UNIT 4 AOS1 - SAC 1b (constitution) Flashcards
(54 cards)
1
Q
Explain statutory interpretation.
A
‘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.
2
Q
List the reasons for statutory interpretation.
A
- Drafted in general/broad terms but needs to be applied ‘specifically’.
- Changing nature of words (meaning changing over time).
- Unforeseen circumstances.
3
Q
Explain broad words applied to a specific set of facts in relation to a case.
A
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.
4
Q
Explain the changing nature of words applied to a specific case.
A
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).
5
Q
Explain unforeseen circumstances applied to a specific case.
A
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.
6
Q
What tools/guides do judges use when interpreting statutes?
A
- 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”?
7
Q
What is the outcome or effect of statutory interpretation?
A
- Create precedent
- Broaden/expand the law’s application.
- It can restrict the scope of the law
- It can influence parliament to change the law
8
Q
Explain Judicial Conservatism.
A
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.
9
Q
List Judicial Conservatism’s effect on law-making.
A
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.
10
Q
Discuss Judicial Conservatism.
A
- 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.
11
Q
Explain Judicial Activism.
A
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.
12
Q
Explain Judicial activism and the High Court.
A
- 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.
13
Q
List Judicial Activism’s effect on law-making.
A
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.
14
Q
Discuss Judicial Activism.
A
- 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.
15
Q
Define a precedent.
A
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.
16
Q
Define the doctrine of precedent.
A
The theory/process behind the ‘how’ we establish said report judgment and the rules that determine when they principles are applied in other cases.
17
Q
Define a binding precedent.
A
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.
18
Q
Define a persuasive precedent.
A
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.
19
Q
List the avoiding precedents.
A
- Disapproving
- Distinguishing
- Reversing
- Overruling
20
Q
Define disapproving.
A
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.
21
Q
Define distinguishing.
A
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.
22
Q
Define reversing.
A
Judges in superior courts are able to change a decision of a court lower in the hierarchy when the case is brought to them on appeal. This occurs when a party appeals a decision to a higher court and the court reverses the decision of the lower court, creating a new principle of law.
23
Q
Define overruling.
A
Judges in superior courts can change a decision of lower court from an earlier, different case. When a party appeals a decision to a higher court the court can chose to overrule a decision from a previous case. This involves two different cases (see case study below).
Courts on the same level can overrule their own decisions however, this can mean two different precedents are established which can only be clarified once the matter is taken to a higher court.
24
Q
List how the doctrine of precedent can help the development of the law.
A
- If no statute or common law exists or it isn’t clear how the law should be applied to the case before them judges are able to develop the law. As such, if a new social issue arises for which there is no law, courts can create law.
- Judges from superior courts of record or on the same level can overrule or reverse a decision from courts lower in the hierarchy, thereby developing law.
- Judges have the ability to distinguish the case before them; that is, when a party’s legal representative suggests the material facts are different from previous cases and the court is not obligated to follow a precedent, the court can accept this and can therefore develop new law.
- They can also disapprove a precedent; these obiter comments may persuade superior courts in future cases to create new law.
25
List how the doctrine of precedent can hinder the development of the law.
- Judges can not develop law just because they want to. **They must wait for a case to come before them** and requires a party with standing.
- They can **only develop new law where there is no preexisting statute** or common law, or it isn’t clear how the law should be applied.
- To develop law **they must be a superior court of record** and lower courts are unable to develop law.
- Judges **may be conservative** and feel it is not their role to develop law.
- The **process of finding and presenting persuasive precedents is an inefficient way to solve new social problems**; it provides no opportunity to research expert or public opinions on what the new law should be. This may lead to laws that are ineffective and/or not accepted by the community.
26
Explain the Victorian Hierarchy.
The Victorian court hierarchy enables the doctrine of precedent to operate as the courts are ranked according to their jurisdiction (the trials and appeals they each hear).
27
Explain the role of the High Court.
- The HC was established in 1901.
- Chapter 3 of the CC outlines it’s role, including guidance around the court’s powers such as defining its original and appellate jurisdictions to hear matters
The main role(s) of the High Court is to settle a dispute by:
- Interpreting and applying the law (especially the Constitution) in Australia.
- Deciding cases of significance (challenges to the CC and the validity of laws).
- Hearing appeals (with permission (‘special leave’)) from federal, state and territory courts.
28
Explain when a precedent is made.
- When a judge in a superior court of record (HC, CoA, SC) makes a judgment on a point of law, usually on appeal.
- The reasoning for the decision will form a principle of law referred to as a precedent.
- The legal reasoning is to be followed in all future situations brought before the courts that are similar.
- A judge is not bound to follow a decision of another judge at the same level, but this is normally done in order to promote consistency.
29
Explain the purpose of the doctrine of precedent.
To **ensure consistency and fairness** lower courts must follow the decisions of the higher courts in the same hierarchy when resolving disputes with facts that are similar to cases resolved higher in the hierarchy.
If a case arises in which there is no law or the law is unclear, during a trial or appeal, **legal representatives will search for persuasive precedents (see below) to support their case** and present these to the judge who will refer to these when deciding the case.
30
Explain the doctrine of precedent and stare decisis.
- The doctrine of precedent operates on the principle of stare decisis.
- In order for the doctrine of precedent to operate, judges follow the previous decisions of superior courts in similar or like cases.
- This is also known as stare decisis which means to stand by what has been decided.
- This allows for predictability and consistency.
31
What part of the decision must be followed in the future?
Ratio Decidendi
- ‘The reason for the decision’
- Not everything said by a judge must become binding on lower courts.
- Only the ratio decidendi forms the legal principle to be applied and followed in future cases.
- According to the doctrine of precedent, in cases that have similar circumstances, the ratio decidendi of higher courts will be binding on all lower courts (in the same court hierarchy).
32
Explain obiter dictum.
A statement or opinion made by the judge within the judgement but is not binding (does not have to be followed in the future).
It can form a persuasive precedent for future judges to be guided by eg: Brislan’s case.
33
Explain binding and persuasive precedents.
Whether a precedent is binding or persuasive will depend upon the circumstances.
The same precedent could be both binding on one court, but only persuasive on another.
34
Explain binding precedent.
A precedent made by a superior court, which must be followed by:
- A lower court, in the same hierarchy, in cases where the material facts are similar.
35
Explain persuasive precedent.
A precedent that is not binding, but may be considered by a court as influential. It may be:
- From a court in another hierarchy.
- From a court of same standing in the same court hierarchy.
- From a lower in the same hierarchy.
- Obiter dicta from a court in the same or another hierarchy.
36
Explain costs and time.
COST:
- Cost of legal representation.
- Court costs – lodging a civil case incurs filing fees, hearing fees and jury costs.
TIME:
- Courts can make law relatively quickly once a dispute has been brought before them.
- Judges can also make decisions relatively quickly to resolve a case and create law.
- Cases can still be delayed by pre-trail procedures, complexity of the dispute, lack of court resources and support services, and an increase in cases heard by the courts.
37
Explain legal representation costs.
- For a party to have the best chance of winning a case they generally need to engage legal representation.
- Lawyers need to conduct research into the case, including researching previously established relevant precedents that may be used as either binding or persuasive on a court, analyse evidence and documents, interview and prepare witnesses, and present legal arguments and evidence to the court in accordance with the strict rules of evidence and procedure.
- A party that is unrepresented will be at a distinct disadvantage and the high cost of legal representation can particularly discourage people who wish to take a civil issue to court, in which precedents can be established and changed.
- However, the costs involved can also discourage people who have frivolous or trivial claims from using the courts.
- The costs will also encourage people to use alternative dispute resolution methods such as mediation.
38
Explain court cost fees.
Lodging a civil case with a court incurs a number of costs including filing fees, hearing fees and jury costs.
39
Explain time.
- One of the strengths associated with courts making law is that the courts have the ability to make law relatively quickly once a dispute has been brought before them.
- Once a case is brought before a superior court, where precedents are set, the matter must continue until a decision has been made and the dispute resolved.
- Judges are not required to follow lengthy procedures like those involved in the process of developing, drafting and passing a bill through parliament.
- However, judges in appeal courts, where most precedents are established, can take months to hear and determine more complex cases.
- When an urgent injunction is needed or there is a pressing need at a high level of community importance, courts can move quickly because judges have discretionary power and can make rulings quickly.
40
List cost and time's effect on law-making.
Cost & time can HELP develop the law because:
The high cost and time delays can prevent some parties from taking a matter through the courts however, recent process changes to reduce time delays (especially changes in the appeals processes in the Court of Appeal).
Cost & time can HINDER development of the law because:
- Judges in superior courts need to wait for a case to come before them before they can develop law; the time taken to appeal to the higher courts slows the development of the law.
- The reluctance of parties to pursue a matter through the courts due to the costs and delays means there is less opportunity for judges to develop the common law – appropriate test cases may not come before the courts because those with standing are discouraged from pursuing their case to the higher courts.
41
Explain standing.
- The party initiating the case must have standing (sometimes referred to as locus standi) in the case to be able to pursue it.
- Standing = the ability of a party to appear before and be heard by a court.
- The party must be directly affected by the issues or matters involved in the case to have the right to commence a legal proceeding in court.
- They must be an ‘aggrieved person’ OR have sufficient or special interest in a case to ‘stand before the court’ and be heard.
- Having a ‘special interest’ in the case means that they must be explicitly more affected by the law or issues in dispute than a member of the general public.
- However, the issue of standing is particularly important in the High Court in cases that involves challenging a Commonwealth law.
42
List standing's effect on law-making.
Standing can HELP develop the law because:
- Only people with standing can pursue a matter through the courts. Only parties who have been genuinely affected, an aggrieved party, can pursue the matter thereby reducing the amount of claims going to court, and in turn, the costs and delays in the court system. This therefore allows more opportunity for genuine cases to be pursued through the courts.
Standing can HINDER development of the law because:
- The requirement of standing limits the ability of simply anyone who wants to change the law from pursuing the matter through the courts. Sometimes aggrieved parties don’t have the time or money to pursue the matter through the courts and limiting other groups/individuals from pursuing the matter according to their political agenda may slow the development of the common law.
43
Explain the features of the relationship between courts and the parliament.
- Courts and parliaments have an interconnected role in law-making.
- Parliament is the supreme law-making body, but courts have a complementary role in making laws.
The main five features of the relationship between courts and parliament in law–making are:
1. The supremacy of parliament
2. The ability of courts to influence parliament
3. The interpretation of statutes by courts
4. The (codification) of common law
5. The abrogation of common law
- One aspect of the relationship between parliament and the courts is the ability of parliament (as the supreme law-making body) to either confirm (codify) OR override (abrogate) common law principles.
44
Explain the supremacy of parliament.
- Parliament is the supreme law-making body with the ability to make and change any law within its constitutional power.
- It has the power to pass legislation to either confirm or override (abrogate or cancel) decisions made through the courts (or common law)* (more on this later).
- Parliament is also responsible for passing legislation that establishes the courts and outlines the power they have to hear cases.
- Parliament can also pass legislation to change the jurisdiction of courts so that the types and severity of cases heard by the court can be changed.
- E.g., the Magistrates’ Court Act has been amended nearly every year since it was passed
- As the supreme law-making body parliament is also able to pass Acts of Parliaments that restrict the ability of the courts to make decisions with respect to certain matters.
- However, in accordance with the separation of powers, parliament must ensure that it allows the courts to remain independent and retain the power to determine if the parliament has passed laws beyond its law-making authority.
- E.g, the courts are restricted in the sentences they can give by the maximum sentences prescribed in legislation,
45
List the supremacy of parliament's effect on law-making.
HELPS:
- Parliament can make laws at any time they wish to in a broad range of areas.
- Parliament also has the ability to research whole areas of the law and ensure legislative change reflects the will of the people.
HINDERS:
- Each Parliament is limited by their jurisdiction. They can only make laws in the area of law-making in which they have the power to do so.
46
Explain the ability of courts to influence parliament.
- Courts have the ability to indirectly influence parliament to make and change the law.
- Judges may make comments when handing down judgments (as part of the reasons for their decision or as obiter dictum) that inspire or encourage parliament to initiate law reform.
- Parliament can also be influenced to change the law if a court is bound by previous precedent and makes a decision that creates an injustice, or is unwilling to overrule or reverse a previous precedent, preferring parliament to investigate and initiate law change.
- E.g. the Trigwell case.
- A court’s decision may also highlight a problem or even cause public uproar that can lead to the parliament changing the law.
47
List the ability of courts to influence parliament's effect on law-making.
HELPS:
- Courts complement Parliament in developing areas of law through their judgements and expressing suggestions for law reform by Parliament.
- The Coroners Court can make recommendations to Parliament regarding law reform which can prompt legislative change.
HINDERS:
- The requirement for standing can limit the number of cases that come before the courts through which the judges can make decisions and in doing so comment on whether the law ought to be changed by Parliament. Courts cannot initiate such cases and must wait for a relevant case to come before the court.
- Parliament doesn’t have to respond to the recommendations or suggestions from the courts and this only occurs on rare occasions in superior courts.
48
Explain the interpretation of statutes by courts.
- You already know about statutory interpretation, so think about it now in the context of the relationship between parliament and the courts.
- Parliaments makes laws in futuro (that is, laws that apply in the future), which means they often develop law that is quite broad in an attempt to ensure it can cover a number of different scenarios.
- These need to be interpreted by courts.
- The High Court has a particularly important role in statutory interpretation. It is the only court with the constitutional authority to interpret the meaning of the words and phrases in the Australian Constitution.
- It can therefore alter the division of power between the Commonwealth Parliament and the state parliaments.
49
List the interpretation of statutes by courts' effect on law-making.
HELPS:
- The courts are able to broaden the application of the law to real life cases through statutory interpretation.
- Through interpretation the courts can fill gaps and provide definitions to words which develops new law (as such interpretations form a precedent).
HINDERS:
- The judges may interpret the statute narrowly and restrict the application of a law.
- Judges may be conservative in their approach which may limit the development of the law.
- Judges can only interpret legislation and give meaning to the words in legislation when a relevant case comes before the courts; they cannot proactively change the operation of a statute.
50
Explain the codification of common law.
Codification = parliament can pass legislation that incorporates common law principles established through courts
- Codifying a common law principle strengthens the law as law made by parliament is supreme
- Parliament can confirm a precedent set by the courts as it passes it through in legislation which reinforces and endorses the principles established.
- For example, the Native Title Act was passed after the principles set in the Mabo case.
51
List the codification of common law effect on law-making.
HELPS:
- It enshrines the legal principles established by the courts, meaning future court cases cannot remove the principle of law created in the precedent.
- Parliament may legislate beyond the legal principles in the relevant court case by developing whole areas of the law.
HINDERS:
- Parliament may develop an area of the law through statute which may limit the ability of judges to continue to expand the area of law through common law.
52
Explain the abrogation of common law.
The supremacy of parliament means they can override any common law principle through the passage of legislation.
- i.e. parliament passes a law that overrides an existing common law principle (like in the Trigwell case).
- In this situation the common law is superseded by the legislation passed by Parliament. Parliament, as the supreme law-making power, has the ability to abrogate common law.
- Parliament has the power to pass legislation that overrides decisions made by the court (except decisions of the High Court of Constitutional matters).
- This occurs where parliament believes the court have interpreted words in a statute that is not aligned with their original intentions by Parliament.
53
List abrogation of common law's effect on law-making.
HELPS:
- Parliament is able to abolish legal principles developed through the courts they disagree with or believe no longer reflects society’s values.
HINDERS:
- It may be time-consuming or controversial for Parliament to abrogate a law that may be considered outdated and this can prevents Parliament from legislating with regards to other matters.
54
List the cases that relate to each learning point.
Statutory Interpretation:
- The studded belt case
Judicial conservatism & Abrogration:
- Trigwell case
Judicial activism & Codification:
- Mabo case
