Role Of Courts In Law Making Flashcards
Reversing
Hears a case on appeal from lower court and changes decision
Hierarchy order
High court Court appeal Supreme Court County court Magistrates court
The operation of the doctrine of preceding Latin terms
Stare decisis
Ratio decidendi
Obiter dictum
Stare decisis
To stand by decision
Ratio decidendi
Reason for decision
Obiter dictum
By the way
Not binding
Abrogate
Overruling (by high court)
Or overriding by other superior courts
Reasons for interpretation of statutes by judges
Changing nature of words Words within the act being ambiguous Future and changing circumstances Technological advancements Unclear intention May contain too many amendments to be clear
Effects of statutory interpretation interpretation by judges
Statute creates clear stare decisis Must adhere to precedent (new created) Statute law will always override common law Meaning may change - not words Wide interpretation- extend law Narrow interpretation- restrict law
Strengths of law making through the courts
Develop and clarify law (fill in gaps left by parl.)
Doctrine of precedent- consistency
Appeals allow for review of decisions
Weaknesses of law making through the courts
Courts must wait until a case is presented to them (primary purpose- resolve disputes before it)
Courts restricted by binding precedents
Unelected law-makers=undemocratic
The relationship between courts and parliament in law-making
- Parl passes leg to create structure and legislation of courts (est courts, structures, jurisdictions, procedures)
- Courts apply and interpret leg created by parl
- Parl can change laws created by courts
- Parl can make common law into a statute
- Courts can signify to parl that there is a need for law change
Case for: doctrine of precedent
Donoghue v Stevenson [1932]
Used as persuasive precedent for Grant v Australian Knitting Mills (1936)
Established law of negligence for England and persuasive precedent for High Court
Case: statutory interpretation
Deing v tarola [1993] Studded belt case "Regulated weapon" definition needed Justice Beach (Supreme Court) annoying that isn't commonly used for any other purposes Ratio decidendi Became binding precedent
Case: relationship between court and parliament
State government insurance commission (South Australia) v Trigwell (1979)
Vic parl passed “Wrongs (animal straying on highways) Act
High court wasn’t prepared to overrule the common law that prevented farmers negligence
