The effect of statutory interpretation When a judge rules on a particular matter and in the process interprets words contained in legislation, there are three significant implications:

Are this a weapon?

What about this?

Is this a weapon?

1.) Words are brought to life The interpretation of a word or phrase in a statute dos not change the actual Act, it just clarifies the meaning of the word or phrase for future reference. When a generic word such as ‘weapon’ is used in legislation, it may be necessary to determine what types of items are included within this broad term. Eg:

DEING V. TAROLA [1993] 2 VR 163 (THE STUDDED BELT CASE Under the Control of Weapons Act 1990 (Vic.) it is illegal to possess, carry or use any regulated weapon without lawful excuse. The term regulated weapon was not fully defined in the Act, but under s. 3 could include ‘an article that is prescribed by the regulations to be a controlled weapon’. The regulations referred to are the Control of Weapons Regulations 1990, as made by the Governor-in-Council. These regulations provide a more specific list of items that are to be considered regulated weapons, and include ‘any article fitted with raised pointed studs which is designed to be worn as an article of clothing’.

Case continued The defendant Deing was a 20-year-old man who was arrested in a restaurant wearing a studded belt to hold up his trousers, and charged under the Control of Weapons Act. The Magistrates' Court found him guilty, so he appealed to the Supreme Court. Justice Beach in the Supreme Court found that a regulated weapon should be defined as anything that is not commonly used for any other purpose than as a weapon. He also found that the Governor-in-Council had exceeded its authority under the Act by including studded belts on the list of items included in the regulations. Deing had his conviction overturned, the regulations were changed to remove the section relating to studded belts and the Act was eventually changed to better define what constituted a prohibited weapon.

2.) Creation of precedent The decision creates a new precedent that becomes binding on lower courts in the same hierarchy when interpreting the same legislative provisions In this way, judges become influential law-makers The superior courts can have profound impact on lower courts in vital areas such as police conduct in drink-driving cases. A precedent created through statutory interpretation in one case can have an influence on whether a litigant will choose to take action on a different issue in the future, as the following case illustrates.

TOONEN V. AUSTRALIA [1994] Nicholas Toonen brought an action against Australia before the United Nations Human Rights Committee (UNHRC), in which he claimed that sections of the Tasmanian Criminal Code infringed his rights under the International Covenant on Civil and Political Rights (ICCPR). The sections in question criminalised sexual contact between consenting adult males in private. He claimed that this legislation breached the ICCPR because its enforcement infringes his right to privacy by bringing private sexual activity into the public domain. The UNHRC found that he was a victim of the legislation, although he had no actual remedy under Australian law. In response to this finding, the Australian government enacted the Human Rights (Sexual Conduct) Act 1994 — Section 4, prohibiting any state from making laws that interfere with private sexual activity between consenting adults.

Case continued Although legislation relating to sexual matters was considered a state residual power, the Commonwealth claimed the legislation was necessary to fulfil international treaty obligations. Just as it had done in the Tasmanian Dam Case, it had the power to override state jurisdiction on this issue under its external affairs powers. The Tasmanian government repealed the offending section of its Criminal Code, in the realisation that the precedent of the Tasmanian Dam Case would prevent it from successfully challenging the Commonwealth legislation on this issue.

3.) Parliamentary action Decisions by the courts will sometimes result in parliament taking action to clarify an issue, or act to limit the powers of the courts to apply an interpretation that is not considered appropriate in today's society. The following case led to changes in Victorian statute law.

DE SALES V. INGRILLI [2002] In 1990, Teresa de Sales's husband was killed in an accident on a farm in Western Australia owned by Ingrilli. Ms de Sales took action under the Fatal Accidents Act 1959 (WA), which provides compensation to the relatives of a deceased person. The District Court of Western Australia determined a level of compensation, but discounted the amount by five per cent. This discount was based on an old English common law precedent that allowed courts to reduce a widow's compensation if the court believed she had a good chance of remarriage. Ingrilli appealed to the Full Court of the Supreme Court on the grounds that the discount should have been 20 per cent, given Ms de Sales's age and attractive appearance.

The Full Court upheld the appeal and increased the discount to 20 per cent. In 2002, Ms de Sales appealed to the High Court which upheld her appeal and restored the original five per cent discount. The Victorian Attorney-General of the time, Rob Hulls, regarded the whole concept of the ‘widow's discount’ as sexist and discriminatory. The Victorian Government enacted the Wrongs (Remarriage Discount) Act 2004 to provide that no discounts be made to any damages awarded based on the remarriage prospects of a plaintiff.

TEST your understanding 1.) Explain how the interpretation of a statute can create a precedent. 2.) Why did the Tasmanian Government choose not to challenge the Human Rights (Sexual Conduct) Act 1994 — Section 4 in the High Court, even though it invalidated Tasmanian legislation? 3.) What was the impact of Justice Beach's finding in the Studded Belt Case, that a regulated weapon should be defined as something not commonly used for any other purpose than as a weapon?

APPLY your understanding 4.) Is it possible for a judge interpreting a section of an Act to follow a precedent set by another judge interpreting a different section of a different Act? Explain your answer. 5.) Do you think a leather glove with pointed metal studs across the knuckles would be treated as a weapon by the courts? Give reasons for your answer, with reference to the Studded Belt Case.

Examination question Explain the effects that the interpretation of a statute by a judge can have on the law (4 marks). Test 5

Studded Belt Case handout