Factors that affect the ability of courts to make law

Question 1

What are the factors that affect the ability of courts to make law?

Answer 1

• the doctrine of precedent
• judicial conservatism and judicial activism
• costs and time
• the requirement of standing

Question 2

What does the doctrine of precedent create?

Answer 2

• consistency and predictability
• flexibility

Question 3

How does the doctrine of precedent create consistency and predictability?

Answer 3

• A party that takes a case to court can look at past cases and anticipate how the law may apply to their situation. which gives them some idea of the outcome, because similar cases are decided in a similar manner.
• Legal representatives can then give advice to their clients on how a court may decide their case, as there may be similar cases with similar facts where a court has ruled a particular way.

Question 4

Limitations to how the doctrine of precedent creates consistency and predictability?

Answer 4

• Difficulty and cost in locating relevant precedents
• the difficulty in identifying the legal reasoning behind a decision (ratio decidendi)
• the difficulty in predicting future developments.

Question 5

Difficulty and cost in locating relevant precedents

Answer 5

• due to large volume of previous cases in that area of law) and cost involved in locating relevant precedents.
• also, judgements are often also written in technical language and without subheadings)

Question 6

the difficulty in identifying the legal reasoning behind a decision (ratio decidendi)

Answer 6

• identifying the legal reasoning behind a decision (ratio decidendi) can be difficult when the precedent has been established in a court of appeal with three or more judges. (lawyers must look at decisions who formed majority not at dissenting judges)
• in some instances, there may be conflicting authorities (more than one judgment on a particular issue, and most likely differences in their reasons for the decisions). Judge needs to decide which precedent is most appropriate to circumstances.

Question 7

difficulty in predicting future developments.

Answer 7

precedents may be overruled later by higher court

Question 8

How does the doctrine of precedent create flexibility?

Answer 8

• Through the process of reversing, overruling, distinguishing and disapproving, precedents change and develop over time to allow the gradual expansion of common law.
• Judges may also interpret the meaning of the words and phrases used in past precedents and refine the law and make it clearer as they apply a precedent to a new case.

Question 9

Limitations to the doctrine of precedent creating flexibility?

Answer 9

• restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court.
• Judges in superior courts may be reluctant to reverse or overrule existing precedents.
• While not being technically bound by their own court’s previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them. (except for High Ct.)

Question 10

Restricts the ability of the lower courts to change the law in cases where they are bound to follow a previous precedent established by a higher court.

Answer 10

can lead to unjust outcome following ‘outdated precedent’ and affected party cannot pursue matter in higher court due to costs

however, lower courts can disapprove the precedent

Question 11

Other ways the doctrine of precedent limits the ability of the courts to make laws

Answer 11

• Judges must wait for a relevant case to be brought before them and only the superior courts (the Victorian Supreme Court or higher) can make law.
• Judges in superior courts are restricted to making law that is needed to clarify some issue or matter raised in the case before them. (any other comments or obiter dictum do not form part of precedent)
• Judges make law ex post facto. (courts make and clarify the law after the event)
• Parliament can always legislate to abrogate (cancel) common law. (exception: High Ct in constitutional matters)

Question 12

What are two approaches to style/approach adopted by judges in interpreting law?

Answer 12

• judicial conservatism
• judicial activism

Question 13

What is judicial conservatism?

Answer 13

An expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases (i.e. avoid major or controversial changes in the law and not be influenced by their own political beliefs or the views of the community).

Question 14

Strengths of judicial conservatism?

Answer 14

• Parliament is the supreme law-making body, consisting of members who are elected by the people to make laws on their behalf. It is therefore generally accepted that the parliament has more authority for implementing major law reform than judges (especially controversial changes), who are not elected by the people. Judges should interpret the law, not rewrite it.
• An important feature of is the belief that judges should ensure their decisions are not based on their own views or political opinions or community’s views. Rather, they should base their decisions solely on legal considerations.

Question 15

What system does High Court use?

Answer 15

High Court has exercised both judicial conservatism and judicial activism when resolving disputes and establishing precedents.

For example, High Court justices have adopted a conservative approach when resolving a number of constitutional disputes, upholding the view that the courts should limit their role as law-makers and be reluctant to declare Acts of Parliament invalid unless they are obviously unconstitutional (as the main purpose of judicial interpretation is to give effect to what parliament intended when it passed the statute)

Question 16

What is judicial activism?

Answer 16

This is an expression used when judges consider a range of social and political factors when interpreting Acts of Parliament and deciding cases (i.e. consider the changing political beliefs and the views of the community).

The extent to which judges should be progressive (or activist) when making decisions and establishing precedents is controversial and largely depends on the circumstances of the case before the court.

Question 17

Strength & weakness of judicial activism

Answer 17

Some view it as a legitimate obligation of the court that must be exercised by judges to ensure justice is achieved.

Those who disapprove of judges taking a more active role in determining and creating law have negatively defined judicial activism as judges making decisions arguably outside their legislative or constitutional power; for example, interpreting a statute in a way that expands its meaning beyond the original intention of the parliament in an attempt to influence a change in the law.

Question 18

Example of judicial activism

Answer 18

Mabo case: overturned the belief that Aus was an empty land belong to no one (terra nullius) which was a significant precedent of 100 years in our society.

Question 19

What do costs include?

Answer 19

• costs of legal rep.
• court fees

Question 20

Costs of legal rep.

Answer 20

to ensure a party has the best chance of winning a case they generally need to engage legal representation to ensure their case is prepared and presented in the best possible manner. (for examples lawyers will need to conduct research, analyse evidence, prep docs etc.)

Question 21

Court fees

Answer 21

includes no. of filing fees, hearing fees and jury costs
(example: standard person requesting appeal to Supreme court costs $2423.20 and more hearing fees after that also jury fees costs $1636 for the first day and approx 300-500 for every day after that)

Question 22

Effects of costs

Answer 22

• may mean that only meritorious and legitimate claims are pursued all the way to appeal courts.
• can deter litigants who cannot afford these costs, and who do not qualify for
  legal aid, from pursuing their case and their rights in court.
• High costs can deter parties from pursuing the appeals process.
• The prohibitive nature of costs may mean that old or ‘bad’ precedents are never challenged or brought to the court for review.

Question 23

Time involved in bringing case to court

Answer 23

• Courts can make law relatively quickly once a dispute has been brought before them and cases must continue until a decision has been made to resolve the dispute.
• Partly due to them not required to follow lengthy processes like those involved in the process of developing, drafting and passing a bill through parliament when deciding cases.

Question 24

Drawbacks of time

Answer 24

• Some courts, particularly appeal courts where most precedents are established, can take months to hear and determine more complex cases.
• Parties can be delayed in getting a case ready for trial.

Question 25

What is the requirement for standing?

Answer 25

In a court case, the party initiating it must have standing; that is, be directly affected by the issues or matters involved to have the right to commence a legal proceeding.

Question 26

Strengths of the requirement of standing

Answer 26

• ensures cases are only brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time and resources on listening to people who are not affected by a matter.
• encourages people not directly affected by an issue or matter to seek other avenues of redress (e.g. lobbying members of parliament, petitioning or demonstrating) rather than going to court.
• discourages frivolous concerns

Question 26

What is the requirement for standing in the high ct?

Answer 26

a person must have a ‘special interest’; meaning they are more affected than other members of the general public (must show they will gain a greater material advantage (more than just winning) if the action succeeds or a greater material disadvantage (more than just losing) if the action fails

Question 27

Weaknesses of the requirement of standing

Answer 27

• people who have a general interest in a case (e.g. where legislation potentially breaches individual rights) have no right to pursue a legal challenge on behalf of public interest or the common good.
• potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost.