1. Legal systems in Aus Flashcards

Question

Statutory interpretation

Answer 1

* increasing complexity of acts from the Cth Parliament * Statutes follow a similar format. some features you will commonly find in statutes include: * long title * table of contents * a section setting out the purpose or ‘object’ of the act * a definition section, that defines some of the terms used in the act * in interpreting legislation, courts try to figure out the will or intention of parliament * purpose approach: interpret according to what interpretation would best achieve the purpose of the act, working out the meaning of words taking into account their context * purposive approach: courts work out the meaning of words taking into account their context and purpose, (Kirby; text, context, purpose) * text: utilise definition section or a dictionary if a word is not defined to work out the meaning of a word, rules for interpreting the meaning of words in a statute; * meaning of a word is usually the ordinary meaning * ‘the law always speaks’: the meaning is the current meaning, not the meaning that existed when the statute was first enacted * context: of the rest of the act and the wider context * purpose: may be stated specifically in the Act or can be seen by looking at the Act as a whole * intrinsic materials * extrinsic materials: materials outside the statute * courts may use extrinsic materials as well when interpreting statutes incl. 2^nd reading speech and explanatory memorandum, parliamentary debates (Hansard), international treaties, dictionary – can be used to either confirm the ordinary wording of a provision or when there is an ambiguity in the provision/ordinary meaning leads to an absurd result * Interpretation Act: require courts to interpret the underlying purpose * Act that sets down rules for interpreting legislation * all Australian states and territories, and the Commonwealth, have interpretation legislation (Acts Interpretation Act 1901 (Cth) – Interpretation Act 1984 (WA)) * how to interpret a word/phrase in a statute? * is it defined? * if not, what is the ordinary meaning? * context * does the meaning give effect/promote the purpose?

Answer 2

* common law system: * decision stands due to hierarchy of courts * primary sources of law: statutes, common law * meanings of common law: law systems are based on the doctrine of precedent (sometimes also use the Latin term – stare decisis – “the decision stands”) * as a type of legal system * as a source of law (court made law) * law developed by the court (e.g. common law v equity) * the court’s role is to interpret and apply the laws that Parliament has enacted. If there is no statute which covers a particular issue, then the law is derived from decisions made by courts. This body of decisions is called the ‘common law’. * Supreme Court of WA: * highest court in WA * main appeal court * divided into general division incl. murder, arson and court of appeal – generally hears civil disputes involving \>$750 00 * case law: law that has been made generally by the decisions of superior judges rather than by the enactment of statutes * UK history: * pre-Norman Conquest (1066): Anglo-Saxon law, King involved with local courts as superior legal power * post-Norman Conquest (1066): administrative flair, centralisation of govt., growth of royal justice * Henry II (1154-1184): judges started ‘taking note’ of other judges’ decisions, recording of decisions began * Donoghue v. Stevenson (1932): important case in negligence * history within Australia: * colonisation: settled under terra nullius so English law implemented * 1828: statute stating English law to apply and be enforced in Australia, development of state courts * by the time of federation, court system was generally working * 1903: High Court est. in s71 in Constitution sits for the first time * Interpretation Act (1984): established WA as existing since 1829 * 1986: appeals to the British Privy Council ended, severing direct English influence on court system

Answer 3

* HCA * Court of Appeal * Supreme Court of WA * District Court of WA * Magistrates Court of WA

Answer 4

* ‘authority to act or decide’ * limits on jurisdiction: can relate to factors such as civil/criminal nature of cases and the amount of money involved * decisions appealed to the HCA are binding * Supreme Court of WA: serious criminal charges e.g. murder, armed robbery and arson, only really hears civil cases if the amount in dispute is \>$750 000 * less than 3% of the civil matters before the Supreme Court are finalised by trial * District Court of WA * specialist courts in WA: * Family Court * State Administrative Tribunal: covers anything involving public officials and local govt., human rights, commercial and civil disputes, development and resources disputes * Children’s Court: defendants under 18 years old with diversion as a potential outcome * Coroner’s Court: investigations into strange deaths * Drug Court: drug offenders who have pleaded guilty in another court are diverted here for rehabilitative sentencing options

Answer 5

* appointed from the Bar, but solicitors and other legal professionals may be appointed * duties include; * deciding questions of fact and law if sitting along * if there is a jury, instructing the jury on questions of law, deciding questions of law and summing up arguments

Answer 6

* significant decisions are reported (published) in series of ‘law reports’ – can be found using citations * civil case involves appellant and respondent * criminal cases: R – for Regina/the Crown

Answer 7

* court must follow the decision of a court higher in the same hierarchy when the material facts of both cases are similar/same * doctrine of precedent: determines relative weight of each case, applies to both case law and the interpretation of statutes * binding precedent: where the decision of a court (ratio decidendi) in a decided case binds courts lower in the same court hierarchy in deciding cases of a similar nature * lower court must follow a previous decision if decisions of higher court, in same hierarchy, same material facts, lower court has no choice * persuasive precedent: arises in cases of a similar nature which were decided in another court hierarchy, at the same level, in a lower court in the same hierarchy * court may follow previous decision if material facts in both cases are the same and decision * hierarchy can be formed within decisions of the same court as a case can be decided by either a single judge or full court (e.g. Court of Appeal – 3 judges, HCA – 7 justices) * legal principles in judgements: * ratio decidendi: reason for deciding the case, the source of binding precedent on lower courts in the same hierarchy * obiter dicta: other statements of the law made in a judgement which are not relevant to the decision but can be persuasive precedent * to avoid precedent, can: * distinguish * statement is obiter * statement of law too wide * changed social conditions * precedent ‘unsatisfactory’ or ‘wrongly decided’

Answer 8

* form of non-judicial decision making * includes negotiation, mediation, arbitration * less formal: parties represent themselves * cheaper, quicker, easier: less common for lawyers to be involved

1. Legal systems in Aus Flashcards

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