Role of the Courts - Evaluate the Courts as a law-maker

[r.spiroski]

my teacher has given our class hints regarding the sac, one being a 10 mark question. I'm assuming that Evaluating the Courts as a Law-maker may just be this question. Evaluating is not my strongest ability, so critical advice would be great on the two paragraphs I have done so far:

The Doctrine of Precedent allows for an extent of flexibility to be achieved when the Courts are making decisions, thus making law. This flexibility is provided by providing procedures to follow if a judge believes that a binding precedent should not be followed or does not fully apply. A judge can reverse a decision made in an inferior court in the same hierarchy when they are hearing an appeal to that case. A judge a distinguish a case if they find that the material facts of the case they are hearing are substantially different to that of the Binging precedent. A judge can overrule non-binding precedent set in inferior courts - as was the case when the High Court overruled all previous precedent in inferior courts which sustained the idea of Terra Nullius, and found in favour of Eddie Mabo, establishing the precedent of Native Title. Finally a judge can disapprove precedent set by another court at the same level, creating two binding precedent which a superior court to clarify the issue in future when a case similar to it arises. If the precedent was set in a higher court, and the inferior court is bound to follow it but does not agree, they can state so in their Obiter Dictum and parliament may react to the statement by altering the legislation.
In contrast, for the Doctrine of Precedent to work, a case must actually be in front of the court, in order for them to be able to make a decision. The retrospective nature of law-making through the courts poses as a drawback, as parties would have their rights breached (in civil cases) or an act or omission would have been committed against the community as a whole (criminal cases.)

Another advantage of law-making through the courts is the fact that Judges are not aligned with any political parties, therefore they are not subject to political bias when making decisions on the cases before them. Unlike politicians who are aligned with a political party and must vote along party lines upon, judges are exempt from this.
However, due to the fact that the courts are established by parliament and the judges are appointed by parliament, the judges are not accountable to the people. Unlike politicians who the people elect to represent the majority of people's views, judges are exempt (although usually follow) the peoples opinions and views on issues. This is a drawback as fairness in the law may be hindered, due to the fact that the judge may use a biased approach to reach their decision, and not a decision that the community as a whole see as acceptable.

Thanks!

[michak]

my teacher has given our class hints regarding the sac, one being a 10 mark question. I'm assuming that Evaluating the Courts as a Law-maker may just be this question. Evaluating is not my strongest ability, so critical advice would be great on the two paragraphs I have done so far:

The Doctrine of Precedent allows for an extent of flexibility to be achieved when the Courts are making decisions, thus making law. This flexibility is provided by providing procedures to follow if a judge believes that a binding precedent should not be followed or does not fully apply. A judge can reverse a decision made in an inferior court in the same hierarchy when they are hearing an appeal to that case. A judge a distinguish a case if they find that the material facts of the case they are hearing are substantially different to that of the Binging precedent. A judge can overrule non-binding precedent set in inferior courts - as was the case when the High Court overruled all previous precedent in inferior courts which sustained the idea of Terra Nullius, and found in favour of Eddie Mabo, establishing the precedent of Native Title. Finally a judge can disapprove precedent set by another court at the same level, creating two binding precedent which a superior court to clarify the issue in future when a case similar to it arises. If the precedent was set in a higher court, and the inferior court is bound to follow it but does not agree, they can state so in their Obiter Dictum and parliament may react to the statement by altering the legislation.
In contrast, for the Doctrine of Precedent to work, a case must actually be in front of the court, in order for them to be able to make a decision. The retrospective nature of law-making through the courts poses as a drawback, as parties would have their rights breached (in civil cases) or an act or omission would have been committed against the community as a whole (criminal cases.)

Another advantage of law-making through the courts is the fact that Judges are not aligned with any political parties, therefore they are not subject to political bias when making decisions on the cases before them. Unlike politicians who are aligned with a political party and must vote along party lines upon, judges are exempt from this.
However, due to the fact that the courts are established by parliament and the judges are appointed by parliament, the judges are not accountable to the people. Unlike politicians who the people elect to represent the majority of people's views, judges are exempt (although usually follow) the peoples opinions and views on issues. This is a drawback as fairness in the law may be hindered, due to the fact that the judge may use a biased approach to reach their decision, and not a decision that the community as a whole see as acceptable.

Thanks!

Hey the two paragraphs are pretty good, just a couple of pointers:
- For the first paragraph make it blantly obvious that it is a strength, so state one strength/adavantage is the doctrine of precedent allows for flexbility in the laws make. This isn't english so you dont have to worry about your writing style, make it really obvious
- Also the examples are good and may not necessarily be needed, just watch that you aren't running out of time by using such examples
- In evaluate questions it isn't neccessary for the strengths and weaknesses to match up (thought I recommned they do). So if they aren't going to match make sure you use separate paragraphs because your first strength doesn't match with weakness in the same paragraph

Hope that helps

[Firemurphy]

Hey the two paragraphs are pretty good, just a couple of pointers:
- For the first paragraph make it blantly obvious that it is a strength, so state one strength/adavantage is the doctrine of precedent allows for flexbility in the laws make. This isn't english so you dont have to worry about your writing style, make it really obvious
- Also the examples are good and may not necessarily be needed, just watch that you aren't running out of time by using such examples
- In evaluate questions it isn't neccessary for the strengths and weaknesses to match up (thought I recommned they do). So if they aren't going to match make sure you use separate paragraphs because your first strength doesn't match with weakness in the same paragraph

Hope that helps

Your flexibility paragraph is interesting. When evaluating courts as law-makers, is it necessary to list and describe all four techniques? Would you get marks docked if you only focus on only 2? I know it is depending on the question- but what if it was a 8 marker would you spend the time to name and describe all 4 techniques?

[michak]

Your flexibility paragraph is interesting. When evaluating courts as law-makers, is it necessary to list and describe all four techniques? Would you get marks docked if you only focus on only 2? I know it is depending on the question- but what if it was a 8 marker would you spend the time to name and describe all 4 techniques?

Always mention all four techniques, kinda just doesn't make sense if you mention only two. If you whish you can go into more detail on two but dont neglect the others. It will only take up maybe one or two lines.

[r.spiroski]

Hey the two paragraphs are pretty good, just a couple of pointers:
- For the first paragraph make it blantly obvious that it is a strength, so state one strength/adavantage is the doctrine of precedent allows for flexbility in the laws make. This isn't english so you dont have to worry about your writing style, make it really obvious
- Also the examples are good and may not necessarily be needed, just watch that you aren't running out of time by using such examples
- In evaluate questions it isn't neccessary for the strengths and weaknesses to match up (thought I recommned they do). So if they aren't going to match make sure you use separate paragraphs because your first strength doesn't match with weakness in the same paragraph

Hope that helps

Thank-you very much for your constructive feedback! I will make changes to it now

[r.spiroski]

Your flexibility paragraph is interesting. When evaluating courts as law-makers, is it necessary to list and describe all four techniques? Would you get marks docked if you only focus on only 2? I know it is depending on the question- but what if it was a 8 marker would you spend the time to name and describe all 4 techniques?

Thank Firemurphy and michak, If I have adequate time to include all four of the RODD, i'll make sure I do.

[tcstudent]

hey all, my question relates to the topic so i didnt want to start a new thread, im just wondering to addition of this question, do you need to add in statutory interpretation while talking also about doctrine of precedent and do you need to add in RODD when talking about flexbillity? thank you

[Firemurphy]

hey all, my question relates to the topic so i didnt want to start a new thread, im just wondering to addition of this question, do you need to add in statutory interpretation while talking also about doctrine of precedent and do you need to add in RODD when talking about flexbillity? thank you

You dont need to, it wouldnt be compulsory- nothing is compulsory in evaluate topics but statutory interpretation is a good point to use for flexibility.

[eeps]

hey all, my question relates to the topic so i didnt want to start a new thread, im just wondering to addition of this question, do you need to add in statutory interpretation while talking also about doctrine of precedent and do you need to add in RODD when talking about flexbillity? thank you

If you used statutory interpretation for courts as a law-maker, a relevant example would be the studded belt case (where the judge in the case had to reconsider what a "weapon" actually was). If you're able to provide relevant example(s) where applicable, that may improve your answer.

[r.spiroski]

Always mention all four techniques, kinda just doesn't make sense if you mention only two. If you whish you can go into more detail on two but dont neglect the others. It will only take up maybe one or two lines.

late reply... but I'm glad I took this advice... was the only person in the class to use this in an evaluate question and thus was the only one to score full marks in that particular question. Thanks!!