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Legal Studies U3/4 > U4AOS1B - Courts in Law-Making > Flashcards

U4AOS1B - Courts in Law-Making Flashcards

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1
Q

Define statutory interpretation

A
  • Process by which judges give meaning to the words or phrases in an Act of Parliament
    • Will then be applied to resolve the case before them
  • When wording of law is vague → Judge can interpret it as it applies to their case
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2
Q

How do judges interpret statutes?

A
  • Intrinsic - Within the Act
    • Long Title
    • Headings
    • Margin notes
    • Footnotes
  • Extrinsic - Outside the Act
    • Parliamentary debates
    • Reports from committees
    • Dictionaries
    • Guidelines for interpretation
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3
Q

What are the reasons for statutory interpretation?

A
  • Resolve problems that occur as a result of the drafting process
  • Resolve problems that occur when a court is applying the Act
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4
Q

What are problems that can occur from the drafting process?

A
  • Complicated
    • Parliamentary Counsel must gain information from policy of documents
    • Have vague instructions from members of parliament before writing the proposed law
  • Problems w/ the resulting bill
    • General → Wide range (Good)
    • Precise → Little room for misinterpretation BUT cannot apply to a wide range

NEED to say drafting process

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5
Q

What are problems that can occur from applying the act?

A
  • Legislation is in general terms
  • Act is out-of-date → Doesn’t reflect current societial values
  • Meaning of words ambiguous + change over time
  • Act may be silent on an issue → Courts fill in gaps in legislation

NEED to say applying the act

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6
Q

What are the effects of statutory interpretation?

A
  • Words or phrases contained in the disputed Acts are given meaning
    • Meaning of legislation is restricted or expanded
  • Decision is binding on the parties and any persons w/ a similar case
  • Precedents set for future cases to follow
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7
Q

What is the doctrine of precedent?

A
  • Precedent
    • Law set by the courts when making a decision
    • Establishes a legal principle that other judges may (or have to if it is binding) follow when deciding on a case
  • The doctrine of precedent is the process judges follow when using previous legal reasoning
  • Only superior courts can set precedent and make law
    • Supreme & High Court
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8
Q

What effects does the doctrine of precedent have on law-making?

A
  • Ensures that common law is stable and predictable
    • Like cases heard in a similar manner
    • Legal representatives able to give advice on likely outcome
  • Judges have guidance through previous cases
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9
Q

What are the key features of the doctrine of precedent?

PROBS

A
  • Persuasive Precedent
    • Courts not required to follow - Have a choice for consistency
    • Includes → Lower court (same hierarchy), court in different hierarchy, obiter dictum statements
  • Ratio Decidendi
    • Judge’s reasoning for decision
    • Not sentence or verdict
    • Binding element for similar cases
    • Lower courts must follow
  • Obiter Dictum
    • ‘By the way’
    • Judicial statement that is not part of legal reasoning → Something contemplated to reflected on
    • Not binding but potential to have influence
  • Binding Precedent
    • Must be followed
    • Decision from higher court in same hierarchy
  • Stare Decisis
    • Stand by previous decision
    • Ensure common law is consistent and predictable

Make sure to explicitly mention as many features as possible in a DoP question

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10
Q

What are ways to avoid a binding precedent?

RODD

A
  • Reverse - Same Case
    • Disagree and decide to change precedent set by lower court when hearing on appeal
    • New precedent created → Follow for future cases
  • Overrule - Different Case
    • Superior court judge decides not to follow lower court precedent in different case
    • New precedent created → Old precedent inapplicable
  • Distinguish
    • Difference between material facts
    • Choose to not folllow
  • Disapprove
    • Lower courts express dissatisfaction
    • Does not allow them to avoid → But can be used for appeal
    • Can be used by higher court if they want a different court to overrule and create a new precedent
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11
Q

What are the factors that affect courts in law-making?

Calling Robert Downey Jr.

A
  • Costs and Time in bringing a case
  • Requirement for Standing
  • Doctrine of Precedent
  • Judicial activism/ conservatism
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12
Q

What are the strengths of the doctrine of precedent?

Help in law-making

A
  • Consistency and Predictability
    • Parties can look at past cases and anticipate how the law may apply to their situation
  • Flexibility - Just Superior
    • Superior courts have flexibility in applying precedent and making decisions for the case infront of them
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13
Q

What are the weaknesses of the doctrine of precedent?

Does not help in law-making

A
  • Difficulty and Costs involved in locating relevant precedents
  • Difficult to identify legal reasoning behind a decision
  • Hard to predict future developments in the law
  • Lower courts are restricted by decisions of higher courts (Limit flexibility)
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14
Q

What is judicial conservatism?

A
  • Courts should show restraint or caution when making decisions or rulings that could cause significant changes
  • Keep parliament as supreme law-making body → Courts intended to interpret NOT change the law (can only make laws for the case before them, not the entirety of the area of law)
    • Judges should not include their own views/ political opinions in decisions OR what they perceive to be the community’s view
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15
Q

What are weaknesses of judicial conservatism?

Does not help in law-making

A
  • J cannot base decisions on what they perceive to be the community’s view
  • Limited to making laws only on subject of case before them
  • J seem unwilling to take current social view into account
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16
Q

What is judicial activism?

A
  • Judges have willingness to consider a range of social and political factors when interpreting law and making decisions
17
Q

What are strengths of judicial activism?

Help in law-making

A
  • Overstep in role of making decisions
  • Some believe that to truly achieve justice all elements of the situation must be considered
18
Q

What are weaknesses of judicial activism?

Does not help in law-making

A
  • Can lead to appeals on question of law
  • Parliament abrogate any decision disagreeed with
19
Q

Describe costs and time in relation to courts in law-making

A
  • Costs - Taking case to court
    • Depends on complexity
    • Pay for lawyers that research, analyse evidence & interview witnesses → Charge by the hour
    • Requirement for Standing → Even if directly affected there are high costs involved
  • Time - Duration to bring case
    • Quick → Judges not required to follow lengthy procedures
    • BUT lengthy when searching for precedent → Time wasted on searching instead of creating precedent
    • BUT appeal courts take months because of complexity of cases
20
Q

Describe the requirement for standing in relation to the courts in law-making

A
  • Courts wait until party decides to pursue case before they can create precedent and make law
  • Party initiating must have standing → Directly affected
    • To a higher extent than a normal person
21
Q

What are the strengths of a requirement for standing?

A
  • Cases are only brought to court by those genuinely affected
  • Saves valuable court resources and time
22
Q

What are the weaknesses of a requirement for standing?

A
  • Individuals not directly affected → Seek other avenues for law reform
  • Relies on those affected having money and time to pursue case
23
Q

What are the elements that make up the relationship between courts and parliament?

CASA

A
  • Codification of Law
  • Ability of Courts to influence parliament
  • Supremacy of Parliament
  • Abrogation of Law
24
Q

Describe codification

A
  • Parliament is supreme → Can make law that confirms/combines precedent in court
    • Pass Act of Parliament that reinforces the principles established by court
25
Q

Who is most affected by codification and why?

A
  • Courts
  • Decisions are officiated and acknowledged by parliament into an act
26
Q

Describe the ability of courts to influence parliament

A
  • Comments and decisions during cases can influence parliament
  • Courts reluctant to change law themselves because they think that parliament is better → Can look at and investigate law in more detail
27
Q

Who is most affected by the courts ability to influence parliament and why?

A
  • Both
    • Courts → Parliament can listen can approve precedent
    • Parliament → Parliament can also choose to not listen
28
Q

Describe a case where the courts’ ability to influence parliament is shown

A
  • 55 year old man sentenced to 9 years imprisonment after pleading guilty to manslaughter of his wife
    • Court restricted by act
    • Lead to unrest in community
  • Perceived as inadequate
    • Government under pressure
  • June 2020 VIC Parliament passed Crimes Amendment (Manslaughter and Related Offences) Bill 2020
    • Increase maximum penalty for manslaughter → Inc. child homicide & workplace manslaughter
    • 20 years to 25 maximum penalty

Must specify that court is restricted by act

29
Q

Describe the supremacy of parliament

A
  • Can make or change any law w/ Constitutional jurisdiction
  • Change or override any court decision
    • Exception of High Court on Constitution
  • Can pass legislation to change jurisdiction of courts/ expand their ability
30
Q

Who is most affected by the supremacy of parliament and why?

A
  • Parliament
    • Influential over courts
    • Can restrict/ expand their ability
31
Q

Describe abrogation of common law

A
  • Parliament able to change/ override common law
    • Pass law that specifically abolishes common law principle
  • Reasons
    • Court interpret in a way that was not the intention of Parliament
    • Court interpret in a way that does not reflect meaning of act
    • Courts develop precedent that parliament disagrees with
32
Q

Who is most affected by the abrogation of common law and why?

A
  • Courts
    • Courts make decision that they perceive to be the best option
    • If parliament disagrees, then justice may not be administered
    • Issue could possibly also reappear in the future as it remained unresolved

Legal Studies U3/4 (8 decks)

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