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THE ABILITY OF JUDGES TO MAKE LAW. INTRODUCTION: COMMON LAW  Common law – founded in England, adopted by Australia  It is law developed through the.

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Presentation on theme: "THE ABILITY OF JUDGES TO MAKE LAW. INTRODUCTION: COMMON LAW  Common law – founded in England, adopted by Australia  It is law developed through the."— Presentation transcript:

1 THE ABILITY OF JUDGES TO MAKE LAW

2 INTRODUCTION: COMMON LAW  Common law – founded in England, adopted by Australia  It is law developed through the courts, also known as judge made law and case law  Can only be created when a case is brought to the courts  Develops through the reasons for decisions of courts being followed by future courts

3 JUDGES ABILITY TO MAKE LAW Courts make law in TWO ways: 1. Deciding on a new issue that is brought before them, or when a previous principle of law requires expansion to apply to a new situation 2. Statutory interpretation – interpreting the meaning of the words in an act of parliament

4 RESTRICTIONS ON JUDGES ABILITY TO MAKE LAW Judges can only make laws in the following circumstances:  If a case is brought before a superior court  Judges can only develop or change law when a relevant case is brought before them  For an individual to bring the case before the court they must have standing (be directly affected by the case)  If there is no previous binding decision in a higher court in the same hierarchy that must be followed by lower courts  Principle of common law = if higher court in same hierarchy develop a principle on a law, lower courts in the same hierarchy must follow (doctrine of precedent)

5 Can the courts ever not follow a principle established in a higher court? If it can be shown that there are distinguishing differences between the previous case and the case before the court – court can establish a new principle rather than following the previous principle

6 COURT HIERARCHY AND THE DOCTRINE OF PRECEDENT  For doctrine of precedent to operate, inferior courts must follow decision of superior courts, therefore precedent relies on there being an organised court hierarchy  Higher courts  hear cases on appeal  therefore usually the ones making law  If High Court hears a case on appeal from a state or territory, their decision is binding on all states and territories (provided subject matter applies to state or territory)

7 WHAT DOES THE VIC COURT HIERARCHY LOOK LIKE? High court Supreme Court of Appeal Supreme Court – Trial division County Court Magistrates Court High court Supreme Court of Appeal Supreme Court – Trial division County Court Magistrates Court

8 THE DOCTRINE OF PRECEDENT PRECEDENT What is it?  The judgement of a court that sets a principle of law.  How does it work?  That principle or rule of law established must be followed by lower courts in the same hierarchy when deciding on future similar cases Benefits  Creates consistency and predictability  Person takes a case to court  have an idea of the outcome because like cases are decided in a like manner

9 LAW MAKING THROUGH COURTS  Usually occurs when a case is being heard on appeal (no jury) or,  Civil case where there is no jury Judges make a decision Gives reason for the decision Reason is then binding on lower courts in SAME hierarchy

10 TERMS TO USE WHEN TALKING ABOUT PRECEDENT Stare decisis  Means ‘to stand by what has been decided’  Term used for describing the process of lower courts following the reasons for decisions of higher courts Ratio  Means ‘the reason for the decision’  It is the binding part of the judgement  It is NOT the decision itself, it is the REASON for the decision itself which is then regarded as a statement of law to be followed in the future

11 FINDING THE RATIO DECIDENDI CASE STUDIES Cohen v Sellar – page 146

12 WHERE IS THE RATIO DECIDENI FOUND?  Can be found in various parts of the judgement and not always in a clear expression of law  In many cases heard on appeal, or HC cases involving the constitution, several judges are involved in the decision  if unanimous decision cannot be reached, decision of the majority creates precedent  therefore precedent is found in the judgements of those judges who form the majority

13 WHAT PARTS OF THE RATIO DECIDENDI ARE THE MOST IMPORTANT?  There are important facts that affect the outcome of the case and are vital to the reason for the decision  Only these facts apply to future cases Material facts

14 EXAMPLE OF MATERIAL FACTS: SHADDOCK CASE Material facts: ???????????  That the information was being relied upon in the course of business  that the advice was given by an institution that had set itself up as a centre from which advice could be sought  that it was usual practice for someone to seek the type of advice in question from the particular institution IMPORTANT: situation doesn’t have to be EXACTLY the same (eg. Item in question being a piece of land, or advice giver being a council), but the MATERIAL FACTS must be the same

15 CREATING CASES  In table groups, come up with a case. Form a list of facts in the case, including material facts and facts that are not vital to the ratio decidendi  You will present your case and facts to the class, and the class will try to decipher what the material facts would be that would form a part of the ratio decidendi Your task

16 TYPES OF PRECEDENT

17 BINDING PRECEDENT Binding precedent = legal principle that must be followed  Precedent that is binding = decisions made in higher courts in the same hierarchy dealing with ‘like’ cases. (‘like’ cases  cases that have the same legal principles and material facts)  High Court is not bound by its own decisions, but tends to follow previous decisions in the interests of consistency (unless it believes it is not a good law or it is out dated) Example: In Victoria, the County Court MUST follow the decisions of the supreme court in like cases

18 PERSUASIVE PRECEDENT Persuasive precedent = precedent that contains a ‘convincing argument’, but does not have to be followed because it is not binding. o When it is from a court in another hierarchy, such as another state or country o When it is from a court in the same level of the hierarchy o When it is from an inferior court o Obiter dicta statements of a court at the same level in the same court hierarchy; for example, a Supreme Court judge is not bound by the obiter dicta statements made by other Supreme Court judges in past cases When is it considered persuasive?

19 OBITER DICTA STATEMENTS  Means ‘things said by the way’  In the judgement, judges will sometimes make a statement that does not form a part of the ratio (wasn’t a matter necessary to the decision), but it was still a matter that was considered in opinion  This can be influential in the future and can act as persuasive precedent

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22 FLEXIBILITY OF PRECEDENT  R – reversing = appeal from a case to a superior court from a lower court, therefore reversing the earlier decision  O – overruling = superior court deciding not to follow earlier precedent set by a lower court  D – distinguishing = if there is a binding precedent from a superior court, the judge may find a different material fact and therefore decide it is not bound to follow the decision  D – disapproving =when a previous decision has been made in a court at the same level in the court hierarchy, or a lower level, present court may disapprove.  If it is the same level, present court is not bound to follow it, if it does not follow it then the later case may make a new precedent – both precedents will remain in place until higher court rules on it.  If it is an inferior court, judge may express disapproval but must still follow it.

23 ACTIVITY – CASES AND PRECEDENT  Using the case you have been given, decide which RODD it falls into. You will need to outline the case to the class. Page 238


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