MARKER’S COMMENTS

Tim,

An interesting assignment, you cover most of the major issues.

Q1: A solid discussion -- involving some of the contentious High Court cases - political advertising

Q2: another good answer

See the answer guide for more information

Result: 13/15

C. Brien.

Law 511: Assignment 1

Tim Richardson

Student number: 94073457

Lecturer: Christopher Brien

Judges only interpret law? Do you agree?

In the Common Law legal system, "law" comes from two main sources: previous decisions of courts, and from legislation. Judges primarily contribute to the body of laws through the mechanism of case law. When making a judgement on a point of a law, a judge will look for a prior decision meeting the facts of the case before the court; this is a judicial precedent. Judges are bound to follow a preceding decision, although the mechanism allows for different levels of courts with different obligations to follow precedent, and legislation has sovereignty over case law.

Although parliamentary legislation outranks precedent [cite reference], it is the tradition of common law for legislation to be a relatively small part of the body of law. Therefore, the role of judges in making precedents is a very important part of the legal process. It is commonly said that judges have the power to create law when they make a precedent, which is, by the nature of the common law system, binding on later courts (subject to the relative standing of the two courts concerned).

While many cases are very similar in fact to previous decisions, there are frequently instances when judges face a legal situation without obvious guidance from either legislation or precedent. These cases are the best examples of judicial creation of law in the common law system. I will examine the case of Donoghue v Stevens from the United Kingdom’s House of Lords (which shall be considered a judicial body), and the political advertising decision of the Australian High Court.

Donoghue v Stevens [1932] AC 562

"Probably the most important development in the law of torts has been made by judges" (Waller:1995, p 84)

Donoghue v Stevens established a new type of tort, where a manufacturer under certain circumstances owes a duty of care to a consumer who purchases the product from an intermediary. This case was a legal breakthrough because there was no contractual relationship between the manufacturer, the defendant, and the plaintiff, the consumer. At the time, there was no legislation providing this protection to consumers, and previous decisions about duties of care applied only when a contractual relationship could be established. When judges create new precedent, they operate within conservative principles, making their decisions narrower rather than wider, and their decisions are not based on thin air. In Donoghue v Stevens, the tort of breached duty of care already existed; it was not created for this decision. However, this decision was a radical extension of an established legal principle, and it would be inaccurate to claim that the decision was merely an interpretation of an existing legal principle.

It is an interesting example of judicial law-making reacting to changes in society before parliamentary law-makers had a chance to catch up. With transport becoming cheaper, urbanisation increasing and wealth increasing, people at this time had began buying brand products in new forms of packaging, designed for mass production and distant distribution. People were buying more processed food and beverage products further from the point of manufacture, with more intermediaries. The consumer was of the opinion they were buying a branded product from a legal person they knew and trusted, yet before the law they had no relationship with that legal person. Donoghue v Stevens established a legal relationship matching the consumer’s expectations. The situation that existed prior to Donoghue v Stevens is unthinkable today, when consumers are protected by legislation, but it was case law that made the first legal adaptations to this social change.

The Political Advertising Case

The law of torts is a bastion of case law, and legislation has only recently been significant in this area. However, judges are also called upon to make judgements in areas where parliamentary law is strong. Even with carefully worded legislation, judges are sometimes required to deal with situations where statutory law is vague or outpaced by social change. A key example in the Australian context is the Federal Constitution, which is interpreted by the High Court, in many ways like normal legislation (the Constitution is essentially an Act of the British Parliament). Unlike other normal legislation, the Federal Constitution can not be amended by Parliament, so High Court decisions regarding the Constitution are not subject to parliamentary review, unlike other judicial decisions (in all other cases, the relevant Parliament can always enact a law overturning a case law precedent).

Recently the High Court has made some profound decisions about the meaning of the Australian Constitution, and the modern Court is frequently referred to as "activist". There is speculation that the High Court has taken this role upon itself because the traditional method of changing the constitution via referendum has proven impractical. Examples of this activism are the discovery of "Native Title" (Mabo v Queensland [1992] 175 CLR 1) and the discovery of protection of freedom of political speech (Australian Capital Television Pty Ltd v Commonwealth of Australia [1992] 177 CLR 106).

In Australian Capital Television Pty Ltd v Commonwealth of Australia, the plaintiff was a television broadcaster unhappy with Federal legislation governing paid election advertising. The legislation required, inter alia, broadcasters to grant free time to political parties, with the amount of free time based upon performance at the last federal election.

The majority High Court decision was that this part of the legislation was ultra vires as it contradicted the Federal Constitution. However, there is no wording in the Constitution stating that the Federal Parliament may not restrict political advertising. The High Court found that the Constitution implied political freedom of speech, as such freedom was obviously necessary to the proper working of the system of government required by the Constitution. In this decision, it is once again ingenuous to claim that this is mere judicial interpretation.

Conclusion

In the common law system, judges have historically added, amended and altered the law through their decisions and the mechanism of precedent. This is called case law, and is the definitive aspect of the common law system. It is misleading if not incorrect to claim that the role of judges is limited to "interpretation of law".
 
 
 
 

Question 2

[Pedagogical note: The video, the tape and several readings stress a certain approach for Law students when answering questions, with dire warnings that a certain format must be followed. I refer to the "IRAC" method, and so on. For the life of me, I can’t see how this approach is relevant to the first assignment. This has made me very confused. I can’t find a case very relevant to question 2 in either text book, and I can’t see how the IRAC method is relevant to this question. This is very confusing, you know. I mentioned this on the on-line forum, and got no follow up. I have assumed that this question is about interpretation of statutes.]

I appreciate your comments. IRAC is ore appropriates to assignment 2 and the final exam. Statutory interpretation is the major focus of this question.

Issue: Bali sold a book gazetted as restricted. She knew she could not sell it. She is not a licensed vendor, because she was informed that newsagents may not receive licenses.

We assume that the advice given to Bali about her not being eligible for a license was correct.

The facts of the matter are not in dispute, and it clearly falls within the scope of regulations provided under the Act.

Therefore, a judge coming to a decision looks at the regulations made under the Act, and must decide how the facts stand relating to his or her interpretation of the regulations. Regulations are, for this matter, regarded as having the same status as legislation, assuming the regulations do not exceed the authority delegated to them by the relevant Act. Once we have decided the likely method of interpretation to be used in this case, we will be in a position to advise Bali of how she stands with respect to the Regulations.

Historically, judges have had options when interpreting statute. The preferred method of interpretation has evolved through different modes, depending on legal fashion, the competence of law makers, the statute in question and the legal personality of the judge.

To achieve consistency, judges and legal authorities have attempted to establish guiding principles of interpretation.

The oldest and most important approach is literal interpretation. The philosophy behind this principle is that Parliament wrote in the Act exactly what it wanted, and that to determine the will of Parliament, a judge should have little difficulty other than reading the words of the Act or Regulation.

This philosophy is derived from a fundamental aspect of British common law and democratic tradition: the legal supremacy of parliament. It is therefore treated very seriously, and it is not surprising that the literal approach is the most important and most commonly followed method of interpretation. However, it does have serious criticisms, because it is easy to find absurd consequences of always following a literal interpretation. For example, an Act of the West Australian parliament read

A literal interpretation of this leads to absurd results: a child buying sweets from the corner store is clearly literally in breach of this law. A full reading of the Act reveals that it is concerned with prostitution and gambling. Even under the principle of parliamentary supremacy, it is reasonable to doubt that this result was intended by the law-makers. Resolving this kind of problem lead to widely accepted new principles:

• the golden rule

• the mischief rule

The golden rule recommends the use of the literal principle unless it leads to absurdity or inconsistency with the rest of the statute. In this case, the judge is allowed to modify the meaning only enough to remove the absurdity. This principle dates back to 1857 (Gray v Pearson [1857] 6 HLC 61).

The golden rule is unsatisfactory because it gives no guidance on what is absurd or inconsistent.

The mischief rule asks that a judge see the statute in its full legal context: not just the legislation as a whole, but the relevant common law prior to the Act and the legal defect in the common law that the Act sought to repair. It is most commonly applied to criminal law.

The golden rule and mischief rule lead to much wider legal interpretation. As well as resolving absurd literal interpretations, they can also extend the meaning of the Legislation. For example, in Smith v Hughes [1960] 1 WLR 830 the defendant was charged under the Act which prohibited the soliciting of prostitutes "in a street". The question was whether this prohibition applied to prostitutes who solicited from windows or balconies, which are literally not "in a street". Under the mischief rule, the Act was found to be concerned with cleaning up the streets from solicitation, and therefore the meaning of the statute was extended to encompass the activity of soliciting from a window, which was almost as detrimental to "clean streets" as solicitation occurring directly from the street.

In another case, a literal interpretation was ruled out by the judge applying the golden rule. In Lee v Knapp [1967] 2 QB 442 an Act required that a motorist "stop" after an accident. The defendant claimed that they did in fact momentarily halt, before proceeding, therefore complying with a commonly accepted literal meaning of "stop". The judge found that in this circumstance "stop" meant halt and wait for police or other officials to investigate the accident. A literal interpretation was against the purpose of the law.

These wider interpretations have caused disquiet, because sometimes judges’ interpretations have gone well beyond a literal interpretation of written law. Some authorities have pointed out that a judge who may be unhappy with the wording a law should proceed with the literal interpretation, but criticise the wording in the decision. Such action caused legislators to take action in the case above, Smith v Hughes, and fully respects parliamentary supremacy. However, it isn’t much compensation to parties caught up in the law prior to revision.

Legislation on interpretation

Australian states now have legislation requiring judges to seek interpretations which further the purpose of the Act, and to reject absurd or unreasonable interpretations. This is similar to the golden rule or mischief rule. Therefore, parliament itself has in effect ruled out literal interpretation as the sole guiding principle of interpretation, which helps ease the conscience of those judges worried about usurping parliamentary supremacy, even if this legislation seems paradoxical: Parliament is partially legislating away parliamentary sovereignty.

The Bali Case

In the Bali case, the Regulations seem clear and unambiguous. Further, a narrow interpretation is justified because the facts of the case match very clearly the situation the law makers’ had in mind: the selling of a restricted publication. This conclusion is helped by Bali’s protest actions, making it clear that she herself considered her actions to be in breach of the law.

Bali’s actions are clearly in breach of a literal interpretation of clause 3, and this conclusion is neither absurd, unreasonable or inconsistent with the purpose of the Act. I can think of no reasonable argument against this conclusion.

A literal interpretation of clause 5 is more interesting. It restricts the behaviour of licensed vendors and their agents.

Now, Bali is not a licensed vendor (which clearly puts her in breach of clause 3). Under a literal interpretation, this fifth clause would therefore be irrelevant to her situation. Thus, the argument of literal interpretation could be raised to minimise her breach of the law to only one clause.

However, the purpose of the act is to regulate the sale and display of restricted materials. The Regulations already make it clear than only licensed vendors or their agents may sell such materials. It is obvious, therefore, that any restrictions applying to them must also apply to people even more restrained in their behaviour with regard to restricted material. The opposite conclusion is logically absurd, and inconsistent with the third clause. In the light of legislation requiring judges to act according to the purpose behind legislation, argumentation based on literal interpretation seems hopeless.

My recommendation to Bali is that she has clearly broken the law, and that she has done so knowingly. She has little cause to hope for any other finding. She should "cop it sweet" (cliche). Maybe she should appeal to the High Court on the grounds that the Australian Constitution implicitly guarantees freedom of speech as a necessary part of the constitutionally guaranteed democratic system of government, and that the Act is therefore ultra vires.

[An interesting conclusion]

Tim’s note: the conclusion was intended to be a little sarcastic with reference to High Court "activism".
 
 

Bibliography

Vermeesch and Lindgren, Business Law of Australia, 9th edition, 1998, Butterworths, Sydney.

Waller, An Introduction to Law, 7th edition, 1995, LBC Information Services, Sydney