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
opera>on
of
the
doctrine
of
precedent
! Reasons
for
the
interpreta>on
of
statutes
by
judges
! Effects
of
statutory
interpreta>on
by
judges
! Strengths
and
weaknesses
of
law-­‐making
through
the
courts
! The
rela>onship
between
courts
and
parliament
in
law-­‐
making

3. Historical
Development
of
Common
Law
! Common
law
has
evolved
from
past
decisions
made
by
courts
da>ng
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

4. 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
! Reasoning
for
decisions
provide
a
model
for
lower
courts
to
follow
Followed
by
Decision….

5. How
can
Judge’s
make
law
! Deciding
on
a
new
issue
that
is
brought
before
them
! Statutory
interpreta>on
! Ra>o
decidendi
-­‐
It
is
the
REASON
which
is
the
RULE,
the
RULE
is
the
REASON
and
the
REASON
is
the
RATIO

6. Restrictions
on
judge-­‐made
law
! Judge’s
can
only
make
laws
in
certain
circumstances:
! If
in
a
superior
court
! If
there
is
no
previous
binding
precedent
! Excluding
ability
to
dis>nguish
differences

7. 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
! Creates
consistency
and
predictability
It
is
the
REASON
which
is
the
RULE
the
RULE
is
the
REASON
and
the
REASON
is
the
RATIO

8. Jams
&
Judges
&
Mmm ….. jam!

9. Making
Jam
Ingredients
! 7
quan>ty
of
chopped
(pi[ed/
peeled)
fruit
! 2
cups
of
sugar
! ½
cup
water
! ¼
cup
lemon
juice
Method
1. Combine
all
ingredients,
bringing
slowly
to
the
boil,
s>rring
occasionally
un>l
sugar
dissolves
2. Cook
rapidly
almost
to
jellying
point,
approx
20
minutes.
As
mix
thickens,
s>r
frequently
to
prevent
s>cking
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

10. Judges
&
Jam
! Making
jam
! No
ma[er
what
type
of
jam,
the
same
type
of
recipe
was
followed
! Making
law
! No
ma[er
what
type
of
case,
the
same
type
of
doctrine
of
precedent
was
followed
Doctrine of Precedent is the ‘recipe’ for Judge-made law!

11. 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’
! Rules
rela>ng
to
Stare
Decisis
! Precedents
can
only
be
set
by
a
higher
court
! All
lower
courts
are
bound
by
the
decisions
of
higher
courts
in
the
same
hierarchy
! Decisions
of
courts
at
the
same
level
or
equal
standing
or
from
another
hierarchy
are
NOT
binding
(can
be
persuasive)
Followed
by…
Decision…

12. Ratio
Decidendi
! NOT
the
Judgment/Decision/Punishment!!
! The
reason
for
the
decision
! The
component
that
forms
precedent
! It
is
the
REASON
which
is
the
RULE,
the
RULE
is
the
REASON
and
the
REASON
is
the
RATIO
! Finding
the
ra>o
decidendi
–
only
the
material
facts
are
relevant
! Example
Shaddock
v.
Parrama[a
City
Council
pg
232

13. Obiter
Dictum
! ‘Things
said
by
the
way’
! Not
apart
of
ra>o
decidendi
! Not
a
component
relevant
to
the
decision
making
though
a
point
of
considera>on
! Not
binding
but
can
be
persuasive

14. Binding
Precedent
! Legal
principle
that
must
be
followed
(ra>o
decidendi)
! Doctrine
of
precedent
depends
on
lower
courts
following
decisions
of
higher
courts
! General
rule:
! A
decision
of
a
higher
court
in
the
same
hierarchy
is
binding
or
must
be
followed
by
lower
courts
in
the
same
hierarchy
when
deciding
similar
or
‘like’
cases
! High
Court
decisions
are
binding
on
all
other
Australian
courts
(though
the
High
Court
itself
is
not
bound
by
its
own
precedent!)

15. Persuasive
Precedent
! A
convincing
argument
made
by
a
judge
in
a
previous
case
however
not
binding
! Persuasive
Authority:
! Obiter
Dictum
! Statements
made
by
judges
at
the
same
level
in
the
same
hierarchy
! Ra>o
Decidendi
! Of
courts
at
the
same
level
or
lower
in
the
same
hierarchy
! Decision
of
a
judge
in
another
court
hierarchy
! Although
not
binding
can
be
used
as
a
point
of
reference

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

17. Precedent
in
Practice
… with a side
of snail

18. Are
the
fact
situations
the
same?

19. Don’t
Ride
On
Drugs!
Flexibility
within
the
Doctrine
of
Precedent
! Dis>nguishing
a
previous
precedent
! Reversing
a
precedent
! Overruling
a
precedent
! Disapproving
a
precedent

20. 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
dis>nguished
from
the
Gillard
v.
Wenborn
case
on
the
difference
of
the
facts
of
the
case.
The
accused
in
the
Davies
v.
Waldron
was
found
a[emp>ng
a[emp>ng
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.

21. 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
acqui[ed
of
charges
of
manslaughter
–
ra>o
decedendi
no
evidence
showing
the
shaking
of
the
baby
was
the
cause
of
death

22. 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
ra>o
decedendi
of
the
new
decision
is
to
be
followed
by
lower
courts
in
future
! Case
Study
AON
risk
Services
Australia
Ltd
v.
Australian
Na>onal
University
(2009)

23. ! Insert
pic
from
book
pg
242

24. 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)
un>l
a
higher
court
overrules
and
makes
a
new
precedent
! If
at
lower
level
of
hierarchy,
the
court
may
disapprove,
however
is
s=ll
bound
by
the
precedent
and
must
follow
the
decision
! Case
Study
State
Government
Insurance
Commission
v.
Trigwell
&
Ors
(1978)
…..

26. Interpretation
of
past
precedents
! Problems
interpre>ng
past
decisions
include:
! Loca>ng
relevant
cases
! Iden>fying
relevant
ra>os
! Cases
with
more
than
one
ra>o
! Dissen>ng
judgments
! Determining
what
is
a
‘like’
case

27. Interpretation
of
past
precedents
! Because
of
a
judge’s
ability
to
dis>nguish,
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

28. Statutory
Interpretation
! Judge
made
law
through
the
process
of
interpre=ng
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
interpreta>on
(ra>o
decedendi)
forms
the
precedent
! For
future
cases,
the
act
and
the
precedent
are
read
together
and
form
the
law

29. Methods
used
in
Statutory
Interpretation
! Intrinsic
Materials
! Extrinsic
Materials
! Literal
versus
purposive
approach

30. Intrinsic
Materials
! Judges
use
intrinsic
materials
to
aid
in
their
interpreta>on
of
a
statute
! These
are
contained
in
the
act
itself
! The
words
of
the
act
! The
>tle
! Preambles
! Headings,
margins,
footnotes,
punctua>on
! schedules

31. Extrinsic
Materials
! Judge’s
also
use
extrinsic
materials
when
interpre>ng
a
statute
! These
are
aids
that
are
found
outside
of
the
act
itself
such
as:
! Parliamentary
debates
! Reports
from
commi[ees
and
law
reform
bodies
! Interpreta>on
acts
! Dic>onaries
! Law
reports

32. Literal
Approach

33. Purposeful
Approach
! Used
when
the
literal
meaning
of
the
word(s)
does
not
support
the
inten>on
of
parliament
when
making
the
law.
! Judge’s
look
at
the
purpose
of
the
act
and
interpret
the
words
based
on
the
overall
inten>on
of
the
law.
! Also
consider
the
compa>bility
of
the
law
with
Human
Rights

34. Reasons
for
Statutory
Interpretation

35. Reasons
for
Statutory
Interpretation

36. Effects
of
Statutory
Interpretation

37. Strengths
and
Weaknesses
of
law-­‐making
through
the
courts
! The
courts
are
influen>al
in
mul>ple
areas:
! Separa>on
of
powers
! Independence
of
the
judiciary
! Making
law
ex
post
facto
! The
Doctrine
of
precedent
! Each
of
these
areas
have
strengths
and
weaknesses

38. Role
of
courts
in
the
separation
of
powers

39. The
independence
of
the
judiciary

40. Courts
making
law
ex
post
facto

41. Doctrine
of
precedent

42. Relationship
between
courts
and
Parliament
in
the
law-­‐making
process
! Parliament
establishes
courts
! Parliament’s
legisla>on
limits
the
common
law
! The
courts
interpret
the
statutes
of
parliament
! The
courts
have
some
power
of
parliament
See
Study
on
slides
to
follow…

43. Parliament
establishes
courts

44. Parliaments
legislation
limits
common
law

45. The
courts
interpret
the
statutes
of
parliament

46. The
courts
have
some
power
of
parliament

47. The
Mabo
Case
! The
development
of
the
law
of
na=ve
=tle
shows
the
ways
parliament
and
the
courts
work
together
! Na=ve
=tle
refers
to
the
rights
and
interests
of
Aboriginal
and
Torres
Strait
Islander
people
in
lands
and
waters
that
are
possessed
under
their
tradi>onal
laws
and
customs
and
are
recognised
under
Australian
law
! See
handout
of
case
study

48. References
! Beazer,
Humphreys
&
Filippin
(2012)
Jus7ce
&
Outcomes
12e,
12th
ed
! Aldous
(2008)
Making
&
Breaking
the
Law,
8th
ed
! John
Wiley
&
Sons
Australia,
Ltd,
Jacaranda
plus
‘Study
on’
(2010)
! Tony
Kuc,
Cri>cal
Agendas
(2014)
! Humphreys,
2011,
Legal
Notes
2nd
Ed