Ratio Decidendi and Obiter Dicta

Ratio Decidendi

• The binding legal principle comes from a judge's reasoning
• It directly determines the case outcome
• It is essential for establishing legal precedent

Obiter Dicta

• Statements made by a judge that are not binding
• These are observations or comments that do not directly affect the decision
• Obiter Dicta may provide persuasive guidance in future cases

Extracting Ratio and Obiter

• Identify and understand the important facts of the case
• Analyze the Judgment, and focus on the reasoning that leads to the decision (ratio) versus additional commentary (obiter)
• Look at how previous cases influenced the judgment
• Pay attention to whether statements are necessary for resolving the dispute or merely supplementary

Key Learning Outcomes (TLOs)

• Understand primary (legislation and case law) and secondary sources e.g. commentaries, journal articles
• Legislation overrides case law when inconsistent
• Uphold ethical research practices by using reliable and current sources
• Avoid plagiarism when citing cases and legislation
• Apply critical thinking to distinguish between ratio decidendi and obiter dicta
• Evaluate legal principles systematically
• Use a systematic approach to legal research
• Plan your research.
• Undertake background reading.
• Use effective search terms like Statsky’s Cartwheel technique
• Identify authoritative cases using strategies like "One Good Case"
• Collaborate effectively with peers to analyze case law
• Communicate findings clearly using structured frameworks like IRAC (Issue, Rule, Application, Conclusion)
• Manage time effectively by setting research goals and deadlines
• Continuously refine search terms based on findings

Systematic Approach to Legal Research - Principles

• Adopt a Systematic Approach: Follow structured steps in research
• Know Where to Look: Use reliable databases like Lexis Advance, Westlaw, CCH, or HeinOnline for secondary sources
• Access Good Quality Information: Prioritize authoritative judgments and current legislation
• Read Actively and Efficiently: Avoid myths about reading every word; focus on key sections
• Apply research findings to solve problems using IRAC

Strategies for Effective Research

• Plan the Research: Define the research task and question
• List possible search terms based on pre-existing knowledge
• Set timeframes and next steps
• Background Reading: Identify broad areas of law relevant to the task e.g., contract law, torts
• Use references in secondary sources to locate further materials
• Think Carefully About Search Terms: Utilize Statsky’s Cartwheel technique for word associations, and revise terms based on background reading

Citing Cases

• Italicize party names
• Use square brackets if organized by year; round brackets if by volume number
• Include volume number, report abbreviation (e.g., CLR), page number, and pinpoint reference if quoting specific parts

Citing Legislation

• Italicize the short title of the Act and year
• Add jurisdiction in round brackets e.g., Crimes Act 1958 (Vic)
• Reference specific sections using "s" for section numbers

Applying Research to Problem Solving

• Issue: Identify legal issues in the case
• Rule: State applicable laws or precedents
• Application: Apply rules to facts of the case
• Conclusion: Provide a reasoned conclusion

Legislation vs. Case Law

• Legislation is made by parliament; also known as statute law or Acts of Parliament

• Legislation overrides case law if there is inconsistency between a statutory rule and a rule developed by courts

• Legislation increasingly regulates community life and becomes the dominant source of law

• Legislation is prospective in nature (applies to future cases); Can be reactive and retrospective in some instances

• Legislation has a wider applicability than case law

• Case Law is developed by courts, also known as common law or precedent

• Case Law is reactive and focuses on resolving specific legal disputes without considering broader social or political consequences

• Courts may develop new legal principles when no relevant statutory rule exists

Parliamentary Sovereignty

• Parliament has ultimate authority to make or unmake any law
• No higher body can override parliament, according to Dicey’s principles

Key Consequences of Parliamentary Sovereignty

• Laws made by parliament are not subject to higher laws (e.g., morality, international law, or common law)
• Parliament cannot bind future parliaments; laws can always be changed
• No person (judge, executive member) can override valid parliamentary laws

Limitations on Parliamentary Sovereignty

• Australian parliaments must exercise lawmaking powers in accordance with the Australian Constitution and state constitutions

Structure of Parliaments

• Federal Parliament consists of the House of Representatives and the Senate
• House of Representatives members represent electorates and serve a maximum of three years
• The Senate is known as the "House of Review"
• The Senate can veto laws proposed by the executive government in the lower house
• Queensland Parliament is Unicameral (only one house) since the abolition of the upper house in the Constitution Act Amendment Act 1922 (QLD)

Role of the Crown

• The Crown is represented by the Governor-General at the federal level
• State Governors at state levels
• Administrator in the Northern Territory
• A bill requires Crown assent to become law

Legislative Process

• Proposal: Initiated by various groups e.g., executive government policies, lobby groups, public service departments, reform bodies, media, or private members (private member bills)
• Drafting a Bill: Prepared by the Office of Parliamentary Counsel with an explanatory memorandum outlining its purpose and provisions
• Lower House: Bills undergo three readings
• First Reading: Formal reading of the bill's title
• Second Reading: Minister delivers a speech explaining objectives, and members debate the bill
• Third Reading: Final formal reading before passing to the upper house
• Upper House: Follows a similar process as the lower house; amendments may be requested and sent back to the lower house
• Assent: Granted by the Crown representative (Governor-General, Governor, or Administrator)
• In the ACT, assent is replaced by notification in the ACT Legislation Register
• Commencement: The Act specifies its commencement date or provides for commencement via proclamation in the Government Gazette

Types of Legislation

• Original Acts: Address a matter for the first time
• Amendment Acts: Modify existing legislation
• Repealing Acts: Abolish existing legislation (rights/liabilities may remain)
• Consolidating Acts: Combine all statute law on a topic into one Act
• Reviving Acts: Restore previously repealed legislation

Delegated Legislation

• Made under authority delegated by parliament through "parent legislation."
• Common forms include regulations, rules, and bylaws created by executive bodies like local councils or government departments
• Subject to automatic sunset clauses to prevent unnecessary regulatory buildup

Key Features of Legislation

• Numbering: Indicates its sequence among Acts passed that year
• Long Title and Purpose: Broad purpose stated in one sentence; modern Acts include explicit purpose clauses
• Short Title: Common name for referencing legislation (e.g., Crimes Act 1958 (Vic))
• Assent and Commencement Dates: Assent marks approval; commencement specifies when it becomes operational
• Sections/Subsections/Paragraphs: Organized hierarchically for clarity (e.g., s4(1)(a))
• Schedules: Contain procedural details like fees or amendments to principal Acts

Resolving Deadlocks

• If the upper house rejects a bill passed twice by the lower house after three months, the Governor-General may dissolve both houses (double dissolution)
• Deadlock provisions are unnecessary in unicameral parliaments like Queensland's

Interpretation Sections

• Core Principles of Legal Writing:
• Predictive vs. Persuasive Analysis:
• Predictive: Objective assessment of legal issues, forecasting potential outcomes
• Persuasive: Advocating for a specific position, aiming to convince the audience
• Audience: Tailoring content to the reader (client, judge, lawyer)
• Purpose: Defining the document's objective (advice, argument, drafting)
• Scope: Setting boundaries for the legal analysis or document
• Context: Understanding the factual and legal setting. description, synthesis, interpretation
• Application of Law: Fundamental components of all legal writing

Legal Drafting

• Creating legal texts designed for legal effect
• Target Audience: Primarily lawyers
• Characteristics: Precision, clarity, adherence to legal conventions

Scaffolded Approach

• Introductory: Basic skills in legal writing and drafting
• Intermediate: Refining persuasive techniques
• Advanced: Nuanced drafting of complex legal documents

Client Letter Checklist

• Clearly state the objective and tailor language accordingly
• Outline the legal issue and the scope of advice
• Frame legal issues clearly, summarizing key legal principles
• Centred Discussion: Discuss options, risks, and alternatives
• Highlight the critical takeaway or recommendation
• Use a formal letter structure (letterhead, date, address, salutation, etc.)
• Use plain language, avoid legalese, proofread thoroughly

Legal Intent

• Concepts:
• Text
• Context
• Purpose

Textural Argument - Traditional

• Doesn’t consider the surrounding words, just the words itself
• Traditional approach to statutory legislation
• What we are moving away from
• The natural and ordinary meaning of a word is the first document you could name, and then you can go from there, starting point

Contextual Argument - Modern

• This approach is preferred
• Looks at surrounding sentences and words
• A modern approach to statutory legislation
• Does not use words in isolation

Purpose

• Legal arguments should align with the act's intent

Principles of Statutory Interpretation

• Literal rule
• Golden Rule
• Mischief Rule
• Interpretation acts help read other acts, including presumptions
• Common law rules help interpret legislation and formulate arguments

Literal Rule

• Giving words their natural and ordinary meaning
• The Macquarie Dictionary and the Oxford Dictionary are two dictionaries that are accepted and used by the court
• Problem arose due to mistakes in the legislation producing absurd results

Golden Rule

• Avoid being too literal, if being so results in absurdity
• Re Sigsworth: A son murdered his mother, who died without a will
• If applying literal wording, he would inherit; so the court corrected cause the words & prevented it

Mischief Rule

• Looking at the original mischief trying to address

If there is an ambiguity:

• What was the law before?
• What was the mischief and direct that the law did not provide for?
• What remedy did parliament establish to connect that mischief or defect?
• How can the court interpret the legislation to correct the mischief or detect according to the true intent of parliament?

Relevance of Tradition

• Apply all the rules to start the arguments
• Look words can be look in context and broader

Modern Approach

• Section 15AA of the Commonwealth Act
• *Acts Interpretation Act 1901 (Cth)
• Section 14A with Queensland Act
• *Acts Interpretation Act 1965 (Qld)

Relevant Principles

• Purpose is to be considered when a provision is ambiguous on its face to determine if there is an ambiguity

How to Determine Purpose

• Purpose may be stated in the legislation or may be inferred from a reading of the legislation

Identifying Purpose

• Identifying the general purpose of legislation may not assist if the provision to be interpreted strikes a balance between that purpose and other competing purposes

Originally

• Text
• Context
• Purpose

Now

• Context
• Purpose
• Intent

Aids to Interpretation

• Interpretation Acts

Intrinsic Material

• Everything in the act
  • Long titles
  • Preamble
  • Objects Clauses
  • Definition
  • Headings and schedules

Extrinsic Material

• Not in the act, but interpreted

Materials Include

• Second reading speech’s
• Explanatory Memoranda
• Law reform
• Parliamentary Debates
• International Agreements
• Law Reform Reports

Other Interpretation Considerations

• General presumptions
• Syntactical Presumptions
• Miscellaneous Rules

Problem Solving Method

• Locate the provision in question
• Read it in context
• Identify relevant and multiple interpretative criteria for the problem at hand
• Critically analyse how and to what extent those factors assist in determining the legal meaning of the provisions
• Formulate opposing and available constructions of the provision in light of the indications of meaning gathered so far
• Compare the support each rival construction accrues from the interpretative factors to make a judgement as to which of the constructions, on balance, to regard the expressing the legal meaning

Legislative Elements

Long Title

• The intention of the act usually beginning the phrase 'An Act to...'

Preamble

• Common in international treaties/conventions and national constitutions

Short Title

• The name for the act usually known referred

Elements Continued

• assented is the date the act received assent from the Governor and/or general
• Commencement is according to Section 2 that commences operation of receipt, explicit - commencement date
• numbered consecutively, amended rather than renumbering, the new section number includes a capital letter
• An interpretation section (definition) is used, where an exhaustive definition usually takes the form of X means Y, or An inclusive definition (X includes Y)
• Schedules may move procedural provisions such as fees and charges, forms, tables and technical descriptions

Other Terminology

• Obiter Dicta (translated to remark in passing, unlike ratio), is not binding but persuasive
• Ratio is used to determine the ratio of a decision, that begins by identifying the material facts in the legal issue , may use 'if and then' method
• Case Note citation, court and judges, procedural history, material facts, legal issues or grounds of appeal, reasoning and decision, the ratio and finally Analysis highlighting the impact of the case on the relevant area of law.

Presumptions

• There are 11 rebuttable common law presumptions
• They are rebuttable by clear words in the legislation
• If the legislation says otherwise, follow with what the legislation says

Common Law Interpretations

• Parliament does not interfere with fundamental rights
• Statutes do not operate retrospectively
• Courts presume their previous interpretation of a work of phrase applies if parliament uses the word or phrase in a statue
• Legislation does not bind the Crown
• Penal provisions are strictly interpreted in favour of the accused
• Legislation does not take jurisdiction away from the courts Property rights are not taken away without compensation
• Legislation does not have extraterritorial effect
• Parliament does not intend to interfer with equality of religion
• Parliament intends to legislate in conformity with international law
• Words are used consistently in statues

Legal Maxims

• Some latin maxims
• Noscitur a sociis
• Ejusdem generis
• Expressio unius est exclusio alterius
• Generalia specialibus non derogant

Nosictur a sociis

• known by its associates' - determining a meaning in the word using the context, word around it

Ejusdem Generis

• 'of the same kind' - When specific words are followed by a general word (e.g. Wine, beer, spirits and other drinks are prohibited within the venue)
• The interpretation of the general words is limited by the preceding specific words

Expressio Unius Est Exclusio Alterius

• 'express mention of one thing is the exclusion of another'
• when a specific class of persons or things is expressly mentioned, then other persons or things are excluded

Generalia Specialibus Non Derogant

• 'general things do not derogate from special things'
• If a general is presented 'No animals are allowed on public transport' AND visually impaired individuals may be accompanied by an assistance animal.
• when a specific provision in a statue and also a more general provision, the general provision does not override the specific provision

Rules for Solving

• When more than one construction of a law is available, there is also not simple formula when resolving
• The process of interpretation is not the application of any one particular rule or method
• It involves a multifactorial assessment
• Interpreters cannot select, from the relevant interpretative criteria, which criterion or criteria to apply

Object of Statutory Interpretation

• Object of arriving at the presumed intention of legislature putting the duty of the court to give their meaning
• The context of the provision and well the provision concerned is always to be considered
• If ascertainable, the legislative purpose must be taken into account While extrinsic materials may support an available construction, construing in the provision Problem Solving Methods in finding the meaning
• Locating,
• Reading,
• Identifying and finally
• Analyzing after the comparing the interpreation Relevance issues

Interpreting the Law

• interpretative criteria the process of determining the meaning and effect of legislative