U4AOS1B

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 (i.e. a statute) so it can be applied to resolve the case before them.

Question 2

How do judges interpret statutes?

Answer 2

Judges most commonly look at past court decisions to help them interpret the wording of a statute.

Question 3

What are some INTRINSIC materials that judges interpret statutes?

Answer 3

• Long title
• Headings
• Margin notes
• Footnotes

Question 4

What are some EXTRINSIC materials that judges interpret statutes?

Answer 4

• Parliamentary debates
• Reports from committees
• Dictionaries
• Guidelines for interpretation

Question 5

What are the TWO reasons for Statutory Interpretation?

Answer 5

1. Problems as a result of the drafting process

2. Problems as a result of applying the act

Question 6

What are the problems as a result of the drafting process?

Answer 6

Bills can be written in general terms so that they can be applied to a wide range of future circumstances. In contrast, bills can be drafted using precise terms so that there is little room for misinterpretation.

Drafting bills can be complicated as parliamentary counsel must gain information from policy documents, and are given vague instructions from members of parliament, before writing up the proposed law.

Question 7

What are some problems that can ARISE because of the drafting process?

Answer 7

• Mistakes in the drafting of the bill
• The bill might not have taken future circumstances into account
• The intention of the bill might not have been clearly expressed

Question 8

What are some problems that can ARISE when a court is applying the Act?

Answer 8

• The Act may become out-of-date and no longer reflect society’s values
• The meaning of the words may be ambiguous
• The meaning of the words can change over time

Question 9

What are the effects of Statutory Interpretation?

Answer 9

• Words or phrases contained in the disputed Acts are given meaning
• The decision is binding on the parties and any persons with a similar case in the future
• Precedents are set for future cases to follow (binding or persuasive)

Question 10

What are the limitations on law-making that ensures Common Law is stable and predictable?

Answer 10

• Like cases are heard in a similar manner
• Legal representatives are able to give advice on the likely outcome of a case
• Judges have some guidance and can refer to previous similar cases

Question 11

What is the Doctrine of Precedent?

Answer 11

Refers to the process by which judges follow the reasons for the decisions given by courts higher in the court hierarchy when deciding on similar future cases.

Question 12

What are the five features of the Doctrine of Precedent (PROBS)?

Answer 12

Remember: PROBS

Persuasive precedent
Ratio decidendi
Obiter dictum
Binding precedent
Stare decisis

Question 13

What is Persuasive Precedent?

Answer 13

Is a precedent that courts do not have to follow, but they may choose to do so for consistency and it is often highly influential in a court’s decision.

Question 14

What can Persuasive Precedent include?

Answer 14

• A decision from a court in a different hierarchy (another state or country)
• Facts of the case are different
• A decision of a lower court in the same hierarchy

Question 15

What is Ratio Decidendi?

Answer 15

When a judge decides a case, they must give a reason for their decision and this reason is called the ratio decidendi.

Question 16

What are some important notes of Ratio Decidendi?

Answer 16

• It is not the sentence or verdict
• This is the binding part of the judgement in other cases where the material facts are similar
• All courts lower in the hierarchy must follow the precedent set

Question 17

What is Obiter Dictum?

Answer 17

• Means ‘a thing said by the way’
  When handing down a judgement, the judge sometimes makes a statement that is not part of the reason for their final decision. But rather it is just something they reflected or contemplated when making that final decision.

Question 18

What is Binding Precedent?

Answer 18

Is a precedent that must be followed by a court when making a decision on a similar case. It is the ratio decidendi that forms the binding part of the precedent.

Question 19

What is Stare Decisis?

Answer 19

Means to stand by what has previously been decided, and it is the underlying principle of the doctrine of precedent.

Question 20

What are the FOUR ways to avoid and develop precedents (RODD)?

Answer 20

Remember: RODD

Reversing - taking back a decision; cases that are on appeal

Overruling - later case or a different case/court

Distinguishing - finding differences in the facts of the case

Disapproving - judges disagree with precedent = not follow/get rid of it; make their opinions known

Question 21

What are the FIVE factors that affect courts in law-making?

Answer 21

1. Doctrine of Precedent

2. Judicial conservatism

3. Judicial activism

4. Costs & time

5. Requirement for standing

Question 22

What are the strengths to the Doctrine of Precedent?

Answer 22

• The doctrine of precedent creates consistency and predictability, as a party can look at past cases and anticipate how the law may apply to their situation
• Superior courts have far more flexibility in applying precedent and making decisions for the case in front of them

Question 23

What are the weaknesses to the Doctrine of Precedent?

Answer 23

• Lower courts are restricted by the decisions of higher courts, limiting flexibility
• There is a great difficulty and cost involved in locating relevant precedents to their case

Question 24

What is Judicial Conservatism?

Answer 24

Refers to the idea that the courts should show restraint or caution when making decisions or rulings that could lead to significant changes in the law.

Question 25

What are the weaknesses of Judicial Conservatism?

Answer 25

- Judges should not base their decisions on what they perceive to be the community’s view on an issue - It allows parliament to **make more thorough and educated law reform** on issues that are more controversial or may lead to major changes in the law

Question 26

What is Judicial Activism?

Answer 26

Judicial activism refers to the idea that judges have a willingness to **consider a range of social and political factors** when interpreting the law and making decisions.

Question 27

What factor that affects courts go under for the Mabo v Queensland case?

Answer 27

Judicial activism

Question 28

What was the decision for the Mabo v Queensland case?

Answer 28

On 3 June 1992 the High Court of Australia recognised that a group of Torres Strait Islanders, led by Eddie Mabo, **held ownership of Mer** (Murray Island). In acknowledging the traditional rights of the Meriam people to their land, the court also held that native title existed for all Indigenous people.

Question 29

What are the strengths of Judicial Activism?

Answer 29

- Depending on the case before them, in some instances (like Mabo) an activist approach may be just what is **necessary to resolve a case** - Judges may overstep in their role of making decisions for the case before them

Question 30

What are the weaknesses of Judicial Activism?

Answer 30

- Parliament can abrogate any decisions that it disagrees with - It can lead to courts making more radical changes in the law that the community is not ready for

Question 31

What are costs and time?

Answer 31

A court cannot make law until a case is brought before them, which is **dependent upon litigants** being aware of their right to pursue the case but also being willing to pay to bring it forward.

Question 32

What are some factors of the costs taking a case to court?

Answer 32

- The costs of legal representation varies **depending on the complexity of the case** - They are usually **paying for lawyers and barristers** to conduct research into the case, analyse evidence, interview witnesses and present legal arguments in court - and they **charge by the hour** - Lodging a **civil case incurs a number of costs** including filing fees, hearing fees and jury costs

Question 33

What are some factors of the time it takes to bring a case?

Answer 33

- Parties can be **delayed** in getting a case ready for trial as the case may be **complex and rely on many pieces of evidence** - One of the strengths of courts making law is that courts have the ability to **make law relatively quickly** once a case is brought before them - Judges are also **not required to follow lengthy procedures** like drafting a bill and debating it on multiple occasions

Question 34

What is the Requirement for Standing?

Answer 34

Courts must **wait until a party decides to pursue a case** before they can create precedent and make law. The party initiating the case must have standing, meaning that they must **be directly affected** by the case in order to commence a legal proceeding in court.

Question 35

What are the strengths for the Requirement for Standing?

Answer 35

- The requirement for standing ensures that cases are only **brought to court by people who are genuinely affected** - This also **saves valuable court resources and time** by not wasting it on those who are not affected

Question 36

What are the weaknesses for the Requirement for Standing?

Answer 36

- It encourages those who are **not directly affected to seek other avenues** to push for law reform other than court - Potential improvements to the law rely on those who are affected by having the money and time to spend in court

Question 37

What is the acronym to describe the Relationships between Courts and Parliament?

Answer 37

CASA

Question 38

What does CASA stand for?

Answer 38

**C**odification of common law **A**bility of courts to influence parliament **S**upremacy of parliament **A**brogation of common law

Question 39

How do we describe the relationships between courts and parliament?

Answer 39

**The relationship between courts and parliament:** - is strained - is disproportionate - is complementary - the role of courts and parliament are interconnected to degree

Question 40

What is the codification of common law?

Answer 40

Is the supreme law-making body, it can make law that **confirms** (or combines) a precedent set in a court by passing an Act of Parliament that **reinforces the principles** established by the court.

Question 41

What is the ability of courts to influence parliament?

Answer 41

Courts can also **influence changes** in the law by parliament through their **comments** and **decisions** made during court cases *Example: they may indicate in a judgement that they think the law should be changed by parliament*

Question 42

What is the supremacy of parliament?

Answer 42

- It can **change or override any decision** made through the courts with the exception of the High Court on Constitutional matters - It can also pass legislation to **change the jurisdiction of the courts** to limit or expand their ability *Example: the Magistrates' Court Act has been amended almost every year since it was passed to include more specialist lists and divisions like the Koori Court.*

Question 43

What is the abrogation of common law?

Answer 43

Parliament, as the supreme law-making body, is able to **change or override** (abrogate) common law. It does this by passing a law which specifically **abolishes** the common law principle. **When this can occur:** - The courts may **interpret the meaning** of the words in a statute in a way that **was not the intention** of parliament - The courts may interpret the Act in a way that **does not reflect the current meaning** of the act - Courts may also develop precedent in a way that the **parliament does not agree with** When a law is codified into one Act of Parliament it can abolish the old common law that existed.