U4AO1 - Law-Makers - Courts

Question 1

Define statutory interpretation

Answer 1

A process whereby the courts give meaning to the words in legislation when applying the legislation to a case

Question 2

Reasons for statutory interpretation x3

Answer 2

Clarifying the:
- specific meaning of words
- changing nature of words
- unforeseen circumstances

Question 3

Explain the specific meaning of words and give a case study

Answer 3

• Judges may need to identify the scope of a statute and state whether it applys to the current case
• Deing v Tarola, where a studded belt was found not to fall under the definition of a weapon

Question 4

Explain unforeseen circumstances

Answer 4

Laws are drafted with the intention to cover future legal sisues, but many instances arrise that can’t be predicted

Question 5

Effects of statutory interpretation x4

Answer 5

• Creationof precedent
• Broadening of a statute
• Narrowing of a statute
• Prompting legislative change

Question 6

Define the doctrine of precedent

Answer 6

A rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts

Question 7

How is a judges written reason for their decisions split up

Answer 7

Ratio decidendi - reason for decision
Obiter dictum - ‘by the way’, context for decision

Question 8

Define binding precedent

Answer 8

Legal reasoning of a higher court that must be followed by all lower courts in the same court hierarchy where the material facts are similar

Question 9

Define persuasive precedent and give 3 examples

Answer 9

Legal reasoning that can act as a guide for judges even though they are not bound to follow it

• Comments from obiter dictum
• Decisions made by the same or lower court s
• Decisions made by a court of a different hierarchy

Question 10

Define reversing a precedent

Answer 10

An act whereby a superior court changes a precedent set by a lower court in the same case on appeal

Question 11

Define overruling a precedent

Answer 11

An act whereby a superior court changes a previous decision made by a lower court, when ruling on a different case

Question 12

Define distinguishing a precedent

Answer 12

An act whereby a lower court avoids applying a precedent by demonstrating that the case before it has different material facts to the case in which the precedent was established

Question 13

Define disapproving a precedent

Answer 13

An act whereby a lower court expresses its disapproval of a precedent established by a higher court through its written judgment, but is still bound to follow it

Question 14

Strengths of the doctrine of precedent affecting the ability of the courts to make law x5

Answer 14

• If no statute law exists, judges can create precedent
• Judges on the same/higher level can overturn precedent
• Judges can distinguish precedent, further developing common law
• Courts can disapprove of a precedent, which can influence superior courts/parliament to change the law
• Doctrine of precedent allows for gaps in existing legislation to be filled, specific to a case

Question 15

Limitations of the doctrine of precedent affecting the ability of the courts to make law x5

Answer 15

• Must have standing
• Make law ex post facto - retrospectively to an event
• Only develop law when there is no current law/law is unclear
• Judges may not change the law even if they can
• Supremacy of parliament can abrogate law

Question 16

Define judicial conservatism

Answer 16

A judicial approach where a judge is reluctant to develop new law as they feel it is the role of parliament, as the elected representative body, to do so

Question 17

Strengths of judicial conservatism x3

Answer 17

• Law remains stable, not siginificantly changed
• Won’t create laws based of political views or opiions
• Won’t create radical or controversial laws that people are unhappy with

Question 18

Limitations of judicial conservatism x2

Answer 18

• Limits courts ability to make substantial changes to law
• May apply outdated precedents, meaning current community views aren’t reflected in precedent

Question 19

Define judicial activism

Answer 19

A judicial approach where a judge takes into account numerous social and political factors when interpreting the law and deciding cases

Question 20

Strengths of judicial activsim x4

Answer 20

• Judges undertake a secondar role of developing common law
• Can make controversial changes to law without fear of elections
• Can develop common law that put pressure on parliament for law reform
• High Court isn’t bound by any previous decisions, judges can freely engage in judicial activism

Question 21

Limitations of judicial activsim x5

Answer 21

• Must wait for a case
• Not elected, laws may not reflect views of community
• Courts lower than the High Court are restricted by precedent
• Parties may appeal on the basis of incorrect interpretation of law, new precedent may be reversed
• Subject to supremacy of parliament, may abrogate law

Question 22

How do costs impact the ability of the courts to make law x2, x2

Answer 22

• VLA is available for some civil cases, allowing more cases to be brought, increasing cases the courts can create law on
• Case management powers reduce time which reduces costs
• Strict eligibility for VLA, usually for criminal matters, restrict number of cases, restrict courts ability to make law
• Courts can’t make law if there are no cases brought before them

Question 23

How does time impact the ability of the courts to make law x3, x4

Answer 23

• Case management powers reduces time, meaning more cases can be heard, meaning more opportunity for law-making
• Court hierarchy minimises delays
• Court law-making is instantly binding for lower courts
• Reluctance of bringing a case due to time reduces opportunities for courts to create law
• Courts must wait for a case to be before them before they can create law
• Higher court cases can take months to be determined
• Can’t make law with alternative methods of dispute resolution

Question 24

Define standing

Answer 24

The requirement that, in order to bring a case to court, an individual or group must be affected by, or have a special interest in, the issues involved in the case

Question 25

How does time impact the ability of the courts to make law x1, x2

Answer 25

• Reduces frivolous claims in the courts
• Limits ability of individuals with general interest in the case to influence change to the law
• Individuals with standing may not be able to bring their case if they don’t have the time or money

Question 26

Define Parliamentary Supremacy

Answer 26

The legal concept that parliament has the freedom to make, amend, or abolish laws, subject to limitations outlined in the Australian Constitution, and is supreme over other arms of government, such as the executive and the judiciary

Question 27

What is the relationship between the courts and parliament in law making x4

Answer 27

• Supremacy of parliament
• Ability of courts to influence parliament
• Codification
• Abrogation

Question 28

How can the courts influence parliament in law-making

Answer 28

Obiter dictum -> codification of common law principle
Obiter dictum -> abrogation of common law principle

Question 29

Define Codification

Answer 29

The process of parliament confirming common law precedent by enacting legislation to give effect to the legal principles

Question 30

Define Abrogation

Answer 30

The process of parliament overruling common law by creating a statute contrary to a decision of the courts