UNIT 3 - AOS 3

Question 1

How do judges make law

Answer 1

• deciding on a new issue that is brought before them
• when there is no previous binding precedent that applies to current situation or when previous precedent requires expansion to apply to new situation

Question 2

Statutory Interpretation

Answer 2

Judges making laws by interpreting or determining the meaning of words and phrases in legislation.
So that it can be applied to resolve dispute at hand;
The interpretation of legislation by superior courts may form a binding precedent

Question 3

primary role of judge

Answer 3

to adjudicate in cases by finding facts, reach a decision based on facts and apply the laws to facts

Question 4

secondary role of judge

Answer 4

to make law

Question 5

how do judges adjudicate ?

Answer 5

by interpreting applicable legislation to a case and applying to relevant facts

Question 6

role of courts

Answer 6

apply the law and resolve disputes.

courts may also have to apply statutes

Question 7

what are the three aids in interpreting statutes

Answer 7

• literal
• past decisions
• purposive approach

Question 8

statutory interpretation aid - literal meaning

Answer 8

When meaning of word/phrase is clear court interprets word literally according to other sections of act

Question 9

statutory interpretation aid - past decisions

Answer 9

courts may look at past decisions to identify how previous courts have interpreted particular words in an act

Question 10

statutory interpretation aid - purposive approach

Answer 10

If the judge feels that using a literal approach will not achieve the purpose or intention of the parliament.
The judge will look at parliament purpose and what the act intended to achieve and was originally passed

Question 11

Interpretation Acts

Answer 11

THE ACTS INTERPRETATION ACT 1901 (CTH)
INTERPRETATION OF LEGISLATION ACT 1984 (VIC)

both contain sections which give directions about the way certain words/phrases to be interpreted. They both direct the courts to consider the intention of the legislation when interpreting words/phrases.

Question 12

Statutory Interpretation aid - extrinsic material

Answer 12

used to uncover parliaments intentions
(outside of the act) 
- Hansard (parliamentary debates)
- Minutes of executive council 
- Reports of commissions or law reform bodies 
- Dictionaries

Question 13

Statutory Interpretation aid - Intrinsic material

Answer 13

• words in the act
• long title
• preambles
• headings/margin notes/punctuation
• schedules

Question 14

Statutory Interpretation aid - Maxims

Answer 14

Common law tool 
- ejusdem generis (the class rule)
when several specific terms all belonging to a particular genus or class followed by general terms will be interpreted so they only apply to things belonging to that class 

-noscitur a socks
Words will be interpreted in light of the context in which they are used

Question 15

Statutory Interpretation aid - texts

Answer 15

• standard and legal dictionaries

- well known legal texts

Question 16

list reasons for interpreting statutes

Answer 16

• the intention of the act is not clear
• the act is about a complex and technical topic
• difficult in foreseeing possible future applications
• inconsistencies between or within act
• time pressures in drafting legislation
• problems relating to defining words
• words used may not cover recent changes

Question 17

list two restrictions on courts ability to make laws

Answer 17

• if a case is brought before a superior court

- if there is no previous in the same hierarchy that must be followed by lower courts

Question 18

restrictions on courts ability to make laws - if a case is brought before a superior court

Answer 18

judges can only develop/change the law when a relevant case is brought before them.
A person bringing a case must have ‘standing’ that is directly affected by the case

Question 19

restrictions on courts ability to make laws - if there is no previous binding decision in a higher court in the same hierarchy that must be followed by lower courts

Answer 19

If a court is bound by a principle of law that has been established in a higher court are binding on lower courts in the same hierarchy

If a court is bound by a principle of law that has been established in a higher court, there may be an opportunity to establish a new principle of law

Question 20

define precedent

Answer 20

the reason for a court decision that is followed by another court lower in the hierarchy.
Another term for this process of lower courts following the decisions of higher is stare decisis

Question 21

stare decisis

Answer 21

to stand by what has been

Question 22

doctrine of precedent

Answer 22

The common law principle by which the reasons for the decision of courts higher in the hierarchy are binding on courts lower in same hierarchy where material facts are similar.
This applies to important facts that could affect the outcome of the case

Question 23

binding precedent

Answer 23

precedents in superior courts in the same court hierarchy when dealing with the same legal principles and material facts are referred to as binding precedents

Question 24

persuasive precedent

Answer 24

decisions from other court hierarchy such as other states/countries or form inferior courts within same court hierarchy.
Judges can decide whether or not to follow a persuasive precedent

Question 25

obiter dictum

Answer 25

things said ‘by the way’
In a judgement at the end of a case, the judge sometimes makes a statement that is NOT part of decision.
This statement may be influenced on decision in the future, it will act as persuasive

Question 26

Ratio Decidendi

Answer 26

The reason for the decision that forms the binding legal principle made by the judge.
It is NOT the decision itself or sanction, or remedy given but the reason for the decision which is regarded as statement of law to be followed in the future

Question 27

Material Facts

Answer 27

those that are vital to the reason for the decision as it is these facts that are considered tween dealing with cases in future

Question 28

acronym for the way judges can develop or avoid following an earlier decision

Answer 28

Reversing
Overruling
Distinguishing
Disapproving

Question 29

Reversing

Answer 29

one case taken on appeal

where the appellate court finds for other party

Question 30

Overruling

Answer 30

two cases involved.

A superior court overrules an earlier decision made in inferior court

Question 31

Distinguishing

Answer 31

Two cases involved where in the present case the judge draws points of difference if the material facts from previous case

Question 32

Disapproving

Answer 32

Two cases involved
Where in the present case the court disapproves of the previous decision.
If a lower court decision disapproves of an earlier case and precedent developed, it is still bound by decision

Question 33

points to include in operation of precedent question

Answer 33

• main purpose of courts
• outline making of precedent
• define precedent
• binding
• persuasive

-courts decision made up of two parts:
-ratio decidendi
-obiter dictum
if above 5 marks
RODD

Question 34

list effects of statutory interpretation

Answer 34

• words/phrases in the act given meaning
• consistency and predictability
• extending the law through broad interpretation
• restricting a law through narrow interpretation
• acts of parliament are applied to cases that become before courts

Question 35

list strengths of courts as law makers

Answer 35

• the doctrine of precedent creates certainty, consistency and predictability
• courts can change law quickly
• courts can give meaning to an act of parliament

Question 36

list weaknesses of courts as law makers

Answer 36

• courts can only make law when a case comes before them
• changes in court made law can be slow
• courts may be bound by previous decision

Question 37

list relationship between courts and parliaments in law making

Answer 37

• parliaments pass acts to establish court and there jurisdiction
• courts apply + interpret law made by parliament
• parliament can confirm law make by courts
• parliament can change law made by courts
• court decision can influence changes in law by parliament