legal chapter 12 sac (precedent

Question 1

Reasons for Statutory Interpretation
(Drafting process) + (Application

Answer 1

Drafting
- The bill might not have taken future circumstances into account
- The intention of the bill might not have been clearly expressed
- Mistakes in the drafting of a bill

Application
-Most legislation is drafted in general terms.
-The act may have become out of date and no longer reflect community views and
values.
- Words may have changed their meaning over time or might be ambiguous
- The act might be silent on an issue and the courts may need to fill gaps in the legislation

Question 2

Effects of Statutory Interpretation

Answer 2

• The word or phrases contained in the disputed legislation are given meaning
• The court’s decision on the meaning of the legislation is binding on the parties
• A precedent may be set for future cases to follow.
• The meaning of the legislation (law) can be restricted or expanded

Question 3

Key features of the doctrine of precedent - Binding Precedent

Answer 3

A precedent established in the superior courts must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts. Also called ratio decidendi, Latin for ‘the reason for the decision’. Stare decisis is another related Latin term, meaning ‘to stand by what has been decided’.

Question 4

Key features of the doctrine of precedent - Persuasive Precedent

Answer 4

Precedents not binding on a court that may still be considered by a judge and be used to influence their decision. Persuasive precedents may be set by courts in another court hierarchy (another state, territory or country), set by lower courts in the same hierarchy or set by courts of the same level in the same hierarchy which is not binding but usually followed anyway. uses obiter dictum, meaning “by the way”.

Question 5

Key features of the doctrine of precedent - Reversing Precedent

Answer 5

When a superior court changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent.

Question 6

Key features of the doctrine of precedent - Overruling Precedent

Answer 6

When a superior court changes a previous precedent, established by a lower court in a different and later case, thereby creating a new precedent which overrules the earlier precedent.

Question 7

Key features of the doctrine of precedent - Distinguishing Precedent

Answer 7

The process by which a lower court decides that the material facts of a case are sufficiently different from those of a case in which a precedent was established by a superior court so that they are not bound to follow it.

Question 8

Key features of the doctrine of precedent - Disapproving Precedent

Answer 8

When a court expresses dissatisfaction with an existing precedent but is still bound to follow it. Usually expressed by judges in lower courts about precedents they disagree with but are forced to follow.

Question 9

Evaluate the Doctrine of Precedent - restrict ability of lower courts to make law

Consistency + predictability + flexibility

Answer 9

The doctrine of precedent can both enable and restrict the ability of courts to make law. The doctrine of precedent is the process of judges following the legal reasoning behind the decisions of the higher courts.

As the doctrine of precedent allows for flexibility, this assists the lower courts in having the ability to make law.
However, the lower courts can only establish precedents and make law when a case is brought before them, and these precedents are not binding.

Furthermore, with flexibility lower courts can distinguish their cases from existing precedents if the facts are sufficiently different, allowing them to create law to resolve their cases if needed.
On the other hand, lower courts must follow binding precedents from higher courts even though they may consider it outdated or inappropriate.

Overall, the doctrine of precedent does allow lower courts to make law to an extent but is also restrictive on them.

Question 10

Evaluate the Doctrine of Precedent - enable High court to make law

Answer 10

The doctrine of precedent can both enable and restrict the ability of courts to make law. The doctrine of precedent is the process of judges following the legal reasoning behind the decisions of the higher courts.

Being the highest court in the hierarchy, the High court’s decisions set binding precedents for all lower courts, allowing them to make laws that lower courts must follow.
Furthermore, the High court can overturn outdated or wrong precedents, allowing them to improve the law overall.

On the other hand, High court judges may be reluctant to change an existing precedent preferring Parliament to change the law as the supreme law-making body.
Moreover, High court judges can only establish precedents when a case is brought before them.

Overall, the doctrine of precedent is effective in enabling the High court to make law, while ensuring balance law-making.

Question 11

Evaluate Judicial Conservatism

Answer 11

The conservative judicial approach is when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases.

Exercising the conservative approach helps maintain stability in the law, upholding predictability through judges being cautious and showing restraint.
On the other hand, although the conservative approach ensures consistency, it can restrict courts from making new law by strictly following past rulings, preventing common law advancement.

Furthermore, the conservative approach promotes Australia’s democratic system, by leaving law-making to the people’s elected Parliament.
However, as this approach leaves most law-making with Parliament, it prevents the courts from making major and controversial changes in the law.

Overall, the conservative approach is very limiting on the ability of courts to make law, acting as a more simple and uniform approach for judges.

Question 12

Evaluate Judicial Activism

Answer 12

Judicial activism mainly refers to the willingness of judges to consider a range of social and political factors when interpreting the law and making decisions.

It allows judges to more freely, broadly interpret statutes in a way that recognises the rights of the people and may lead to more fair judgments.
Furthermore, the activism judicial approach allows judges to be more creative when making decisions and making significant legal change, resulting in more tailored decisions to the certain case.

On the other hand, judicial activism can lead to courts making more radical changes in the law that do not reflect the community values or are beyond the community’s level of comfort.
Moreover, decisions made by judges using the activism approach are not set in stone as Parliament is the supreme law-making body, therefore it can abrogate any decisions it does not agree with.

Overall, the activism approach is useful in judges making more fair decisions that are beneficial to the people.

Question 13

Evaluate Cost factors in bringing a case to court

Answer 13

Courts cannot make law until a case is brought before them, requiring a litigant able and willing to afford bringing a case to court in regard to financial and time costs. Costs involved in bringing a case to court are mainly legal representation, filing fees, hearing fees and court fees.

The courts have the ability to manage disputes to narrow the issues in dispute, possibly saving the parties costs and allowing them to proceed all the way to trial for a final determination.
Furthermore, the high costs may mean that only meritorious and legitimate claims are pursued all the way to appeal courts, saving court resources.

On the other hand, high costs can deter litigants who cannot afford it, and who do not qualify for legal aid, from pursuing their case and their rights in court. Therefore preventing them from gaining a fair outcome.
Moreover, the nature of costs may mean that old or ‘bad’ precedents are never challenged or brought to the court for review, preventing necessary law adjustments.

Overall, there a range of costs that may impact an individual or group trying to bring a case to court.

Question 14

Evaluate Time factors in bringing a case to court

Answer 14

Courts cannot make law until a case is brought before them, requiring a litigant able and willing to afford bringing a case to court in regard to financial and time costs.

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.
On the other hand, the courts cannot make law until a case is brought before them which can be a long period even when it is clearly necessary that there must be change.

Furthermore, courts are not required to follow lengthy processes like those involved in the process of developing, drafting and passing a bill through parliament when deciding cases. Thus, allowing quick law-making.
However, some courts, particularly appeal courts where most precedents are established, can take months to hear and determine more complex cases.

Overall, time can be a large factor in courts law-making.

Question 15

Evaluate the Requirement for standing in impacting court’s ability to make laws

Answer 15

Courts must wait until a party decides to pursue a case before they can create precedent and make law. With this party requiring standing to pursue a case.

The requirement for standing ensures that only those with a direct and significant interest in the case can bring it before the court, allowing the court to focus on the more pressing legal issues.
Furthermore, by filtering out cases brought by individuals without standing, this helps ensure that courts time and resources are used efficiently.

On the other hand, the standing requirement can prevent individuals or groups with a broader interest in a legal issue from bringing it to court. This prevents courts from addressing issues that affect society as a whole but may not directly impact a single individual.
Moreover, if there is an important issue but no directly affected party comes forward, the standing requirement could lead to missed crucial improvements to the law.

Overall, the standing requirement can ensure their is a system of priority in cases brought to court but can also result in vital cases being missed.

Question 16

Analyse the Supremacy of Parliament

Answer 16

Parliament, as the supreme law-making body, can make and change any law within its constitutional power. It can pass legislation to abrogate (cancel) law made by courts (except for High Court decisions on constitutional matters) and codify common law. Parliament is also responsible for passing legislation to create most courts and determine their jurisdictional power. While parliament is the supreme law-making body, the High Court can resolve disputes involving the Australian Constitution and may declare legislation made beyond the parliament’s law-making power invalid, and alter the division of law-making power between the Commonwealth Parliament and state parliaments.

Question 17

Analyse the ability of courts to influence Parliament

Answer 17

Courts can indirectly influence parliament to make and change the law by making comments when handing down judgments that inspire or encourage parliament to initiate law reform. A court’s decision may also highlight a legal problem, or cause public outcry, that places pressure on the parliament to change the law. Judges in superior courts can only do this when a case is brought before them and in relation to the issues involved in the case. This relies on an aggrieved party having standing in the case, and the financial means and willingness to pursue a potentially long and stressful case. The court’s ability to influence parliament is also limited by the parliament’s supremacy role and in particular its willingness to change the law.

Question 18

Analyse the Codification of Common law

Answer 18

As the supreme law-making power, parliament can pass legislation to codify common law, which means to assemble all the relevant law in a particular area to create one all-encompassing law. Parliament can also pass legislation that endorses principles established by courts, clarify or expands on them. Some areas are established by common and statute law, due to being codified or partially codified over time. Codification is limited by parliament’s supremacy role and whether it is willing to pass legislation to codify law. This also means that it is dependent on factors that limit or restrict the ability of parliament to make law such as the composition of parliament.

Question 19

Analyse the Abrogation of Common law

Answer 19

Parliament has the power to pass legislation that abrogates (cancels) decisions made through the courts, with the exception of decisions on the Australian Constitution. The abrogation of common law could potentially lead to an unjust law if the parliament overrides a valid legal principle, that has been established and considered by multiple independent and experienced judges, to suit a short-term or populist political agenda. Parliament may be limited or unwilling to abrogate law, even if it is bad law.

Question 20

explanation of the effects of judical conservitism

Answer 20

Judicial conservatism reflects the idea that courts should show
restraint when making decisions that could lead to significant
changes in the law.
* Judges exercising conservatism helps maintain stability in the
law because judges are cautious and show restraint when making
decisions that could lead to significant changes in the law.
* Conservatism could lessen the possibility of appeals on a question
of law.
* It allows the parliament, which has the ability to reflect community
views and values, to make the more significant and controversial
changes in the law.

Question 21

Judicial activism
explanation points

Answer 21

Judicial activism, broadly, refers to the willingness of judges to
consider a range of social and political factors when interpreting the
law and making decisions.
* It allows judges to broadly interpret statutes in a way that recognises
the rights of the people and may lead to more fair judgments.
* It allows judges to be more creative when making decisions and
making significant legal change (as occurred in the Mabo case).

Question 22

discussion points on judical conservitism

Answer 22

Judicial conservatism restricts the ability of the courts to make
major and controversial changes in the law.
* Judges may not consider a range of social and political factors when
making law.
* It may be seen by some as not being progressive enough and
not factoring in twenty-first century views or values when
deciding cases.