UNIT 3 - AOS 3 Flashcards
How do judges make law
- 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
Statutory Interpretation
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
primary role of judge
to adjudicate in cases by finding facts, reach a decision based on facts and apply the laws to facts
secondary role of judge
to make law
how do judges adjudicate ?
by interpreting applicable legislation to a case and applying to relevant facts
role of courts
apply the law and resolve disputes.
courts may also have to apply statutes
what are the three aids in interpreting statutes
- literal
- past decisions
- purposive approach
statutory interpretation aid - literal meaning
When meaning of word/phrase is clear court interprets word literally according to other sections of act
statutory interpretation aid - past decisions
courts may look at past decisions to identify how previous courts have interpreted particular words in an act
statutory interpretation aid - purposive approach
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
Interpretation Acts
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.
Statutory Interpretation aid - extrinsic material
used to uncover parliaments intentions (outside of the act) - Hansard (parliamentary debates) - Minutes of executive council - Reports of commissions or law reform bodies - Dictionaries
Statutory Interpretation aid - Intrinsic material
- words in the act
- long title
- preambles
- headings/margin notes/punctuation
- schedules
Statutory Interpretation aid - Maxims
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
Statutory Interpretation aid - texts
- standard and legal dictionaries
- well known legal texts
list reasons for interpreting statutes
- 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
list two restrictions on courts ability to make laws
- 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
restrictions on courts ability to make laws - if a case is brought before a superior court
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
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
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
define precedent
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
stare decisis
to stand by what has been
doctrine of precedent
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
binding precedent
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
persuasive precedent
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
obiter dictum
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
Ratio Decidendi
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
Material Facts
those that are vital to the reason for the decision as it is these facts that are considered tween dealing with cases in future
acronym for the way judges can develop or avoid following an earlier decision
Reversing
Overruling
Distinguishing
Disapproving
Reversing
one case taken on appeal
where the appellate court finds for other party
Overruling
two cases involved.
A superior court overrules an earlier decision made in inferior court
Distinguishing
Two cases involved where in the present case the judge draws points of difference if the material facts from previous case
Disapproving
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
points to include in operation of precedent question
- 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
list effects of statutory interpretation
- 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
list strengths of courts as law makers
- the doctrine of precedent creates certainty, consistency and predictability
- courts can change law quickly
- courts can give meaning to an act of parliament
list weaknesses of courts as law makers
- 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
list relationship between courts and parliaments in law making
- 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
