Legal Unit 4 AOS1 PB

Statutory Interpretation + Lawmaking - Overview:

• Courts and Judges role: apply existing law to resolve disputes, hear cases, make law.

• Judges make law when required to interpret the meaning of a statute (Act of Parliament /legislation) to resolve a case - referred to as statutory interpretation.

• Judges also make law by establishing principles of law - precedents - used as guidance or followed by judges when deciding future cases.

• Referred to as making law through the doctrine of precedent.

Statutory Interpretation:

• Judges can make law when interpreting the meaning of a statute to resolve a case.

• Occurs when there is a dispute over the meaning of words/phrases contained in an Act of Parliament and the case is brought before the courts to be resolved.

• By giving meaning to the unclear words and phrases, judges clarify what the statute means so it can be applied to resolve the dispute before them. 

• Judges can broaden or narrow its meaning.

“the process where judges interpret the meaning of words or phrases in legislation during a legal dispute, in order to determine the intention of Parliament and apply that law to the specific facts of the case before them."

Judges Interpretation to Precedent: (stat. int)

• A judge's interpretation of statute provides a statement about meaning + application

• Does not change the words/phrases in the statute itself.

• Depending on the superiority of the court, the legal reasoning behind the judge's interpretation may set a precedent that can be followed in future similar cases.

• Newly established precedent becomes a part of the law and will be read along with the statute in future cases.

Reasons for Statutory Interpretation:

Reasons can be divided into two broad categories:

1. To resolve problems that occur during drafting process

2. To resolve problems that occur when a court is applying the Act of Parliament to resolve a case.

Reasons for Statutory interpretation: 1. Resolving problems that occur during the drafting process

• Drafting bills can be a complex task.

• Parliamentary counsel must gain info. from a range of documents + work with gov. agencies/ departments to clarify policy proposals and draft effective legislation.

• The complexities involved in drafting legislation = inevitably some terms and phrases used will be unclear, need interpretation before they can be applied to a case.

PROBLEMS DURING DRAFTING PROCESS LIST - Resolving problems that occur during the drafting process - (Reasons SI)

1. Bill may not have taken future circumstances into account.

2. The intention of the bill might not be clearly expressed.

3. Mistakes in the drafting of a bill

Problems In Drafting Process: The bill might not have taken future circumstances into account.

• Eg: 2021 case - Australian Federal Police v Luppino - dispute about whether a police officer could access a person's mobile phone. Relevant statute allowed police to access data from a computer/data storage device.

• Dispute about whether the mobile phone was a computer' or 'data storage device. When statute was introduced in 2001, mobile phones had very few computer abilities - it is possible drafters did not consider the possibility of a phone being able to act as a computer or data storage device.

Problems In Drafting Process: The intention of the bill might not have been clearly expressed.

• Sometimes a policy or instructions regarding the purpose of a proposed law may not be clearly expressed. This can lead to confusion about how it should be interpreted.

Problems In Drafting Process: Mistakes in the drafting of a bill

• Mistakes may be made when drafting a bill, which may be minor or more technical in nature.

• EG: Words missed in the text, a heading is not properly included, an issue with punctuation.

• EG: Gender-specific words or pronouns may have been used (his or her') when gender-neutral words or pronouns should have been used.

Reasons for Statutory Interpretation: 2. Resolving Problems that occur during the application of statutes (LIST)

• Most legislation is drafted in general terms.

• The act may have become out of date and no longer reflect community views and values.

• The meaning of the words may be ambiguous.

• The act might be silent on an issue and the courts may need to fill gaps in the legislation.

• The meaning of words can change over time.

Resolving Problems during the application of statutes: Most legislation is drafted in general terms. (Reasons for SI)

• This is so it can cover a wide range of circumstances. Sometimes terms used are so broad that they need to be interpreted before  applied to specific circumstances.

• Deing v Tarola (1993)

Resolving Problems during application of statutes:  Act may have become out-of-date: (Reasons for SI)

Eg: while states have laws banning obscene and indecent language in a public place, what is considered offensive and indecent language changes over time. - SOCIETAL VIEW CHANGE

Resolving Problems during application of statutes:  The meaning of the words may be ambiguous. (Reasons for SI)

• The words and phrases used in a statute attempt to cover a broad range of issues.

• The meaning of some words might be ambiguous.

• Therefore it is necessary for courts to interpret words/phrases to determine their meaning according to the intention of statute.

Resolving Problems during application of statutes: Courts may need to fill gaps in the legislation. (Reasons for SI)

• A statute tries to cover all situations that might arise in relation to issues covered in statute.

• This may not be possible - some situations were not foreseen, gaps may have been left in act.

• Statute may therefore be silent on an issue that comes before the courts

Resolving Problems during application of statutes: The meaning of words can change over time. (Reasosn for SI)

• Eg: The word ‘currency' or 'money' may now need to extend to digital currency.

*Judges can only interpret laws relevant to the case before them. They cannot create precedent of their own volition, rather, a person with standing must bring a case before them.

The Effects of Statutory Interpretation LIST

1. The word or phrases contained in the disputed legislation are given meaning.

2. The court's decision on the meaning of the legislation is binding on the parties.

3. A precedent may be set for future cases to follow.

4. The meaning of the legislation can be restricted or expanded.

1. S.I Effects: The words/phrases contained in the disputed legislation are given meaning.

This is so the relevant statute can be applied to resolve a case before the court. The meaning of the legislation as determined by the court will also provide guidance for parties involved in a dispute in relation to the same word or phrase.

2. S.I Effects: The court's decision on the meaning of the legislation is binding on the parties.

• Once a court has reached a decision on the meaning, the parties to the case are bound by  that decision until one of the parties lodges a successful appeal against the decision.

3. S.I Effects: A precedent may be set for future cases to follow.

• If the interpretation of the words/phrases in legislation is made by a superior court (e.g. Supreme or High Court), the reason for the decision forms a precedent that is then read together with the Act to determine the outcome of future cases.

• Case will remain as precedent unless it is changed by a higher court on appeal or abrogated by an Act - parliament cannot abrogate a High Court decision on constitutional matters.

4. S.I Effects: The meaning of the legislation (law) can be restricted or expanded.

• If a court interprets a word or phrase narrowly, this could restrict the scope of the law.

• Eg: Deing v Tarola restricted the definition of a regulated weapon

• A broad interpretation of a word or phrase in a statute can extend the meaning of legislation to cover a wider range of circumstances or new areas of law.

Statutory Interpretation; Strengths

Strengths:

The ability to alter the meaning of the words in legislation allows the courts to extend the relevance + lifespan of parliament law, ensures it continues to be appropriate to social attitudes + contemporary circumstances. - It would be impossible for parliament to draft every law in a way that expressly related to every single fact situation that could ever arise in society. Giving courts the power to add to the meaning of the law over time by elaborating on specifics allows parliament to legislate only for the general principles or most likely situations.

Statutory Interpretation: Weaknesses

Weaknesses:

Courts can use their powers of interpretation to radically change the application + meaning of law from what parliament intended = example of an unelected judiciary overriding the will of an elected legislature. - Statutory interpretation can only happen retrospectively, after a case has been brought. Statutory interpretation then creates law that applies to acts done in the past. This kind of retrospective law-making can be criticised for being against the principle of natural justice because people don't know what the law is when they are acting.

The Doctrine of Precedent (DoP) Overview:

• Judges can make law by establishing precedents when determining cases.

• This can occur when there is no existing applicable law (no existing statute/precedent that can be applied to resolve the case).

• Eg: a judge might be required to make a decision on a new issue, not previously brought before court, to expand on an existing principle of law so it can be applied to a new situation

Law Making General Principles:

• Resolving disputes is the primary role of the courts.

• Law-making happens as a result of this, according to the following general principles:

  • Courts will consider the facts of a case, then apply facts to the law to determine whether a party's actions are lawful or unlawful.

  • In some circumstances it may be unclear if the law applies to the facts = The courts will need to interpret the law. → THINK - What was the intention of this phrase? 

  • Occasionally there is no law to resolve the dispute - may be law relating to similar situations, but not covering the exact case = courts will need to develop new laws.

When is a court called upon to create law? 

• First judge will look at legislation and precedent to resolve matter - interpret

• Sometimes there is no legislation - eg: matter to courts for first time

• When there is no precedent - courts make law = COMMON LAW!

• Can be approved or dismissed by parliament - cycle re-starts! 

Court Decisions and Precedent: (DoP)

• The decision of the court will be written throughout the judgment, and printed in law books for judges, lawyers, academics, parties and members of the public to access in the future.

• When a court makes a decision based on a given set of circumstances, the reason for the decision creates a principle of law:

  • Principle of law: 'precedent' - forms a legal rule that must be followed in society.

• All the precedents together form  'common law' - works with legislation passed by parli.

Who Makes Precedent: (DoP)

*A PRECEDENT CAN ONLY ESTABLISHED BY A COURT OF RECORD! - Where things are written down

• Lower courts can’t establish precedent, most of their laws are covered by legislation.

• Never established by Jury - only determines guilt, doesn't write anything down.

• Supreme Court of Appeal = most precedent is established

Doctrine of Precedent (DoP):

• Courts/judges make law by establishing precedents. *A common law principle.

• A precedent is the reasoning behind a court's decision - the ‘why’. Establishes a legal principle/rule which is used by judges to provide guidance when deciding future cases.

• Precedent established by a superior court in the same court hierarchy must be followed by judges/mag. in lower courts when deciding future cases with similar material facts.

• Judges following the legal reasoning behind decisions of higher courts=doctrine of precedent

• DoP. depends on courts being organised in hierarchy (low to high, seriousness + complexity)

• Only superior courts (decide cases on appeal/court of record) can set precedents + make law.

• Superior courts Vic: Supreme Court (Trial Division and Appeal) and the High Court.

• A decision of High Court on appeal = binding courts in all states/territories - ALL hierarchies

DoP simplified: It is a Common law principle - by superior courts, where…

1. The reason for decision followed by lower courts

2. In same hierarchy

3. For cases with the same material facts

 *The court who established their own precedent does not have to follow it in the future - only courts below it. Eg: Supreme Court appeal does not have to follow its own precedent.

Reasons for Precedent:

• The application of precedents helps ensure common law is consistent and predictable.

• Upholds the rule of law, provided certainty in the way that laws are applied.

• Having lower courts follow the legal principles established by higher courts in the same hierarchy, in cases where the material facts are similar, ensures that:

1. Like cases are decided in a like manner - Enables parties to look up previous cases to gain ideas of how a court might determine their case - ‘Stare decisis’

2. Legal reps are able to give advice on the likely outcome of a case = have some understanding as to how the court may decide the case.

3. Judges have some guidance - refer back to previous cases and decide accordingly

4. Decisions made by experienced judges in higher courts are followed in lower courts

5. The same point is not being decided over and over again =  waste of resources.

Ratio Decidendi Precedent:

• Precedent can be set on the meaning of legislation, if parliament's wording does not clearly apply to the facts of the case - Interpretation is a part of precedent =  Ratio decidendi

• Ratio Decidendi = the legal reason behind the decision, creating future precedent

• The binding part of a court judgment - a statement by the judge outlining the decision and the legal reasonings behind the decision. - BINDING!

Latin Word Outline:

• Ratio Decidendi: reason for the decision, binding.

• Stare Decedendi: Like cases decided in a like manner.

• Obiter Dictum: ‘by the way’, persuasive, not binding, judge expresses an opinion.

Features of the Doctrine of Precedent:

1. Binding precedents

2. Persuasive precedents

3. Ways to develop and avoid precedents: reversing, overruling, distinguishing, and disapproving of precedent.

Binding Precedent:

• A precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts.

• If a judge/mag. is bound by an existing precedent, they must follow it, regardless of if they agree with the legal reasoning behind the decision of the superior court.

• For precedent to be binding = must be established by a superior court within same hierarchy

• The Magistrates' + County Court are bound to follow precedents set by the Supreme Court (Trial Division or Court of Appeal) or the High Court of Australia

• Supreme Court (T.D) is bound to follow precedents set by the Supreme Appeal or High Court.

• The High Court is not bound by precedents set by any Australian state or territory court.

Stare Decisis:

• The process of lower courts following the reasons for the decisions of higher courts.

• This phrase is at the heart of the doctrine of precedent.

• A Latin phrase meaning to stand by what has been decided.

• Where appropriate, judges should stand by previous decisions to ensure common law is consistent and predictable.

Precedent is Binging When - Outline Again!

1. Court is in the same hierarchy as the precedent court

2. The court is lower in the hierarchy than the precedent court

3. The court is hearing a case on the came area of law and similar facts as the precedent court

4. The precedent court is a superior court of record

5. The precedent remarks come from ratio decidendi  - as a part of the judgement.

If any of these conditions is not met - precedent will be treated as a persuasive = highly influential, but the later court will not be bound to follow it. Precedents must follow ALL points to be binging.

Persuasive Precedent:

• Precedents that aren’t binding, may still be considered by a judge, used to influence decision

• It may be an important legal principle, relevant to the case in court, highly regarded by the judge and used to guide or sway their decision.

• Persuasive precedents may be:

  • Set by courts in another court hierarchy eg: court in another state/territory, country

  • Set by lower courts in the same court hierarchy

  • Set by courts of the same standing (same level) within the same court hierarchy.

Achievements and Exceptions: Precedent

• Although these precedents are not binding, allow maintenance of consistency, judges will almost inevitably follow them.

• Exception: High Court - will usually follow its previous decisions to maintain consistency, it will if it no longer considers the precedent to be good law (if justices consider law as outdated = changes in community attitudes, technologies, other circumstances)

Obiter Dictum:

• Obiter dictum statements contained in court judgments may be considered persuasive

• Obiter dictum is a Latin term meaning 'a thing said by the way' 

• Refers to statements made by a judge that are not part of the reason for the decision (not binding), but are still important and may be considered as persuasive in future cases.

• Not an essential part of the reason for the decision, obiter dictum comments can be a matter the judge reflected upon when making their decision and forms part of considered opinion

Overall of Persuasive Precedent - Reasons

• Persuasive precedent is formed by any legal principle that is not binding on the current case.

• Many different reasons why a precedent might be binding:

  • The precedent court is from a different hierarchy than the later court

  • The precedent court is lower in the hierarchy than the later court

  • The precedent case is on a different area of law than the later case

  • The precedent case has slightly different material facts than the later case

  • The remarks being argued as precedent come from the obiter dicta of the judgment

  • The precedent court is an inferior court with unreported judgments (eg: County C.)

When is Precedent Persuasive?

• Set on the same level of hierarchy *except the high court.

• Above court who set precedent

• Another court hierarchy

• Obiter dictum statements.

The Role of the High Court in Law-making:

• The High Court is the most superior court in Australia.

• Settle’s disputes that begin in High Court (interpretation of Constitution) or come on appeal

• A Full Bench of the High Court = seven justices, sit + adjudicate in disputed:

  • That require an interpretation of the Constitution

  • Where the court considers a principle of law to be one of major public importance

  • Where the dispute may require the court to depart from its previous decisions.

• The High Court will also hear appeals from the Supreme Courts as well as a court of federal jurisdiction - i.e. the Federal Court of Australia 

A decision made in the High Court forms binding precedent on all courts in Australia. The High Court is not bound by its own decisions =  keeps the law current and up-to-date.

Developing and Avoiding Precedents:

• When deciding cases, judges consider precedents established in earlier cases.

• If a judge is not bound to follow the earlier precedent, they may decide to:

  • Aadopt the precedent in which precedent will be affirmed/considered favourably)

  • Choose not to follow the existing precedent.

  • Where judges aren't bound to follow existing precedent, may create new precedents

• This allows a degree of flexibility in the common law = allows precedents + common law to change and develop over time.

Precedents can be developed or avoided through: (RODD)

• Reversing

• Overruling

• Distinguishing

• Disapproving.

The High Court and Precedent - How Judges Treat precedent - REVERSE

Reversing a precedent (in the same case on appeal)

When hearing a case on appeal from a lower court, a judge in a superior court may disagree with + change previously established precedent set lower court = reversing precedent When a court reverses an earlier decision or precedent, in the same case on appeal, a new precedent is created by the superior court's decision - new precedent = followed in future.

The High Court and Precedent - How Judges Treat precedent - OVERRULE

Overruling a precedent (in a different and later case)

A judge in a superior court may decide not to follow a previously established precedent set by a lower court = overruling a precedent. When a court overrules precedent, a new precedent is created by the superior court that makes the earlier precedent inapplicable. Overruling a precedent is similar to reversing a precedent, but reversing applies when a judge changes an existing precedent set in a lower court in the same case on appeal, whereas overruling applies to changing a precedent in a different and later case.

The High Court and Precedent - How Judges Treat precedent - DISTINGUISH

Distinguishing a precedent

A judge may be able to avoid following an existing binding precedent if they can find a difference between the material facts of the case and the material facts in the case where the existing precedent was set = distinguishing a precedent. A court can decide to distinguish a precedent, and not follow it, because a precedent set by a superior court in the same hierarchy is only binding on a lower court in cases.

The High Court and Precedent - How Judges Treat precedent - DISAPPROVE

Disapproving a precedent

Judges/mag in lower courts who are bound to follow precedents set by superior courts may express dissatisfaction with precedent = disapproving a precedent. This statement of discontent does not allow the lower court to avoid the precedent, it may be used during an appeal to indicate the original judge's dissatisfaction with the precedent or encourage parliament to change the law. Judges in courts of the same standing rarely overrule precedents set by their own court and judges in superior courts may also express their disapproval of an existing precedent rather than overruling it, preferring a more superior court or the parliament to change the law.

Applying Earlier Precedents:

• Resolving a case, courts are required to consider + apply precedents from previous cases

• Even if they do not distinguish, overrule, reverse or disapprove of past decisions, they may still need to refine the law and make it clearer as they apply a precedent to a new case

• This allows the law to expand and develop over time.

• When applying previous precedents - sometimes be required to interpret the meaning of the words and phrases used in the past precedents = meaning can be broadened or narrowed 

• Over time, through reversing, overruling, distinguishing and disapproving, precedents have been changed and developed to allow a gradual expansion of common law.

• Some whole areas of the law, (eg; negligence), have developed through courts in this way

Courts making law and juries:

• Precedents are established by judges, and law-making through the courts occurs when a court is hearing an appeal (no jury) or in a case where there is no jury.

• A verdict given by a jury cannot create a precedent = juries only determine facts of the case.

  • They do not decide on points of law - that is left to judges.

• Juries also do not give reasons for their decisions.

• By contrast, when judges resolve a dispute they must give reasons for their decision

• It is this legal reasoning behind the decision that forms the precedent.

Doctrine of Precedent - Strengths

• Consistency and certainty: As alike cases are decided the same way, dispute resolution becomes consistent + allows parties a degree of certainty in the outcome.

• Flexibility: Distinguishing, disapproving, overruling and reversing allow flexibility in the law, helps prevent law from becoming too rigid.

• Development of new laws: Judges can develop new laws/change existing to establish a new area not previously covered by law-makers. The rights of individuals can thus be upheld.

• Changes law quickly: Courts have to make a decision on a dispute before them, so precedent can quickly be created.

• Courts fill in gaps in legislation: When legislation has been written in broad terms/silent on particular issues, courts can fill in details that are relevant to the case before them.

Doctrine of Precedent - Weaknesses

• Uncertainty: The judge may find differences in the material facts of the current case and those of the case that established the precedent.

• Inflexibility: An inferior court must follow precedent of superior court in alike dispute. Common law is not flexible and not able to respond to changes in society.

• Limitations in law-making: For courts to make new law, they must wait for a dispute to come before them, brought by a person with standing. When a case does come before a court, the court is restricted to the specific area of the dispute.

• Law-making can be slow: The development of a particular area of law can be slow, as courts must wait for a relevant case to be brought before them by a person with standing

• Difficulty in finding precedent: Finding a relevant case and then the ratio decidendi can be difficult. There may be several different applicable cases, and if a court had multiple judges sitting, there can be different reasons from the different judges

The Way Precedent Affects Law Making (and list!):

• Main role of the courts = apply existing laws made by parliament to resolve disputes - BUT courts have an important role to play in law-making.

• Courts can make common law w. a case. However, their ability to do so is sometimes limited.

• Five of the main factors that affect the ability of courts to make law:

  • The doctrine of precedent

  • Judicial conservatism and judicial activism

  • Costs and time in bringing a case to court

  • The requirement for standing.

The doctrine of precedent allows for Consistency and Predictability: (precedent affects law making)

• The doctrine of precedent creates consistency and predictability.

• A party can look at past cases + anticipate how the law may apply to their situation. 

• Gives them some idea of the outcome = similar cases are decided in a similar manner.

• Legal reps can then give advice to their clients on how a court may decide their case, as there may be alike cases where a court has ruled a particular way.

• DoP. requires judges in lower courts to follow the legal reasoning behind the decisions of higher courts (same hierarchy) when resolving disputes where the material facts are similar.

• One way of upholding rule of law - providing some certainty in the way laws are applied.

Having the DoP, ensures that:

• Like cases are decided in a like manner = enables parties in dispute to look back to previous cases to gain some idea of how a court might determine their case.

• Legal reps are able to give advice on the likely outcome of a case, as they will have some understanding as to how the court may decide the case.

• Judges have protection and guidance - refer back to previous cases + decide accordingly.

• Decisions made by more experienced judges in higher courts are followed in lower courts.

• The same point is not being decided over and over again =  waste of resources.

HOWEVER - while the DoP helps ensure consistency + predictability, limitations, include (list!!!!)

1. The difficulty and cost involved in locating relevant precedents

2. The difficulty of identifying the legal reasoning behind a decision

3. The difficulty in predicting future developments

Limitations of DoP - 1. The difficulty and cost involved in locating relevant precedents

• Parties + judges can refer to earlier precedents for guidance, can be difficult to locate relevant precedent for case - due to large number of cases previously decided in area of law.

• Large volume of precedents = finding a relevant precedent can be time-consuming and costly

• Judgments can be written in technical language, often long, judges may give more than one reason for their decision. *Pay legal rep. To go through this - adds up time.

Limitations of DoP - 2. The difficulty of identifying the legal reasoning behind a decision

• Identifying the legal reasoning behind a decision (ratio decidendi) can be difficult when the precedent has been established in a court of appeal with three or more judges.

• Lawyers must look at decisions from judges who decided in a similar way + formed majority.

• Judges who do not agree with the majority = dissenting judges. 

• In some instances there may be conflicting authorities = more than one judgment on a particular issue, most likely differences in reasons for the decisions.

• If this occurs, the judge needs to decide which precedent is most appropriate for case.

Limitations of DoP

• Precedents are able to be overruled later by a higher court.

• Particularly for older precedents, it may be difficult to predict how the High Court or Court of Appeal may treat the precedent in a new case.

Eg: Mabo Case - Overruling Terranulius - unexpected overruling of precedent of hundreds of years.

The doctrine of precedent allows for Flexibility:

• Courts are able to make laws because the DoP allows for some flexibility.

• Through process of reversing, overruling, distinguishing and disapproving (Rodd), precedents change + develop over time to allow the gradual expansion of common law.

• Judges can avoid following an existing precedent by distinguishing between the material facts of the case and the material facts of the precedent case.

• Even if judges do not RODD of past decisions, they may still need to interpret the meaning of  words/phrases used in past precedents = refine law and make it clearer as they apply it.

  • This also allows the law to expand and develop over time.

DoP Factors limiting Flexibility and Development of Common Law:

The DoP restricts the ability of the lower courts to change law in cases where they are bound to follow a previous precedent established by a higher court.

• May lead to an unjust outcome - courts are bound to follow outdated precedent' - affected party cannot afford to pursue an appeal to a higher court.

• Lower courts can express disapproval of binding precedent - may encourage a dissatisfied party to pursue appeal, indicates to a court that precedent needed to be reconsidered

  • Can disapprove - but disapproval is only persuasive - Parliament can take note of it

Judges in superior courts may be reluctant to reverse or overrule existing precedents.

• _{^{Eg: Supreme Court of Appeal/ High Court may be hesitant to reverse an existing precedent for many reasons, including a preference to leave the law-making to parliament, which can investigate the need for law reform and reflect community views and values.}}

While not being technically bound by their own court’s previous decisions, judges in courts of the same standing consider these precedents to be highly persuasive and rarely overrule them.

• Judges are not bound to follow precedents from other court hierarchies - but likely

• The High Court can overrule its own decisions to allow the law to develop over time.

Other ways the doctrine of precedent limits the ability of the courts to make law:

• Judges must wait for a relevant case to be brought before them + only superior courts (Vic. Supreme Court or higher) can make law.

  • Courts rely parties being aware of rights to pursue a matter + willing and able to afford to bring a case to courts, determined to see the action through to appeal.

• Judges (superior courts) are restricted to making law needed to clarify some issue or matter raised in the case before them. Any comments - obiter dictum do not form part of precedent.

• Judges make law ‘ex post facto’.

  • DoP. only permits courts to make law when a dispute is brought before them, courts make and clarify the law after the event (ex post facto).

• If the court is interpreting a statute/considering a precedent, it can only clarify the meaning of the statute or change precedent after the dispute has come before the court.

• Judges can make law through the establishment of precedents + clarify/expand/limit the meaning of legislation so it can be applied to disputes. 

  • Parliament abrogate common law, (except High Court - constitutional matters) as parliament is a supreme law-making body = limits judge ability to make + change law

The Way the Doctrine of Precedent affects law-making - Strengths

• If no statute/common law exists, or it is not clear how it should be applied, judges can create precedent, developing the law.

• Judges in same hierarchical level/from superior courts can overrule/reverse a decision made by lower courts, developing common law.

• Judges can distinguish precedent - demonstrating the case’s different facts to the precedent case. Court can develop new precedents if necessary.

• Courts can disapprove of a precedent - expressing objection to an existing precedent. Comments may persuade parliament/superior courts to create new laws in future cases.

• The DoP enables courts to fill in the gaps of existing legislation when interpreting = allows judges to create + apply legal principles that address matters in the case by considering issues that have not been accounted for by the legislation.

• The principle of stare decisis ensures consistency in common law - lower courts must follow precedence of superior courts (similar facts)

• State decisis ensures predictability in common law - parties can anticipate how the law will be applied, disputed resolved by examining prev. cases

The Way the Doctrine of Precedent affects law-making - Limitations

• Civil law - Judges must wait for an individual with standing to bring a case - then establish new law. Criminal law, the courts must wait for an accused to be brought to court - then establish new law. Courts cannot develop laws whenever they wish.

• Judges make law ‘ex post facto’, - make laws retrospectively, after a case is brought to them.

• Courts can only develop new law where no law currently exists/not clear how the law applies to the case = Courts cannot make laws on the basis that they disagree with existing legislation.

• Even if judges are in a position to change the law, some may be hesitant or unwilling to do so.

• Courts can create new laws BUT parliament can still pass legislation that abrogates these laws due to the supremacy of parliament.

• Lower courts must follow binding precedent - even when outdated or inappropriate

• Large amount of precedent = process of identifying relevant precedent can be costly and time consuming for parties.

Judicial Conservatism and Judicial Activism: Overview:

• Judges can hold different views about ways they should interpret law + differ in the way they exercise their role in deciding cases.

• The approach of judges when interpreting law and making decisions can influence the ability of the courts to make law. Two broad judicial approaches are:

  • Judicial conservatism

  • Judicial activism.

Judicial Conservatism:

• Courts should show caution when making decisions that could lead to significant change law

• Judicial conservatism influences the ability of the courts to make law - judges who take a conservative approach to interpreting statutes won’t go far beyond the established law.

• Parliament (as supreme law-making body, democratically elected) therefore has more authority for implementing major law reform than judges - not elected by the people.

• Judges should interpret the law, not rewrite it.

• They are not expected to know/ assess the community's views on a particular issue.

• Opposite to the concept of judicial activism (considers views +  values of the community)

• HC. has exercised both judicial conservatism + activism when resolving + making precedent

*Reluctant to declare Acts of Parliament invalid unless they are obviously unconstitutional.

Judicial Conservatism Reasoning:

• JC. Belief: judges should ensure their decisions are not based on views or political opinions.

• JC. Belief: Not base decisions on what they perceive to be the community's view on an issue.

  • Rather, should base their decisions solely on legal considerations.

• Judges may be conservative in circumstances where interpreting legislation may lead to a major/controversial change in the law.

• They may prefer parliament to investigate and make contentious law reform.

  • Parliament's methods of investigating law reform: parliamentary committees, specialist bodies eg: Vic. Law Reform Commission (VLRC)

  • Parliaments can investigate the need for law reform, courts cannot investigate the views of the public, limited to examining resources available in the court 

  • Courts are limited to making law on issues subject to the case before them, whereas parliament can make laws on whole areas in anticipation of future circumstances

Judicial Conservatism - Strengths

• Conservative judges show restraint in making decisions that could significantly change law, ensuring law remains stable.

• JC. prevents the creation of controversial laws - judges do not base decisions on their own political views and opinions.

• JC. means courts will not make radical + controversial changes to law, reducing likelihood of appeals being made on a question of law, whereby the precedent may be reversed.

Judicial Conservatism - Limitations:

• Conservative judges can interpret  law narrowly = restricts courts from making substantial changes

• JC. may result in judges in superior courts applying outdated precedents instead of creating new ones - even in circumstances when court is not bound to follow the existing precedent. Means relevant community views/values are not reflected in existing precedent.

Judicial Activism:

• The willingness of judges to consider a range of social + political factors, including community views/values and the rights of people, when interpreting law + making decisions.

• Those who disapprove of judges taking a more active role in determining + creating law have defined JA. as judges making decisions outside their legislative or constitutional power.

  • Eg: interpreting a statute that expands its meaning beyond the original intention of the parliament in an attempt to influence a change in the law.

• People who approve of judges taking a more active role see them as progressive

• They also note that the capacity for a judge to be 'active' is limited, given the nature of courts' role in interpreting existing laws and deciding within the confines of the case.

Mabo Case - Judicial Activism:

• Judicial activism: Mabo v Queensland (No. 2) (1992) 175 CLR 1

• Justices of the HC. (6:1 in favour) made a significant ruling = indigenous peoples land rights.

• The justices overturned the longstanding false legal principle that Australia was an ‘empty land belonging to no one’ (terra nullius) before British colonisation.

• The Court legally recognised the right of Indigenous to make claims on their traditional land.

• 1993 following the Mabo decision in the HC., the Commonwealth Parliament passed the Native Title Act 1993 (Cth), to confirm and enshrine the High Court’s decision in legislation and establish procedures for dealing with and settling native title claims.

• At the time - some critics viewed it as an example of improper judicial activism - said the HC. was exercising excessive judicial creativity by establishing a law based on the political and social desire to establish land rights and recognise the rights of Indigenous Australians.

• Others, including the Federal Government, celebrated the ruling and praised the High Court justices for acting with impartiality, overruling the false legal principle of terra nullius.

Judicial Activism Controversy:

• The extent to which judges should be progressive when making decisions and establishing precedents is controversial - largely depends on circumstances of the case.

• Some people consider JA. + the willingness of judges to consider community needs, rights and values when making law as overstepping their role as independent law-makers.

• Others view it as a legitimate obligation of the court that must be exercised by judges to ensure justice is achieved

*REMEMBER - courts must wait for case to come to them, and have no there law they can apply, or clearly applies to case, to make precedent that is judicially activist.

Judicial Activism - Strengths

• Judges who take an activist approach feel their role extends beyond applying legal principles to a case -  undertake a secondary role in developing common law where necessary.

• Unlike parliament, judges are not elected by the people- therefore, make controversial changes in the law without the fear of not being re-elected.

• Judges can develop laws that put pressure on parliament to make legislative changes.

• As the High Court is not bound by previous decisions, justices are able to engage in judicial activism,radically changing the law.

Judicial Activism - Limitations

• Courts must wait for a relevant case before actively changing the law.

• Judges are not elected by the wider community - common law created may not actually reflect the views and values of the majority.

• The High Court is the only court that is not bound by the DoP. Courts lower than the HC. are still restricted from making new law, where there is existing precedent set by a higher court.

• If a judge, (not HC justice), seeks to radically change the law, a party may appeal this decision on the basis that it is an incorrect interpretation + application of law. Could result in new precedent being overruled, reversing change.

• Parliament is the supreme law-making body, can therefore, abrogate any radical common law created by the courts as legislation will prevail over such law.

The Relationship Between the Parliament and the Courts Overview:

• Courts + parliaments have an interconnected role in law-making.

• Must work together so that law is flexible + can be applied to any situation that might arise.

• Parliament is the spr. Lm. body, courts have a complementary role in making laws.

• The courts' role is to resolve disputes - in doing so, it is sometimes necessary for judges to interpret statutes made by parliament and develop law where none exists.

• By interpreting statutes, judges can clarify the meaning of legislation so it can be applied, and also broaden or narrow its meaning.

• The High Court has the constitutional authority to interpret the meaning of the Constitution and can alter the division of law-making power between Cth + state parliaments (Eg: Brislan).

• Parliament, as the supreme law-making body, has the power to confirm, add to or change common law +override court decisions → Exception: constitutional matters resolved by HC. 

Courts - First interpret, secondary role of making law. Parliament - first role is law-making.

Relationship Between Courts and Parliament in Law-making: - list

1. The Supremacy of Parliament

2. The ability of courts to influence parliament

3. Codification

4. Abrogation

Supremacy of Parliament: (Relationship, C +P Law-making)

• Parliament = spr. Lm body with ability to make/change law within its constitutional power.

• Has the power to pass legislation to either confirm or abrogate decisions made by the courts, with the exception of High Court decisions on constitutional matters.

• As the spr. Lm body, parliament is also able to pass Acts of Parliament that restrict the ability of the courts to make decisions with respect to certain matters.

Supremacy of Parliament - The Courts: (Relationship, C +P Law-making)

• As spr. lm body, parliament is responsible for passing legislation to create the courts and determine their jurisdictional power..

  • Eg: Vic. Parliament passed the Magistrates' Court Act 1989 (Vic) to establish the Magistrates' Court and its divisions and powers 

• Parliament can also pass legislation to change the jurisdiction of courts - the types and severity of cases heard by the court can be changed.

  • Eg: the Magistrates' Court Act has been amended several times, including amendments to create its specialist lists and divisions (Koori Court, Drug Court etc.)

Parliament created the courts - therefore parliament had the ability +authority to change the court's jurisdiction and powers.

*Anything created by an act - the Parliament has power over.

HOWEVER - Separation of Powers and Relationship in Lawmaking: (Supremacy of Parliament — Relationship, C +P Law-making)

In accordance with the principle of the separation of powers (as outlined in Constitution), parliament must ensure that it allows the courts to remain independent + retain the power to determine if the parliament has passed laws beyond its law-making authority.

The ability of Courts to Influence Parliament: (Relationship, C +P Law-making)

• Courts can indirectly influence parliament to make and change the law.

• Judges may make comments when handing down judgments (part of reasons for decision or as obiter dicta), that inspire/encourage parliament to initiate law reform.

• Parliament can also be influenced to change the law if a lower court, bound by precedent, makes a decision that creates an injustice, or if a court acts in accordance with judicial conservatism, and is unwilling to overrule a previous precedent considered to be bad law.

• A court's decision can highlight a problem/ cause public outcry = parliament change law.

• Judicial activism can influence parliament to change the law.

  • _{^{Eg: the Mabo case → HC. decided to overrule terra nullius. Recognised the right of First Nations peoples to have native title over their traditional lands.}}

  • _{^{The Cth Parliament then passed the Native Title Act = enshrine the decision in legislation, establish procedures for dealing with native title claims.}}

Codification: (Relationship, C +P Law-making)

• Being the spr. Lm body, parliament has the power to pass legislation that assembles all relevant law in an area → both common + statute law, to create one all-encompassing law.

• This is referred to as codification. Codification of common law allows parliament to pass legislation that reinforces/endorses the principles established in court rulings.

• Gives parliament the opportunity to clarify, expand on or reform the relevant area of law.

• Occurs because parliament agrees with a principle of common law and wants to incorporate the legal principle into legislation so that it becomes solidified and protected statute law.

• Following the codification of common law, judges cannot change their minds and reverse the common law principle established = must follow codified law in future cases.

Allows for streamlining of the system, makes it enforceable on all courts, protects principle from being overridden by future precedent.

HOWEVER - Codification Reformed (Relationship, C +P Law-making)

• Law can be reformed if parliament decides to amend or repeal legislation.

• Areas of law that have been codified or partially codified, by federal, state and territory parliaments. Eg: taxation law, consumer law, negligence law, some criminal law.

  • Eg: Law in relation to self-defence was previously contained in common law. In 2005, the Vic. Parliament amended the Crimes Act 1958 (Vic) = codify the common law relating to self-defence. Self defence now fully codified in statute law.

Codification - Allows and Without it: (Relationship, C +P Law-making)

• The process of codification allows parliament to consolidate common law principles established under similar circumstances into one piece of legislation, improving the consistency and predictability of the law in certain areas.

• Without codified legislation, parties may struggle to understand the relevant legal principle that applies to their case, application may differ depending on the court that hears their case = differing interpretations of existing precedent.

Abrogation: (Relationship, C +P Law-making)

• Parliament may undertake abrogation of a legal principle developed by a court, rendering the common law invalid by passing legislation that overrides it.

• Parliament has the power to pass legislation that abrogates (cancels) decisions made through the courts (except High Court decisions made on constitutional matters).

• May become necessary in situations where the parliament believes the courts have interpreted the meaning of phrases in a statute in a way that does not align with the intention of parliament, or does not reflect the current meaning of the Act.

• Courts could potentially interpret legislation in a way that is no longer appropriate.

Codification Carried Out: (Relationship, C +P Law-making)

• Common law is replaced by legislation passed by parliament (due to supremacy), where it is capable of overriding the court’s laws.

• Argument: The power to abrogate common law, (except High Court - constitutional matters), could lead to an unjust law if the parliament overrides a valid legal principle that has been established by multiple independent judges with expertise, to suit a political agenda.