U4 AOS2: The courts Flashcards
Role of the courts
Courts are primarily responsible for settling disputes and applying the law. State and federal courts can undertake lawmaking when hearing cases.
The main role of the courts is to resolve disputes and hear cases.
Judges are sometimes able to make law when deciding cases that have been brought before them:
- when there is no existing law
- when there is a statute that requires interpretation.
- When judges make decisions, the reasons for the decision establishes a new legal principle to be followed (referred to as a precedent).
Precedent
Judges in superior courts (Supreme / high court) able to make law when deciding cases that have been brought before law
Courts are able to make laws when
Court resolves a dispute in which there is not existing law
- No existing statue or principle of law that can be applied to resolve the case
Conducting statutory interpretation
- By interpreting the meaning of the words in Act in order to apply the Act to the case before the court, a precedent will be set for the way in which those words are to understood in the future
The doctrine of precedent
Judges in the Victorian court hierarchy rely on previous court decisions to guide them. A precedent is the reasoning behind a court’s decision – the process of following legal reasoning is referred to as the doctrine of precedent.
The doctrine of precedent creates predictability and consistency within common law by requiring lower courts to follow precedents set in superior courts.
Gen in appeal cases. The doctrine of precedent requires lower courts and higher courts, so there is a need for a hierarchy.
High court
Takes place in law making when
- Interpretation of the words of the AC or Act or parliament
- Expanding or changing a previous principle of law so that it may be applied to a new situation, or when deciding on a case where there is no other law to apply
Does not have to follow the interpretation of statues or the principals of common law set by the other courts in Aus
Statutory interpretation
Statutory interpretation is another way judges make law. This refers to the process by which judges interpret the words or phrases in an act of parliament (statute), in order to give the words meaning.
Acts are often written in general terms and have to be interpreted and applied by judges so that they can decide the specific cases before them.
Binding precedent
A binding precedent is a legal principle that must be followed. The doctrine of precedent depends on lower courts following the decisions of higher courts. The general rule is that a decision of a higher court in the same hierarchy is binding or must be followed by lower courts in the same hierarchy when deciding similar or ‘like’ cases.
For example: in Victoria a judge of the County Court must follow the decisions of judges in the Supreme Court. The decision of the High Court (the highest court in Australia) is binding on all other Australian courts.
Persuasive precedent
Persuasive precedents are not binding on courts but they are considered to be noteworthy and highly regarded propositions of law. They are considered as influential on the judges decisions.
Therefore persuasive precedent is optional for the judge to follow.
The need for statutory interpretation
The need for this interpretation arises when a case is brought before a court in which there is a dispute about whether the words or phrases contained in an act apply to the particular situation before the courts.
For judges to provide interpretation of words in an act there must be a case before the court.
Reasons for statutory interpretation
The intention of the Act is not clear: Parliament’s intention may not be clear enough. Accurate instructions and direction may not have been given to the parliamentary counsel.
The Act is about a complex and technical topic: Parliamentary counsel are extremely skilled in drafting legislation. However, they may not be familiar with specialist areas, such as areas of technology.
Difficulty in foreseeing possible future applications of the Act: It is difficult to consider all future applications of an Act. In our rapidly evolving society, it is almost impossible to predict changes in technology and science, or social and environmental conditions.
The impact of statutory interpretation
When a judge interprets the meaning of a word, or words, in a statute, the reasoning behind this interpretation sets a precedent which other judges who are required to interpret the meaning of those words in the same act will then follow in the future. The new precedent then becomes part of the law along with the statute.
The judge’s decision does not change the actual words of the act of parliament, but adds meaning to the words to be applied in future cases and situations.
How does the doctrine of precedent affect the ability of the courts to make law
Judges can only make law if there is a test case before them
- They must wait for a case to arise with a legal issue that has not previously been considered by any court, or which tests the validity of an existing law, or which requires the interpretation of an existing law (either statute or common law).
Binding precedents
- That has been established by a higher court, so they have to follow it. However, if the case they are hearing is significantly different from the case in which the precedent was established, judges may be able to distinguish the precedent.
Parliament can override judge made law
- Parliament retains the right to override common law. This limits the extent that judges can change the law.
Advantages VS disadvantages of the role of courts in law-making
Advantages
- Principle of stare decisis ensures consistency in common use because lower courts must follow precedents set by higher courts with similar facts
- Principle of stare decisis ensures predictability in common law because parties can anticipate how the law is likely to be applied to resolve the dispute
Disadvantages:
- Lower courts must follow a binding precedent even though they may consider it to be outdated or inappropriate
- Given the large amount of precedents n existence, and the different judgements in the same cases. The process of identifying the relevant precedent can be time consuming and costly
Stare decisis
Latin term meaning ‘let the decision stand’ – i.e. to stand by what has been decided.
Law-making generally occurs in appeal cases but not in jury matters as juries determine only the facts of the case.
Ratio decidendi
This is the reason for the decision behind a judgment.
It is the binding part of the judgment – a statement of law to be followed in the future.
The material facts only are relevant.