3.3.2 The ability of judges to make law

Question 1

Positive 1:

Answer 1

When the case involves a novel set of facts - there is no statute or common law

Question 2

E.G. of novel set of facts:

Answer 2

Grant v Australian Knitting Mills

Question 3

Positive 2:

Answer 3

Flexibility

Question 4

Flexibility (1):

Answer 4

Courts have some flexibility in avoiding and developing precedent through reversing, overruling, distinguishing and disapproving cases.

Question 5

Positive 3:

Answer 5

Courts can make law when they declare law ‘ultra vires’ or void if it is outside the law-making powers of the parliament that is making the law.

Question 6

Negative 1:

Answer 6

Courts cannot determine what the law is unless a case is brought before them. This can be difficult, as parties need standing to be heard in the courts.

Question 7

Negative 2:

Answer 7

Courts cannot comprehensively research, review and make sweeping changes to the laws.

Question 8

Negative 3:

Answer 8

Lower courts are bound by precedent

Question 9

Negative 4:

Answer 9

Common law may be abrogated by Parliament; overriden by parliament.

Question 10

Negative 5:

Answer 10

Statutory interpretation is limited to the interpretation of the meaning of the words in the statute.