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Factors that affect the ability of courts to make law
Terms in this set (24)
What are factors that affect the ability of courts to make law
1. Doctrine of precedent
2. Judicial conservatism
3. Judicial activism
4. Cost and time in bringing a case to court
5. Requirement for Standing
Having a doctrine of precedent and court hierarchy ensures:
• like cases are decided in a like manner. This enables the parties in a dispute to look back to previous cases to gain some idea of how a court might determine their case.
• legal representatives are able to give advice on the likely outcome of case, as they will have some understanding as to how the court may decide the case.
• judges have some protection and guidance, as they can refer back to previous cases and decide accordingly.
• decisions made by more experienced judges in higher courts are followed in lower courts.
• the same point is not being decided over and over again, which would be a waste of resources. The doctrine of precedent does, however, also have limitations.
Notes about the doctrine of precedent:
- Identifying precedents may be hard, with conflicting judgements present (need to be decided between)
- May be bound by a binding precedent they don't agree with
- Flexible through reversal and overruling, but, judges are often conservative and don't wanna do so. Also flexible b/c allows persuasive.
- Laws are only made ex post facto, meaning that they cannot stop harm from being suffered
- Parliament can, at the end of the day, override judge-made law
Example of overrided common law
2015 Vic legisltion about directions to juries abolished an old common law rule that a judge may direct that delays can cast doubt on evidence given, which must be taken into account in the decision...
In constitutional matters...
PARLIAMENT CANNOT OVERRIDE COMMON LAW
Strengths and Weaknesses of the Doctrine of Precedent
Judicial Activism is contentious
Some say that the willingness of judges to consider the need to uphold rights and recognise community values when making law as independent law-makers.
Others view it as a legitimate obligation of the court that must be exercised as part of the social contract that gives them power to impose laws upon the people...
Advantages and Disadvantages of Courts as law-makers
What is judicial conservatism
The idea that courts should be cautious when making decisions that lead to significant changes in the law, and thus adopt a narrow interpretation of it.
Judicial Conservatism is about respecting
The superiority of Parliament as a law-maker.
• As parliament is the supreme law-maker elected by the people, it has more authority to implement major law reform. It also has access to parliamentary committees and bodies such as the Victorian Law Reform Commission so unlike courts, it can get input from the public.
Judges should generally...
interpret the law, not rewrite it. They should therefore choose narrow interpretations of legislation to avoid major changes to the meaning of legislation. Judges should also ensure their decisions do not reflect their own views, political opinions or perceptions of what the community expects. Rather, they should focus solely on legal considerations.
In this context, when interpreting the Australian Constitution, proponents of judicial conservatism argue the High Court should be reluctant to declare legislation to be ultra vires.
The majority of the HC took an ______________ approach in Rowe v AEC 2010
Rowe v AEC 2010
In this case, the issue was whether legislation that abolished the right of voters to enrol to vote within seven days of the issuance of electoral writs was valid. The High Court said the legislation was invalid as they were inconsistent with Sections 7 and 24 of the Constitution.
• Judicial activism is the willingness of judges to consider a range of social and political factors, such as community values and the rights of the people, when making decisions, thus resulting in a broader interpretation of the law.
• Whilst some consider this approach to be progressive, others feel it allows judges to change the meaning of laws contrary to the intention of the parliament which created those laws. Also, judges are not elected by the people so some doubt that they should try to reflect community values.
Example of Judicial Activism
In 1992 Mabo v Queensland, when the HC recognised the rights of Indigenous Australians to make
claims over their traditional lands. Supporters of the decision argued that it was a courageous decision that reflected political and social pressures to recognise the rights of Indigenous Australians. Opponents felt it diminished the objectivity of the court.
In the Malaysia Solutions Case (2011)
the High Court found that the Federal Government's policy of sending asylum seekers for processing to Malaysia breached the Migration Act as insufficient human rights protections were in place in Malaysia. This was an example of an activist approach and in part reflected community concerns regarding the treatment of asylum seekers.
Cost and Time in Bringing a Case to Court
Costs often deter people from using the courts
- e.g. legal representation costs, court costs, possibility of costs orders
Courts normally take ages (example)...
For example, Plaintiff M68/2015 v Minister for Immigration and Border Protection involved a challenge to the Commonwealth Government policy of sending asylum seekers to off-shore detention centres. The case took nine months from the date of the application to the date of the judgement.
However, the courts can act quickly in very...
urgent situations. For example, in Commonwealth v A.C.T., the commonwealth challenged ACT legislation authorising same-sex marriage. It took only five days from the passage of the legislation until the High Court ruled the legislation to be invalid.
What are some factors causing delays
The time it takes the courts to solve a dispute can be delayed by a number of factors, including complexity of the dispute, pre-trial procedures, lack of court resources and an ever-increasing workload on the courts. For example, in Allen v Chadwick, a claim of negligence by an injured passenger against an intoxicated driver took almost eight years to be resolved after a series of appeals ultimately ended in the High Court
How costs and delays can affect the ability of courts to make laws
The requirement of standing
Similar to how courts can only hear a case when they have jurisdiction, a party can only initiate a case if they have standing.
Standing means that they are directly affected by the issues involved in the case, or have a 'special interest,' -> meaning they must be more affected by the issue than the general public.
E.g. McBain's standing was economic loss.
Example of no standing...
E.g. in ACF v. Commonwealth (1980) the HC held that ACF did not have standing as it had no special interest in the action and was trying to either enforce the performance of a public duty or prevent th violation of a public right.
- In Re McBain, Catholic Bishops wanted to challenge the decision that allowed single women to access IVF treatment. The HC found that the bishops did NOT have standing as they had no special interest in the case, and the fact that outcome of the case was inconsistent with their religious beliefs was not sufficient enough to give them standing.
The requirement of standing:
• ensures cases are only brought to court by people who are genuinely affected by an issue or matter
• encourages people not directly affected by an issue or matter to seek other avenues of redress
• means that people who have general interest in a case have no right to pursue a legal challenge on behalf of public interest or the common good
• means that potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost.
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