Unit 4 AOS 1 SAC B Flashcards
What are problems that arise when drafting a bill
- A bill might not take future circumstance into account (e.g technology such as phones, bills passed in the 00’s may be irrelevant due to tech advancements)
2.The intention/ purpose of the bill may not be clear
- Mistakes in drafting a bill (words may be missed, headings may not be included and issues with punctuation )
Resolving problems that occur during the application of statutes
- Most legislations is drafted in general terms (Acts in parliament often cover a wide range of circumstances e.g in defamation somebody must be ‘seriously harmed’ but those words are not clearly defined and could mean a lot of things)
- The act may have become out of date and no longer reflect community values
- Meaning of the words may be too ambiguous (words/phrases used in acts attempt to cover a large spread so therefore they are ambiguous)
- Act may be silent on an issue and courts need to fill gaps (making common law)
- Meaning of words can change over time
What are the reasons for statutory interpretation
- To resolve problems that occur during the drafting process
- To resolve problems that occur when a court is applying the act of parliament to resolve a case
What is statutory interpretation
Judge can make laws when interpreting a statute to resolve a case (common law).
The judges interpretation of the statute can either broaden or narrow the meaning of the original statute e.g if a statute law required a law to be broken in a ‘public place’ the judge would have to determine if the crime was committed in a public place, for example if it was public indecency it needs to happen in a public place, but in a scenario if it was a bathroom the judge would have to interpret whether it was public indecency on if a restroom is a ‘public place’
The judges interpretation of a statute does not change or effect the original statute at all
Depending on the superiority of the court a judges interpretation may set a new legal precedent for all lower courts if they have similar materiel facts
What is the doctrine of precedent and precedent
The doctrine of precedent is a principle stating that judges must look at pasts decisions to determine the outcome of a case at hand.
When statute law is missing or silent on the dispute at hand a judge must make a decision that is known as common law precedent is heavily connected to common law
Precedent is to stand on a pervious decision of a judge to ensure consistency
Key features of the doctrine of precedent (rules of the doctrine of precedent)
- Binding precedent- a precedent made in a higher court that is within the same court hierarchy and has similar materiel facts must follow the same decision as the higher courts
- Ratio decidendi-It is the reason behind the decision that forms precedent ( court judgement- a statement by the judge that outlines the decision and the reason behind the decision)
- Obiter dictum- Additional statements made by a judge the judge will outlines his thoughts and opinions around the precedent, they will not provide any facts but just there thoughts, this can influence judges in the future to change the precedent if a judge is able to articulate why or why they dont like the precedent
- Persuasive precedent- A precedent made in a lower or a court at the same level, the judge does not have to follow this precedent but may influence the decision. Decisions made in lower VIC courts or in QLD and NSW courts will not effect higher VIC courts but may be able to influence them
Flexibility of the doctrine of precedent (developing or avoiding precedent)
Overruling- A judge can overrule a precedent if they are apart of a higher court than the original precedent
Reversing- Can only occur on a appeal a precedent may be changed on a appeal at the supreme court {appeals division} shifts the precedent down to all the lower courts {only through court of appeal}
Distinguishing- The materiel facts of a case at hand are different therefore a judge does not have to follow (avoid) the precedent and make there own decision in a case
disapproving- When a judge in a lower court does not agree with the higher court precedent so they say in the obiter dictum statement that they are unhappy with the precedent. At a later date when a higher court sees this precedent that can agree with the disapproval and change the precedent
How does the doctrine of precedent prevent and not prevent the courts in law making
Does prevent the court in law making
- All lower courts must follow a higher precedent but they can state disapproval in obiter dictum, still lower courts are prevented from making laws
- Reversing gives the higher court more power and undermines the lower courts ability to make laws
How it does not prevent courts from making laws
- Persuasive precedent can only influence higher courts and does not force them to do anything even if they disagree
- Bad precedent and decision can be reversed on appeal therefore making sure no bad precedents stand.
Reason for precedents
- Ensures consistency’s (like cases are decided in like manners)
- Legal representatives are able to give advice on the likely outcome of a case as they will understand how a court makes a case
-Judges have guidance as they can look back at pervious cases and decide accordingly
- decisions made by more experienced judges in higher courts followed in lower courts
What is judicial conservatism
Judicial conservatism
- Judicial conservatisms reefers to when judges shows restraint or caution when making decisions and rulings that could lead to change in laws,
Judicial conservatism effects the courts ability to make laws because judges who take a conservative approach do not go beyond what is already established from the law.
A large focus of judicial conservatism is that their decision are not based on their own political view or what they perceive to be community view rather based solely on legal consideration
What is judicial conservatism ability of the court in law making
Assists
- Helps maintain stability in the law because judges are cautious and show restraint when making decisions that could to significant changes to the law
lessens the possibility of appeals on a question of law
Limits
- Restricts the ability of the court to make major and controversial change in the law
- Can discourage judges from considering a range of social and political factors when making law
What is judical activism
When judge broadly interpret the rights protected in the constitution.
It can also refer to judges who are willing to make rulings against the more political conservatives or traditional mainstream views in a attempt to protect the rights of minority’s, the willingness of judges to consider a range of social, political and community value factors when interpreting the law and making a decision (consider the changing nature of political and social views and values in the community)
Criticisms of judicial activism
- Those who disapprove of judges taking a active role in determining and creating laws have negatively thought of judicial activism
- Some believe these judges are operating outside their jurisctional limits and are attempting to influence change in the law as they are making decisions beyond their legislative and constitutional powers
3.They do this by interpreting acts of parliament tin a way that expands its meaning beyond the original intention of parliament
How judicial activism assists and limits the ability of the court to make law
Assists
- Allows judges to broadly interpret statutes in a way that recognizes the rights of the people
- Allows judges to consider a range of social and political factors and community views when making a decision which may lead to more fair judgement
Limits
- Can lead to more appeals on a question of law
- Can lead to courts making more radical changes in the law that do not reflect the community values or are beyond the community’s level of comfort
What is the principle of the supremacy of parliament
The ‘supremacy of parliament’ refers to how Parliament is the supreme law making body, this power comes from the constitution it can also amend and change existing laws as well as take away laws (reappeal)
Therefore statute law always overrides common law.
