1. Unit 3 AOS 3 The Role of the Courts in law-making
Legal Studies
Unit 3 AOS 3
The Role of the Courts in law-making

2. The ability of the courts and judges to make law
In the process of making decisions on a case being hear before a court, judges will make statements of law-precedent
Precedent the judgment of court that sets a principle of law
Common law law made by the courts (a.k.a judge made law, case law, court-made law)

3. 2 situations where judges make law:
When a case arises before them, on which there is no statute or previous common law, or the the common law requires expansion
Through the interpretation of legislation

4. Limitations on a judge ability to make law
Judges can only make law on a case before them: must wait for a case to arise with a legal issue that has not previously been considered or tests the validity of an existing law
The position of the court in the hierarchy: only superior courts in the hierarchy can create precedent

5. Type of legal case and mode of trial: precedent usually only established in cases w/o a jury. Juries cannot make precedent.
Personality of the judge: conservative = prefer to leave parliament to make law. However progressive = more likely to create precedent.
Existing precedent: judges may be bound by existing precedent (if facts are similar).

6. The Operation of the Doctrine of Precedent
Doctrine of precedent the process by which judges follow the reasons for the decisions, given by courts higher in the hierarchy when deciding on similar future cases
2 types of precedent:
-Binding created by higher courts and must be followed when making a decision on a similar case
-Persuasive does not have to be followed, however a judge may look to it as being influential on their decision

7. Parts of a courts judgment
Ratio decidendi the reasons for the decision. The binding part of a precedent.
Obiter dictum statements made by a judge regarding a law and/or it’s application. This is only persuasive as it is not directly part of the matter in question that the judge has been asked to consider.

8. Developing or avoiding precedent
4 methods used; overruling, reversing, distinguishing and disapproving
Overruling a judge in a higher court may not agree with precedent set in a lower court in an earlier case, and therefore overrule it.
Reversing when deciding a case on appeal (same case) a judge may rule that the lower court has made the wrong decision and change/reverse it

9. Distinguishing if judges can identify significantly different facts in a case, they can distinguish the case before them, and are no longer bound by the precedent
Disapproving judges express disagreement with decision
In a lower court, judges may state their disapproval, however are still bound to follow precedent
In the same court where precedent was established, judges may create another precedent to show disapproval
Both precedents will exist until a higher court overrules
Lower court will have the choice of what precedent they will follow

10. Reasons for interpretation of statutes by judges
Statutory interpretation is when a judge interprets the meaning of words/sections in a stature relevant to the case before them.

11. Reasons for statutory interpretation
Mistakes in drafting bill: courts will need to interpret legislation according to the intention of parliament at the time
Changing nature of words: word meanings change over time due to society changing e.g Kevin’s case-changed the definition of ‘a man’ to include those who had gender reassignment surgery

12. Words may be ambiguous: word meaning not clear and the courts need to clarify
Future and changing circumstances: Legislation may not encompass future circumstances, for example technology and file sharing-need to keep law up to date

13. Tools used to interpret legislation
Common law rules:
Ejusdem generis: used when several specific terms are followed by a general term-class rule e.g ‘motor vehicles’ would include cars, truck, buses, motorbikes etc.
Expression unius exclusio alterius: the express mention of one to the exclusion of others e.g if an act said ‘motor vehicles; cars, trucks and buses,’ it would be assumed that motobikes would not be included in the act as parliament did not intend it to be

14. Intrinsic materials evidence found within the legisaltion that is used to help interpretation e.g preamble, footnotes, long title
Extrinsic materials evidence found outside of the act to help with interpretation e.g Hansard, legal & english dictionaries, previous decisions

15. Effects of statutory interpretation by judges
Creation of precedent
-binding on lower courts with similar fact situations
-precedent remains in force on the assumption that, if parliament hasn’t made any changes, it must be satisfied that the interpretation is consistent with parliament’s intention

16. Words are given meaning
Clarifies act for future reference
Narrow interpretation = may restrict law to certain situations e.g Deing v Tarola [1993]
Broad interpretation = may extend the law to cover a new situation/area.
Parliamentary action
Decisions may alert parliament to the need for change, therefore result in parliament taking action to:
1. Clarify an issue
2. act to limit the powers of the courts

17. Strengths and weaknesses of law-making through the courts

19. The relationship between the courts and parliament
Parliament creates courts: through legislation, parliament establish courts and their structure, procedure and jurisdiction e.g Magistrates’ Court act [1989]
Furthermore, parliament may amend this legislation at any time e.g The aforementioned act has been amended every year since enacted. These amendment have included the establishment of the Koori Court and Drug Court Divisions in 2002

20. Courts apply and interpret legisaltion
Statutory interpretation
Interpretation and act read together to form the law
May broaden or narrow the meaning of the original legislation
Parliament can change laws made by courts
Parliament can override common law e.g Trigwell case
May do so if law needs clarification or a court was wrong in it’s interpretation
*Parliament cannot override interpretation in the High Court regarding the Constitution

21. Courts can influence parliament to change law
-Statements made by judges (obiter dictum) regarding a law and/or its application may signify to parliament a need for change
- Parliament can codify law- making common law into statutes e.g Mabo case