introduction to the courts

Question 1

define abrogate (abrogation)

Answer 1

to abolish or cancel or court-made law (for example, the cancellation of common law by passing an Act of Parliament)

Question 2

define binding precedent

Answer 2

the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction (i.e. court hierarchy) in cases where the material facts are similar

Question 3

define codify (codification)

Answer 3

to collect all law on one topic together into a single statute

Question 4

define common law

Answer 4

law made by judges through decisions made in cases. Also known as case law or judge-made law (as opposed to statute law

Question 5

define doctrine of precedent

Answer 5

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Question 6

define judicial activism

Answer 6

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)

Question 7

define judicial conservatism

Answer 7

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 8

define precedent

Answer 8

a principle established in a legal case that should be followed by courts in later cases where the material facts are similar. Precedents can either be binding or persuasive

Question 9

define standing

Answer 9

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it

Question 10

define statutory interpretation

Answer 10

the process by which judges give meaning to the words or phrases in an Act of Parliament (i.e. a statute) so it can be applied to resolve the case before them

Question 11

The Australian legal system includes laws, procedures, and institutions that make and enforce laws.

Answer 11

• The two main bodies that create laws are:
  
  • Parliament: Makes statute law (legislation).
  • Courts: Make common law (case law).
• Statute law: Law created by parliament.
• Common law: Law created by judges or courts through decisions in individual cases.

Question 12

Parliament (the legislature)

Answer 12

• Main role is to make and change laws on behalf of the people.
• Known as the supreme law-making body, with the power to make and change any law within its constitutional limits.

Question 13

Courts (the judiciary)

Answer 13

• Main role is to resolve criminal and civil cases.
• They apply and interpret existing statute law (made by parliament) and legal principles established by judges.
• Superior courts (e.g., Supreme Court and High Court) can also make new law when deciding cases.

Question 14

In simple terms, judges in superior courts can make law in two ways

Answer 14

• by interpreting the meaning of words and phrases in an existing statute so its meaning is clarified,
  and the statute can be applied to resolve the dispute before the court; this process is called
  statutory interpretation
• by establishing a new principle of law when resolving a dispute in which there is no existing
  applicable law; that is, no existing statute law (legislation) or principle of law that can be applied to
  resolve the case before the court

In this way, the courts have a complementary, but more limited, role in law-making

Question 15

The Australian court system

Answer 15

• The High Court of Australia is the highest judicial authority in Australia.
• It is a federal court with the authority to:
  
  • Hear appeals from state and territory Courts of Appeal (with granted permission).
  • Hear and determine disputes involving the Australian Constitution.
• The High Court can rule a law invalid if it finds that the Commonwealth Parliament acted ultra vires (beyond its constitutional power).
• Other courts, like the Federal Court and the Supreme Court of Victoria, can also hear constitutional disputes, but significant cases are usually determined by the High Court.
• Courts in Australia are independent from parliament and the government according to the principles of the separation of powers and the rule of law.
• Judges are appointed by the government and can make independent and impartial decisions without political pressure from voters, influential groups, or the media.

Question 16

define ultra vires

Answer 16

a Latin term meaning ‘beyond the powers’; a law made beyond (i.e. outside) the powers of the parliament

Question 17

define separation of powers

Answer 17

a doctrine established by the Australian Constitution that ensures the three powers of our parliamentary system (i.e. executive power, legislative power and judicial power) remain separate