Unit 3 AOS3 Flashcards
Doctrine of precedent - Ratio decendi
The reason for the decision
The binding part of the judgement
Creates a precedent
Not the sanction or remedy
Doctrine of precedent - Stare decisis
To stand by what has been decided
Provides predictability and consistency
Doctrine of precedent - Obiter dictum
The opinion of the judge
Not binding but may be influential
Creates a persuasive precedent
May influence parliament
Doctrine of precedent - Binding precedents
For precedent to be binding it must be:
From the same hierarchy
From a higher court
When facts or similar
Doctrine of precedent - Persuasive precedents
Decisions from lower courts Decisions from same level Decisions from other hierarchies Obiter dictum Not binding but may be influencial
Ability to make law
WHEN A CASE IS BROUGHT BEFORE THEM
Must be a person ‘with standing’
To a superior court
Directly affected by the issue
NOT BOUND BY PRECEDENT
Or covered by legislation
But may be able to distinguish, overrule, reverse, disapprove
Reverse
Same case on appeal
Not bound by previous decision
Can reverse the precedent and create a new one
Overrule
Different case
Higher court not bound by precedent
Can overrule old precedent and create new one
Distinguish
When material facts are significantly different
Judge can decide not bound by precedent
Disapprove
Court states it doesn’t agree with a precedent
Usually in obiter
May follow precedent as bound or for consistency
Reasons for statutory interpretation
FUTURE CIRCUMSTANCES/TECHNOLOGY CHANGE
Act may need to be interpreted if future circumstances or technology change
Eg. Airforce
LEGISLATION IS DRAFTED IN GENERAL TERMS
Parliament makes general laws
Courts need to apply these laws to specific cases
Therefore the interpretation is needed
MEANING OF WORDS MAY BE AMBIGUOUS
Sometimes the meaning of the words in an act may be unclear
Courts need to interpret to decide meaning by looking at the intention if the act
Effects of statutory interpretation
WORDS ARE GIVEN MEANING
courts can’t change words but they can give them meaning.
This is then followed in the future
PRECEDENT IS CREATED
Interpretation of the words forms a precedent.
This is then read together with the act.
CAN INFLUENCE PARLIAMENT Court interpretation can influence parliament to either: Abrogate (abolish) Codify (bring together) Clarify the meaning
Relationship between courts and parliament
PARLIAMENT ESTABLISHES COURTS For a court to exist there must be an act of parliament to: Establish the court Set out it's jurisdiction Eg Supreme Court act 1986
COURTS APPLY AND INTERPRET LAWS
Courts apply acts to specific cases
Statutory interpretation is needed
This forms precedents which become part of the law
PARLIAMENT CAN CHANGE OR CONFIRM COMMON LAW Parliament can: Abrogate (abolish) Codify (bring together) Clarify (make clear)
COURTS CAN INFLUENCE PARLIAMENT Court decisions and obiter can influence parliament; Creatively alerts parliament Highlights problem with law Courts may be too conservative
Evaluation of courts as law makers
CHANGE THE LAW QUICKY
Can change law quickly if case is brought before them
However, requires someone with standing to bring a relevant case
INDEPENDENT
Not subject to political influence
However, as not elected, may not represent views of the majority
FLEXIBILITY
Can be flexible through RODD
However may be bound by precedent, which may lead to an unfair result
CONSISTENCY AND CERTAINTY
Doctrine of precedent provides predictability and consistency
However, may be too rigid
DEVELOP AREAS OF LAW
Can develop areas of law overtime (eg negligence)
However, requires someone with standing to bring a relevant case
