Reasoning and Rule application

Extending old rules to new situations by analogy, or even creating new rules. Judges had this right.

Rules that arise may be incomplete and may leave situations in doubt. They are sufficient for some situations but not all

General principles will cover many likely situations and the reasons will provide a basis for predicting similar situations.

Identifies who the parties to the case are: the people who brought the court proceedings and those they brought them against.

Any person who puts police to investigation of a false charge and exposes innocent people to the risk of prosecution is guilty of public mischief.

The rule which later courts use when they treat Manley case as a precedent, also known as reason for the deciding.

The process of judicial law-making is different from legislation. Judges can change the law only by working with the cases that happen to come before them.

If parliament passes legislation contrary to earlier precedents, the legislation simply overrides the earlier precedents, since parliament is a superior law-making authority to the courts.

A decision is only binding on lower courts in the same legal system. If the legal system is different then it would be up to that Supreme Court to follow Manley's case or not.

Decisions which are not binding; courts like to follow them but do not have to.

What it means to develop and modify the law over time by making decisions in particular cases.

People making difficult decisions pretend that the decision is not the result of their own action, but is forced on them by someone or something else.

When the legislature makes a new law, it usually starts at a particular time. But when courts develop the law, the law is treated as if it had always been like this.

If one admits that judges have changed the law, it seems silly, and sometimes unjust, to give these changes retrospective effect.

The theory that old cases are good law today (The theory is that old cases, like old soldiers, never die; but in practice again like old soldiers they are often conveniently forgotten.)

Judges not only apply the law, but from time to time change the law by the way they decide new cases, and the reasons they give for their decisions.

Although in such cases as this the courts do make law, the process of judicial law-making is different from legislation judges change the law only by working with the cases.

When cases are decided in a way that extends the criminal law, that happens people can be punished for acts which were not known to be crimes at the time when they were committed.

Judges are elected, and some people would argue that their views are not likely to be representative of the community's views.

The notion that judges are (in some circumstances) bound to follow some precedents.

In these cases judges are just making up new law.

Each generation of Australians reads the Constitution in the light of the meaning of its words and the requirements of its structure as understood from time to time.

Distinction between 'originalist' and 'living tree' approaches to constitutional interpretation.

The Constitution (if altered) can be altered only in that other way which is by way of a constitutional amendment.

The doctrine of precedent or stare decisis were discussed in Chapter 7. Some of the details of the application of the doctrine are left to individual courts to determine as a matter of court practice

The Full Court of the High Court is not strictly bound by its own previous decisions.

The High Court has to be persuaded to depart from its own past decisions.

One of the leading cases is John v Federal Commissioner of Taxation ('John').

Noting that for the High Court to overrule its previous decision is a 'serious step, not lightly to be undertaken'.

The Court indicated that a 'cautionary principle' should be followed in overruling past decisions.

Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it.

The High Court had to consider whether to follow or depart from its reasoning. Should the current respondent enjoy immunity like the respondent in the earlier case had?

This meant that the construction of a particular word or phrase, used in a new context, will need to be reconsidered when presented in a later case.

Constitutional doctrine stands on a different basis to other holdings, so far as the requirements of the law of precedent are concerned.

A decision on only binds lower courts in the same legal system. They used this to criticize Manley's case.

Decisions which are not binding are merely 'persuasive' courts like to follow them but do not have to.

The logic behind the doctrine of precedent is that a lower court should apply the principles previously laid down by an appeal court because the appeal court has the power to overturn the lower court's decisions.

In Australia each of the six states and two territories has its own court hierarchy, dealing with matters arising under each state or territory's jurisdiction.

Courts from different court hierarchies may all be applying the same Commonwealth law.

Intermediate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.

For the first time in 1943 the High Court formally decided Courts in Australia should follow a decision of the House of Lords upon matters of general legal principle.

Australian courts are not bound by foreign court decisions. This simple statement of principle follows from the doctrine of precedent and court hierarchies. Foreign courts are not in the Australian court hierarchy,