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VICLegal StudiesQuick questions
Unit 4: The people and the law
Quick questions on The doctrine of precedent and the relationship between courts and parliament: VCE Legal Studies
15short Q&A pairs drawn directly from our worked dot-point answer. For full context and worked exam questions, read the parent dot-point page.
What is stare decisis?Show answer
The doctrine of precedent is captured in the Latin maxim stare decisis et non quieta movere ("to stand by things decided and not disturb settled points"). Under stare decisis:
What is the Australian hierarchy?Show answer
The Australian court hierarchies (federal and state) sit beneath a single apex: the High Court of Australia.
What is identifying the ratio decidendi?Show answer
The ratio is the legal principle or rule on which the decision rests. Finding it requires reading the judgement carefully. The headnote of a law report is a starting point but is not authoritative. Where a court is divided, the ratio is found in the reasoning of the majority.
What is the four techniques?Show answer
1. Distinguishing. A lower court finds the material facts of the present case different from those of the binding precedent. The precedent does not apply. Distinguishing allows incremental development without overturning precedent.
What is the dialogue between parliament and the courts?Show answer
The relationship is iterative.
What is strengths and limitations?Show answer
Strengths. Consistency, predictability, equal treatment of like cases. Allows incremental development of law. Provides reasoned justification for outcomes.
What is 1. Distinguishing?Show answer
A lower court finds the material facts of the present case different from those of the binding precedent. The precedent does not apply. Distinguishing allows incremental development without overturning precedent.
What is 2. Reversing?Show answer
An appellate court reverses the decision of the lower court in the same case. The decision below is set aside.
What is 3. Overruling?Show answer
A higher court rejects the precedent of a lower court (or of itself) in a different case. The earlier decision is no longer good law.
What is 4. Disapproving?Show answer
A court signals disagreement with a precedent without formally overruling. Common where the court is same-level and cannot bind, or where the question is not directly before it.
What is parliament codifies court decisions?Show answer
The Native Title Act 1993 (Cth) codified the common-law recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1.
What is parliament abrogates court decisions?Show answer
The Wrongs (Animals Straying on Highways) Act 1984 (Vic) reversed Trigwell v State Government Insurance Commission (1979) 142 CLR 617.
What is courts interpret statutes?Show answer
Sometimes broadly, sometimes narrowly. Parliament can amend if dissatisfied. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 set the modern framework.
What is courts develop common law where parliament is silent?Show answer
The High Court can recognise a new tort, a new defence, a new cause of action (within constitutional limits). Sullivan v Moody (2001) 207 CLR 562 illustrates the High Court's cautious approach to recognising novel duties of care.
What is strengths?Show answer
Consistency, predictability, equal treatment of like cases. Allows incremental development of law. Provides reasoned justification for outcomes.