Foundations of Australian Law Fourth Edition Copyright © 2013 Tilde Publishing and Distribution Chapter 4 How courts make laws

Chapter overview This chapter looks at the concepts of  Common law  Doctrine of precedent  Judgments and precedents  Statutory interpretation

Common Law Developed in England under the Westminster system Comprised of a collection of past decisions of judges and the facts of cases Past decisions of judges are called precedents and are recorded in law reports

Precedents Set by Australian Federal Courts can be found in Commonwealth Law Reports (CLRs) Set by state courts can be found in the relevant state law reports

Doctrine of precedent Process of deciding a case

… Persuasive precedents  Decisions made by lower court levels  Decisions made by courts in the same hierarchy  Decisions referred to by courts in other court hierarchies

Binding and Persuasive Precedents in the Australian Court Hierarchy High Court of Australia

... Changing and updating precedents  Overruling  Reversing  Distinguishing  Disapproving Cornerstones of Australian Law: Chapter 4

… Judgements and precedents  Parts of a judgement: Table 4.1

...  Precedents: Figure 4.7

Ratio decidendi Binding part of the precedent Judge's legal reasoning for reaching his/her decision Lower courts must follow the ratio decidendi established in higher courts Difficult to identify as it found throughout a judgment

Obiter dictum Persuasive part of a precedent Comments, opinions and observations made by the judge throughout the judgment Often referred to as ‘a statement or statements said by the way’

 Summary of ratio decidendi and obiter dictum: Table 4.2

Statutory interpretation Common law rules  Literal rule  Golden rule  Purposive approach rule  Class rule (maxim of ‘ejusdem generis’)

... Statutory interpretation: Figure 4.8 Cornerstones of Australian Law: Chapter 4

... Interpreting Acts  Acts Interpretation Act 1901 (Cth) -Section 15AA of the Acts Interpretation Act 1901 (Cth)  State legislation Problems associated with statutory interpretation Cornerstones of Australian Law: Chapter 4

Chapter review In this chapter you have looked at  Common law  Doctrine of precedent  Judgments and precedents  Statutory interpretation