court of the hierarchy – thereby avoiding following that existing precedent
• Disapproving
  
  • Judge of a lower court court bound to follow a precedent expresses their disatisfaction with the precedent in obiter
  • Does not let them avoid it
  • Can be used in an appeal to encourage parliament to change the law
  • They prefer a higher court to overrule instead of them

[RODD]

Question 10

What is the difference between reversing and overruling a precedent?

Answer 10

• Reversing – same case on appeal
• Overulling – different and later case

Question 11

Factors that affect the ability of courts to make law

Answer 11

• The doctrine of precedent
• Judicial activism
• Judicial conservatism
• The requirement for standing
• Costs
• Time

Question 12

The Doctrine of Precedent

Answer 12

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