Role of the Courts (6)

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Parliamentary Counsel drafts laws to cover all sorts of situations and possibilities, therefore the language can be vague and non-specific. It is not possible to draft an act taking into account every possible situation that might arise.

The courts have to interpret the words in an act in order to apply them to the specific situation before the courts.

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Mistakes can occur during the drafting of an act- S51 of the Crimes Act 1958 (Vic) deals with sexual exploitation of people with impaired mental functioning. In the original act a witness was required to support the victim’s evidence before the offender could be prosecuted. As it was unlikely that there as a witness to such acts, no prosecutions were brought under this part of the act. This was clearly an oversight and the act has not been amended. A witness is not longer required.

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The act might not have taken into account future circumstances.

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An act might not include new types of technology.

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The definition of a word might to too broad and drafted in general terms.

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The act might become out of date- may need to be revised to keep up to date with changes in society. Legislation may have become out of date and need to be revised. The wording of an Act may not cover recent changes. For instance, a statute may refer to records and tape recordings but not specifically refer to other forms of recording technology, such as DVDs or the downloading of music from the internet.

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The meaning of the words may be ambiguous- The words and phrases used in an act attempts to cover a broad range of issues. As a result, the meaning of some of the words might be ambiguous. Meaning of words can change over time- The legal terminology of the term ‘de facto relationship’ was a man and a woman living in a domestic relationship. The definition of a de facto relationship is now a couple living in a domestic relationship, regardless of gender.

Time pressures in drafting legislation- There may have been pressure to draft the Act in a hurry, resulting in clumsy, vague or ambiguous wording within the Act. There may have been little opportunity to check the legislation after drafting. This may result in loopholes.

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When a court interprets an Act it gives meaning to the words or terms used in the Act. Statutory interpretation does not amend or change the printed words. The immediate effect of statutory interpretation is that the meaning of the Act is determined in order to settle a dispute.

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Effects of Statutory Interpretation are as follows; The words in the act are given meaning- The courts cannot change the words in an act but can interpret the words and give them meaning that will be followed in the future. Parties to the case are bound by the decision- Once a court has reached a decision, the parties to the case are bound by the decision unless one of the parties appeals. Others in similar situations in the same court hierarchy in the future are also bound by the decision. Consistency and predictability- People in the future can, to some extent, predict the outcome of a case because of the consistency of the courts following precedent, and deciding like cases in a like manner. Courts can overrule or reverse a previous decision of courts- If a precedent is set when interpreting a word in an act and the case is taken to a higher court on appeal the previous decision can be reversed and a new precedent set. Likewise the a higher court can overrule a previous decision and set a new precedent on the interpretation of the words in an at.

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Read the Studded belt case from page 217 and complete questions 1-4 & 7 on page 219

Is this a ‘weapon’????