Law Making - Judiciary Flashcards
What is case law?
Case Law is made by judicial officers (primarily justices or judges) in courts to the extent necessary to resolve a matter brought before a court for adjudication.
What are the two ways of making case law?
Creation of legal principles (often called legal rules) in the absence of a statutory rule
Creation of legal principles that give legal meaning to codified law, commonly called statutory interpretation.
What is judicial precedent?
A legal principle, or legal rule, created by a court becomes a precedent that other courts use as a guide when deciding cases before them. Collectively, precedents are called case law.
What are the two classifications of Case Law?
Binding precedents that courts must follow
Persuasive precedents that courts can consider but are not bound to follow.
What is the principle of stare decisis?
Essentially this means that once a matter is decided in law (ie a precedent is created) the logic of that legal principle must be followed by other courts so that ‘like cases are decided in like ways’. The principle brings consistency and certainty to the application of case law.
How is case law supervised?
Legislative:
Complementary Legislation
Remedial Legislation
Judicial Supervision: Reversal Overruling Disapproval Distinguishing
Case Law Strengths
Judges can create a law in the absence of a statute law to bring a finality to a case, so that any dispute of a unique nature can be resolved.
Judges can depart from precedent to bring about just outcomes
Judges are held accountable to appellate courts
Elected parliaments reserve the sovereign power to override case law
Case Law Weaknesses
Judges are appointed (ie unelected) and are not held accountable to the community
High Court is not subject to judicial review by a higher court
Australian parliaments cannot overrule constitutional case law created by the High Court re its interpretation of the Australian Constitution.
Most Australians do not take an active direct or indirect role in making case law as they can with parliament-made-law. ie an undemocratic model of lawmaking.
What is the doctrine of precedent?
Doctrine of precedent is the judicial practice that gives practical application to the principle of stare decisis. The doctrine dictates that lower courts are bound by the precedents created in the superior courts in the same court hierarchy. As with the principle of stare decisis, the doctrine brings consistency, certainty and predictability to the application of case law, and therefore case outcomes are more likely to be fair and just.
How is case law supervised?
Legislative
Pass complementary legislation
Pass remedial legislation
Judicial supervision
Reversal
Overruling
Disapproval
Distinguishing
What is statutory interpretation?
The judicial process of giving meanings to words and sections of codified law (ie statutes and regulations) in order to resolve a case brought before the courts for adjudication. Often referred to as ‘construction’ by the legal profession.
Why is statutory interpretation necessary?
Courts must interpret statutes so that the law can be applied justly to bring about a finality to a legal dispute.
The specific reasons could include:
Parliament intentionally gives courts discretionary powers to address unique situations.
The intention of parliament may not be clear
Words and phrases may have different meanings, in different contexts
Conflicts between different Acts
To meet international expectations, such as interpretations being consistent with Australia’s international obligations
What are the rules of statutory interpretation?
Literal rule
The literal (or plain-meaning) rule allows judges to give words their ordinary and natural English meaning.
Golden rule
Used to escape any absurdity created by the application of the literal rule.
Mischief rule
Statutes are interpreted to give effect to the ‘mischief’ parliament intended to address in its statute.
What are the Canons of Construction?
These are rules establishing norms or presumptions that guide judges when no other rules exist. For example, the presumption that statutes do not oust the jurisdiction of a court to interpret a statute to settle a dispute brought before it.
What guides Judicial Review?
Statutory guidance
Internal Guidance - Within relevant act - Definitions and the Object
External Guidance - Legislation passed to assist in interpretation. (Acts Interpretation Act)
