LAW 1501 Chapter Notes - Chapter tute 2: Ratio Decidendi, Privy Council Of The United Kingdom, Spousal Privilege
7 Jun 2018
School
Department
Course
Professor
Melissa Sparrow (a1668063)
1
FOUNDATIONS READING TUTE 2 WEEK 1
COURTS
• Doctrine of Precedent- Stare Decisis
• High court power to overturn decisions of inferior courts
• High court does not have to follow precedent of one justice, only multiple justices
• High court role in constitutional matters
• Departure with precedent only conducted in order to “maintain a better connection
with more fundamental doctrines and principles.” (cited in Imbree v McNeilly)
(textbook, pg. 181)
• High Court must acknowledge reasoning of lower courts when deciding on a case
• Case for overrule in constitutional affairs: (textbook, pg. 183)
- If the error made previously had influenced later cases that had not given the
same judgement
- If the previous judgement was made with authority and did not conflict with
pre-existing doctrines
- Whether or not the decision was made based on the exact question asked or
taking into account other issues
- If precedent was not followed and a decision was made not taking precedent
into consideration
- Constitutional significance
• Cases reinforcing role of Stare Decisis in constitutional matters but with
implications-
- Shaw v Minister for Immigration and Multicultural Affairs
- Re Patterson; Ex parte Taylor (textbook, pg183)
• Justice Kirby stated that the court needs to take into account the evolving nature of
Australia e.g. social, political when interpreting the constitution (textbook, pg.184)
find more resources at oneclass.com
find more resources at oneclass.com
Melissa Sparrow (a1668063)
2
• Constitutional Amendments permitted according to s128 (textbook, pg. 187)
• Nature of High Court decision-making evolution 1980s moved towards more
frequent departures from precedent e.g. Mabo v Queensland [No. 2] (textbook,
pg.188)
• Departures such as Mabo v Queensland [No. 2] response to social values shift
• Overarching Australian Common Law nationally (textbook, pg.189)
• Legislation and Statutory Interpretation as main sources of Australian Law
• Single Federal Court judge not bound but usually follows previous decisions unless
perceiving a specific misjudgement of the previous courts
• Stare Decisis is a guide and does not need to be followed (textbook, pg. 192)
• Single judge of federal Court bound by Full Federal Court (majority rule)
(textbook, pg. 193)
• Full Court of Federal Court bound by Full Court of High Court
• Full Court not bound by itself though rarely changes it’s decisions
• Statutory Interpretation problematic because of the lack of knowledge of legislative
intent (textbook, pg. 197)
• Considerations of Comity Principle- Courts respect decisions of courts of equal
value e.g. Supreme Court Victoria/Supreme Court South Australia
• “Any such court [other than the federal court] has a duty not to depart from an
interpretation placed on Commonwealth legislation by another Australian
intermediate appellate court, unless convinced it is plainly wrong.” (textbook, pg.
199)
• Uniformity of Australian Common Law due to the supremacy of the High Court
• Privilege against spousal incrimination (Spousal privilege) common law
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
181: high court must acknowledge reasoning of lower courts when deciding on a case, case for overrule in constitutional affairs: (textbook, pg. If the error made previously had influenced later cases that had not given the same judgement. If the previous judgement was made with authority and did not conflict with pre-existing doctrines. Whether or not the decision was made based on the exact question asked or taking into account other issues. If precedent was not followed and a decision was made not taking precedent into consideration. Constitutional significance: cases reinforcing role of stare decisis in constitutional matters but with implications- Shaw v minister for immigration and multicultural affairs. Re patterson; ex parte taylor (textbook, pg183: justice kirby stated that the court needs to take into account the evolving nature of. Australia e. g. social, political when interpreting the constitution (textbook, pg. 184) 1: constitutional amendments permitted according to s128 (textbook, pg.
