Role of the Courts (6)

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.
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.
The act might not have taken into account future circumstances.
An act might not include new types of technology.
The definition of a word might to too broad and drafted in general terms.
The act might become out of date- may need to be revised to keep up to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 Legislation may have become out of date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.
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
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.
When a court interprets an Act it gives
meaning to the words or terms used in the
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.
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.
Read the Studded belt case from page 217
and complete questions 1-4 & 7 on page 219
Is this a ‘weapon’????
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