unit 4 sac 3

Question 1

what is statutory interpretation

Answer 1

• the process by which judges give meaning to the words or phrases in an act of parliament (ie. statute) so it can be applied to resolve the case before them

Question 2

reasons for statutory interpretation

Answer 2

reasons can be divided into two groups;

• problems that occur as a result of the drafting process
• problems that occur when a court is applying the act of parliament to resolve a case

Question 3

problems that occur as a result of the drafting process (reasons for stat int)

Answer 3

• mistakes can occur during the drafting of a bill
• the act might not have taken further circumstances into account
• the intention of the act might not be clearly expressed
• there might be inconsistent use of the same word in the act
• an act may not cover new types of technology

Question 4

problems applying the act to a court case (reasons for stat int)

Answer 4

• most legislation is drafted in general terms
• the act may have become out of date
• the meaning of the words may be ambiguous
• the act might be silent on an issue and the courts mayweed to fill gaps in the legislation
• the meaning of words can change over time

Question 5

what are the effects of statutory interpretation

Answer 5

• words or phrases contained in disputed acts are given meaning
• the decision reached is binding on the parties
• precedents are set for future cases to follow
• the meaning of the legislation can be restricted or expanded

Question 6

what is the doctrine of precedent

Answer 6

• the common law principle by which the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Question 7

what does the doctrine of precedent help to ensure

Answer 7

• like cases are determines in a like manner, promoting consistency and predictability
• judges can’t guidance as to the decision they ought to make
• decisions made by experienced judges in superior courts are followed in lower courts
• resources are not wasted arguing the same issues over and over again

Question 8

discuss the doctrine of precedent

Answer 8

strengths - flexible and allows courts to avoid following or change existing precedents
WEAKNESSES
- can be hard to find a relative precedent or ratio decidendi
- restrict courts to change law where they are bound to follow previous precedent
- parliament can override judge made law by legislating

Question 9

what is judicial conservation

Answer 9

• the idea that courts should be cautious when making decisions that could lead to significant changes in the law

Question 10

how does judicial conservation affect the ability of courts to make law

Answer 10

• judges who take a conservative approach to the way they interpret statutes will not go very far beyond the established law
• judges should ensure that their decisions are not based on their own views or political opinions

Question 11

what is judicial activism

Answer 11

• the willingness of judges to consider a range of social and political factors, such as community values and the rights of the people, when making decisions

Question 12

discuss judicial activism

Answer 12

strength - approach is progressive and active
weakness - allows judges to change the meaning of laws contrary to he intention of the parliament
- judges aren’t elected by the people so they may not reflect community values

Question 13

discuss judicial conservation

Answer 13

strength - bases decisions on legal considerations, it can get input from the public though
weakness - they don’t reflect the community values

Question 14

cost in bringing a case to court

Answer 14

• the cost of legal representation: parties that aren’t represented will be at a distinct disadvantage than those who are represented. the high cost of legal representation can discourage people who wish to resolve an issue. this may deter them and influence them to use alternative resolution methods such as mediation
• court fees: lodging a civil case with a court includes filing fees, hearing fees and jury costs which can be expensive. if a party requests a jury in the supreme it costs $772.10 for day 1, $554.40 per day 2-6 and $1100.40 onwards

Question 15

time in bringing a case to court

Answer 15

strength - courts can make law relatively quickly once a dispute is brought before the. judges aren’t required to follow lengthy procedures like those involved in passing a bill through parliament. courts can move quickly if it is urgent because judges have discretionary power and can make rulings quickly
weakness - judges in appeal courts (where most precedents are established) can take months to hear and determine complex cases

factos such as complex pre trial procedures, lack of court resources or an increased number of cases can delay the time

Question 16

the requirement of standing effect on the ability of courts to make law

Answer 16

• the party must be directly affected by the issue concerned to have the right to commence a legal proceeding in court
• party must have sufficient of special interest in a case to ‘stand before the court’ and be heard. this means they must be more affected then the general public
• this is dominant in the high court cases involving challenging a common law
• ensures cases brought to court are valid and encourages other people to seek other avenues of redress

Question 17

the supremacy of parliament (relationship between courts and parliament)

Answer 17

• parliament is the supreme law making body with the ability to make and change law within its constitutional power. it has the power to confirm or override decisions made through the courts except the high court decisions on constitutional matters.
• parliament is also responsible for passing legislation that establishes the courts and States the power they have to hear cases
• parliament can pass legislation to change the jurisdiction of courts so that the types and severity of cases heard by the court can be changed
• parliament can pass Acts of parliament that restrict the ability of courts to make decisions in certain areas. BUT parliament must ensure that is allows the courts to remain independent and to make sure parliament has made laws within its authority

Question 18

the ability of courts to influence parliament (the relationship between courts and parliament)

Answer 18

• courts have the ability to influence parliament to make and change the law. judges can make comments the handling down judgements either as part of the decision or as obiter dictum. this inspires/encourages parliament to initiate law reform
• parliament can also be inspired to change the law if a court is bound by a previous precedent and makes a decision that creates an injustice, or if a court acts in accordance to judicial conservation and is unwilling to overrule or reverse a previous precedent
• judicial activism will also encourage parliament to change the law

Question 19

the interpretation of statutes by courts (the relationship between courts and parliament)

Answer 19

• for legislative to be effective, courts must apply statutes to the cases brought before them.
• courts might have to interpret or give meaning to words or phrases in an Act of parliament. or be called upon to interpret the meaning of secondary legislation so that is can be applied to resolve disputes
• the meaning to words enables judges to clarify legislation so they can apply it to resolve disputes or to narrow/broaden its meaning
• this establishes a precedent and with the act of parliament, forms a part of the law
• the high court can alter the division of power between the commonwealth parliament and state parliaments because ti is the only court with the constitutional authority to interpret the Australian constitution

Question 20

the codification of common law (the relationship between courts and parliament)

Answer 20

• parliament can make law that confirms a precedent set by the courts. this is known s codification of common law
• involves the parliament passing legislation that reinforces or endorses the principles established by the court in their ruling

Question 21

the abrogation of common law (relationship between court and parliament )

Answer 21

• parliament has the legislation to override decisions made through the courts, with he exception of the high court decisions made on constitutional matters.
• this may be necessary in situations where parliament believes the courts have interpreted the meaning of the words/phrases in a statute that was not the intention fo the parliament, or in a way that doesn’t reflect the current meaning of the act

Question 22

the roles of the houses of parliament (factors effecting parliament ability to make law)

Answer 22

each house is part of the law making process

• HOR is the seat of government determined by the party with the majority of seats . the number of seats held by the government in each house can determine the governments ability to pass laws accurately
• all bills must pass through both houses.
• all money bills must originate in HOR. S 53 of constitution denies the senate the power to amend any money bills n
• if the majority in the senate doesn’t agree then it is returned to HOR for change

Question 23

the representative nature of parliament (factor effecting parliament ability to make law)

Answer 23

• S 7 and 24 states parliament must be representative of the people
• achieved through members being elected to reflect the views, values and needs of their constituents, regular elections and every vote of Australian voters being of equal worth
• ministers In charge must reflect the publics wishes when implementing policy
• if members don’t do this they will be voted out of office
• can be difficult to make laws that suit everyone when theres conflicting views
• can be reluctant to pass laws in controversial areas
  the parliament may not want to come under scrutiny

Question 24

political pressures (factor effecting parliaments ability to make law)

Answer 24

• if members of parliament are concerned about being voted out they can be influenced to pass popular laws, rather than those necessary but controversial
• while pressure groups can lobby parliamentary members, political parties can be influences by pressure from particular groups, including minority groups
  this influence can be out of proportion with the wishes of the overall majority of community

Question 25

restrictions on the law making powers of parliament (effects parliament ability to make law_

Answer 25

law making powers are determined through the commonwealth constitution. if parliament passes law thats challenged and the high court finds that it has acted ultra vires the law will be declared invalid. changes to law making powers can occur through; referendum, high court interpretation and referral of powers

Question 26

referendum (restriction of law making powers of parliament )

Answer 26

• a proposed change through referendum under S128 must be passed by the Australian voting public through a double majority
• difficult to achieve as only 8 have been successful since 1901

Question 27

high court interpretation (restrictions)

Answer 27

• the law must be challenged by a person, group or government with standing.
  0 means the person must be sufficiently affected or harmed by the law
• this will involve high costs, time delays and stress

Question 28

referral of powers (restrictions)

Answer 28

• states can pass any of their residual law making powers to the commonwealth parliament. this may occur in an area that would be better served under commonwealth law that would be uniform across country eg anti terrorism
• to be effective all states need to Agree to hand over. the law making power
• it is uncertain is a referral of power can be revoked by a state or whether the referred power becomes an exclusive power of the commonwealth or if the state still has power to make laws in this are

Question 29

roles of the victorian courts in law making

Answer 29

• main role is to resolve criminal cases and settle civil disputes. law made through courts is known as common law
• courts are arranged in a hierarchy; magistrates, county, supreme trial division, court of appeal, high court
• 3 parts of a courts decision (ratio decidendi, obiter dictum and the decision inter parties
  common law is made by doctrine of precedent or statutory interpretation

Question 30

DDOR in precedents

Answer 30

distinguishing - a judge can avoid following a precedent if the material facts are different
disapproving - when a precedent is set in a court of the same standing the current court is not bound by the earlier precedent
overruling - a judge deciding a case in a superior court may not agree with a precedent set in an inferior court and can therefore establish a new precedent
reversing - a superior court hearing the same case on appeal is able to reverse a decision on the lower court

Question 31

role of the high court in law making

Answer 31

• able to settle disputes that come on appeal or which begin in the high court
• decisions form binding precedents on the other courts
• high court isn’t bound to its own decision