YR 12 LEGAL STUDIES How courts make law

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 Allows courts to use past decisions or principles developed in earlier cases in order to treat cases with similar circumstances and like facts equally

How can a precedent be created? When any of the following circumstances arise Novel case Developing precedent Statute law exists

Novel case A precedent may be created where there is no pre-existing statute or common law principle relevant to the case at hand Judge then makes a decision Decision is referred to variously as: a precedent, a court-made law or a judge-made law

Developing precedent A precedent is created where there is no existing Act of Parliament and past precedents are out of date, i.e. no longer good law The judge will have to make a decision and thus establish a new precedent for the case at hand

Statute law exists A precedent may be created where the words or sections of the relevant statute are unclear or uncertain and the Court has to interpret them and apply them to the case at hand Judge has responsibility to apply the words and sections of the statute to the actual facts and circumstances of the case at hand

Statute law exists Prior to making any application the judge must first interpret the words and sections of the Act This interpretation as it is applied to the case at hand becomes precedent that is applicable only to those words, sections or parts of that particular Act

Deciding a case

When can a judge use a precedent? There is no statute of relevance The case at hand has the like facts and similar circumstances to the past case Decide as to whether the precedent is binding or persuasive If it is a binding precedent it must be from the same court hierarchy

Types of precedents Two types Binding - must be followed Persuasive - may be used as a guide

Binding precedent Set when lower courts are bound to follow the decisions of higher courts in the same hierarchy, where the facts of the case are similar

Persuasive precedent Do not have to be followed They can be used as a guide or reference by courts in future cases Persuasive precedents arise in three ways Decisions made by lower court levels in the same or other court hierarchies* Decisions made by courts in the same hierarchy and at the same level Decisions referred to by courts in other court hierarchies*

Changing a precedent There are four ways precedents can be changed and updated Overruling Reversing Distinguishing Disapproving

Overruling Occurs when a higher court decides that a precedent established by a lower court (in the same hierarchy where there are like facts and similar circumstances) is no longer appropriate and overturns it

Reversing Involves one case and is only used in appeals Appeal - review of an earlier judgment The judge of the appellate will review the previous decision of the court with original jurisdiction and may decide to change the decision by reversing it

Distinguishing Occurs when the relevant facts of an earlier case are not similar enough to be followed in a later case Judge points out the differences in facts between the earlier case and the case under consideration

Disapproving In the case at hand the judge may express an unfavourable opinion of the earlier judgment by showing disapproval Judge cannot overrule the precedent if it was established in a higher court but would have to follow it as it would be a binding precedent

Disapproving To initiate a change in the law the judge can achieve it by expressing disapproval and thus A higher court referring to this judgment may change the law by overruling the lower court’s decision Parliament may enact an act to change the law

Two parts of precedents Judgement includes

Judgments include two additional features ratio decidendi obiter dicta

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’

Statutory interpretation Refers to the process undertaken by courts to interpret Acts before determining their proper application Commonwealth and State legislation exists that gives courts the power to interpret Acts Commonwealth level - Acts Interpretation Act (1981) For each state, see the table 21

Reasons for interpreting Acts Particular words of Acts may be vague or unclear Acts may not clarify all future applications Acts may not clarify the intention of Parliament

Common law rules for statutory interpretation

Literal rule Used to interpret words of an Act as it was written thus applying the literal meaning of the words Judges can use dictionaries to identify the meanings of a particular words

Golden rule Used when the literal rule would result in an inconsistent or illogical outcome, or when the literal rule is inconsistent with the purpose of the Act Used to apply a more lenient definition by taking into consideration the circumstances and the purpose of the Act

Mischief rule Applied when the literal rule has been applied but the outcome is still ambiguous Applied to determine the real purpose behind the Act Used to identify the mischief or misdemeanour that the law is trying to prevent

Class rule Refers to words that can be grouped together and labelled under a general term

Problems with statutory interpretation Difficulties in identifying ratio decidendi Difficulties differentiating between the ratio decidendi and obiter dictum Precedent may have more than one ratio decidendi Although cases may be similar, it is unlikely that they are identical Judges may be bound to follow decisions although they may lead to unjust outcomes

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