UNIT 4 AOS1 - SAC 1b (constitution) Flashcards
Explain statutory interpretation.
‘Refers to the process of judges interpreting words or phrases in an act of parliament (statute) in order to give them meaning.’
- Statutes are often written in general terms so they can apply to many situations in the future.
- Judges are required to interpret a statute when a case is before them in which there is dispute about the meaning of a word/s or phrases. eg: regulated weapon, man/woman, on just terms, unlawfully).
- By engaging in statutory interpretation, the judge is said to be adding to the existing law.
List the reasons for statutory interpretation.
- Drafted in general/broad terms but needs to be applied ‘specifically’.
- Changing nature of words (meaning changing over time).
- Unforeseen circumstances.
Explain broad words applied to a specific set of facts.
Deing v Tarola [1993] The Studded Belt Case
- Deing was wearing a belt with raised metal studs; he was arrested and charged and found guilty in the Magistrates’ Court for possessing a regulated ‘weapon’.
- The Control of Weapons Act 1990 (Vic) stated it is illegal to possess, carry or use any regulated weapon without lawful excuse.
- Deing appealed the conviction to the Supreme Court.
- The term ‘weapon’ is a broad term covering a wide range of items; it had to be interpreted to determine whether it applied to the very specific facts of this case (a belt with raised metal studs).
- Justice Beach determined that a ‘weapon’ should be defined as anything that is ‘not commonly used for any other purpose than as a weapon’.
- Deing’s belt was found not to fit that definition of a weapon and his conviction was overturned.
Explain the changing nature of words applied to a specific case.
Kevin & Jennifer case
- Kevin was born biologically female but identified as a male and as an adult underwent gender reassignment surgery.
- Kevin married Jennifer in 1999 and applied for a declaration of validity of their marriage. This was challenged by the Attorney-General who argued Kevin was not a man for the purpose of the definition of a marriage.
- The Family Court was asked to decide whether Kevin was ‘a man’ at the time of the marriage. That is, what criteria should be applied in determining whether a person is a ‘man’ or a ‘woman’ for the purpose of the law of marriage.
- At the time the Marriage Act was written, ‘marriage’ was defined as the ‘union of a man and a woman’, but parliament did not include a definition of ‘man’.
- The Family Court held the marriage was valid as Kevin was considered a man in the everyday sense. The Court decided the word ‘man’ should be given a contemporary, normal and everyday meaning (which in the 21st century was held to include those who had changed their gender to male during their lives).
Explain unforeseen circumstances applied to a specific case.
R v Brislan
- The defendant was charged under the Wireless Telegraphy Act 1905 (Cth) for being possession of a wireless without a valid licence. She was charged and fined.
- The defendant challenged the validity of the Commonwealth legislation arguing the Commonwealth didn’t have the power to make the Wireless Telegraphy Act 1905 (Cth) laws about wirlesses as section 51(v) does not specifically include wireless sets.
- Section 51(v) of the Constitution gives the Commonwealth power to make laws about ‘postal, telegraphic, telephonic and other like services’.
- The High Court interpreted the term ‘other like services’ in Section 51(v) to include broadcasting to wireless sets. This ultimately expanded the law-making power of the Commonwealth Parliament.
- This decision was further expanded in 1965 in Jones v Commonwealth where the High Court held ‘other like services’ could also include televisions – a technology unforeseen when the Constitution was drafted in the late 19th century.
What tools/guides do judges use when interpreting statutes?
- Intrinsic sources - These are guides judges can use from within other sections of the same Act being interpreted
- Extrinsic sources - These sources are found outside the Act in question which judges use to assist them when interpreting the Act
- Common law principles of interpretation - traditional common law principles
- Ejusdem generis: This term means “of the same kind”. This applies when a judge is required to interpret the meaning of a section of an Act in which a number of specific terms are followed by a general term.
- Eg: Every house, flat, bungalow, or other dwelling must install a flagpole. Is a caravan included as an “other dwelling”?
What is the outcome or effect of statutory interpretation?
- Create precedent
- Broaden/expand the law’s application.
- It can restrict the scope of the law
- It can influence parliament to change the law
Explain Judicial Conservatism.
An approach to judicial law-making in which judges limit the exercise of their judicial power by strictly adhering to stare decisis. i.e. these judges are reluctant to develop new law.
- Judicially conservative judges are heavily influenced by the separation of powers, and see their judicial role as distinctly separate from the law-making role of a democratically elected parliament.
- Judicial conservatives defer to parliament’s elected role and argue that judges should make only minor, incremental changes to existing law to maintain certainty and stability.
- Judicial conservatives create small, case-specific rulings rather than creating broad new precedents.
- Judges should ensure that their decisions and rulings are based on interpretation of the law and not their own personal views or opinions.
- They believe that parliaments make laws, and judges apply them.
- They accuse activist judges who create too much precedent as being undemocratic elites, whose decisions create judicial instability.
List Judicial Conservatism’s effect on law-making.
Can HELP develop law because:
- It leads to small, incremental changes in the law as the judges strongly believe it is the role of Parliament to create law so they tend to narrowly interpret the law to apply it strictly to the case before them.
Can HINDER the development of law because:
- The common law can remain unchanged irrespective of changed community values.
- The development of the common law can be restricted despite opportunities through the presentation of test cases before the higher courts.
Discuss Judicial Conservatism.
- Helps maintain stability in the law.
- Lessens the possibility of appeals on a question of law.
- Allows the parliament, which has the ability to reflect community views and values, to make the more significant and controversial changes in the law.
- Restricts the ability of the courts to make major and controversial changes in the law.
- Can discourage judges from considering a range of social and political factors when making law.
Explain Judicial Activism.
An approach to judicial law-making in which judges claim a responsibility to support the development of effective common law through creating precedent.
- Activist judges argue that the creation of precedent is necessary at times, indeed essential.
- Courts may not have an array of precedents to inform their decision-making role in all cases. In these cases, courts of superior record should engage in conscious law-making, filling the law-making gaps left by parliament when it fails to consider important social, economic and political questions.
- In these circumstances, the law-making boundaries between the courts and parliaments intersect. This raises questions about the extent of the separation of powers and the role of an unelected judiciary.
Explain Judicial activism and the High Court.
- The High Court of Australia sets the tone for all Australian laws.
- High Court’s creation of precedent demonstrates that common law can be flexible by responding to the demands of modern life, commerce, and the incremental development and recognition of human rights.
- As the final appellate court at the top of the Australian hierarchy, the High Court must look at legal policy and principles, not just established precedent.
- This was clear in 1992 when the Full Bench overturned a century of property law precedent in Mabo v Queensland, to recognise the existence of native title, based partly on the contemporary values of the Australian people.
List Judicial Activism’s effect on law-making.
Can HELP develop law because:
- Judges feel their role extends beyond merely applying legal principles to the case before them and they take a holistic approach to their decisions.
- They feel a responsibility to consider their secondary role as law-makers and develop areas of the common law that reflect community values.
- They can develop law by putting pressure on Parliament to make legislative changes.
- As the High Court is not bound by any previous decisions, judges in this court are able to engage in such activism and radically change the law.
Can HINDER development of law because:
- Progressive judges may constantly seek to modify and develop the law which can cause inconsistency and confusion.
- Such activism is not common; judicial conservatism is more common as an approach to law-making.
- Courts must still wait for a relevant cases to come before them before actively changing the law use.
Discuss Judicial Activism.
- Allows judges to broadly interpret statutes in a way that recognises 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 judgments.
- Allows judges to be more creative when making decisions and making significant legal change (as occurred in the Mabo Case).
- 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.
Define a precedent.
The reported judgement of a court that sets a principle of law to be followed by courts in the same hierarchy when similar material facts arise.
- The reason for the decision, the ratio decidendi, becomes a statement of law that must be followed by other courts when the material facts are similar.
Define the doctrine of precedent.
The theory/process behind the ‘how’ we establish said report judgment and the rules that determine when they principles are applied in other cases.
Define a binding precedent.
Binding precedent, ratio decidendi, is the reason for the decision by the judge, which is then regarded as a statement of law to be followed by all judges in lower courts in the same court hierarchy in the future for cases with similar material facts.
Define a persuasive precedent.
Persuasive precedent however, does not have to be followed. Persuasive precedent is considered a guiding or influential principle and can chose to be applied but doesn’t have to be followed.
List the avoiding precedents.
- Disapproving
- Distinguishing
- Reversing
- Overruling
Define disapproving.
Judges can show their disapproval for a decision through their written judgment however, if they are ina court lower in the hierarchy than the court in which the precedent was established they still must follow the precedent.
Define distinguishing.
Judges are able to avoid applying a precedent, in any court within the hierarchy, if they can show the case before them has different material facts to the case in which the precedent was established.
