Unit 4 AOS 1 Part 2 Flashcards
Define: Statutory Interpretation
The process whereby the courts/judges apply meaning to words within legislation made by parliament to determine the outcome of a case
Reasons for Statutory Interpretation:
-Clarify specific meaning
-Changing nature of words
-Unforeseen circumstances where legislation is unclear
Impacts of Statutory Interpretation:
-Narrowed/Broadened definition
-Created a precedent or not
-Influence on parliament eg: codification
Statutory Interpretation Case:
Deing v Tarola
-Deing wearing belt with raised metal studs found guilty of possesing a “regulated weapon”
-Appealed in SC on POL
-‘Control of weapons Act’ = illegal to posses regulated weapon without lawful excuse
-narrowed interpretation of “reg weapon” bc of common use as belt given and conviction overturned
-set binding precent for all lower courts
How doe Statutory Interpretation create law?
Common law created as a result of binding precedent set by courts on interpretation of a law for consistency and fairness=same interpretation given to all following cases
+ves: Statutory Interpretation
-Independent and expertise judges=no politics
-Parliaments can codify interpretation = turn to statute
-Can be appealed= reviewed by higher judge
-ves: Statutory Interpretation
-Req case to be brought before courts
-Rely on standing and leave for a case/time and money assoc
-Judges x elected tf x rep populatin
-Can be abrogated
Define: Common Law
An area of law which is created based upon a judges descisions rather than an Act
MUST be:
-Made by a judge
- Arising from a case in court
-Create a precedent
Define; Precedent
A legal principle that incorporates the reasoning behind a judges decision when making a judgement
Stare Decisis: To stand by past precedent
Obiter Dictum: Statements made by the way to provide context- (does not form precedent)
Ratio Decidendi: reason for the descision
Donoghue v Stevenson 1932
UK case which established neighbour principle + set foundation of negligence law in Aus via Grant v Knitting Mills
Reasons for precedent:
-Guidance for judges of future cases to understand legal rationale
-Consistency in rulings
-Avoids wasting court time and resources (faster descisions)
Binding precedent:
-Higher court
-Similar material facts of case
-same court hierarchy
Persuasive precedent:
-lower court
-different hierarchy
-same level court
-obiter dictum
Reversing precedent:
-Same case, on appeal
-higher court overturns existing precedent
Overruling precedent:
-2 cases
-higher court overrides previous precedent
Distinguishing precedent:
-Court bound to past precedent, but argue facts of case not similar enough tf unfair to apply precedent
=not applied
Disapproval Precedent
-Same level courts disagree with past precedent and choses not to follow it
-Or lower court bound but express disapproval in obiter
Strengths: Flexible Precedent
-If none exists judges can create precedent to fill gap
-option of distinguishing promotes fairness
-ability to express disapproval sends message to parliament to amend law
-same level courts not bound (inc HC)
Limitations: Flexibility of precedent
-req case brought to ct
-can only develop new laws in test case/on appeal
-standing, $ and time for case to be brought
-Judges can only make law ex post facto= after the fact
Judicial activism
an approach adopted by judges when applying meaning to statutes
-consideres a range of social and pol factors
-broad interpretation
eg Kevin and Jennifer
Impact of Judicial activism
-seem radical
-make contraversial law due to political independence
-lead to abrogation
-lead to appeal on pol
Mabo Case
legal issue re terra nullius (land belonging to no one)
-estab whether indigenous have ab to be ranted native title
=overturned bc of connection to land in HC 1992
Broad interp tf activism
Common law codified into NATIVE TITLE ACT 1993
Judicial conservatism
an apporach whereby judges show restraint when applying law
= do ont consider broad soc/pol factors
act in literal and narrow sense
Impact of judicial conservatism
-allow parliament to amend or change law as per their representative role
-stability in courts
-reduce likelihood of appeals
eg; r v Gallagher disqualified from parliament due to dual citizenship and narrowed interpretation of eligibility
+ves: activism
-not subject to politics
-judges can pressure parliament to make legislative change
-secondary role is adopted by judges to bridge gaps
-ves: activism
-req case
-judges x rep of ppl
-HC only ct not bound (lower bound x make new law where existing precedent)
+ves: conservatism
-show restraint tf stable law
-prevent controversial laws
-reduce chance of appeals whereby precedent may be reversed
-ves: conservatism
-narrow tf restrict law changes
-outdated precedents applied
-soc pol factors not considered
Costs to bringing case:
Acts as a barrier to lower SES
-Legal representation Up to $500/hr for KC Barrister
Expert witnesses for evidence
-cost of judge/ court fees dep on which ct
+ves: costs
-VLA available for disadvantaged gorups
-Lawyers may wish to take upon pro bono cases for own gain if large case
-Case management of judge in civil = more directions = able to go without legal rep
OR limit no. of witnesses/ questions
-ves: costs
-VLA elegibility criteria = rare
-Even if VLA help=limiteed and worse off than payed legal rep/lower qlty
-Parties may be reluctant to initiate given costs
Time as a factor for case
Backlogs till exist from covid tf large wait times
Appeals extend period of time for trial excessively+ use lots of ct resources
-Tf delay tactics often used by higher SES parties
+ves: Time
-Case man ability of judges reduce time of q’ing etc
-prioritise case based on importance via Court Hierarchy + administrative convenience
- ct lawmaking is instant
-ves: Time
-Parties likely reluctant to bring case
-superior courts req case to be brought on appeal to make law tf extend time req
-Can be months for HC determination/amendment
Requirement for standing as a barrier for courts
= the requirement to prove direct affect of case on individual
includes ‘special interest’ being proven by plaintiff
=will gain more from success of case than win itself
+ves: standing for leave
-reduce amount to frivolous claims and wastage of court resources
-encourages most important cases to be brought
-ves: requirement of standing
-limits those with genuine interest but x standing to change outdated laws
-indiv with standing may still x have $/time tf court miss out on lawmaking opportunities
Supremacy of parliament:
(r’ship btw courts and parliament)
-Legal concept that parliament has the freedom to make, ammend, abolish laws and is supreme over the executive and judiciary
REINFORCE SOP CONSTITUTION
-Elected by people tf rep views
-Acts passed by parl set out jurisdiction of cts tf parliament supreme
HOWEVER courts can deem law ultra vires
Ability of courts to influence parliament
(r’ship)
-Courts can influence parliament via obiter dictum/ratio decidendi
-if x wish to make ‘lawmaking’ role then can use obiter to influence parliament if issue w law exists
-if court is bound and x overrule/reverse desc parliament can step in retrospectively
Trigwell Case
Car accident w sheep = take leg action against farmer
HC found farmer NOT liable due to UK precedent
used obiter to influence parl to produce Animals staying on highways act
+ abrogated common law
Codification
Process of parliament confirming common law precedent by enacting legislation to give effect to legal principles
Abrogation
Process of parliament overriding common law precedent by creating statute that conflicts w it
=prevent future cases w same descision
