week 2 Flashcards
How are judges appointed?
federal by GG on rec of cabinet
state by governor on rec of state executive council
How long are judges appointed for?
until 70
or ‘ proved misbehavior or incapacity’ section 72 of const
judicial misbehavior…
judicial misbehavior and incapacity act 2012
why are judges appointed
formal qualification (lawyer form eg kings council ),
seniority,
respect among law profession
or political ideals
Doctrine of precedent - stare decisis
general rules
each court bound by decisions of higher courts
- lower courts or different hierarchy can be persuasive
- only the ratio decidendi is binding- obiter dicta not binding can be persuasive
- prescient do not lose power after certain amount of time
- same court not bound by its own decisions
Doctrine of precedent why x 4
Certainty ->clear guide for conduct of individuals
equality-> similar cases treated similarly.
efficiency -> Once case decided future courts do not have to re consider.
justice-> creates impartial rules of law not dependent of the personal views of the judge
key factors which determine weight of precedent
- position of the court in court hierarchy
2.was the reason/ principle stated in the ratio decidendi or the orbiter statement
3.the number of judges which have given support to the statement
Ratio decidendi
The reason for the decision on a point of law
any proposition of law expressly or impliedly used to reach the final decision.
is binding on lower courts.
obiter dictum
A remark made by a judge in passing,
which is not binding.
eg hypothetical scenario
Statement of background law
remarks about how decision fits in with other areas of law
reasons for a court hierarchy
- specialization
- appeals
- efficiency
- doctrine of precedent
Judges have the power to make new common law if…
there is a gap in legislation
If legalization is vague
if they are in a higher court and so can reject lower courts precedent
Judges making law issues
not elected
-Cant make entirely new law can only interpret legislature in applying it to a case
-people can be punished for crimes which are made up by judges retrospectively hence punishing a person for a crime which was not a crime when they committed the act
-forms a new precedent which lower courts are bound to and may not keep up with changing comm values
precedent is good b/c promotes
comity -> respect for other courts
certainty
equality
efficiency
and appearance of justice
Decision rendered ‘ per incuriam’ means…
Failure to involve all legal materials and authorities -> precedent is plainly wrong showing ignorance or forgetfulness
rare occurrence
cant be used by lower courts to avoid precedent
lower court could encourage appeal so higher court can use this principle
Ways precedent can be distinguished (not binding)
on facts distinguish
statement of law is to wide (higher courts only)
statement of law was obiter not ratio
precedent is to old (higher courts only) R V L 1991
simply unsatisfactory/ wrongly decided (higher courts only)
john v commissioner of taxation 1989
example of high court not following its previous decisions
about a cockatoo
Nguyen v Nguyen 1990
SC applied a decision they knew to be wrong, believing the only way to not apply it would be to find a conflict with a higher authority.
HC found that cautious, infrequent and exceptional departure was no danger to the doctrine of precedent, and departed from previous decision.
multimember courts
single judge v full court
single judge not bound by single judge of same court..
full court not bound by another full court.
single judge is bound by full court b/c e.g. 1v 6
R v L (1991)
250 year old precedent said can’t rape your wife
but in 1990 society had changed therefor HC deemed precedent out of keeping with current views
precedent was abolished.
Parliamentary Supremacy
legislation can abrogate the common law.
however, hc can deem law invalid if unconstitutional ultra vires
issues with doctrine of precedent
no clear ratio
lack of distinction btw ratio and obiter
alternative lines of reasoning from judges even if made same final decision
abolishment of privy council appeals
fedural law matters -1968
high court matter -1975
state supreme court appeals 1986 (aust acts)
Viro v R (1978)
high court not bound by decisions of PC
WHENEVER THEY WHERE MADE
Cook v Cook (1986)
decisions made after Aus act not binding on any Aust court.
R v Judge Bland: ex parte DPP (1987)
where pre Aust act PC conflicts with full SCV single judge to follow SCV
administrative tribunals
Quasi-judicial bodies empowered to decide administrative law cases,
no precedent
whose decisions may be appealed to the court system
