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U3 AOS3 - Role of Courts in Law-Making

Terms in this set (118)

Doctrine of precedent (1)
- This is a legal principle which refers to the idea that judges follow the decisions made by courts which are superior in the hierarchy.

- It refers to the idea that similar cases that have similar fact situations are dealt with in similar ways.
Doctrine of precedent (2)
- Precedent is based on the idea of "stare decisis" - that is, to stand by what has been decided.
Doctrine of precedent (3)
- Precedent is a judgement of a court - the reason for the decision made by the judge ("ratio decidendi") forms part of the law and is binding on lower courts in the same hierarchy. In our case, Victoria.
When can judges make laws? (1)
- Judges will make a law on a new issue that arises in a case before them, on which there is no previous statute (parliament made legislation) or common law (judge made law) or when a current law requires expansion.
When can judges make laws? (2)
- Judges make laws when they interpret and give meaning to the legislation that has been made by parliament. The judge's decision will then be read together with the legislation that has been made by parliament.
When can judges make laws?
(3)
- Note: the primary role of judges is to adjudicate cases and settle disputes, however, they do have a secondary role as law-makers. It is through this process of hearing cases that judges create common law. Thus, parliament made law is seen as superior as it is the supreme law making body.
Two types of precedent: Binding (1)
- This is a precedent that must be followed by a court when making a decision.

- The ratio decidendi forms the binding part.
Two types of precedent: Binding (2)
- Binding precedents include: the decision of a higher court in the same hierarchy when adjudicating a case with similar fact situations.
Two types of precedent: Persuasive (1)
- This is a precedent that does not have to be followed.

- However, judges may choose to do so for the sake of consistency.
Two types of precedent: Persuasive (2)
Persuasive precedents include:
- The decision of a lower court in the same hierarchy
- The decision of a court in a different hierarchy (such as a different state or country)
Two types of precedent: Persuasive (3)
Persuasive precedents include:
- The decision of a court at the same level.
- "obiter dictum" statements (comments made by the judge 'along the way' that do not affect the final outcome).
Options available to judges (R.O.D.D) when developing and avoiding precedent. Reversing, Overruling, Distinguishing, Disapproval. (1)
- When a case comes before the courts, the judge has a number of options that he/she can use if he/she wants to avoid following a previous decision. Note: these options favour higher/superior courts!
Options available to judges (R.O.D.D) when developing and avoiding precedent... Reversing (1)
- When hearing a case on appeal, a judge in a higher court can 'reverse' the decision of the lower court that made the initial decision.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Reversing (2)
- In effect, they will change the previous decision and thus create a new precedent, which will be binding on lower courts in the same hierarchy.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Reversing (3)
- Note: reversing relates to one case that is heard twice - first instance and then on appeal.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Overruling (1)
- This occurs when a judge in a higher court disagrees with a decision made in a lower court on the same topic/issue.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Overruling (2)
- The higher court judge will then overrule the previous precedent and make a different decision to the one made in the lower court.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Overruling (3)
- The higher court can do this because it is not bound to follow precedents by lower courts (e.g.: high court can overrule a decision by the supreme court).
Options available to judges (R.O.D.D) when developing and avoiding precedent. Overruling (4)
- The decision made in the superior court becomes binding on lower courts in the same hierarchy.

- Note: two cases heard in different courts, but on the same issue and similar facts.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Distinguishing (1)
- This will occur when a judge finds that the material facts of the case currently being decided are different to a past precedent.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Distinguishing (2)
- This allows the judge to not follow the precedent as they have determined that the two cases are significantly different.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Distinguishing (3)
- Thus, two precedents can exist - one for each of the two fact situations.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Disapproving (1)
- A judge may refuse to follow an earlier decision of another judge in the same level of court, which will show that they disagree with the decision made in an earlier case.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Disapproving (2)
- Both precedents will remain in force until a similar case is heard in a higher court, where the superior judge can overrule the previous decisions and create a new precedent.
Options available to judges (R.O.D.D) when developing and avoiding precedent. Disapproving (3)
- Note: judges in lower courts can show their disapproval (disagreement) of a precedent from a higher court, but they cannot change the actual precedent as they are bound to follow it.
Effects of statutory interpretation; Word or phrases are given meaning through the interpretation of a statute (1)
- It does not change the legislation, but the judge's interpretation will be read alongside the actual statute.

- The statute and the interpretation are read together to give the law its full meaning.
Effects of statutory interpretation; It creates a new precedent which is binding on lower courts in the same hierarchy (1)
- When interpreting a statute, judges will need to take into account the precedents set by superior courts and follow these, thus applying them to the current case/dispute.
Effects of statutory interpretation; It creates a new precedent which is binding on lower courts in the same hierarchy (2)
- It is generally superior courts such as the supreme court and the high court which are in a position to create precedents.
Effects of statutory interpretation; It can extend the law through a wide interpretation which may cover a new area of law or a new situation (1)
- A broad interpretation of the law extends the law and enables it to take into account new areas of law.
Effects of statutory interpretation; It can extend the law through a wide interpretation which may cover a new area of law or a new situation (2)
- For example: in the Kevin and Jennifer case, the court had to determine if the definition of "man" includes people who'd had gender re-assignment surgery.
Effects of statutory interpretation; It can extend the law through a wide interpretation which may cover a new area of law or a new situation (3)
- They found that it does - thus extending the meaning of the word "man" and taking into account changes in technology and society.
Effects of statutory interpretation; A narrow interpretation of the statute can restrict the law to cover only certain situations (1)
- If a court interprets the statute narrowly, they restrict the scope of the law to cover less situations.
Effects of statutory interpretation; A narrow interpretation of the statute can restrict the law to cover only certain situations (2)
- For example: in the "studded belt case", the courts had to interpret the phrase "regulated weapon" to determine if a studded belt fell under this category.
Effects of statutory interpretation; A narrow interpretation of the statute can restrict the law to cover only certain situations (3)
- The court decided that a belt is not a weapon as its primary purpose it to be used as an item of clothing to hold up pants.
Effects of statutory interpretation; A narrow interpretation of the statute can restrict the law to cover only certain situations (4)
- The effect of this interpretation was that it restricted the definition of "weapon" to those things that are likely to be used for an aggressive purpose.
Reasons for statutory interpretation; Changing nature of words (1)
- As society changes over time, the meaning of words also changes.

- As such, statutes need to be interpreted to clarify the meaning of words and give the law its current meaning.
Reasons for statutory interpretation; Changing nature of words (2)
- For instance, in the Kevin and Jennifer case, the meaning of the word man in current society also includes a person who was born female but has undergone gender re-assignment surgery to identify as a "man".
Reasons for statutory interpretation; Words in the statute can be ambiguous (1)
- As legislation aims to cover a broad range of circumstances, this can result in some confusion about the wording used in the statute.
Reasons for statutory interpretation; Words in the statute can be ambiguous (2)
- As such, it may be necessary for courts to determine what the meaning and intention of the statute is.
Reasons for statutory interpretation; Words in the statute can be ambiguous (3)
- For instance, in the Davies vs Waldron case, the court had to interpret the phrase "start to drive" to determine if this includes sitting in a car while the ignition is running.
Reasons for statutory interpretation; Mistakes can occur in the drafting of a bill (1)
- Parliament's lawyers can make mistakes when they draft a bill, which can occur due to a lapse in communication.
Reasons for statutory interpretation; Mistakes can occur in the drafting of a bill (2)
- Parliament's intention may not be clear about the legislation and its intent - courts may then need to interpret the statute to determine how it should be applied to the case at hand.
Reasons for statutory interpretation; Mistakes can occur in the drafting of a bill (3)
- Courts will need to consider the intention of parliament in doing so. (use in case of emergency!)
Reasons for statutory interpretation; Future and changing circumstances (1)
- The wording of the statute may not encompass future circumstances, which could arise due to changes in technology or society's changing values.
Reasons for statutory interpretation; Future and changing circumstances (2)
- For instance, in the Brislan case, the high court had to interpret whether "postal, telegraphic, telephonic and other like services" included a wireless radio.
Evaluation of courts as law-makers (1)
- While the courts are generally effective as lawmakers and have a number of strengths, there are also a number of corresponding weaknesses to this type of law-making.
Evaluation of courts as law-makers (2)
- A strength of law-making through the courts is that they are able to make laws quickly when a relevant case is brought before them.
Evaluation of courts as law-makers (3)
- Judges are required to make a ruling on the case that comes before them and in doing so, can create a precedent that is binding on lower courts in the same hierarchy.
Evaluation of courts as law-makers (4)
- This is a strength as it enables law-making by the courts to be quick and consistent and to provide relevant laws that may be required when a case arises.
Evaluation of courts as law-makers (5)
- However, courts must wait for a relevant case to come before them and they must wait for a test case (new case, no legislation) to come before them before they can create or change the law.
Evaluation of courts as law-makers (6)
- This relies on parties being willing to contest a case, which can be time-consuming and expensive.
Evaluation of courts as law-makers (7)
- Furthermore, judges can only rule on the case before them and only have the power to make small, specific laws, rather than create whole bodies of law.
Evaluation of courts as law-makers (8)
- In addition to this, a further strength is that courts are able to develop and clarify the law, as well as to fill in gaps that may have been left by parliament.
Evaluation of courts as law-makers (9)
- Judges are able to create laws in areas that have not been legislated on by parliament, which may help to ensure justice and resolution to parties involved, especially if parliament has chosen to remain silent on an issue if it believes it is controversial.
Evaluation of courts as law-makers (10)
- For instance, the law of negligence was created by the courts in response to injuries suffered by plaintiffs at the hands of manufacturers (e.g. Donoghue v Stevenson).
Evaluation of courts as law-makers (11)
- In instances where legislation does exist, courts can clarify the meaning of laws and add detail to statutes in the process of statutory interpretation, such as in the Kevin Jennifer case.
Evaluation of courts as law-makers (12)
- However, change to the law can be slow to develop through the courts as it depends on litigants pursuing their case through the court system.
Evaluation of courts as law-makers (13)
- Complicated cases may also take a long time to be resolved - for example, the law of negligence took 100 years to develop through the courts.
Evaluation of courts as law-makers (14)
- Litigation is also an expensive and time consuming process, which means that parties may not always be able to take their case to court, thus hampering this method of lawmaking.
Evaluation of courts as law-makers (15)
- Furthermore, the doctrine of precedent provides a level of consistency in the common law system as the same legal principle is applied in similar cases.
Evaluation of courts as law-makers (16)
- This helps to bring about certainty for the parties involved as it enables them to look back on past precedents and determine how the court is likely to apply the law to their case, which can foster confidence in the legal system and ensure fairness for parties.
Evaluation of courts as law-makers (17)
- Additionally, consistency and certainty are enhanced by the fact that legal principle is made by the most senior and experienced judges in the court system, whose judgment's are binding on lower courts in the same hierarchy.
Evaluation of courts as law-makers (18)
- However, access to precedent can be difficult as it can be hard to find relevant cases and to understand the relevant parts of the judgement that form precedent.
Evaluation of courts as law-makers (19)
- This can be a time-consuming and expensive process.
Evaluation of courts as law-makers (20)
- Further expertise is required to understand the past judgement and determine the 'ratio decidendi', which can often be technical and complex - making this process further complicated.
Evaluation of courts as law-makers (21)
- In addition, no two cases are ever exactly the same - so, while precedent offers an element of predictability, parties can never be 100% certain of the outcome of their case.
Evaluation of courts as law-makers (22)
- A further strength of courts as law-makers is that judges are independent from parliament and government.
- As such, they are not subject to the political pressure that may be suffered by members of parliament.
Evaluation of courts as law-makers (23)
- Because judges are appointed (rather than being elected to their position), they are able to objectively assess the cases that come before them and put in place the most appropriate decision.
Evaluation of courts as law-makers (24)
- This is a strength as they do not need to consider the pressure from the public before they adjudicate a case and can simply focus on the case and law at hand.
Evaluation of courts as law-makers (25)
- On the other hand, this can be a weakness as judges are not elected to their position.
Evaluation of courts as law-makers (26)
- As unelected law-makers, judges are not responsible to, or representative of, the community, so their decisions may not reflect the wider views and values of society.
Evaluation of courts as law-makers (27)
- Judges are typically drawn from a narrow socio-economic group, and there may be concerns about the degree to which they are in touch with the values of the wider community.
Evaluation of courts as law-makers (28)
- As such, groups such as indigenous people, migrants, women etc.
Evaluation of courts as law-makers (29)
- May experience situations where their views and values are not represented in courts.

- This is a weakness as our laws should reflect society's views and values.
Evaluation of courts as law-makers (30)
- Additionally, law making through the courts allows a system of appeal to occur, which enables decisions to be reviewed.
Evaluation of courts as law-makers (31)
- This is a strength as it provided parties who are unhappy with the outcome of their case to have their case reviewed by a superior court.
Evaluation of courts as law-makers (32)
- If a disputing party appeals a court's decision, a judge in a higher court (who is more experienced and senior) may reverse the decision if they feel that it has been wrongly decided in the lower court.
Evaluation of courts as law-makers (33)
- This creates a new precedent that will need to be followed and can provide justice to unsatisfied parties.
Evaluation of courts as law-makers (34)
- However, law-making by the courts is only ever "ex post facto", meaning "after the fact".

- Courts are not able to engage in law-making until they are asked to settle a dispute and thus, they always act retrospectively.
Evaluation of courts as law-makers (35)
- This means that their laws are often created after the wrong has been committed as judges cannot make laws for the future.
Evaluation of courts as law-makers (36)
- Furthermore, precedents that are created can be overridden or abrogated at any time by parliament, which can pass laws at any time as it is the supreme law-make.
Evaluation of courts as law-makers (37)
- In essence, while the courts can make significant changes to the law, they are also limited in many ways due to their weakness as law-makers.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (1)
- To some extent, the doctrine of precedent allows for both consistency and flexibility.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (2)
- Consistency is achieved through the notion of "stare decisis", whereby courts follow the decisions of other courts and "stand by what has been decided".
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (3)
- This allows similar cases to be dealt with in similar ways, ensuring that there is consistency in our legal system and thus allowing the public to have faith that their dispute will be settled fairly.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (4)
- As such, this works to prevent biases from occurring and ensures that there is an element of predictability within our legal system.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (5)
- Furthermore, the notion of binding precedent (one that must be followed) means that lower courts follow decisions of higher courts, trusting the decision making of superior, more expert courts.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (6)
- However, an issue with binding precedents is that they do not allow for much flexibility - in this way, unjust decisions can occur if an out dated precedent must be applied to a current case - such as the Widow's Discount case.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (7)
- On the other hand, flexibility can occur through the options that are available to judges if they wish to avoid following a precedent.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (8)
- For instance, judges have the option to reverse (change a decision that has been made by a lower court when a case is being heard on appeal) and to distinguish (differentiate between two cases by acknowledging that the material facts are not the same).
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (9)
- In this way, judges have some flexibility - although it can be argued that it is generally higher courts who have the option of avoiding precedents, while lower courts are generally bound to follow them.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (10)
- In addition, the very nature of persuasive precedents (those which do not need to be followed, but can be) allows judges to have flexibility as it means that they are not bound to follow decisions such as those in other hierarchies, but may use them as a guide.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (11)
- However, while the method of disapproving can be seen to allow judges to have some flexibility, it does not actually benefit lower courts as it does not give them the power to change the law, but merely to state their disapproval of a precedent.
Exam 2010: The doctrine of precedent allows for both consistency and flexibility. Critically examine these two strengths. (12)
- Additionally, although judges do have options available to them, it is argued that they are conservative by nature and may not be willing to exercise these rights, preferring instead to follow past decisions.
Relationship Between Courts and Parliament; Parliament passes legislation to create the structure and jurisdiction of the courts (1)
- Through the passage of legislation, parliament establishes the jurisdiction and procedures of the courts.
Relationship Between Courts and Parliament; Parliament passes legislation to create the structure and jurisdiction of the courts (2)
- For instance, the Magistrates Court Act 1989 (VIC) established the jurisdiction and structure of the Magistrates Court.
Relationship Between Courts and Parliament; Parliament passes legislation to create the structure and jurisdiction of the courts (3)
- Parliament can also amend their own acts and this has occurred with the Magistrates Court Act, which has been amended since it was enacted to now include a Koori Court and Drugs Division.
Relationship Between Courts and Parliament; Courts apply and interpret legislation that has been created by parliament (1)
- When adjusting a dispute, courts need to apply the legislation made by parliament to the case at hand.
Relationship Between Courts and Parliament; Courts apply and interpret legislation that has been created by parliament (2)
- In doing so, they often interpret the meaning of that legislation, which can lead to the legislation and the courts interpretation being read together to form a law.
Relationship Between Courts and Parliament; Courts apply and interpret legislation that has been created by parliament (3)
- For instance, Kevin Jennifer case - Marriage Act 1961 would need to be read together with the Family Court judgement to give the law its most up to date meaning.
Relationship Between Courts and Parliament; Parliament has the power to codify laws that have been made by the courts (1)
- This is the process through which parliament can take a precedent and turn it into a statute.
Relationship Between Courts and Parliament; Parliament has the power to codify laws that have been made by the courts (2)
- This is known as codification which works to strengthen the law as a statute law (Parliament law) is more supreme than common law (judge-made law).
Relationship Between Courts and Parliament; Parliament has the power to codify laws that have been made by the courts (3)
- For instance, parliament codified the common law principles of the Mabo case and turned it into the Native Title Act (1993).
Relationship Between Courts and Parliament; Parliament can abrogate laws that have been created by the courts as it is a supreme/sovereign law-maker (1)
- Because of this, it has the power to override or abrogate any court made laws by passing legislation on a particular issue if it disagrees with the common law.
Relationship Between Courts and Parliament; Parliament can abrogate laws that have been created by the courts as it is a supreme/sovereign law-maker (2)
- For instance, the 'widows discount' precedent (which allowed courts to reduce a widows compensation if the court believed she had a good chance of remarriage) was abrogated by Vic Parliament in 2004 and replaced with the Remarriage Discount Act.
Can Courts Change the Law; Where courts can change law (1)
- Courts are able to interpret statutes when the need arises, and are able to change the meaning of words or phrases not otherwise intended by parliament.
Can Courts Change the Law; Where courts can change law (2)
- Courts can change law through statutory interpretation; courts may also expand or narrow the law and thus change the focus of the law.
Can Courts Change the Law; Where courts can change law (3)
- Courts are able to establish precedent in areas where there is no statute or no common law, such as developing laws relating to negligence against manufacturers.
Can Courts Change the Law; Where courts can change law (4)
- Courts are able to expand on precedent and develop common law in certain areas.
Can Courts Change the Law; Where courts can change law (5)
- The higher courts, particularly the Supreme and High Courts, are able to avoid following precedent as it is not binding on them and thus can create a new precedent. The higher courts can also overrule precedents on appeal.
Can Courts Change the Law; Where courts can change law (6)
- Courts are able to declare a law ultra vires or void if it is outside the law-making powers of the parliament that is making the law. Therefore, in those situations, the law is ultimately 'changed', with those parts of the law being struck out or declared invalid.
Can Courts Change the Law; Where courts can change law (7)
- Courts (as opposed to parliament) are free from political influences or from the threat of not being reappointed, and therefore are free to expand on areas of law or narrow/expand the meaning of a law.
Can Courts Change the Law; Where Judges Can't Change the Law (1)
- Lower courts are bound by precedent and are unable to change the law, but may be able to note their disapproval.
Can Courts Change the Law; Where Judges Can't Change the Law (2)
- Courts have to wait until cases come before them: they are unable to change laws at their will like parliament can.
Can Courts Change the Law; Where Judges Can't Change the Law (3)
- Courts have to wait until cases come before them: they are unable to change laws at their will like parliament can.
Can Courts Change the Law; Where Judges Can't Change the Law (4)
- Common law may eventually be abrogated by parliament, thus restricting the court's control over common law remaining 'good law'.
Can Courts Change the Law; Where Judges Can't Change the Law (5)
- The courts are limited to interpreting the law or creating common law based on the case that comes before them, although they can make comments in obiter dictum that may influence courts in future cases.
Can Courts Change the Law; Where Judges Can't Change the Law (6)
- Statutory interpretation is limited to interpretation of the words in the statute. While that may change the meaning of the words, the courts cannot change the words or amend statute.
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