2015 u303 the role of the courts in law making1
TRANSCRIPT
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