Chapter 8: Working with case law and precedence

Question 1

Why is judge made law undemocratic?

Answer 1

As judges are not elected in thus views are not likely to represent community views since majority of judges are males and come from relatively privileged backgrounds

Question 2

What is the issue of restrospective nature of judge made law?

Answer 2

People can be punished for acts which were not known to be crimes at the time they were committed

Question 3

In what circumstances will high court overrule itself?

Answer 3

• Earlier decisions did not rest upon a principle carefully worked out
• difference between reasons of justices constituting majority in one of earlier decisions
• earlier decisions achieved no useful result
• earlier decisions had not been independently acted on in a manner which mitigate against reconsideration

Question 4

Ways constitution can be changed

Answer 4

• constitutional amendment s 128
• considerations where parliament is not in a position to change the law

Question 5

What is the appellate hierarchy?

Answer 5

Appeal court has power to overturn decisions of lower court. Present court is bound by previous decision where earlier court has appellate jurisdiction over present court

Question 6

In what case can court depart from precedent of a court at same level in hierarchy?

Answer 6

• If convinced that precedent is ‘plainly’ ‘clearly’ or ‘manifestly’ wrong i.e failure to use all appropriate legal authorities or materials
• Per incuriam: given ‘in ignorance or forgetfulness’ of a legislative provision inconsistent with decision
• based on erroneous reasoning

Question 7

Overview of the doctrine of precedent in Australian courts

Answer 7

• High court is not self bound but will depart from its own decisions with reluctance
• Other Australian courts are bound by courts in the same hierarchy
• Australian courts do not consider themselves bound by their own decisions but will depart from one only if they are ‘plainly wrong’
• common law, interpretation of commonwealth legislation and interpretation of uniform national legislation there is strong desirability for uniformity

Question 8

Does the federal court of Australia bind itself?

Answer 8

No, single judge of FCA is not bound by decision of full federal court but will ordinarily follow another single judge decision unless persuaded otherwise