1. 
Role of the Courts in Law-making
Unit 3 Outcome 3
Chapter 5

2. 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

3. 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.

4. SAC Date
 Role of the Courts SAC 3
 Tuesday 2nd June (Term 2 Week 8)
2.30PM

5. 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

6. 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….

7. 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.

8. 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.

9. Doctrine of Precedent
 Precedent is the reasoning behind a court
decision that establishes a principle or rule
of 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.

10. Jams & Judges
&
Mmm ….. jam

11. 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 recipe
What is the outcome?………………..> The jam

12. 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

13. 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…

14. 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.

15. 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.

16. 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.

17. 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

18. Precedent in Practice
Anyone feel like a
ginger beer?...

19. Precedent in Practice
… with a side of
snail

20. Are the fact situations the same?

21. 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.

22. 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

23. 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.

24. 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

25. 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)

26.  Insert pic from book pg 242

27. 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) …..

29. 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

30. 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

31. 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

32. 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

33. Methods used in Statutory Interpretation
 Intrinsic Materials
 Extrinsic Materials
 Literal versus purposive
approach

34. 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

35. 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

36. Literal Approach
Happy Gilmore clip

37. 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

38. Bread or Biscuit

39. Studded Belt

40. 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

41. 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

42. Evaluation of law-making through the courts
 Change the law quickly
 Independent
 Flexibility
 Consistency and certainty
 Develop areas of law

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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.

51. 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.

52. 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)

53. 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 recognised
under Australian law

54. 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