AOS 2B - UNIT 4

Question 1

The Victorian courts are able to make laws when…

Answer 1

1. deciding on case where there is no other law to apply to the case - or when a previous principle of law requires expansion
2. conducting statutory interpretation

Question 2

What does the court do when there is no other law to apply to a case?

Answer 2

the court will create a new principle of law (common law).

referred to as a precedent and must be followed by all lower courts in the same hierarchy

Question 3

what is statutory interpretation?

Answer 3

when judges interpret the words or phrases in an Act of parliament, in order to give the words meaning

Question 4

Reasons for statutory interpretation

Answer 4

• An act not accounting for future circumstances
• The meaning of the words within an Act changing over time
• The meaning of the words within an act being Ambiguous
• Mistakes occurring during the drafting of an Act

-Legislation being drafted in general terms but needs to be applied to specific circumstances

Question 5

An act not accounting for future circumstances

Answer 5

when an Act is being drafted, parliamentary counsel may fail to acknowledge or address future circumstances where the law may need to be applied

Question 6

The meaning of the words within an Act changing over time

Answer 6

when the meaning within an Act has a set meaning but over time may have come to mean something else

Question 7

The meaning of the words within an act being Ambiguous

Answer 7

When words/ phrases in an Act attempt to cover a broad issue and as a result words may be unclear or carry more then one meaning

Question 8

Mistakes occurring during the drafting of an Act

Answer 8

when drafting an Act parliamentary counsel can make errors or neglect something important

Question 9

legislation being drafted in general terms but needs to be applied to specific circumstances

Answer 9

its ability to cover a wide range of possibilities is increased however it still needs to be applied and interpreted to a specific case

Question 10

Effects of statutory interpretation

Answer 10

• The words in an Act being given meaning
• Precedents being set for future cases to follow
• The law being restricted through a narrow interpretation of an Act
• The law being expanded through a broad interpretation of an Act

Question 11

Factors affecting the ability of courts to make law (x5)

Answer 11

1. The doctrine of precedent
2. Judicial conservation
3. Judicial activism
4. Costs and time in bringing a case to court
5. The requirement for standing

Question 12

Doctrine of precedent

Answer 12

the process by which judges follow the reasons for the decisions of courts higher than them in the same court hierarchy

Question 13

Two types of precedents

Answer 13

Binding and persuasive

binding - MUST be followed by a lower court when making a judicial decision

persuasive - NOT bound to follow