Unit 3 AOS 3 Flashcards
What abilities do courts have when making laws? (3)
- Higher courts can form precedent from ratio decidendi by making a decision for a specific set of facts, that according top the principal of stare decisis will be followed by future courts, forms part of law
- They have the power to reverse, overrule,distinguish or disprove precedent which they believe to not align with the unique facts of their case
- Statutory interpretation referring to the fact that they can interpret words of an act of parliament which is relevant to a particular case if there is dispute about the meaning
What limitations do courts have when making laws? (3)
- Judges are bound by precedent and influenced by obiter dicta and persuasive precedents
- Courts at the lower end of the hierarchy do not create precedent (magistrates and county as they are not “courts of record”)
- A court has to wait until the case comes before them before a judge can make law
Explain the doctrine of precedent
- operates on the principal of stare decisis, meaning to stand by what has been decided
- courts in a lower position the court hierarchy are bound by the decisions of the courts above them
What is meant by Ratio decidendi?
The reasons for a judge’s decision when forming precedent
What is meant by Obiter dicta?
Things said in passing, can influence persuasive precedent, can allow judges in lower courts to express their disapproval for a precedent they may have been bound by
What are three reasons statutes may need interpretation?
-Words may be ambiguous
The word used in an act may attempt to cover a broad range of situations, courts have to interpret whether a specific situation comes under this broad definition Eg. Brislan case‘Like services’
-Words used may not cover recent changes, Language is by its nature imprecise-words may change in meaning
-Future and changing circumstances
Difficulty in foreseeing possible future applications of the Act: changes in technology
What are the three methods judges use to interpret statutes?
-Intrinsic
Within the act: definitions, words, headings and footnotes
-Extrinsic
from External/outside influences: parliamentary debates,international treaties, reports from law reform bodies,reports from committees,interpretation acts, dictionaries, past decisions
‘Ejusdem generis’ rule
latin for ‘of the same kind’ , general words with a broad meaning
What are four effects of interpreting statues?
- new precedent may be created by courts of record as a result
- Clarifies the law, words/phrases are given meaning- studded belt case
- May cause parliament to change the law eg,mabo
- Interpretation Extends or narrows the law from the original meaning eg.Brislan, Franklin river
3 relationships between the courts and parliament?
- Parliaments can create legislation to override or codify common law -eg mabo legislation
- Courts can determine whether or not a parliament has the power to legislate on an area of law (that is, determine whether or not the law-making powers of the parliament are ultra vires) eg.Franklin river case
- Courts can fill in a gap in the law eg Brislan Case
- Courts can interpret legislation (studded belt case)
What are 3 strengths of courts as lawmakers?
- consistent and fair via binding precedent
- Courts can fill in the gaps in law left by parliament when a new situation arises. This may come about due to changes in technology or social values.e.g. legal status of transsexual people in the ‘Kevin and Jennifer’ case 2003
- courts are independent free from bias no need to have public support
What are 3 weakness of courts as a lawmaker?
- judges not elected and thus do not reflect society’s opinions
-courts cannot seek public input
Prevents them from accurately being representative of the people, unlike the parliament who can use subordinate authorities like the VLRC to gauge public opinion
-court can only decide on cases before them must wait until case comes before them
What are three of the relationships which connect the courts and parliament?
-Parliaments can create legislation to override or codify common law -eg mabo legislation
-Parliaments can fill in a gap in the law eg. Brislan Case
where future circumstances or details may not have been considered, making a law ambiguous
-Courts can determine whether or not a parliament has the power to legislate on an area of law (that is, determine whether or not the law-making powers of the parliament are ultra vires) eg.Franklin river case
Decribe the overall relationship between parliament and the courts?
The relationship between Parliament and the court can be described as symbiotic, as they depend upon one another in order for the just functioning of the legal system. Ultimately Parliament is the supreme lawmaker, and it is the role of the courts to interpret and apply these statutes (although they can create common law of their own)
What is meant by ultra vires?
To act outside one’s power. eg. states claimed parliament was acting outside their power in the Franklin river case
What is meant by codify?
To change common law into an act of parliament eg.1993 Mabo legislation regarding the native title act
