Precedent & Stare Decisis
This doctrine requires courts to follow the reasoning of past decisions in similar cases.
What is precedent (the doctrine of precedent)?
The process by which judges clarify, expand, or limit the meaning of words in legislation.
What is statutory interpretation?
This advantage means parties can predict how precedents will be applied to future cases, ensured by stare decisis.
What is consistency (predictability)?
This requirement means a party must be directly affected by, or have a special interest in, an issue to bring a case to court.
What is standing?
This principle means that, within its jurisdiction, parliament can make laws about any topic it chooses.
What is the supremacy of parliament (parliamentary sovereignty)?
A precedent from a court of equal or higher standing in the same hierarchy that a judge must follow.
What is a binding precedent?
One reason courts must interpret statutes: legislation is often written in these broad, non-specific terms.
What is 'general terms'?
This disadvantage means courts must wait for a case with standing to come before them before they can change the law.
What is being reactive (unable to act proactively)?
These resource-related barriers, including filing, hearing, and jury costs, can discourage parties from bringing a case to court.
What are costs and time?
This term describes parliament passing legislation that overrides or cancels out a common law principle established by a court.
What is abrogation of common law?
A precedent from a different court hierarchy, or a lower court, that a judge may consider but is not obliged to follow.
What is a persuasive precedent?
This effect of statutory interpretation occurs when a court's decision gives a word a narrower meaning, as in Deing v Tarola narrowing 'regulated weapon' under the Control of Weapons Act 1990 (Vic).
What is a restricted (narrowed) meaning of a word?
This disadvantage describes how identifying the relevant precedent or ratio decidendi can be time-consuming, expensive, and difficult for parties.
What is difficulty, cost, and time in identifying precedents?
This term describes judges' reluctance to make major changes to the law, preferring to leave significant reform to parliament.
What is judicial conservatism?
This term describes parliament enshrining or restating a court-made common law decision in legislation.
What is codification of common law?
This term describes a judge's remarks that are not part of the binding decision, such as comments in the Trigwell case suggesting the law should be reviewed.
What is obiter dictum?
This reason for statutory interpretation arises when words in old legislation no longer reflect current community standards, such as debate over what counts as 'indecent language.'
What is 'legislation no longer reflecting community values / meaning of words changing over time'?
This disadvantage suggests judges tend to stick with existing precedents rather than embrace major legal change.
What is judicial conservatism?
This term describes a willingness by judges to consider social and political factors, sometimes highlighting issues without changing the law themselves, as seen in the Trigwell case.
What is judicial activism?
In this case, the High Court upheld an old common law rule from Searle v Wallbank (1947) about animals straying onto roads, despite obiter comments suggesting the law should be revisited.
What is Trigwell (Trigwell's case)?
This acronym for the four ways courts can avoid being bound by precedent stands for Reversing, Overruling, Distinguishing, and Disapproving.
What is R.O.D.D. (flexibility to avoid precedent)?
This term describes what a judge does when they give the meaning of words in an Act, since they cannot change the actual wording of legislation.
What is 'judges can only interpret the words of legislation, not amend them'?
This is a key limitation of statutory interpretation: judges must wait for a case to come to them, and cannot do this to the actual words of legislation.
What is 'judges cannot change the wording of legislation, only interpret its meaning'?
This High Court decision recognised native title and was later codified by the Native Title Act 1993 (Cwth).
What is Mabo (v Queensland [No 2])?
Although parliament is supreme, this is the one thing it cannot do: abrogate a High Court decision on this particular legal document.
What is the Constitution?