Flashcards in 3.3.2 The ability of judges to make law Deck (10)
When the case involves a novel set of facts - there is no statute or common law
E.G. of novel set of facts:
Grant v Australian Knitting Mills
Courts have some flexibility in avoiding and developing precedent through reversing, overruling, distinguishing and disapproving cases.
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.
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.
Courts cannot comprehensively research, review and make sweeping changes to the laws.
Lower courts are bound by precedent
Common law may be abrogated by Parliament; overriden by parliament.