Chapter 13

The interpretation of Statues by Courts

- A key aspect of the relationship between parliament and the courts is seen in statutory interpretation. - For legislation to be effective, courts must apply the statue to the cases brought before them. In order to this, the courts sometimes need to interpret the meaning of the words in an Act of Parliament, which in turn, establishes a precedent that becomes part of the law. By giving meaning to unclear words/ phrases in a statue, judges can clarify legislation so it can be applied to a case- they can also broaden or narrow the meaning.

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- Broad interpretation of the law may lead to more appeals on questions of laws as the law becomes broad and covers a wider range of circumstances. - Judicial activism may lead to courts making radical changes to the law that don't reflect the views of the community and that may be too controversial for the community.

Reason for Statutory Interpretation

- Changing nature of words - Words within an Act can be ambiguous - Mistakes occurring during the drafting of Act - Future and changing circumstances

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- Ensure that the only cases brought before the courts are those by people who have genuinely been affected by the law at hand. This means that the valuable time and resources of the courts are not wasted. - It encourages people who are not personally affected by a law to seek alternative avenues to address the issue, such as lobbying parliament or participating in demonstrations.

Court Hierarchy

- High Court - Court of Appeal - Supreme Court (Trial Division) - County Court - Magistrates Court

The interpretation of Statues by Courts 2

- High Court= has a particularly important role in statutory interpretation. It is the only court with the constitutional authority to interpret words/ phrases in the constitution. It can therefore alter the division of power between Commonwealth and State parliament. *Limitation a case must be brought before them, before they can interpret the Constitution. - Example "regulated weapon" and the studded belt.

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- High costs related to the litigation process can discourage parties from having their case heard before the court, thus limiting the ability of courts to make laws. - Parties can also be discouraged from lodging appeals as they do not have the necessary funds, which can affect the ability of courts to hear relevant cases on appeal and potentially make necessary changes to the law. - These factors can be problematic as the courts which can create law are those which hear the lengthiest and most expensive cases, and usually do so on appeal. Consequently, the cost and time in bringing a case to court can substantially hinder the ability of the courts to create law.

Strengths and Weaknesses 3

- Judges are able to make effective laws as they are independent, impartial adjudicators who are experts in law-making. They don't have political bias or political pressure on them- as such, they can make laws that best suit the case at hand, rather than having to satisfy voters. - However, it can be argued judges are unelected law-makers they haven't been chosen by the people to represent us and may not necessarily represent the views and values of the community when they settle disputes. - It can also be argued that judges come from a narrow socio-economic background and may be conservative in nature, which can limit their ability to create laws as they may prefer to follow past precedent and follow the 'status quo'.

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- Judicial activism allows judges to broadly interpret statues in a way that recognises the rights of the people and allows judges to consider a range of social/political factors. This can mean that a fairer outcome is achieved and justice is upheld. - It allows judges to be creative when making decision and thus making significant legal change where it may be required. e.g. The High Court was able to give land rights to indigenous people through the Mabo Case in 1992, by overturning the old legal principle of "terra nullius".

Factors that affect the ability of courts to make laws

- Judicial conservatism - Judicial activism - Cost and time of bringing a case to court - The requirement for standing - The doctrine of precedent

The supremacy of parliament 2

- Responsible for passing legislation that establishes the courts, their structures, procedures and jurisdictions. - Parliament can also pass legislation to changed jurisdiction of courts so that the type and severity of cases heard by the courts can be changed. e.g. Magistrates Court Act has been amended to include specialist list- Koori Court Division and Drug Court Division. - Parliament can pass Acts that restrict the courts ability to make decisions with respects to certain matters. e.g. Courts are restricted in the sentences they can give, given by maximum and mandatory minimum sentences prescribed in legislation. - However, in accordance with the principle of separation of power, parliament must ensure that is allow the courts to remain independent and retain power to determine if the parliament has passed laws beyond its law-making authority.

Key Feature of Precedent

- Stare Decisis - Ratio Decideni - Obiter Dictum

Cost and Time of bringing a case to Court

- Taking a case to court is expensive, alongside the time involved in preparing for and attending court may deter litigants from pursuing their case and affect the ability of the courts to make laws. - Unlike parliament, a court can only create law when the appropriate case comes, meaning that factors which restrict the ability of individuals to bring a case to court allows restricts the ability of the courts to create law. - For instance, the cost of legal representation is quite high as parties require a lawyer to prepare and present their case in courts. Further to this, high court fees may also impact an individual, this includes filing fees, hearing fees, jury costs and court costs. - In addition to this, the time involved in taking a case can also adversely affect parties due to backlog of cases and the number of pre-trial procedures that may exist. -However, it can be argued that courts make laws relatively quickly when they settle a dispute as they must make a decision as a case comes before them.

The ability of courts to influence parliament 2

- The courts can influence parliament and push for change in a law if the court is bound by previous precedent that result in injustice. Example Trigwell case, the High Court was relucent to set a new precedent that landowners should be responsible for damage caused by their stray animals but stated that the law should be changed by parliament. - A court's decision may highlight a problem or even cause public uproar that can lead to parliament changing the law. Example Increase in one punch killings in Victoria. Under Victorian law its now mandatory to serve a minimum ten-year sentence in jail. - Judicial activism can also influence parliament to change law. Example Mabo case. It was decided to overrule a long-established common law principle (terra nullius= empty land). In doing so it recognised the rights of indigeouspeoples to have native title over their traditional land.

The Doctrine of Precedent

- The doctrine of precedent can have a significant impact on whether a court is able to make law when deciding on a case. - This legal principle can work to both enable courts to make laws and can also act to restrict the ability of courts to make laws. - The doctrine of precedent requires judges to follow decisions of courts higher than them in the same court hierarchy, when deciding on cases where the material facts are similar in nature to those which were present when the precedent was originally established. This ensure there is consistency, predictability and fairness in court decisions.

Strengths and Weaknesses 2

- The doctrine of precedent can limit the ability of judges to make law because courts must wait for a relevant case to come before them in order to make a ruling and possibly create a new law. This means that courts are reliant on parties being aware of their rights and then being willing to bring their case to court- this may not happen if a party does not know their legal rights or have the time/ money to pursue legal action. As such, this can restrict the ability of courts to participate in the law-making process. - Judges make law 'ex post fact'- courts can only make law when a case is brought before them, which means that they can create laws retrospectively (after the facts). On the other hand, we can argue that parliament is perhaps a more effective lawmaker in this regard as they make laws with the future in mind. This means that they can keep future circumstances in mind when creating laws, while courts only have the power to make a decision on an issue/ dispute that has already occurred. Furthermore, parliament has the power to override judge made law, which limits the ability of courts to be effective law-maker as their laws can be overruled at any time by parliament if parliament decided to legislate in that particular matter.

Strengths and Weaknesses 1

- The principle of stare decisis ensures that lower courts follow the legal reasoning of judges in higher courts, ensuring that similar cases are resolved in similar ways. However, because lower courts are bound to follow decisions of higher courts, it may mean that out-dated or inappropriate principles are applied, which is seen as being unfair and which prevents lower courts from creating new law. e.g. The Supreme Court (Trial Division) is unable to create law when it is bound by a precedent set in the Court of Appeal (a superior court)- thereby hindering the ability of the courts to create law. - Judge made law can be seen as flexible as judges in superior courts have the capacity to overrule or reverse precedent that have seen set in lower courts. They also have the ability to distinguish material facts of cases, which means that they don't need to follow past precedent. In this way, judges can create new laws as they have mechanisms at their disposal to aid them in avoiding precedent.

The Requirement for Standing

- The requirement for standing can significantly impact the ability of the courts to make law. In order for courts to create a precedent, they must wait for a case to come before them and they must have the jurisdiction to hear that particular matter. - The party initiating a case must have standing in order to pursue it through the courts- this means that they must be directly affected by the issues involved in the case in order to have the right to commence legal proceedings. This means that the person has a "special interest" in the case and that they are explicitly more affected by the law in a dispute then a member of the general public. The party with standing must stand to gain a quantifiable advantage if they succeed in winning the case, such as money or property. --> Note This applies to all courts, but especially the High Court as this court only hears cases when the person has special interest and where the commonwealth is usually a party to this as their law is being challenged. E.g. Roach case. This can affect the ability of parliament to make laws as if a party doesn't meet the requirement for standing, they cannot bring the case before the courts, and the courts cannot therefore make law.

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- The requirement for standing means that people who may have a general interest on an issue/ law aren't allowed to pursue this through the courts and can't challenge a law on behalf of someone else or for the greater good. This can be a weakness as people who are affected by a law may not actually have the time, money or resources to take their issue to court. - The requirement for standing prevents future improvements to the law as some people may wish to challenge a law on the basis of an intellectual, ethical or social reason but are prevented from doing so.

Words within an Act can be ambiguous

- The words and phrases used in an Act attempt to cover a broad range of issues and situations. As a result, there may be some confusion about the wording used, the meaning might be unclear or it may carry more than one meaning. - Judges may be required to interpret legislation in order to clarify the confusion and explain the words as they relate to the Act. In this way, judges try to determine the meaning according to the intention of parliament. e.g. In the Davies v Waldron case, the phrase "start to drive" in the Road Safety Act had to be interpreted to see whether the term included attempting to turn on the ignition of the car.

Judicial Conservatism

- This is an approach to the application of judicial powers where judges show caution when making decisions that could lead to a significant change in the law. This impacts the ability of judges to make law as it means that judges who take a conservative approach to how to interpret statue will not go far beyond the established law- in this way, they uphold the idea that judges should interpret the law and not re-write it. - An important feature of this is the belief that judges should ensure that decisions they make are not based on their own personal or political views, but on legal consideration. - A conservative judge would most likely follow a precedent, even if they have the ability to set an alternative principle of common law. Conservative judges tend to perceive their role as an adjudicator, rather than a law-maker, and generally prefer to leave law-making to parliament.

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- This may restrict the ability of the courts to make major changes to the law, which can be seen as a weakness as judges are experts in lawmaking and arguably have a thorough understanding of legal principle. - It can discourage judges from considering a range of social and political factors when making laws as they are theoretically only supposed to consider legal principles in law-making.

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- This principle allows the law to remain stable as it means that judges don't stray too far from the original meaning of the law that was intended by parliament. - It also allows parliament, which has the ability to reflect community views, to make significant changes to the law as opposed to allowing judges to make changes as they are unelected lawmakers.

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- We can argue that cost and time factors work to prevent frivolous claims from going through the courts and thus enabling the courts to focus on more significant issues. - In regards to time, courts are able to resolve disputes quickly when a relevant case comes before them- as they need to make decision, this means that they can participate in the process of law-making at a fairly fast pace. - Additionally, law making though the courts can be a faster process than parliament as courts are not required to follow the same lengthy process as parliament does when they pass a bill. *Although, it can be argued that cases do experience delays and that there is a backlog of cases, which can prevent courts from making laws in a timely fashion.

Effects of Statutory Interpretation

- Words or phrases within the legislation are given meaning. - Precedents are set for future cases to follow. - The law being expanded through a broad interpretation of an Act. - The law being restricted through a narrow interpretation of an Act.

The High Court

1. Interpreting the Constitution or an Act of Parliament 2. Expanding or changing a previous principle of law so that it may be applied to a new situation, or deciding on a case where there is no law to apply. *The High Court doesn't have to follow the interpretation of statues or the principle of common law set by other courts in Australia (or itself), and it is able to make law when interpreting a provision of the Constitution.

Ratio Decideni

A Latin phrase which mean "the reason for the decision". This is a binding part of the judgement- a statement by the judge at the end of a case which outline the legal reasoning behind the decision they made.

The codification of common law

As the supreme law-making body, the parliament can make law that confirms a precedent set by the courts. Parliament can create legislation which incorporates common law principles, to codify the common law, thereby reinforcing or endorses the principles established by the courts. Example Mabo case, Commonwealth Parliament passed an Act to reinforce the principle established in the Mabo case, which included the recognition of land rights for indigenous Australians.

Words or phrases within the legislation are given meaning

Courts cannot change the words in an act, but they can clarify legislation and give meaning to the words. The implications and definitions of those words are asserted, as well as the way in which they will be understood in the future. This enables the judges at hand to apply the relevant law to the case they are presiding over.

Victorian Courts

In Victoria the superior courts take part in lawmaking- Supreme Court (Court of Appeal) and the Supreme Court (Trial Division). 1. When there is no existing law: Deciding on case where there is no other law to apply to the case.The decision of the court will result in precedent or common law being created. 2. Statutory Interpretation: When the court resolves a dispute in which there is an existing statue, but the statue requires interpretation so that it can be applied to the case before the court. By interpreting the meaning of the words/phrases in an existing Act of parliament, judges can broaden or narrow it meaning- thus establishing the way in which those words will be understood or followed in the future in similar cases.

The Doctrine of Precedent

In Victoria, judges rely on previous court decisions to guide them. When a new situation is decided on precedent is created. The process of judges following the legal reasoning behind a decision of a higher court is known as the doctrine of precedent. Thus is a common law principle by which the decisions of higher courts are binding on lower courts in the same hierarchy, where the material facts are similar. This creates consistency and predictability because similar cases are decided in a similar manner.

Mistakes occurring during the drafting of an Act

In the process of drafting an Act parliament can make errors in regards to how the bill was written due to communication issue or misunderstanding of parliaments intention. The courts will then need to interpret the legislation and figure out the meaning of the Act as intended by parliament and seek to clarify any mistakes. - Mistakes can occur as statues are sometimes written in general terms to cover a broad range of circumstances, however, this can mean that the law is too general and not specific enough to cover potential breaches to it that may occur.

The ability of courts to influence parliament

In the process of hearing and deciding cases, judges may make statements that reflect their feelings on a law and its application (obiter dicta). These means courts can indirectly influence parliament to make and change the law. Judges' comments made when handing down judgement can inspire or encourage parliament to initiate law reform.

Obiter Dictum

Latin term "a saying by the way". When handing down a judgement, the judge can sometimes make comments along the way that are not necessarily part of the reasoning of the decision. The could be something that the judge has reflected on or contemplated whilst making their conclusion. These comments are not binding but can be influential.

The abrogation of common law

Parliament has the power to pass legislation the overrides decision made through the courts, i.e. common law. The result of an abrogation of the common law by Parliament is that the common law is no longer of effect in the courts, and the precedent is therefore overruled by parliament. This may be necessary where the parliament believes the courts have interpreted the meaning of the words/ phrases in a statue in a way that was not intended by parliament. - Expectation- Parliament cannot override or abrogate High Court interpretations of the Constitution. Example Trigwell case- The Victorian parliament passed legislation which abrogated the common law rule that stock owners were not liable for any damage caused by their straying animals.

The law being expanded through a broad interpretation of an Act

Statutory interpretation can expand the law by a broad interpretation of a statue- this can result in the law being expanded to cover a new situation or area. e.g. The Kevin Jennifer Case required the court to interpret the meaning of the word man. In this instance the court decided that a man could be both someone who was born male or had gender reassignment surgery and now identified as a man (i.e. Kevin). In this way the meaning of the word "man" was expanded.

The law being restricted through a narrow interpretation of an Act

Statutory interpretation can restrict the law through a narrow interpretation of a Statue, this can restrict the scope of the law and the areas to with it can be applied. e.g. The Studded Belt Case restricted the definition of a regulated weapon to "items most likely used for aggressive purposes". In this case the court decided that the primary purpose for a belt was to hold up pants, thus a studded belt was not included in the classification of a weapon narrowing them meaning.

Precedents are set for future cases to follow

Statutory interpretation creates precedent which is read together with the act of parliament, and which will apply to future cases with similar circumstances. - This type of law-making is carried out by superior courts i.e. the High Court, Court of Appeal and Supreme Court and the precedent set must be followed by lower courts in the same court hierarchy. -This ensure consistency and predictability within the courts.

Roles of the court

The main role of the courts is to resolve disputes and hear cases. However, in some situation, judges can also make laws when they decide on cases that have been brought to them- thus known as common law, judge made law or case law. Court can make laws in the following ways.

Persuasive Precedent

These are precedents that don't have to be followed as they are not binding, but they can still be considered by judges and used to influence their decision. A precedent is persuasive if; - Set by a court in another hierarchy - Lower courts in the same court hierarchy - Court with the same standing. Not binding, but followed for consistency. - Statements made as 'obiter dictum'- don't need to be followed, but used as a guide and can influence decisions.

Binding Precedent

These have been established by superior courts and must be followed by lower courts in the same hierarchy, when resolving a dispute with similar material facts. If a judge is bound by precedent, it means that they must follow it, regardless of whether they agree with it or not. *Consider the hierarchy- which precedents are binding are binding or not!

Stare Decisis

This is a Latin phrase which means 'to stand by what has been decided'. It means that, where appropriate, judges should follow past decisions on similar issues to ensure consistency within the legal system.

Judicial Activism

This is an approach to the application of judicial power, which involves the willingness of judges to consider a range of social and political views, including community values and rights of the people in their law-making. They can be referred to as activists as they are likely depart from previous precedent and create new laws, or distinguish the case before them from another, so they are able to create their own principle of law. Activist judges tend to perceive their role as both an adjudicator and a law-maker. - Some argue that judicial activism is needed in our society in order to uphold the rights of the people and recognise community values. - Other believe that judges make decisions outside of their legislative/ constitutional power, and that judges overstep their role as independent lawmakers.

Statutory Interpretation

This is the process by which a judge who is presiding over a legal dispute examines and interprets the meaning of words, sections or phrases contained in the statues. The process by which words are given meaning- in this way, judges can clarify legislation, broaden or narrow the meaning so that it can be applied to a specific case at hand.

Distinguishing

This is the process by which a judge will find that the material facts of the case at hand are sufficiently different to the facts of a previous case/ precedent. In this way, they can argue that the two cases are different and that the past precedent doesn't need to be followed as it would be unfair to do so, as the material facts are not the same.

Overruling

This occurs when a superior court decides not to follow a precedent that has been set in a lower court in a different case. By overruling the precedent (that is, not following the precedent), the superior court creates a new precedent that makes the previous one inapplicable.

Reversing

When a case is heard on appeal, the superior court hearing the case has the option of changing the decisions that was made by the judge in the lower court. When a court reverses an earlier decision in the same cases that is being heard on appeal, a new precedent is created by the superior court. The new precedent becomes the one to follow in future cases.

Disapproving

When a lower court disagrees with an existing precedent made by a superior court in the same hierarchy, it may wish to express it dissatisfaction with the previous precedent. This statement doesn't allow the lower court to avoid following the precedent, but it does show that the current judge doesn't agree/ approve of it. This can work to encourage parliament or a superior court to change the precedent in the future.

Future and Changing Circumstances

When an act is being drafted, parliamentary council may fail to acknowledge or address future circumstance where the law may need to be applied. This may be in regards to technology. i.e. While laws have existed in the past regard technology such as CDs and DVDs, changes in technology which now includes social media, streaming services and cyber-bullying may not have been taken into account when a bill was written in the past. Judges may therefore need to interpret statues to take these things into account and determine if breaches to the law have occurred.

Changing nature of words

When an act was drafted or passed, a word contained within the Act may have had a set meaning. However, over time the meaning and application of words may change as society itself also changes. As such, legislation needs to be interpreted to help clarify the meaning of words and to give the Act its current meaning. e.g. The word "text" can have multiple meaning. Referred to as a physical book or an SMS

The Role of the Court in Law-making (Developing/Avoiding Precedent)

When deciding on cases, judges will consider precedents- if they are not bound to follow the earlier precedent they have some options to assist their decision making. This allows flexibility (judge) an allows the laws to change and develop over time. The options available to judges in this instance= (RODD)

The supremacy of parliament

Whilst both the courts and parliament are able to make law, they are not equal law-making bodies. Parliament is the supreme law-making body with the ability to make and change any laws within its constitutional power. It therefore has the power to pass legislation that either confirms or overrides decisions made through the court (common law), with the exception of High Court decisions on constitutional matters.

Feature of the relationship between courts and parliament in law-making

• The supremacy of parliament • The ability of courts to influence parliament • The interpretation of status by courts • The codification of common law • The abrogation of common law