U4AOS1B - Courts in Law-Making Flashcards
Define statutory interpretation
- Process by which judges give meaning to the words or phrases in an Act of Parliament
- Will then be applied to resolve the case before them
- When wording of law is vague → Judge can interpret it as it applies to their case
How do judges interpret statutes?
-
Intrinsic - Within the Act
- Long Title
- Headings
- Margin notes
- Footnotes
-
Extrinsic - Outside the Act
- Parliamentary debates
- Reports from committees
- Dictionaries
- Guidelines for interpretation
What are the reasons for statutory interpretation?
- Resolve problems that occur as a result of the drafting process
- Resolve problems that occur when a court is applying the Act
What are problems that can occur from the drafting process?
-
Complicated
- Parliamentary Counsel must gain information from policy of documents
- Have vague instructions from members of parliament before writing the proposed law
- Problems w/ the resulting bill
- General → Wide range (Good)
- Precise → Little room for misinterpretation BUT cannot apply to a wide range
NEED to say drafting process
What are problems that can occur from applying the act?
- Legislation is in general terms
- Act is out-of-date → Doesn’t reflect current societial values
- Meaning of words ambiguous + change over time
- Act may be silent on an issue → Courts fill in gaps in legislation
NEED to say applying the act
What are the effects of statutory interpretation?
-
Words or phrases contained in the disputed Acts are given meaning
- Meaning of legislation is restricted or expanded
- Decision is binding on the parties and any persons w/ a similar case
- Precedents set for future cases to follow
What is the doctrine of precedent?
-
Precedent
- Law set by the courts when making a decision
- Establishes a legal principle that other judges may (or have to if it is binding) follow when deciding on a case
- The doctrine of precedent is the process judges follow when using previous legal reasoning
- Only superior courts can set precedent and make law
- Supreme & High Court
What effects does the doctrine of precedent have on law-making?
- Ensures that common law is stable and predictable
- Like cases heard in a similar manner
- Legal representatives able to give advice on likely outcome
- Judges have guidance through previous cases
What are the key features of the doctrine of precedent?
PROBS
-
Persuasive Precedent
- Courts not required to follow - Have a choice for consistency
- Includes → Lower court (same hierarchy), court in different hierarchy, obiter dictum statements
-
Ratio Decidendi
- Judge’s reasoning for decision
- Not sentence or verdict
- Binding element for similar cases
- Lower courts must follow
-
Obiter Dictum
- ‘By the way’
- Judicial statement that is not part of legal reasoning → Something contemplated to reflected on
- Not binding but potential to have influence
-
Binding Precedent
- Must be followed
- Decision from higher court in same hierarchy
-
Stare Decisis
- Stand by previous decision
- Ensure common law is consistent and predictable
Make sure to explicitly mention as many features as possible in a DoP question
What are ways to avoid a binding precedent?
RODD
-
Reverse - Same Case
- Disagree and decide to change precedent set by lower court when hearing on appeal
- New precedent created → Follow for future cases
-
Overrule - Different Case
- Superior court judge decides not to follow lower court precedent in different case
- New precedent created → Old precedent inapplicable
-
Distinguish
- Difference between material facts
- Choose to not folllow
-
Disapprove
- Lower courts express dissatisfaction
- Does not allow them to avoid → But can be used for appeal
- Can be used by higher court if they want a different court to overrule and create a new precedent
What are the factors that affect courts in law-making?
Calling Robert Downey Jr.
- Costs and Time in bringing a case
- Requirement for Standing
- Doctrine of Precedent
- Judicial activism/ conservatism
What are the strengths of the doctrine of precedent?
Help in law-making
-
Consistency and Predictability
- Parties can look at past cases and anticipate how the law may apply to their situation
-
Flexibility - Just Superior
- Superior courts have flexibility in applying precedent and making decisions for the case infront of them
What are the weaknesses of the doctrine of precedent?
Does not help in law-making
- Difficulty and Costs involved in locating relevant precedents
- Difficult to identify legal reasoning behind a decision
- Hard to predict future developments in the law
- Lower courts are restricted by decisions of higher courts (Limit flexibility)
What is judicial conservatism?
- Courts should show restraint or caution when making decisions or rulings that could cause significant changes
- Keep parliament as supreme law-making body → Courts intended to interpret NOT change the law (can only make laws for the case before them, not the entirety of the area of law)
- Judges should not include their own views/ political opinions in decisions OR what they perceive to be the community’s view
What are weaknesses of judicial conservatism?
Does not help in law-making
- J cannot base decisions on what they perceive to be the community’s view
- Limited to making laws only on subject of case before them
- J seem unwilling to take current social view into account
What is judicial activism?
- Judges have willingness to consider a range of social and political factors when interpreting law and making decisions
What are strengths of judicial activism?
Help in law-making
- Overstep in role of making decisions
- Some believe that to truly achieve justice all elements of the situation must be considered
What are weaknesses of judicial activism?
Does not help in law-making
- Can lead to appeals on question of law
- Parliament abrogate any decision disagreeed with
Describe costs and time in relation to courts in law-making
- Costs - Taking case to court
- Depends on complexity
- Pay for lawyers that research, analyse evidence & interview witnesses → Charge by the hour
- Requirement for Standing → Even if directly affected there are high costs involved
- Time - Duration to bring case
- Quick → Judges not required to follow lengthy procedures
- BUT lengthy when searching for precedent → Time wasted on searching instead of creating precedent
- BUT appeal courts take months because of complexity of cases
Describe the requirement for standing in relation to the courts in law-making
- Courts wait until party decides to pursue case before they can create precedent and make law
- Party initiating must have standing → Directly affected
- To a higher extent than a normal person
What are the strengths of a requirement for standing?
- Cases are only brought to court by those genuinely affected
- Saves valuable court resources and time
What are the weaknesses of a requirement for standing?
- Individuals not directly affected → Seek other avenues for law reform
- Relies on those affected having money and time to pursue case
What are the elements that make up the relationship between courts and parliament?
CASA
- Codification of Law
- Ability of Courts to influence parliament
- Supremacy of Parliament
- Abrogation of Law
Describe codification
- Parliament is supreme → Can make law that confirms/combines precedent in court
- Pass Act of Parliament that reinforces the principles established by court
Who is most affected by codification and why?
- Courts
- Decisions are officiated and acknowledged by parliament into an act
Describe the ability of courts to influence parliament
- Comments and decisions during cases can influence parliament
- Courts reluctant to change law themselves because they think that parliament is better → Can look at and investigate law in more detail
Who is most affected by the courts ability to influence parliament and why?
-
Both
- Courts → Parliament can listen can approve precedent
- Parliament → Parliament can also choose to not listen
Describe a case where the courts’ ability to influence parliament is shown
- 55 year old man sentenced to 9 years imprisonment after pleading guilty to manslaughter of his wife
- Court restricted by act
- Lead to unrest in community
-
Perceived as inadequate
- Government under pressure
- June 2020 VIC Parliament passed Crimes Amendment (Manslaughter and Related Offences) Bill 2020
- Increase maximum penalty for manslaughter → Inc. child homicide & workplace manslaughter
- 20 years to 25 maximum penalty
Must specify that court is restricted by act
Describe the supremacy of parliament
- Can make or change any law w/ Constitutional jurisdiction
-
Change or override any court decision
- Exception of High Court on Constitution
- Can pass legislation to change jurisdiction of courts/ expand their ability
Who is most affected by the supremacy of parliament and why?
- Parliament
- Influential over courts
- Can restrict/ expand their ability
Describe abrogation of common law (with reasons)
- Parliament able to change/ override common law
- Pass law that specifically abolishes common law principle
- Reasons
- Court interpret in a way that was not the intention of Parliament
- Court interpret in a way that does not reflect meaning of act
- Courts develop precedent that parliament disagrees with
Who is most affected by the abrogation of common law and why?
-
Courts
- Courts make decision that they perceive to be the best option
- If parliament disagrees, then justice may not be administered
- Issue could possibly also reappear in the future as it remained unresolved
