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11 Cards in this Set
- Front
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Categories |
Problems as a result of drafting process Problems applying Act to a court case |
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Mistakes can occur during the drafting of an Act. |
Parliamentary counsel may make mistakes when drafting a Bill. For example, S51 of the Crimes Act 1958 (Vic.) deals with the 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 was a witness to such acts, no prosecutions were brought under this part of the Act. This was clearly an oversight and the Act has now been amended. A witness is no longer required. |
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The Act might not have taken into account future circumstances. |
For example, the Commonwealth of Australia Constitution Act 1900 (UK) gives the Commonwealth Parliament the power to legislate over ‘the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth’ (S51 VI). This section does not refer to the air force. At the time the Act was passed, an air force was not envisaged. |
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The intention of the Act might not be clearly expressed. |
This can lead to confusion about how to interpret the Act. |
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inconsistent use of the same word |
There might be inconsistent use of the same word in the Act (giving it different meanings). This could occur within the Act itself or could be caused by an amendment that is not consistent with the original Act in its use of a particular word. |
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Other |
• An Act may not include new types of technology. For example, an Act referring to CDs andDVDs may not include MP4 players. • Parliamentary counsel, when drafting the legislation, may have used incorrect technicalterms. • There may be inconsistencies with other statutes. • A word in an Act may not be defined in the Act. • The definition of a word might be too broad in an Act. |
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Most legislation is drafted in general terms |
Most legislation is drafted in general terms, but has to be applied to specific circumstances. |
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Date |
The Act may have become out of date and may need to be revised to keep up with changes in society. |
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Meaning of words ambiguous |
The meaning of the words may be ambiguous. The words and phrases used in an Act attempt to cover a broad range of issues. As a result, the meaning of some of the words might be ambiguous. It is therefore necessary for the courts to interpret the words or phrases in order to decide on their meaning according to the intention of the Act. For example, in the case of Davies v. Waldron (1989), the court was asked to interpret the phrase ‘start to drive’ found in S48 and S49 of the Road Safety Act 1986 (Vic.). Did the accused who was sitting in the car (with a blood alcohol level of over .05), while the engine was running, start to drive the car? The Supreme Court found that the accused was in charge of the motor vehicle and did start to drive the motor vehicle within the meaning of the Road Safety Act. (See the case study earlier in this chapter for more information.) |
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Courts may need to fill gaps in legislation |
The Act might be silent on an issue and the courts may need to fill gaps in the legislation. An Act tries to cover all situations that might arise in relation to the issues covered in the Act. This may not be possible as some situations may arise that were not foreseen, or gaps may have been left in legislation. An Act may therefore be silent on an issue that comes before the courts. For example, does the word ‘man’ or the word ‘woman’ in the Marriage (Amendment) Act 2004 (Cth) include a person who has had a sex-change operation and has become a man or a woman? |
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The meaning of words can change over time |
For example, the legal meaning 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. |
