Unit 4 AOS 1 Part 2

Question 1

Define: Statutory Interpretation

Answer 1

The process whereby the courts/judges apply meaning to words within legislation made by parliament to determine the outcome of a case

Question 2

Reasons for Statutory Interpretation:

Answer 2

-Clarify specific meaning
-Changing nature of words
-Unforeseen circumstances where legislation is unclear

Question 3

Impacts of Statutory Interpretation:

Answer 3

-Narrowed/Broadened definition
-Created a precedent or not
-Influence on parliament eg: codification

Question 4

Statutory Interpretation Case:
Deing v Tarola

Answer 4

-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

Question 5

How doe Statutory Interpretation create law?

Answer 5

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

Question 6

+ves: Statutory Interpretation

Answer 6

-Independent and expertise judges=no politics
-Parliaments can codify interpretation = turn to statute
-Can be appealed= reviewed by higher judge

Question 7

-ves: Statutory Interpretation

Answer 7

-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

Question 8

Define: Common Law

Answer 8

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

Question 9

Define; Precedent

Answer 9

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

Question 10

Donoghue v Stevenson 1932

Answer 10

UK case which established neighbour principle + set foundation of negligence law in Aus via Grant v Knitting Mills

Question 11

Reasons for precedent:

Answer 11

-Guidance for judges of future cases to understand legal rationale
-Consistency in rulings
-Avoids wasting court time and resources (faster descisions)

Question 12

Binding precedent:

Answer 12

-Higher court
-Similar material facts of case
-same court hierarchy

Question 13

Persuasive precedent:

Answer 13

-lower court
-different hierarchy
-same level court
-obiter dictum

Question 14

Reversing precedent:

Answer 14

-Same case, on appeal
-higher court overturns existing precedent

Question 15

Overruling precedent:

Answer 15

-2 cases
-higher court overrides previous precedent

Question 16

Distinguishing precedent:

Answer 16

-Court bound to past precedent, but argue facts of case not similar enough tf unfair to apply precedent
=not applied

Question 17

Disapproval Precedent

Answer 17

-Same level courts disagree with past precedent and choses not to follow it
-Or lower court bound but express disapproval in obiter

Question 18

Strengths: Flexible Precedent

Answer 18

-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)

Question 19

Limitations: Flexibility of precedent

Answer 19

-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

Question 20

Judicial activism

Answer 20

an approach adopted by judges when applying meaning to statutes

-consideres a range of social and pol factors
-broad interpretation

eg Kevin and Jennifer

Question 21

Impact of Judicial activism

Answer 21

-seem radical
-make contraversial law due to political independence
-lead to abrogation
-lead to appeal on pol

Question 22

Mabo Case

Answer 22

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

Question 23

Judicial conservatism

Answer 23

an apporach whereby judges show restraint when applying law
= do ont consider broad soc/pol factors
act in literal and narrow sense

Question 24

Impact of judicial conservatism

Answer 24

-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

Question 25

+ves: activism

Answer 25

-not subject to politics
-judges can pressure parliament to make legislative change
-secondary role is adopted by judges to bridge gaps

Question 26

-ves: activism

Answer 26

-req case
-judges x rep of ppl
-HC only ct not bound (lower bound x make new law where existing precedent)

Question 27

+ves: conservatism

Answer 27

-show restraint tf stable law
-prevent controversial laws
-reduce chance of appeals whereby precedent may be reversed

Question 28

-ves: conservatism

Answer 28

-narrow tf restrict law changes
-outdated precedents applied
-soc pol factors not considered

Question 29

Costs to bringing case:

Answer 29

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

Question 30

+ves: costs

Answer 30

-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

Question 31

-ves: costs

Answer 31

-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

Question 32

Time as a factor for case

Answer 32

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

Question 33

+ves: Time

Answer 33

-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

Question 34

-ves: Time

Answer 34

-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

Question 35

Requirement for standing as a barrier for courts

Answer 35

= 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

Question 36

+ves: standing for leave

Answer 36

-reduce amount to frivolous claims and wastage of court resources
-encourages most important cases to be brought

Question 37

-ves: requirement of standing

Answer 37

-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

Question 38

Supremacy of parliament:
(r’ship btw courts and parliament)

Answer 38

-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

Question 39

Ability of courts to influence parliament
(r’ship)

Answer 39

-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

Question 40

Trigwell Case

Answer 40

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

Question 41

Codification

Answer 41

Process of parliament confirming common law precedent by enacting legislation to give effect to legal principles

Question 42

Abrogation

Answer 42

Process of parliament overriding common law precedent by creating statute that conflicts w it
=prevent future cases w same descision