! Role of the Courts in Lawmaking Unit 3 Outcome 3 Chapter 5
Oct 21, 2014
! Role of the Courts in Law-‐making Unit 3 Outcome 3
Chapter 5
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
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
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….
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
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
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
Jams & Judges
&
Mmm ….. jam!
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
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!
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…
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
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
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!)
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
Precedent in Practice
Anyone feel like a ginger beer?...
Precedent in Practice
… with a side of snail
Are the fact situations the same?
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
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.
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
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)
! 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) 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) …..
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
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
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
Methods used in Statutory Interpretation
! Intrinsic Materials
! Extrinsic Materials
! Literal versus purposive approach
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
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
Literal Approach
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
Reasons for Statutory Interpretation
Reasons for Statutory Interpretation
Effects of Statutory Interpretation
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
Role of courts in the separation of powers
The independence of the judiciary
Courts making law ex post facto
Doctrine of precedent
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…
Parliament establishes courts
Parliaments legislation limits common law
The courts interpret the statutes of parliament
The courts have some power of parliament
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
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