Unit 4 AOS 1b- the courts in law making

Question 1

statutory interpretation

Answer 1

• judges can interpret the meaning of a statute to resolve a case
• judges can also make law by establishing precedents that can be used as guidance or followed in future cases

Question 2

reasons for statutory interpretation

Answer 2

• resolving problems that occur during the drafting process
• resolving problems that occur during the application of statutes

Question 3

resolving problems that occur during the drafting process (reason for statutory interpretation)

Answer 3

complexities involved in drafting legislation means that some terms & phrases used will be unclear & in need of interpretation before they can be applied to resolve a case
reasons why a statute may need to be interpreted because of a problem in the drafting process:
> the bill might not have taken future circumstances into account
> the intention of the bill might not have been clearly expressed
> mistakes in the drafting of a bill

Question 4

parliamentary counsel

Answer 4

lawyers who are responsible for drafting bills in accordance with the policies & instructions of a member of parliament

Question 5

resolving problems that occur during the application of statutes (reason for statutory interpretation)

Answer 5

• most legislation is drafted in general terms
  > covers a wide range of circumstances & uses broad terms that need to be interpreted
• the act may have become out of date & no longer reflect community views & values
• the meaning of the words may be ambiguous
  > words are unclear as they cover a wide range of issues
• the act may be silent on an issue & the courts may need to fill gaps in the legislation
  > unforeseen circumstances
• the meaning of words can change over time as society changes

Question 6

effects of statutory interpretation

Answer 6

courts play an important role in law-making through statutory interpretation. effects include:
- the word or phrases contained in the disputed legislation are given meaning by the courts, so that the relevant statute can be applied to resolve the case before the court
- the courts decision on the meaning of the legislation is binding on the parties, & must be followed until a party lodges a successful appeal
- a precedent may be set for future cases to follow
- the meaning of the legislation can be restricted or expanded
> restricted if court interprets the law narrowly, eg. deing v tarola
> expanded if words of a statute are interpreted broadly, eg. tasmanian dam case

Question 7

the doctrine of precedent

Answer 7

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Question 8

precedent

Answer 8

the reasoning behind a courts decision which establishes a legal principle that can be followed by judges when deciding future cases where material facts are similar
> binding or persuasive

Question 9

binding precedent

Answer 9

the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction in cases where the material facts are similar
> ratio decidendi: the legal reasoning behind the decision
> stare decisis: judges stand by their decisions

Question 10

persuasive precedent

Answer 10

the legal reasoning behind a decision (common law precedent) of a court that may be considered relevant & used as a source of influence in a judges decision, even though it is not binding. can be from courts in another hierarchy, lower courts in the same hierarchy or courts of the same standing
> obiter dictum: comments made by the judge that are not part of the reasoning but could be persuasive in a future case

Question 11

significance donoghue v stevenson case

Answer 11

• donoghue was found to have a successful negligence claim against stevenson on appeal
  -the court established the neighbour principle, which found that a person must take reasonable care to avoid acts which would be likely to injure their neighbour (someone directly affected by their actions)
  > relevant in australia through persuasive precedent
• established the precedent that manufacturers owe a duty of care to consumers

Question 12

significance of australian knitting mills case

Answer 12

• supreme court found that AKM had failed to take reasonable care in the preparation of underwear purchased buy dr grant
• used persuasive precedent from donoghue v stevenson case that manufacturers owe a duty of care to their consumers, which then became binding in australia
• established that manufacturers may be liable if their product causes loss, harm or damage to consumers

Question 13

ways of creating & avoiding prededents

Answer 13

allows precedents & common law to change & develop over time
- reversing
- overruling
- distinguishing
- disapproving

Question 14

reversing a precedent

Answer 14

a judge in a superior court may decide to change the precedent established by the lower court when hearing a case on appeal

Question 15

distinguishing a precedent

Answer 15

courts can avoid following an existing binding precedent if there is a difference in the material facts of the case they are deciding & the facts in the case where the precedent was set

Question 16

overruling a precedent

Answer 16

a superior court may decide not to follow a previously established precedent set by a lower court in a different case

Question 17

disapproving a precedent

Answer 17

lower courts bound to follow a precedent may express dissatisfaction with it when deciding a case. this can encourage parliament to change the law or courts to change the precedent on appeal

Question 18

factors that affect the ability of courts to make law

Answer 18

• the doctrine of precedent
  > consistency and predictability
  > flexibility
  > other ways
• judicial conservatism and activism
• costs and time in bringing a case to court
• the requirement for standing

Question 19

how does the doctrine of precedent affect law making - consistency and predictability

Answer 19

• a party can investigate past cases with similar facts can to determine how the law may apply to a case and anticipate the outcome
  limitations:
• difficulty and cost involved in locating relevant precedents
• difficulty identifying the legal reasoning of a decision
• difficulty in predicting future developments

Question 20

how does the doctrine of precedent affect law making - flexibility

Answer 20

• allows for some flexibility though the process of developing or avoiding precedents through reversing, overruling, distinguishing or disapproving, allowing common law to expand over time
• judges also need to interpret the meaning of words & phrases used in precedents- allows law to expand
  limitations:
• restricts lower courts ability to change the law in cases where they are bound to follow previous precedent set by a higher court > can still express disapproval
• judges in superior courts may be reluctant to overrule or reverse precedents
• judges in courts of the same standing considering these precedents highly persuasive and rarely overrule them > exception of the high court

Question 21

how does the doctrine of precedent affect law making- other ways

Answer 21

• judges must wait for a relevant case to be brought before them, so they must rely on parties
• parliament can make law to abrogate law set in precedents
• judges in superior courts are restricted to making precedent on the matter brought before them, obiter dictum is not part of the binding precedent
• judges make law after the fact, only clarifying the meaning of words after a dispute has occurred

Question 22

judicial conservatism

Answer 22

the idea that judges adopt a narrow interpretation of the law, and should show caution when making decisions to avoid major changes to the law. judges decisions are a literal interpretation of the law without the influence of their views or the views of the community

Question 23

judicial activism

Answer 23

a more broad interpretation of the law, judges consider a range of social & political factors when interpreting the law and making decisions
> a more creative approach incorporating views and values of the community & the rights of the people

Question 24

the requirement for standing

Answer 24

means that a party wanting to bring a case to the high court must have a ‘special interest’ in the matter, meaning that the are directly affected by the issue
> courts can only create precedent if a party pursues a case, and a party cannot pursue a case if they do not have standing, limiting the courts ability to create law

Question 25

costs of taking a case to court

Answer 25

• the costs for legal representation & court fees
  > can deter litigants from pursuing their case

Question 26

time involved in bringing a case to court

Answer 26

• courts can make law relatively quickly once a case has been brought before them, however judges in appeal courts can take months to hear & determine more complex cases
  > most precedents are established in appeal cases

Question 27

costs and time affecting courts ability to make law

Answer 27

courts cannot make law until a case is brought before them, which depends on litigants being willing & able to afford to bring the case to court through the costly and time consuming appeal process, as most precedents are established in appeal courts.
> can limit courts law-making ability

Question 28

features of the relationship between parliament & the courts in law-making

Answer 28

interconnected role in law making, they work together so that the law is flexible & can be applied to any situation that might aries
features of the relationship:
- the supremacy of parliament
- the ability of the courts to influence parliament
- the codification of common law
- the abrogation of common law

Question 29

the supremacy of parliament

Answer 29

as parliament is the supreme law-making body, it has the ability to pass legislation to either confirm or abrogate decisions made by the courts, with the exception of high court decisions on constitutional matters

Question 30

the ability of the courts to influence parliament

Answer 30

• judges can influence parliament to initiate law reform by making comments
• courts can also influence parliament when they must make a decision in accordance with a binding precedent that creates in justice
• if a court acts with judicial conservatism, parliament may investigate & change the law (eg. trigwell case), or activism (eg. mabo case)
• court decisions can also highlight a problem that can lead to changes in laws (eg. domestic violence laws)

Question 31

the codification of common law

Answer 31

parliament has the power to pass an act of parliament that brings together all the relevant law in a particular area into a single statute. codification also allows parliament to pass legislation that reinforces principles established in court
> eg. taxation laws, consumer laws, negligence laws

Question 32

the abrogation of common law

Answer 32

parliament may pass legislation which overrides or cancels decisions made through the courts, with the exception of high court decisions made on constitutional matters
> may be necessary when parliament believes the courts have interpreted the meaning of words in a statute that was not the intention of parliament