Role of the Courts in Law-makingUnit 3 Outcome 3

Chapter 5

Key Knowledge

The ability of judges and courts to make law

The operation of the doctrine of precedent

Reasons for the interpretation of statutes by judges

Effects of statutory interpretation by judges

Strengths and weaknesses of law-making through the courts

The relationship between courts and parliament in law-making

Key Skills

define key legal terminology and use it appropriately

discuss, interpret and analyse legal information

apply legal principles to relevant cases and issues

describe the nature, importance and operation of courts as law-makers

analyse the impact of courts in law-making

critically evaluate the law-making processes of courts

discuss the relationships between law-making bodies.

SAC Date

Role of the Courts SAC 3

Tuesday 2nd June (Term 2 Week 8) 2.30PM

Historical Development of Common Law

Common law has evolved from past decisions made by courts dating back to King Henry II of England

Australia adopted this and with it came the principle of binding precedents

Due to court hierarchy, a higher courts decision becomes binding to lower courts

High court –> Court of Appeal –> Supreme Court

-> County Court –> Magistrates Court

What is Common Law

Law developed through courts

Also referred to as judge-made law and case law

Requires a case to be brought before the court

It is law developed through the courts. It is also known as judge-made law and case law.

Followed by

Decision….

How can Judge’s make law

Deciding on a new issue that is brought before them or when a previous principle of law requires expansion to apply to a new situation

Statutory interpretation — interpreting the meaning of the words in an act of parliament.

The reason for the decision of a court establishes a principle of law that is followed by future courts and forms part of the law, along with acts of parliament. The reason for the decision is called the ratio decidendi.

Restrictions on judge-made law

Judge’s can only make laws in certain circumstances:

If in a superior court — Judges can only develop or change the law when a relevant case is brought before them.

If there is no previous binding precedent — The nature of common law is that the principles of law established in a higher court are binding on lower courts in the same hierarchy.

Doctrine of Precedent

Precedent is the reasoning behind a court decision that establishes a principle or ruleof law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar

The principle of the doctrine of precedent creates consistency and predictability. When a person takes a case to court they will have some idea of the outcome because like cases are decided in a like manner.

Jams & Judges

&

Mmm ….. jam

Making Jam

Ingredients

7 quantity of chopped (pitted/peeled) fruit

2 cups of sugar

½ cup water

¼ cup lemon juice

Method

1. Combine all ingredients, bringing slowly to the boil, stirring occasionally until sugar dissolves

2. Cook rapidly almost to jellying point, approx 20 minutes. As mix thickens, stir frequently to prevent sticking

3. Poor into hot sterilised jars. Process 10-15 minutes OR seal with paraffin

What is the system?…………………..> The recipeWhat is the outcome?………………..> The jam

Judges & Jam

Making jam

No matter what type of jam, the same type of recipe was followed

Making law

No matter what type of case, the same type of doctrine of precedent was followed

Doctrine of Precedent is the ‘recipe’ for Judge-made law

Stare Decisis

“Fancy dancy” word to explain the process of lower courts following precedent set by higher courts in the same court hierarchy

Literally means ‘to stand by what has been decided’

When a decision is reached by a higher court, the reason for that decision is binding on a lower court.

Lower courts will follow the reasons for the decisions of higher courts when deciding similar cases.

This provides predictability and consistency.

Followed by…

Decision…

Ratio Decidendi

NOT the Judgment/Decision/Punishment!!

The reason for the decision

The component that forms binding part of judgement precedent

Regarded as a statement of law to be followed in the future.

Binding Precedent

Precedents in a superior court in the same hierarchy dealing with the same legal principles and material facts are referred to as binding precedents.

For a precedent to be binding on a particular case, the precedent must be: from the same hierarchy of courts

from a superior court — one that is higher in the hierarchy.

The High Court is not bound by its own previous decisions. However, in the interests of consistency, it will usually follow its previous decisions, unless it believes that a previous decision is not good law, or a previous precedent is outdated because of changes in attitudes, technologies or other circumstances.

Persuasive Precedent

Persuasive precedents are not binding on courts. However, they may be considered by some courts as influential on their decisions.

Precedents considered to be persuasive but not binding are: from courts in another hierarchy, such as

other states or countries

from courts on the same level of the hierarchy (which are not binding)

from inferior courts (that is, courts lower in the court hierarchy)

obiter dicta contained in a judgment of a court in the same hierarchy or in another hierarchy.

Obiter Dictum

‘Things said by the way’

Not apart of ratio decidendi

Not a component relevant to the decision making though a point of consideration

Not binding but can be persuasive

Precedent in Practice

Anyone feel like a

ginger beer?...

Precedent in Practice

… with a side of

snail

Are the fact situations the same?

Law of Negligence – Persuasive Precedent

British case of Donoghue v. Stevenson (1932) AC 562), which established the law of negligence. This case was not binding on Australian courts, but was used as persuasive precedent in Grant v. Australian Knitting Mills (1936) AC 85, which established the law of negligence in Australia.

Don’t Ride On Drugs!

Judges may not always have to follow a previous precedent and in some cases, may be free to create new precedents.

Flexibility within the Doctrine of Precedent

Distinguishing a previous precedent

Reversing a precedent

Overruling a precedent

Disapproving a precedent

Distinguishing a previous precedent

Finding a difference in material facts of the previous (binding) case to the current case therefore not bound by the previous decision.

Case Study Davies v. Waldron (1989)

The Judge in this case distinguished from the Gillard v. Wenborn case on the difference of the facts of the case. The accused in the Davies v. Waldron was found attempting attempting to start the car (and was at risk of driving), whereas the accused in Gillard v. Wenborn was found asleep in the driver’s seat, with the car running, and was not at risk of driving.

Reversing a precedent

When on appeal, the higher court changes or reverses the decision of the previous court with regards to the same case. The reversed precedent is now binding on lower courts in the same hierarchy.

Case Study Queen v. Tomas Klamo (2008)

The Court of Appeal reversed the Supreme Courts decision and Klamo was acquitted of charges of manslaughter – ratio decedendi no evidence showing the shaking of the baby was the cause of death

Overruling a precedent

A superior court decides not to follow an earlier precedent of a lower court (as it is not binding) in a different case

As a result the new precedent of the superior court ‘overrides’ the lower court precedent

The ratio decedendi of the new decision is to be followed by lower courts in future

Case Study AON risk Services Australia Ltd v. Australian National University (2009)

Insert pic from book pg 242

Disapproving a precedent

When a court at the same or lower level disagrees with a precedent set in a previous case

If at same level of hierarchy, the court may disapprove and set a new precedent, however BOTH precedents remain in force (binding to lower courts) until a higher court overrules and makes a new precedent

If at lower level of hierarchy, the court may disapprove, however is still bound by the precedent and must follow the decision

Case Study State Government Insurance Commission v. Trigwell & Ors (1978) …..

Interpretation of past precedents

Problems interpreting past decisions include:

Locating relevant cases

Identifying relevant ratios

Cases with more than one ratio

Dissenting judgments

Determining what is a ‘like’ case

Interpretation of past precedents

Because of a judge’s ability to distinguish, reverse, overrule and disapprove, the development of law through the courts is possible.

Classic example – Law of Negligence

Going further box pg 247 – 252

YES Please!

On second thought …. … I’ll pass

Statutory Interpretation

Judge made law through the process of interpreting the meaning of the words of an Act of Parliament (statute)

When a judge interprets the meaning of a word(s) the reasoning for the interpretation (ratio decedendi) forms the precedent

For future cases, the act and the precedent are read together and form the law

Need for Statutory Interpretation

The need for this interpretation arises when a case is brought before a court in which there is a dispute about whether the words or phrases contained in an act apply to the particular situation before the courts

Acts are often written in general terms and have to be interpreted and applied by judges so that they can decide the specific cases before them.

The judges can therefore be said to be law-making by adding to existing law and clarifying what the law is

Methods used in Statutory Interpretation

Intrinsic Materials

Extrinsic Materials

Literal versus purposive approach

Intrinsic Materials

Judges use intrinsic materials to aid in their interpretation of a statute

These are contained in the act itself

The words of the act

The title

Preambles

Headings, margins, footnotes, punctuation

schedules

Extrinsic Materials

Judge’s also use extrinsic materials when interpreting a statute

These are aids that are found outside of the act itself such as:

Parliamentary debates

Reports from committees and law reform bodies

Interpretation acts

Dictionaries

Law reports

Literal Approach

Happy Gilmore clip

Purposeful Approach

Used when the literal meaning of the word(s) does not support the intention of parliament when making the law.

Judge’s look at the purpose of the act and interpret the words based on the overall intention of the law.

Also consider the compatibility of the law with Human Rights

Bread or Biscuit

Studded Belt

Reasons for Statutory Interpretation

the act might not have taken into account future circumstances

the intention of the act might not be clearly expressed

there might be inconsistent use of the same word in the act (giving it different meanings)

an act may not include new types of technology

most legislation is drafted in general terms

the act may have become out of date

the meaning of the words may be ambiguous

the act might be silent on an issue and the courts may need to fill gaps in the legislation

the meaning of words can change over time

Effects of Statutory Interpretation

acts of parliament are applied to the cases that come before the courts

the words in the act are given meaning

the parties to the case are bound by the decision

precedents are set for future cases to follow

consistency and predictability

courts can overrule or reverse a previous decision of courts

parliament can abrogate law made by courts

restricting the law through a narrow interpretation of a statute

extending the law by a broad interpretation of a statute

Evaluation of law-making through the courts

Change the law quickly

Independent

Flexibility

Consistency and certainty

Develop areas of law

Changes the law quickly

Courts can change the law quickly if a relevant case is brought before them as they are not burdened by long parliamentary procedures.

However, they can only change the law if a case is before them. This requires a person with standing to bring the issue to court.

Courts may also be bound by precedent and unable to change the law

However, they may be able to distinguish, overrule, reverse or disapprove precedent.

Independent

As they are not elected, courts are not subject to political influence when making a decision. Judges are independent and unbiased and not subject to the whims of the electorate. This means they are able to assess the law on its merits, and not just on what is popular

However, as they are not elected judges may not reflect current community values when making a decision.

Flexibility

Courts can keep the law from becoming too rigid by distinguishing, overruling or reversing precedent and by interpreting statutes. Courts are also able to apply statute law to everyday cases through statutory interpretation.

However, they may be bound by precedent or reluctant to change the law for the sake of consistency.

Furthermore, too much flexibility in common law may undermine the doctrine of precedent and lead to inconsistency and uncertainty in the law.

Consistency and certainty

Precedent allows for the law to be applied consistently when material facts are similar. This ensures that similar cases are decided similarly and provides predictability, equality and fairness. However, courts are generally reluctant to change the

law. This may lead to injustices if judge’s conservatism means that they follow precedents that are outdated

The doctrine of precedent provides some guidance and protection for judges as they can refer back to previous cases and decide accordingly. However, judges may also be bound by a precedent and

unable to change it, even if this leads to an unfair outcome.

Develop areas of law

Courts can develop whole areas of law. Negligence was established by the courts and developed further as the need arose.

However, courts do not have the resources to investigate whole areas of law as parliament does.

Furthermore, the courts are only able to deal with the area of law relevant to the case before them, this means they must wait for someone with standing (directly affected by the issue) to bring the case to a superior court of record. This can mean the process is very slow. For instance, it took over 100 years to establish negligence.

Relationship between courts and Parliament in the law-making process

parliaments pass acts to establish courts

courts apply and interpret the law made by parliament

parliament can change or confirm law made by courts

court decisions can influence changes in the law by parliament.

Parliament establishes courts

For a court to exist, there must be an act of parliament to:

Establish the court

Set out its jurisdiction

For example, the Victorian Parliament passed the Supreme Court Act 1986 (Vic.) to establish the Supreme Court.

Courts apply and interpret laws made by parliament

For legislation to be effective, the courts must apply the statutes, or delegated legislation, to the cases before them

To do this, it is sometimes necessary for a court to interpret the meaning of the words in an act

Decisions about the meaning of the words in statutes form precedents that become part of the law to be followed in the future.

For example, the interpretation of the words ‘external affairs’ by the High Court in the Tasmanian Dam case set a precedent to be followed in the future.

Parliament can change or confirm common law

Parliament is the supreme law-making body within its jurisdiction and can make law that confirms a precedent set in a court — by passing an act of parliament that reinforces the principles established by the court.

Parliament can also change the law to override a decision made through the courts (other than High Court interpretations of the Constitution).

On occasions, the courts interpret the meaning of the words in a statute in a way that was not the intention of parliament, or in a way that does not reflect the current meaning of the act.

Courts influence parliament to change the law

Courts can influence changes in the law by parliament through their comments made during court cases. Parliament can also be influenced to change the law if a court is bound by previous precedent and makes a decision that creates an injustice. Parliament may be influenced for the following reasons:

Creativity by the courts may alert parliament to a need to change the law (Mabo)

Court decisions highlight problems with the law (Brodie’s law)

Courts may be too conservative and reluctant to change the law (Trigwell case)

The Mabo Case

The development of the law of native title shows the ways parliament and the courts work together

Native title refers to the rights and interests of Aboriginal and Torres Strait Islander people in lands and waters that are possessed under their traditional laws and customs and are recognisedunder Australian law

References

Beazer, Humphreys & Filippin (2012) Justice & Outcomes 12e, 12th ed

Aldous (2008) Making & Breaking the Law, 8th ed

John Wiley & Sons Australia, Ltd, Jacaranda plus ‘Study on’ (2010)

Tony Kuc, Critical Agendas (2014)

Humphreys, 2011, Legal Notes 2nd Ed

T Macdonald, 2014, Revision Booklet