Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part two:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

However, lower courts must follow binding precedents, even if they disagree if they don’t have the scope to legally manoeuvre. Therefore the Doctrine of Precedent also creates rigidity which can limit the effectiveness of the doctrine as  Judges have to follow archaic precedents (as seen in R v Hakopian) and are forced to wait for a superior court to reverse or overrule the precedent or wait for Parliament the abrogate the outdated precedent.

 

Persuasive precedents do not have to be followed although due respect is paid. Persuasive precedents are from courts of equal standing, of lower standing, from other common law countries (e.g. South Africa), and other state hierarchies (e.g. NSW). Furthermore, judges may include ‘obiter dicta’ which are “matters spoken by the way” and are persuasive. These hypothetical statements are beneficial because the y help guide judges with similar cases in the future and assist in the evolution of common law.

 

I hope this can help you all.

JB

For Archie – Courts as Lawmakers.

Dear All,

Archie recently asked me how to tackle an 8 mark questions. The particular question was Evaluate two weaknesses and two strengths of law making through the courts.

Here are some general tips and ideas for this sort of question.

Include a brief introduction where you state the two big weaknesses and two main strengths.

Id then do four paragraphs.

One each for the weaknesses and one for the strengths.

Start with the first weakness….. rigidity for example. Then counter it with a strength of rigidity and finish off with a weakness. This way you evaluate as you are looking at the for and against of the particular weakness.

Then do the second, ie. Judges are not elected. A linking word such as furthermore or likewise is crucial. Again follow the pattern of weakness, strength of it ie. impartial and not pressured by constituents, and another aspect of the failings of that weakness.

Then say however, or in contrast and do the two strengths. Such as allows them to appropriately apply the law to the case at hand, or novel/trial cases.

I hope this can help you all in some way or form. If there are any questions you have about what I’ve said above or other questions leave a comment and ill get back to you.

Regards,
JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part one:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

Primarily, courts resolve disputes before them, and in doing so are able to make common law in two ways by applying the doctrine of precedent. The first way is through case law in a novel case (i.e. no law exists). This is beneficial because if Parliament has not made legislation in a controversial area for fear of voter backlash, e.g. abortion, the courts must respond by creating a precedent, e.g. R v Davidson 1969. The courts must respond to cases by creating law when there is either no legislation or if the legislation is ambiguous. The other way is through statutory interpretation where the courts interpret legislation by applying Parliaments purpose to the case. Statutory interpretation is required if legislation is ambiguous. For example, the Studded Belt case gave meaning to what constitutes a regulated weapon. The benefit of statutory interpretation is that it creates meaning to the words in a statute which can enable the resolution of a dispute.

The underlying reason for the Doctrine of Precedent is ‘stare decisis’ where judges will “stand by the decisions of the past”. This creates consistency as similar cases with similar facts will result in similar outcomes. This consistency is beneficial as litigants and their legal representatives will be aware if the likely legal outcome and the reasons for it. Furthermore, in their law reports judges will include their ‘ratio decidendi’ which is their reasons for their decision. This creates a precedent. The precedent can either be binding or persuasive depending on the position of the court in the court hierarchy. Lower courts are bound by precedents established in superior courts and have to be followed in order to create consistency. As a result, the superior courts with their learned judges are able to logically and fairly guide judges in courts of lower standing through binding precedents

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

Here is the second question:

Outline the operation of the doctrine of precedent.

The courts are able to establish common law through application of the doctrine of precedent. The doctrine of precedent operates on the principle of stare decisis (to stand by a previous decision). This means that a similar outcome is applied to cases of similar facts. New precedents are created through novel cases (where no legislation exists) and also through statutory interpretation (where the meaning of legislation is unclear).

The nature of precedents depends upon which court it was established in. Binding precedents are created in superior courts of record and must be adhered to by all lower courts. In contrast persuasive precedents do not have to be followed but exist to provide legal guidance, these precedents comprise of the ratio decidendi (legal reasoning) of lower courts, courts of equal standings, from other state hierarchies (NSW), from other common law countries (South Africa) and also of obiter dictum (things said along the way) which act to provide insight and guidance from learned judges on hypothetical situations. The doctrine ensures consistency and fairness between like cases. Precedents are found in law reports that include the facts of the case, the decision, the ratio decidendi (legal reasoning) and obiter dicta.

Furthermore, the doctrine of precedent provides a number of means of flexibility to enable evolution in common law and prevent any miscarriages of justice. Distinguishing has been the most effective means to aid in evolution as it establishes new common law if it is deemed the facts of a case are sufficiently different that an injustice would occur through the application of the precedent. In addition the method of reversing was demonstrated in the Studded Belt Case 1993 where the case was heard on appeal and the judge in the Supreme court determined that the case had been wrongfully decided in the magistrates court and according ‘reversed’ the previous decision replacing the old ratio decidendi with the new legal reasoning. Finally, the means of overruling and disapproving also aid in the flexibility of the doctrine of precedent.

 

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

Ive completed my series of questions regarding the protection of rights by the Commonwealth Constitution.

I have a few questions regarding the role of courts that I can help you with.

Here is the first question:

Evaluate two strengths of law making by the courts.

Law making by the courts via the application of the doctrine of precedent is advantageous as it results in consistency between like cases as the principle of stare decisis is upheld (to stand by a previous decision) and a similar outcome is applied to the case at hand. However this results in the creation of a great deal of rigidity in the doctrine as judges are required to perpetuate outdated precedents (as was seen in R v Hakopian) as they are binding and must be followed in cases of similar facts until they are abrogated by parliament or overruled by a superior court. Despite this the consistency that results from the doctrine provides legal guidance to future litigants and their legal representatives in regards to the likely outcome of their case.

Furthermore, law making by the courts is beneficial as it enables them to fulfil their primary function of resolving legal disputes in situation where a novel case arises and there is no applicable legislation or where the meaning of a statute is unclear. In addition, this significance is best demonstrated in situations where parliament is unwilling or unable to legislate for fear of a voter backlash as is demonstrated by abortion which was not decriminalised by parliament until 2008 following a report by the VLRC. The doctrine of precedent enabled the courts to create common law in the case of r v Davidson 1969 that clarified the law in regards to access to abortion. However, this ability to respond is limited in situations where the presiding judge is unwilling to create common law as a result of adhering to the non-interventionalist approach which Justice Mason advocates. In addition to being unwilled judges may be unable to create common law as a result of the inflexibility of the doctrine and the binding nature of precedents that give them little room to legally manoeuvre.

Overall, courts are effective as a means of law making, however this can be impinged by the nature of the judge and binding precedents.

I hope this can help you all.

JB

Resources – 4 DAY ONLY SPECIAL

Dear Readers,

For the next four days (until Thursday the 9th of May) my notes are going to be for sale at discounted prices.

All essays are for sale for just $2 (33% off). Just check the Resources page at the top of the blog and you will find the links for all of the essays at just $2 each!

Unit 3 summary notes just $5: https://sellfy.com/p/E2Js

Unit 4 summary notes for just $10: https://sellfy.com/p/ifTK

Get in quick. Because this deal will last for just 4 days!

Regards,

JB

Unit 3 AOS 2 – Question 5

Dear Readers,

Here is the fifth question:

Compare Australia’s approach to the consitutional protection of democratic and human rights with the approach adopted in one of the countries listed above. In your answer, evaluate how effective the Commonwealth of Australia’s Constitution is in protecting democratic and human rights.

Quick comment:

If I remember correctly, this is an early version of the essay I have for sale.

Answer:

Australia’s approach to the constitutional protection of right shares a number of similarities but also a great many differences to the approach of South Africa. Australia is the only English speaking common law country that does not have an entrenched Bill of Rights.

The nature, extent and source of the protected rights differ greatly between the two nations. The Commonwealth Constitution is limited to the protection of only 5 express rights which are scattered throughout the constitution. Largely rights are protected through legislation (eg. Discrimination Act 1991), common law and treaties (ICCPR). In contrast, South Africa has an entrenched Bill of Rights which covers a broad range of social, democratic, human, legal and economic rights that are found in Chapter 2 S7-39 of the South African constitution.

The function of the legislative branch also differs considerably between the two nations. In Australia the upper house or house of review acts to provide the necessary checks and balances to ensure that legislation does not infringe upon our rights. During the committee stage a legal and constitutional committee can be established which investigates and determines if any of the clauses are unconstitutional. This process proves effective when the government does not control both house. However in the situation where it does, the upper house becomes a rubber stamp and the necessary checks and balances are not provided. This was demonstrated in 2005 by the Howard governments Work Choices legislation which was red stamped in the upper house. In contrast under S79, the President of South Africa can return legislation back to the national congress if it is deemed to be unconstitutional, furthermore under S36 the constitution allows for a limitation of certain rights if it is “demonstrably justified”. The limitation must be done based upon proportionality as was demonstrated in the Prince Case 2002, when the court said no in order to protect that country from the use of drugs. Furthermore, the national congress must create laws in the “spirit” of the Bill of Rights.

Both nations have an independent court designed to protect constitutional rights. In Australia the High Court established under S73-5 interprets the wording of the constitution and following the Political Broadcasting case 1992 established the implied right of freedom of communication on political matters inorder to uphold the principle of representative government. However as demonstrated by the Langer Case in 1996 the High Court can limit the implied right. Furthermore in Australia, the parties must have a standing in the case. In comparison, in South Africa the parties do not require a standing. Any court can determine that a piece of legislation is unconstitutional but only the Constitutional Court can declare it invalid. As was demonstrated in the Treatment Action Campaign in 2002. In both countries the purpose of the judicial branch is to ensure that the legislative branch fulfils its constitutional obligations.

Both nations have a structural protection allowing for the alteration of the wording of the constitutions. In Australia S128 provides the people with a direct vote, then if a double majority is successful the wording is altered. This is demonstrated in 1967 when the referendum was passed to increase the rights of aboriginals. However, only 8/44 have been successful as the process is extremely rigid and the Australian people are typically sceptical of change. This trend is demonstrated in the failure of the 1988 referendum to include a mini-Bill of Rights in the Australian Constitution. In contrast in South Africa under S74, there is a representative vote, and if 2/3 of the National congress and 6/9 of the provinces agree the referendum is successful.

Yours,
JB