Unit 3 AOS3 - Chapter 5: The Role of The Courts Flashcards Preview

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Flashcards in Unit 3 AOS3 - Chapter 5: The Role of The Courts Deck (101):
1

What is the court hierarchy?

This is the arranging of courts according to importance with the superior courts at the top of the court hierarchy.

High court
⬇️
Family court and Federal court
⬇ ️
Federal Magistrates Court
⬇️
Supreme Court (Appeals division)
⬇️
Supreme Court (Trial division)
⬇ ️
County Court
⬇️
Coroners Court & Magistrates Court & Children's Court

2

How do courts make laws?

. Common law
. Statutory interpretation

3

Explain the following way courts make laws: common law/case law

Judges make laws on a new issue that arise in a case before them, when:
. no relevant legislation exists
. there is no previous binding precedent that applies or
. the current common law requires expansion to apply to the new situation.

4

Explain the following way courts make laws: statutory interpretation

Judges need to interpret legislation applicable to a case when it is ambiguous or unclear, using resources such as dictionaries, interpretation sections within Acts, and legal speeches made in parliament that are contained in a record known as the Hansard.

Interpreting the meaning of the words in an Act of parliament when
applying them to a case the court is hearing.

5

Explain the operation of the doctrine of precedent.

The doctrine of precedent is a policy of courts to abide by decisions made in earlier cases. This is based on the decision principle of state decisis (to stand by what has been decided).

The principle of the doctrine of precedent creates consistency and predictability. When a person takes a case to court they will have some idea of the outcome because like cases are decided in a like manner.

Doctrine of precedent allows for flexibility too persuasive precedents and the ability to develop or avoid precedents.

6

What is the primary and secondary role of judges?

Primary - to adjudicate in cases by finding facts, reach a decision based on facts and apply the law to the facts.

Secondary - to make law.

7

What are the restrictions on judges' ability to make law?

Judges and courts are only able to make laws in the following instances:
. if a case is brought before a superior court
. if there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts

8

Explain the following restriction of judges' ability to make law: If a case is brought before a superior court

. Judges can only develop or change the law when a relevant case is brought before them.
. A case will be brought by a person who feels aggrieved or injured and has decided to have the issue resolved in court.
. A person bringing a case must have ‘standing’; that is, be directly affected by the case. Taking a case to a higher court is expensive.
. Further, the court can only make law on the relevant issues in question in that case.

9

Explain the following restriction of judges' ability to make law: If there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts

. The nature of common law is that the principles of law established in a higher court are binding on lower courts in the same hierarchy.
. If a court is bound by a principle of law that has been established in a higher court, there may be an opportunity to establish a new principle of law, if it can be shown that there are distinguishing differences between the previous case and the case before the court.

10

What does the reason for a decision do?

The reason for the decision of a court establishes a principle of law that is followed by future courts and forms part of the law, along with Acts of parliament. The reason for the decision is called the ratio decidendi.

11

Why can't a jury create a precedent?

Because juries do not decide on points of law; this is left to judges. Juries do not give reasons for their decisions.

12

What is the principle of stare decisis?

The principle of stare decisis is another way of describing the process of lower courts following the reasons for the decisions of higher courts. Stare decisis literally means ‘to stand by what has been decided.'

This provides for consistency and fairness by ensuring similar cases are dealt with in a similar way.

13

What is ratio decidendi?

Ratio decidendi literally translated, is ‘the reason for the decision’. Put simply, the ratio decidendi is the binding part of the judgment. The judgment is the statement by the judge at the end of a case outlining the decision and the reasons for the decision. The ratio decidendi is not the decision itself, or the sanction or remedy given, but the reason for the decision, which is then regarded as a statement of law to be followed when dealing with future cases.

14

Why can the task of determining the ratio decidendi of a case be very complex?

. Because it might not necessarily be placed at the end of the judgement.
. In many cases heard in the High Court, several judges are involved in reaching a decision.
. Only the material facts are relevant and are to be followed in future cases.

15

Explain the following reason why determining the ratio decidendi can be complex: It might not necessarily be placed at the end of the judgement.

It could be found in various parts of the judgment, and may not appear conveniently in a single, succinct expression of the law.

16

Explain the following reason why determining the ratio decidendi can be complex: In many cases heard in the High Court, several judges are involved in reaching a decision.

If a unanimous decision cannot be reached, the precedent created is that of the majority. In such cases the ratio decidendi has to be found by looking at the judgments of those judges who form the majority.

17

Explain the following reason why determining the ratio decidendi can be complex: Only the material facts are relevant and are to be followed in future cases.

. When extracting the ratio decidendi from the judgment as a whole or the individual judgments, only the material facts are relevant and are to be followed in future cases.
. The material facts are important facts that could affect the outcome of the case and are vital to the reason for the decision.

18

What is considered when deciding cases in the future?

It is the ratio decidendi and these material facts that are considered when deciding cases in the future. The ratio decidendi of a case may be more clearly stated in a later judgment written by a court that has had to consider whether the previous case provides a binding precedent.

19

What is a precedent?

The reason for a court decision that is followed by another court lower in the same hierarchy. A precedent is either binding or persuasive.

20

What are binding precedents?

Precedents in a superior court in the same hierarchy dealing with the same legal principles and material facts are referred to as binding precedents. If a precedent is binding on a case, then it must be followed by the judges in that case.

For a precedent to be binding on a particular case, the precedent must be:
. from the same hierarchy of courts
. from a superior court – one that is higher in the hierarchy.

The High Court is not bound by its own previous decisions. However, in the interests of consistency, it will usually follow its previous decisions, unless it believes that a previous decision is not good law, or a previous precedent is outdated because of changes in attitudes, technologies or other circumstances.

21

What are persuasive precedents?

Persuasive precedents are not binding on courts. However, because they are seen to be noteworthy and highly regarded propositions of law, some courts may consider persuasive precedents as influential on their decisions.

Precedents considered to be persuasive but not binding are:
. from courts in another hierarchy, such as other states or countries
. from courts on the same level of the hierarchy (which are not binding)
. from inferior courts (that is, courts lower in the court hierarchy)
. obiter dicta contained in a judgment of a court in the same hierarchy or in another hierarchy.

Eg. Donoghue v. Stevenson (1932) AC 562 persuasive for Grant v. Australian Knitting Mills (1936) AC 85 (established the law of negligence in Australia).

22

What does the doctrine of precedent do?

The doctrine of precedent means that lower courts are bound to follow the decisions of higher courts in similar cases.

23

What is the main purpose of the courts?

To resolve disputes. In this process, the courts many be required to apply existing law to the facts before them. When a court makes a decision in a new situation then it is said to be making law. This is known as precedent.

24

How does this system of law-making (doctrine of precedent) operate?

Through the existence of a court hierarchy.

24

What is obiter dictum?

Obiter dictum (plural obiter dicta) literally translated means ‘things said by the way’. In the judgment given at the end of a case, the judge sometimes makes a statement that is not part of the ratio decidendi (the statement was not a matter that was necessary to the decision in that case but it was still a matter of considered opinion).

This statement may be influential on decisions in the future – it will act as persuasive precedent. Such statements are obiter dicta (sometimes just referred to as ‘obiter’). An example of obiter dicta is given in the Hedley Byrne v. Heller case.

25

Explain the difference between ratio decidendi and the obiter dictum.

The court's decisions are made up of two parts, being the ratio decidendi and the obiter dictum.

The ratio decidendi (reasons for the decision) are the legal principles laid down in the decisions and are part of the decision that must be followed.

The obiter dictum (words by the way) are statements made by the judge which are not directly relevant to the point of law in question.

26

What do you need to include if a question is worth 5 or more marks?

You can't forget to include rules of avoiding and expanding binding percent (RODD).

27

When looking at precedents developed in earlier cases in order to make a decision for a current case, what cane judges do?

. They may decide to adopt the precedent (follow or apply it)
. affirm the precedent (agree with it)
. or they may try to avoid having to follow the earlier precedent.

28

How are Judges not always forced to follow a previous precedent/how are they sometimes free to make new precedents?

Apart from following a binding precedent, there are four other ways that judges can treat previous decision.

29

What are the four ways judges can treat (develop or avoid) precedents?

RODD
. Reversing
. Overruling
. Distinguishing
. Disapproving

30

Explain the following way to treat a precedent: reversing

When a case (which created percent) is taken on appeal to a higher court, the superior court may change the decision of the lower court, thereby reversing the earlier decision (precedent) in the same case. The new precedent created by the superior court is then the one to be followed in future cases.

Think - same case

31

Explain the following way to treat a precedent: overruling

When a superior court decides not to follow an earlier precedent of a lower court in a different case, it can overrule the previous precedent. This means a similar case in a higher court creates a new precedent, which makes the previous precedent inapplicable.

It can do this because it is not bound by precedents created in lower courts. For example, the High Court can overrule an earlier precedent created by the Supreme Court of Victoria.

When a precedent is overruled, the new ratio decidendi from the latest case has the effect of becoming the precedent to be followed in the future.

Think - similar case

32

Explain the following way to treat a precedent: distinguishing

If there is a binding precedent from a superior court, the judge may find some material fact in the case presently being considered that is different from the facts of the previous case where the precedent was set, and can therefore decide that the court is not bound to follow the previous decision.

33

Explain the following way to treat a precedent: disapproving

When a previous decision (precedent) has been made in a court at the same level in the court hierarchy, or at a lower level, the present court may disapprove the earlier decision, that is, it states that it does not agree with the earlier decision.

For courts on the same level in the court hierarchy, the present court is not bound to follow the earlier decision (although for the sake of consistency it usually will). If the later case does not follow the earlier case it may make a new precedent.

Judges in an inferior court can express disapproval about a precedent set in a superior court that they are bound to follow.

34

What happens when a court of the same standing makes a new precedent?

Both the precedent created in the earlier case that has been disapproved and the precedent created in the present case remain in force until another case is taken to a higher court, which can overrule the previous decisions and create a new precedent.

35

How do Judges in an inferior court can express disapproval about a precedent they must follow?

Judges in an inferior court can express disapproval about a precedent set in a superior court that they are bound to follow. For example, a judge could make a statement (obiter dictum) saying that they do not agree with the precedent but believe that it should be left to parliament to change the law, or to indicate to a higher court that he or she believes that the precedent needs to be reconsidered.

36

How does the doctrine of precedent provide for consistency and flexibility?

Consistency:
. Stare decisis
. Binding precedents

Flexibility:
. Persuasive precedents
. Prevented scan be developed or avoided

37

What is the High Court, the Supreme Court (Court of Appeal) and the Supreme Court (Trial Division) referred to?

They are referred to as the supper courts of record.

Their decisions are often recorded in law reports.

38

When does law making through the courts generally occur?

When is court is hearing a case on appeal (no jury) or hearing a civil case without a jury.

(A jury decision cannot create precedent as juries do not decide on points of law)

39

What is the interpretation of past decisions?

Courts can be called on to interpret the meaning of the words in past decisions and apply precedents set in previous cases.

Sometimes courts are bound by past decisions while at other times the courts are able to distinguish, overrule, reverse or disapprove past decisions.

This allows the law to develop through the courts. Decisions may also be broadened or narrowed when interpreted by future courts.

A precedent set by a court may not be a final statement of the law.

40

Why might it be difficult to find precedents to interpret past decisions?

Because:
. there might be a number of precedents covering one issue
. there may also be conflicting precedents (this situation will remain until a High Court decision can clarify the area of law)
. and the ratio decidendi can be difficult to find because there could be more than one judge (each judge will write a judgment on the case. It is the judgments of the majority that form the ratio decidendi).

41

What is statutory interpretation?

Statutory interpretation is another way judges make law. This refers to the process by which judges interpret the words or phrases in an Act of parliament (statute), in order to give the words meaning.

The judge’s decision does not change the actual words of the Act of parliament, but adds meaning to the words to be applied in future cases and situations.

For judges to provide interpretation of words in an Act there must be a case before the court.

42

What does statutory interpretation sometimes need to occur?

This is because Acts are often written in general terms and have to be interpreted and applied by judges so that they can decide the specific cases before them.

43

Where does the need for statutory interpretation arise?

The need for this interpretation arises when a case is brought before a court in which there is a dispute about whether the words or phrases contained in an Act apply to the particular situation before the courts.

44

When interpreting the meaning of a word/words in an Act what sets precedent?

The reasoning behind this interpretation sets a precedent which other judges who are required to interpret the meaning of those words in the same Act will then follow in the future.

45

What happens after statutory interpretation?

The new precedent then becomes part of the law along with the statute. This means for future cases, the Act and the precedent, (which was created by the court when interpreting the Act) are read together and form the law.

The judges can therefore be said to be law-making by adding to existing law and clarifying what the law is.

46

How can judges interpret Acts of parliament?

. Literal meaning
. By looking at past decisions
. Purpose approach

47

What happens if the meaning of the words of an Act are unclear to the courts, or the courts are unsure how to apply an Act to a particular set of circumstances?

They will look further so they can apply the intention of the parliament, at the time the Act was passed, to the situation before them.

The courts will also look back at past decisions to see how courts have interpreted the words in the Act in previous cases.

48

Explain the following way to interpret an act of parliament: literal approach

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

Judges will generally look at the literal meaning of words in Acts when interpreting the meaning of words. To ensure the precise meaning of a word they may look at the following.
. other sections in the Act – Sections of the Act, such as a definition section, may give the precise meaning of the word according to the intention of parliament. Other sections may also more
clearly show the way the word is to be applied.
. dictionaries – A dictionary will give the literal meaning of a word, but the meaning given may not convey the intention of the Act as a whole, or fit the particular situation of the case before the court. A particular word may also have a number of different meanings.

49

Explain the following way to interpret an act of parliament: by looking at past decisions

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

50

Explain the following way to interpret an act of parliament: purposive approach

If the judge feels that using a literal approach will not achieve the purpose or intention of parliament, the judge will look at parliament's purpose and what the act intended to achieve when it was originally passed.

51

Why are courts directed to consider the intention of the legislation when interpreting words or phrases?

Because of interpretation acts such as The Acts Interpretation Act 1901 (Cth) and the Interpretation of Legislation Act 1984 (Vic). Both these Acts contain sections which give instructions about the way certain words and phrases are to be interpreted.

52

What do the interpretation acts do?

They provide guidance to the courts on how Commonwealth legislation and Victorian legislation should be interpreted and what the courts are able to use to assist them in interpreting the legislation.

53

In their search for the intention of parliament when it made an Act of parliament, what can the courts look at?

Intrinsic and extrinsic material.

(Legal maxims can also be helpful, but they do not show the intention of an act of parliament)

54

What is extrinsic material?

Extrinsic materials are those outside the Act that can be used to assist in the interpretation of the Act and include:
. parliamentary debates (recorded in Hansard)
. minutes of executive council
. reports from committees and law reform bodies
. interpretation Acts
. dictionaries
. law reports.

55

What is intrinsic material?

Intrinsic materials are contained in the Act itself and include:
. the words of the Act – both the section being interpreted and other sections
. the long title
. preambles
. headings, margin notes, footnotes, punctuation
. and schedules.

56

What are legal maxims?

These are established principles or propositions. There are many helpful legal maxims, such as:
. Ejusdem generis (the class rule) - when several specific terms all belonging to a particular genus or class are followed by general terms, these general terms will be applied to things belonging to that class
. Noscitur a sociis - words will be interpreted in light of the context in which they are used

A class of terms can be terms referring to different types of goods, businesses or activities that are related eg. heroin, cocaine and cannabis are all illegal drugs.

57

What are the reasons for the interpretation of statutes?

. There are problems as a result of the drafting process
. There are problems applying the Act to a court case

58

What are the problems as a result of the drafting process (which result in statutes needing to be interpreted)?

. Mistakes can occur during the drafting of an act (time pressures)*
. The act might not have taken into account future circumstances or changes*
. The intention of the act might not be clearly expressed*
. Inconsistencies within an act and between acts*
. Definitions of words (too broad or not defined)*

59

What are some problems that could occur when applying an Act to a particular court case?

. Most legislation is drafted in general terms* (definitions of words)
. The Act may have become out of date*
. The meaning of the words may be ambiguous*
. The Act might be silent on an issue and the courts may need to fill gaps in the legislation
. The meaning of words can change over time.

60

What are the 6 reasons (including problems drafting and applying Acts) for the interpretations of statutes that you've decided to remember?

. Inconsistencies within an act or between acts
. Mistakes can occur during the drafting of an act (time pressures)
. Definitions of words (too broad or not defined)
. The act may have become out of date
. The intention of the act might not be clearly expressed
. Difficulty in foreseeing future circumstances

61

Explain the following reason for the interpretation of statutes: Inconsistencies within an act or between acts

This could occur within:
. the Act itself - because various provisions within an Act may vary slightly as the same word may be used in more than one context within the act, resulting in confusion
. or could be caused by an amendments - because lengthy acts or acts could have been amended a number of times and may cause problems as their could result in inconsistencies between Acts.

62

Explain the following reason for the interpretation of statutes: Mistakes can occur during the drafting of an act (time pressures)

Parliamentary counsel may make mistakes when drafting a Bill. There may have been pressure to draft the Act in a hurry, resulting in vague or ambiguous wording within the Act.

Or there may have been insufficient communication between ministers and parliamentary council.

There may have also been little opportunity to check the legislation after drafting and this may result in loopholes.

63

Explain the following reason for the interpretation of statutes: Definitions of words (too broad or not defined)

Most legislation: is drafted in general terms, meaning it has words and phrases which attempt to cover a broad range of issues. As a result, the meaning of some of the words might be ambiguous. It is therefore necessary for the courts to interpret the words or phrases to be applied to specific circumstances in order to decide on their meaning according to the intention of the Act.

Words may not be defined in the Act or the meanings of words change overtime.

64

Explain the following reason for the interpretation of statutes: The act may have become out of date

The Act may have become out of date and may need to be revised to keep up with changes in society.

The meaning of words can change over time. The legal meaning of the term ‘de facto relationship’ was a man and a woman living in a domestic relationship. The definition of a de facto relationship is now a couple living in a domestic relationship, regardless of gender.

Words used may not cover recent changes - legislation Mayr have become out of date and need to be revised. For instance, a statute may refer to records and tape recordings but not other forms of recording technology such as DVDs or downloading music from the internet.

65

Explain the following reason for the interpretation of statutes: The intention of the act might not be clearly expressed

Parliament's intention may not be clear enough. This may occur because accurate instructions and directions may not have been given to the parliamentary counsel.This can lead to confusion about how to interpret the Act.

66

Explain the following reason for the interpretation of statutes: Difficulty in foreseeing future circumstances

It is difficult to foresee all future applications of an Act because in a rapidly evolving society it is impossible to predict changes technology and science as well as social and environmental conditions.

For example, the Commonwealth of Australia Constitution Act 1900 (UK) gives the Commonwealth Parliament the power to legislate over ‘the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth’ (S51 VI). This section does not refer to the air force. At the time the Act was passed, an air force was
not envisaged.

67

What are the effects of statutory interpretation?

. Acts of parliament are applied to the cases that come before the courts*
. The words in the Act are given meaning*
. The parties to the case are bound by the decision
. Precedents are set for future cases to follow
. Consistency and predictability*
. Courts can overrule or reverse a previous decision of courts
. Parliament can abrogate law made by courts*
. Restricting the law through a narrow interpretation of a statute*
. Extending the law by a broad interpretation of a statute*

* = 6 I've decided to remember

68

Explain the following effect of statutory interpretation: Acts of parliament are applied to the cases that come before the courts

When a case before the courts relates to a law contained in an Act of parliament, it is necessary for the courts to apply the law to that case.

69

Explain the following effect of statutory interpretation: the words in the act are given meaning

The courts cannot change the words in an Act but can interpret the words and give them meaning that will then be followed in the future.

70

Explain the following effect of statutory interpretation: consistency and predictability

People in a future can, to some extent, predict the outcome of their case because the courts follow previous decisions when deciding like cases in a like manner.

71

Explain the following effect of statutory interpretation: parliament can abrogate law made by courts

Parliament is the supreme law-making body and is able to change law made through the courts. If parliament believes that the court’s interpretations are not in line with its intention when passing the Act in question, the parliament can pass a law that overrides (abrogates) a decision of a court.

This has the effect of cancelling a precedent set by a court (parliament cannot change a precedent set by the High Court when interpreting the Constitution – this would require a referendum).

72

Explain the following effect of statutory interpretation: Restricting the law through a narrow interpretation of a statute

If a court gives a narrow interpretation to the words/phrases of an Act, this may restrict the scope of the law.

73

Explain the following effect of statutory interpretation: Extending the law by a broad interpretation of a statute

A wide interpretation of a word or phrases in an act may extend the law to cover a new situation or area of the law.

74

Explain the finality of a court's decision.

A decision made by a court is a final statement of law unless:
. reversing, overruling or abrogating takes place
. extension of a precedent occurs
. or narrowing of a precedents occurs.

75

Explain how reversing, overruling and abrogating breaks the finality of a courts decision.

The law made by courts remains in force until the precedent is:
. reversed - precedent creating case is taken on appeal (where a different decision is Made)
. overruled - by a higher court in a different case
. or abrogated - cancelled by an Act of parliament (although parliament cannot abrogate a High Court decision that is interpreting the Constitution).

76

How can parliament confirm a decision made in a court?

Parliament can confirm a decision made by a court by passing an Act that enshrines the common law into legislation.

77

Explain how extending a previous decision breaks the finality of a courts decision.

The courts can extend previous decisions to include a wider meaning such as extending negligence by a manufacturer to cover all types of negligence.

78

Explain how narrowing a previous decision breaks the finality of a courts decision.

Courts can also narrow previous decisions by interpreting a previous precedent more narrowly; for example, a general duty of care for negligent advice was narrowed (in a later case) to only include advice given by someone with special skill.

79

What are the strengths of courts as a law-making body?
Find corresponding weaknesses

. Precedents create certainty, consistency and predictability*
. Courts can change the law quickly
. Courts are not subject to political influence when making a decision*
. Courts are able to fill gaps in legislation
. Courts can develop areas of law*
. Courts can give meaning to an Act of parliament
. Courts can keep the law from becoming too rigid and provide flexibility in the law-making process*

* = 4 I've decided to remember

Key words: Certainty, quickly, influence, fill, develop, meaning, keep

80

Explain the following strength of courts as a law-making body: Precedents create certainty, consistency and predictability

The citing one precedent ensures consistency, certainty and predictability. Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how a court will decide a particular case.

Precedent provides some protection and guidance for judges, in that they can refer back to previous cases and decide accordingly.

However (weakness), it can be difficult to locate relevant common law because of the many cases that may be decided in the relevant area of law.

81

Explain the following strength of courts as a law-making body: 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 the law.

However, judges do not always reflect current community values when making a decision.

82

Explain the following strength of courts as a law-making body: Courts can develop areas of law

Courts may create a new area of law, or change the law, to cover a situation that was not previously covered by statute law or common law.

This is essential because new situations are constantly arising. The law of negligence was first established in the courts and was developed further in the courts as the need arose in the community and in accordance with fairness for the parties.

The courts have continued to develop the law in a wide range of human activities in order to keep the law applicable to changing times.

However, courts may decide to act conservatively because they feel that law-making should be left to parliament.

83

Explain the following strength of courts as a law-making body: Courts can keep the law from becoming too rigid and provide flexibility in the law-making process

The courts can change the law when it has become outdated, if a case is brought before the courts.

The processes of distinguishing, overruling and reversing previous decisions can be used to keep the law from becoming too static or rigid. If a precedent does exist, it may be able to be distinguished to create a fair result in a new set of circumstances.

A precedent may also be overruled by a superior court.

However, courts may be bound by an old precedent, or may decide to act conservatively because they feel that law-making should be left to parliament.

84

What are the weaknesses of courts as a law-making body?

. Finding precedents can be difficult*
. Changes in court-made law can be slow
. Courts are not an elected body*
. Courts are not able to investigate an area of law
. Courts make laws ex post facto*
. Courts can only make law when an appropriate case comes before them and then they are restricted to the specific area of law that is in the case before them
. Courts may be bound by previous decisions*

* = 4 I've decided to remember

Key words: difficult, slow, elected, investigate, ex post facto, case and previous

85

Explain the following weakness of courts as a law-making body: Finding precedents can be difficult

The process of precedents can be an inefficient means of making and changing the law, because finding the relevant precedents can be time-consuming.

Identifying the ratio decidendi for the particular cases may be difficult, as there could be judgments from different judges. In this situation, the lawyer must look at the decisions from judges who decided in a similar way and formed the majority.

Judges who do not agree with the majority are referred to as dissenting judges. In some instances there are conflicting authorities. This means that there is more than one judgment on a particular issue, and there are differences in the reasons for the decisions in some judgments.

If this occurs, the judge needs to decide which precedent is most appropriate to the set of circumstances before the court.

86

Explain the following weakness of courts as a law-making body: Courts are not an elected body

Members of parliament are elected by the people to make laws on behalf of the people. Judges are not elected.

At times the courts are called on to make laws when deciding on a new issue or interpreting Acts of parliament. The laws made by courts form part of the law as a whole to be followed in the future.

87

Explain the following weakness of courts as a law-making body: Courts make laws ex post facto

Court decisions are made retrospectively (ex post facto – after the fact); that is, they decide on a situation that has already taken place.

(This could mean a party in a case was acting within the law at the time, even though they were later found to have acted outside the law).

88

Explain the following weakness of courts as a law-making body: Courts may be bound by previous decisions

A court’s 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 in the hierarchy and may not be able to change the law when a case comes before it.

Judges may also decided to act conservatively.

89

Why do the courts and parliament need to work together?

They need to work together so that the law is flexible and can apply to any situation that might arise.

90

What does the relationship between the courts and parliament consists of?

. Parliament passing Acts to establish courts and outline their jurisdiction.
. Courts applying and interpreting the laws made by parliament.
. Parliament changing law made by courts.
. Parliament confirming law made by courts.
. Court decisions influencing changes in the law by parliament.

91

Explain the following relationship between parliament and the courts: Parliament passing Acts to establish courts and outline their jurisdiction

Courts cannot exist without Acts of parliament establishing them, and setting out their jurisdiction. Parliament therefore has a fair bit of power over courts as they can easily pass legislation which changes their jurisdiction. This means that the types and severity of cases heard in courts can be changed.

Parliament has passed amendments to create the specialist lists (for example the Sexual Offences List) and specialist divisions of the Magistrates’ Court (such as the Koori Court Division, the Drug Court Division and the Family Violence Division).

92

Explain the following relationship between parliament and the courts: Courts applying and interpreting the laws made by parliament

Courts must apply statutes, or delegated legislation, to the cases before them in order for legislation to be effective. To do this it is sometimes necessary for a court to interpret the meaning of words in an act or piece of delegated legislation (this forms precedent).

For the courts to be able to interpret the meaning of the words of an Act of parliament, an individual or group must take the matter to a court. This can be an expensive exercise.

93

Explain the following relationship between parliament and the courts: Parliament changing law made by courts

Parliament can change the law to override (or abrogate) a decision made through the courts (other than High Court interpretations of the Constitution).

On occasion, the courts interpret the meaning of words in a statute in a way that was not the intention of parliament, or in a way that does not reflect the current meaning of the Act. Therefore, parliament will change the precedent set by the courts.

94

Explain the following relationship between parliament and the courts: Parliament confirming law made by courts

Parliament is the supreme law-making body within its jurisdiction and can make laws that confirm precedents set in a court by passing an Act of parliament that reinforces the principles established day the court.

95

Explain the following relationship between parliament and the courts: Court decisions influencing changes in the law by parliament

Courts can influence changes in the law by parliament through their comments made during court cases. Parliament can also be influenced to change the law if a court is bound by previous precedent and makes a decision that creates an injustice.
A progressive decision reached by the courts could alert the parliament to the need for a major change in the law.

96

What are the reasons for parliament being influenced by the courts?

. Courts may indicate in a judgment that they think the law should be changed by parliament (courts being conservative)
. Courts’ decisions highlight problems
. Creativity by courts
. Lenient sentences can lead to changes in the law

97

Explain the following reason why parliament may be influenced by the courts: Courts may indicate in a judgment that they think the law should be changed by parliament (courts being conservative)

Courts may be reluctant to change the law because there is a need for the type of investigation that parliament can carry out on a whole area of law, but statements made by a judge (obiter dictum) within a court decision may influence parliament to change the law.

98

Explain the following reason why parliament may be influenced by the courts: Courts’ decisions highlight problems

Courts’ decisions highlight problems and can lead to a public outcry. The Crimes Amendment (Bullying) Act 2011 (Vic.) was influenced by the tragic death of Brodie Panlock. This Act became known as ‘Brodie’s law’. Brodie Panlock was a 19-year-old waitress who tragically ended her life after being subjected to ‘persistent and vicious’ workplace bullying at Cafe Vamp in Hawthorn, Victoria. Brodie’s parents wanted a change in the law because the perpetrators of the workplace bullying of Brodie escaped with fines rather than a jail sentence.

The five defendants in this case pleaded guilty in court to workplace offences under the Occupational Health and Safety Act 2004 (Vic.) and were fined a total of $335000. There were many complaints in the media about the inadequacy of this punishment. The amendment to the Crimes Amendment (Bullying) Act provides for up to 10 years’ imprisonment for bullying.

99

Explain the following reason why parliament may be influenced by the courts: Creativity by courts

Creativity by courts may alert the parliament to an area of law where new laws made by parliament are needed.

The Mabo decision was an example of the High Court breaking new ground. According to common law, Australia was an empty land when it was taken over by the British. This is the concept of terra nullius.

In the Mabo case, the High Court overturned the concept of terra nullius and stated that Mabo and the Meriam people had the right to their land under native title.

100

Explain the following reason why parliament may be influenced by the courts: Lenient sentences can lead to changes in the law

There was a public outcry in late 2013 and early 2014 following the lenient sentences that were handed down to a series of one-punch (also called coward’s punch) assaults in a number of states of Australia.

One case was that of Daniel Christie, who was punched in Kings Cross on New Year’s Eve 2013 and died in hospital two weeks later. The New South Wales parliament passed the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) in a one-day and all-night sitting of parliament.

The Act includes a mandatory eight-year minimum prison sentence for anyone who kills someone with a single punch while intoxicated or on drugs.