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Flashcards in AOS3 Deck (19):
1

Precedent

A Precedent is the reasoning behind a courts decisions. It establishes a principle or rule of law that must be followed by other courts over in the same court hierarchy when deciding on future cases that are similar.

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Obiter Dictum

A Statement made by a judge on a legal question ( Often referred to as a statement by the way) not requiring a decision t be made on the issue and therefore not creating a precedent but which it can be a persuasive precedent

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Staturtory Interpretation

When judges interpret the meaning of a word or phrase in an act of parliament

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Strengths of courts as a lawmaking body

-Courts are able to fill haps in legislation
-Courts are not subject to political influence the making a decision.
-Courts can change the law quickly
-Precedents create certainty, consistency and predictability

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STRENGTH: Courts can change the law Quickly

Courts can make a quick decisions that can resolve a dispute for the parties in the case before the courts and create precedent to be followed by the courts and others in the community in the future.

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STRENGTH: Precedent create certainty, consistency and Predictability

Similar cases are decided in alike manner to a previous case. People can look back to previous cases to give them some idea of how a court will decide on a particular case. Precedents provide some protection and guidance for judges in that they can refer back to previous cases and decide accordingly.

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STRENGTH: Courts are able to fill gaps in legislation

Parliaments may nit cover every set of circumstances that could arise.The courts can ill in the gaps left by parliament

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STRENGTH: Courts are not subject to political influence when making a decision.

Judges are appointed rather than elected, so they are not subject to the same political pressure experienced by members of parliament. Their independent and unbiased status allows them to make more objective assessments of the case and the law before them and of the need for change in law

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Weaknesses of courts as a lawmaking body

- Finding precedents can be difficult
-Courts cannot change the law unless a case is brought before the courts
-Courts may be bound by the previous decision
-It can be difficult to locate precedent created by courts and the ratio decidendi can be difficult to find

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WEAKNESS: Courts cannot change the law unless a case is brought before the courts

The courts can change the law immediately when a case is before them, but changes in particular area of law through the courts can be slow to develop

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WEAKNESS: Courts may be bound by previous decisions

A Courts ability to change the law may be restricted by the doctrine of precedent, it may be bound by the decisions of an earlier case from a higher court, and may not be able to change the law when a case comes before it.

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WEAKNESS: Finding precedents can be difficult

-Finding relevant precedents can be time consuming
-Identifying the ratio Decidendi may be difficult as there could be judgements from different judges.

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Methods used by Judges to interpret Acts

-Intrinsic Materials
-Extrinsic Materials
-Purposive approach
-Literal Approach
-Interpretation Acts
-Previous Decisions

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Intrinsic Materials

(Contained in the Act itself)
-The words in the act
-The one title
-Preambles
-Headings/Margins/Footnote/Punctuation

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Extrinsic Materials

(Used to uncover parliaments intentions-Outside the Act)
-Parliamentary Debates
-Minutes of executive counsel
-Reports of commissions or law reform bodies
-Dictionaries
-Law reports
-Interpretation Acts

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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 parliaments purpose and what the act intended to achieve when it was originally passed

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Literal Approach

When the meaning of the word or phrase is clear the court interprets the word literally according to other sections of the act

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Interpretation Acts

The Acts interpretation Act (1901) And the interpretation of legislation Act (1984) both these contain information. Which gives directions about the way certain words or phrases are to be interpreted

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Past Decisions

The courts may look at past decisions to identify hoe previous courts have interpreted particular words in an act.