unit 4 sac 3 Flashcards
what is statutory interpretation
- 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
reasons for statutory interpretation
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
problems that occur as a result of the drafting process (reasons for stat int)
- 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
problems applying the act to a court case (reasons for stat int)
- 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- the act may have become out of date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
what are the effects of statutory interpretation
- 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
what is the doctrine of precedent
- 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
what does the doctrine of precedent help to ensure
- 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
discuss the doctrine of precedent
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
what is judicial conservation
- the idea that courts should be cautious when making decisions that could lead to significant changes in the law
how does judicial conservation affect the ability of courts to make law
- 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
what is judicial activism
- 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
discuss judicial activism
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
discuss judicial conservation
strength - bases decisions on legal considerations, it can get input from the public though
weakness - they don’t reflect the community values
cost in bringing a case to court
- 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
time in bringing a case to court
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
the requirement of standing effect on the ability of courts to make law
- 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
the supremacy of parliament (relationship between courts and parliament)
- 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
the ability of courts to influence parliament (the relationship between courts and parliament)
- 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
the interpretation of statutes by courts (the relationship between courts and parliament)
- 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
the codification of common law (the relationship between courts and parliament)
- 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
the abrogation of common law (relationship between court and parliament )
- 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
the roles of the houses of parliament (factors effecting parliament ability to make law)
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
the representative nature of parliament (factor effecting parliament ability to make law)
- 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
political pressures (factor effecting parliaments ability to make law)
- 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
