3.3.2 The ability of judges to make law Flashcards Preview

Legal Studies 3/4 > 3.3.2 The ability of judges to make law > Flashcards

Flashcards in 3.3.2 The ability of judges to make law Deck (10)
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1

Positive 1:

When the case involves a novel set of facts - there is no statute or common law

2

E.G. of novel set of facts:

Grant v Australian Knitting Mills

3

Positive 2:

Flexibility

4

Flexibility (1):

Courts have some flexibility in avoiding and developing precedent through reversing, overruling, distinguishing and disapproving cases.

5

Positive 3:

Courts can make law when they declare law 'ultra vires' or void if it is outside the law-making powers of the parliament that is making the law.

6

Negative 1:

Courts cannot determine what the law is unless a case is brought before them. This can be difficult, as parties need standing to be heard in the courts.

7

Negative 2:

Courts cannot comprehensively research, review and make sweeping changes to the laws.

8

Negative 3:

Lower courts are bound by precedent

9

Negative 4:

Common law may be abrogated by Parliament; overriden by parliament.

10

Negative 5:

Statutory interpretation is limited to the interpretation of the meaning of the words in the statute.

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