PRACTICE SAC 3 mark sheet & answer guide: role of the courts in law-making
General comments and advice:
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Remember it is vital that your answers for this topic use appropriate legal terminology such as precedent, binding precedent, persuasive precedent, ratio decidendi, obiter
dictum, distinguishing, reversing, overruling, disapproving etc. Make sure you revise what these terms mean so you can use them properly in your answers.
For statutory interpretation, it is useful to illustrate your answers with case examples. Note that statutory interpretation by judges gives extra meaning to the words of
legislation, but does not change the words themselves. Depending on the meaning given to the words by the judge, the scope or application of the legislation can be changed.
Questions on precedent, particularly those that require an extended response, are frequently combined with questions on statutory interpretation.
Courts make laws in two ways, through precedent and through statutory interpretation.
Question
Marks
Suggested answer
1. (a) Define ratio decidendi
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Ratio decidendi, literally means the ‘reason for the decision’ and it forms the statement of law and
precedent. Precedent is the principles of law set down by a higher court that are binding on lower
courts in the same hierarchy. Precedents can be binding or persuasive.
1 mark for
general
definition of
ratio
decidendi.
1. (b) What is a court hierarchy?
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The court hierarchy is the ranking of courts in order of importance or jurisdiction.
1 mark for
general
definition of
court
hierarchy
State and federal courts are ranked in importance, the High Court of Australia being at the top of the
hierarchy for each state. In Victoria the next courts in order in the hierarchy are the Supreme Court,
the County Court and the Magistrates’ Court.
1 mark for a
further point
or further
explanation
e.g. which
courts are in
the Victorian
court
hierarchy
2. Distinguish between binding precedent and persuasive
precedent and explain when these apply.
3+3=6
2 marks –
explanation of
binding
precedent;
1 mark –
example of
when a
precedent is
binding
Binding precedent: the precedent (reason for the decision, or ratio decidendi) is binding on future
cases in the same hierarchy, provided the material facts are the same.
For a precedent to be binding on a particular case, the precedent must be:
• from the same hierarchy of courts
• from a superior court — one that is higher in the hierarchy.
[Note: The High Court is not bound by its own previous decisions. However, in the interests
of consistency, it will usually follow its previous decisions, unless it believes that a previous
decision is not good law, or a previous precedent is outdated because of changes in attitudes,
technologies or other circumstances.]
2 marks –
explanation of
persuasive
precedent;
1 mark –
example of
when a
precedent is
persuasive
Persuasive precedent: decisions from other hierarchies or from a court lower in the same hierarchy
can act as persuasive precedent. This is influential on other courts, but not binding.
Precedents considered to be persuasive but not binding are:
• from courts in another hierarchy, such as other states or countries
• from courts on the same level of the hierarchy (which are not binding)
• from inferior courts (that is, courts lower in the court hierarchy)
• obiter dicta contained in a judgment of a court in the same hierarchy or in another hierarchy.
3. Describe the operation of the doctrine of precedent.
Does the operation of the doctrine of precedent enable
6
1 mark for
Precedent is the reasoning behind a court decision that establishes a principle or rule of law that must
be followed by other courts lower in the court hierarchy when deciding future cases that are similar.
courts to make laws?
defining
precedent.
1 mark for
identifying
ratio
decidendi;
1 mark for
identifying
obiter dictum;
2 marks for
full
explanation of
how
precedent
enables courts
make laws.
There are two parts of a decision that are important for precedent: the ratio decidendi and the obiter
dictum.
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ratio decidendi is the legal reasoning for the decision that forms the legal principle or binding
precedent.
obiter dictum comments are those parts of a judge’s decision that do not form the legal
reasoning for the decision but are “said by the way”. These comments may form persuasive
precedent.
Precedent enables courts to make law as the courts decide on a new issue that is brought before them
or when a previous principle of law requires expansion to apply to a new situation. An example of the
courts ability to make a law was the case of Grant v. Australian Knitting Mills (1936) AC 85. The court
referred back to the case of Donoghue v. Stevenson. Although this case was a persuasive precedent as
it was in another court hierarchy, the court chose to follow the decision in the case. The court found
that the injured party was successful in suing Australian Knitting Mills for negligence and the law of
negligence was clearly established in Australia. This is one case in which precedent was used to create
a new law.
1 mark for
example
4. With the use of illustrative examples, explain the
process used by the courts to develop common law
through the doctrine of precedent. Include two ways in
which judges can avoid following precedent created in
previous cases.
[Note: For full marks, it is expected you need to have a
detailed explanation of precedent using the relevant
terminology, how precedent comes about, how judges
can follow/avoid precedents, and case examples for
developing an area of law.]
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Answers should include the following:
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The quality of
discussion
would
determine the
marks award,
but most of
the listed
points would
need to be
included.
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an explanation of the doctrine of precedent – this should be a detailed explanation that
includes the distinction between binding and persuasive precedent, and the concepts of stare
decisis, ratio decidendi and obiter dictum
that precedent comes about through:
o the process of judges adjudicating disputes, and needing to determine issues of law
that relate to the case before them;
o where there may currently be no law (either statue or common law) which is
appropriate for the particular dispute before the court
the need to follow previous decisions of courts – whether binding or persuasive precedent
when precedent occurs
ways in which judges may be able to avoid precedent if they think it is not appropriate for
their case – reversing, overruling, distinguishing, and disapproving, and in the process
developing precedent [To copy test 5 q5]
illustrative examples could include the development of the law of negligence culminating in
Donoghue v Stevenson and Grant v Australian Knitting Mills.
5. ‘Parliament’s task is to legislate, but the impact of that
legislation can be affected by how it is interpreted by the
courts’.
(a)
(b)
Identify and explain one reason why courts
sometimes have to interpret a statute. For
this reason, include one example to support
your answer.
Describe two effects of statutory
interpretation.
6
1 mark for
identifying
and
explaining the
reason
1 mark for
example.
4 marks for
explanation of
the effects of
statutory
interpretation
(2 marks for
each effect).
Any two of the following:
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Mistakes occur during the drafting of an act.
The meaning of the words can change over time.
The act might not have taken into account future circumstances.
The intention of the action might not be clearly expressed.
There might be inconsistent use of the same word.
An act may not include new types of technology.
Parliamentary counsel, when drafting legislation, may not have used correct technical
terms.
There may be inconsistencies with other statutes.
The act may be silent on an issue and the courts may need to fill gaps in the legislation.
The meaning of the words may be ambiguous.
Most legislation is drafted in general terms.
Effects of statutory interpretation: (any two of the following):
* Acts of Parliament are applied to the cases that come before the courts.
* The words in the act are given meaning.
* Precedents are set for future cases to follow
* The parties to the case are bound by the decision
* Consistency and predictability in the law
* Courts can override or reverse a previous decision of courts
*Parliament can abrogate law made by courts
*Restricting the law though narrow interpretation of the statute
*Extending the law through broad interpretation of the statute.
Whenever a judge engages in statutory interpretation, precedent is created. This precedent is binding
on lower courts in the hierarchy. The words within the statute, plus their interpretation, are read
together to form the law. Words and phrases within the legislation are given meaning by the courts. A
wide interpretation of a word or phrase in the statute could result in the law being extended to cover
new situations (e.g. Brislan’s Case). Conversely, a narrow interpretation of a word or phrase in the
statute may narrow the scope of the law. For example, in Deing v. Tarola, a studded belt was said to be
a weapon only if it was being used as such.
6. Evaluate two strengths of courts as a law making body.
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At least two of
the following
effects for 2
marks, plus
detailed
explanation
(eg example)
for further 2
marks.
Strengths of law-making through courts
 Courts act independently. Because judges are appointed, not elected, they are not subjected to
the same level of political scrutiny. Because they do not need to be re-elected, their decisions
can reflect the law rather than the populist view.
 Courts apply legislation to day-to-day cases. Judges rule on cases before them. This makes
their decisions relevant to today's circumstances. Interpretation of words in statutes allows
for common, modern-day usage of words to be considered and applied.
 Courts can act quickly. As courts are not burdened by the strict parliamentary processes
involved in passing a Bill (the various reading stages and debates in both houses of
parliament), courts can quickly change the law through their decisions in the cases before
them.
 Courts can fully consider all arguments. Precedents are the result of court cases, where the
adversary system allows all arguments and evidence to be examined and cross-examined.
This helps to ensure judges are fully informed when arriving at a decision.
 Courts can develop areas of law. As society changes, courts can develop areas of law to keep
pace with society's views and values. The development of the law of negligence, liability for
the safe-keeping of animals and native title are examples where courts have developed an
area of law.
 Courts provide consistency and fairness. Precedents allow for the law to be applied
consistently where the material facts of a case are similar. This provides certainty and helps
to ensure that all people are treated equally and fairly before the law.
 Courts can provide flexibility. By allowing judges to distinguish, overrule and reverse
precedents, courts have a degree of flexibility in the manner in which they apply the law and
create new laws.
In evaluating a strength, you need to consider corresponding weaknesses.
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Judges are not elected. When parliament creates a law it is using the authority given to it by
the electorate. Judges are not elected and, therefore, groups affected by court-made law have
no recourse to democratic processes to challenge the decision.
Courts can only act on cases before them. Courts must wait for a case to come before them.
People must have ‘standing’ to be involved in a court case and must be able to afford to take
their case to the higher courts in order for a court to create a precedent. In this sense, the
courts’ ability to make law that is far-reaching is limited because they must confine
themselves to the case at hand.
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7. Discuss two reasons why precedent may or may not
provide for effective law-making, and explain the reason
why it is a strength or weakness.
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4 marks –
identifying
two
advantages or
disadvantages
of precedent
2 mark –
detailed
discussion of
reasons why
Courts cannot seek public input. Parliament can use law reform bodies to investigate areas of
law requiring change. Courts are unable to seek public views and input when deliberating on
a case. In this sense, law-making through the courts is limited because judges are not privy to
extensive consultation that often takes place before parliament enacts law.
Courts can be slow to make law. Courts are not able to act independently and must wait for a
case to come before them. This can lead to the law changing slowly through the courts. E.g.
development of the law of negligence.
Courts act retrospectively. Judges make laws when settling disputes in cases before them. As
the act (or omission) has already occurred, the law is, therefore, made ex post facto — after
the fact.
Courts can be inflexible. Judges are not elected and law-making is not their primary role.
These factors can see them reluctant to distinguish or overrule precedents and create new
laws. See the runaway car case study below.
Any two of the following reasons:
Advantages and disadvantages of precedent
Argument
Precedent
provides
consistency and
fairness
Precedent
provides
certainty
Precedent
provides
flexibility
Precedent
provides for
growth in the
law
Advantage
The doctrine of precedent provides for
consistency and fairness in the resolution
of disputes because parties can feel
confident that cases with similar facts will
be treated like those in the past.
Disadvantage
Outcomes may not always be
consistent. One case may appear similar
to earlier cases, but the processes of
overruling, reversing, disapproving and
distinguishing may result in a very
different decision.
Parties may feel that they can predict the An outcome is difficult to predict
outcome of their case based on the
because sometimes there is more than
decisions of previous similar cases.
one precedent that may apply to the
case before the court.
Precedent can be flexible because it can be Judges are conservative by nature and
changed by a superior court when a case of may prefer to follow earlier decisions
similar facts is distinguished from an
rather than make a new precedent, thus
earlier one.
the law remains inflexible on a
particular issue.
Areas of law may develop and grow over Growth in the law through the courts is
the years as similar cases are heard
slow and expensive. The courts must
allowing judges to elaborate and expand
wait for cases to come before them,
precedents in a particular area of law.
and, consequently, parties must be
prepared to take their dispute to court.
Precedent is
efficient
The doctrine of precedent provides
principles of law for judges to follow.
Judges are independent and impartial and
can make decisions without fear of
political interference.
Precedent may be regarded as
inefficient because it relies on a dispute
occurring and the parties being
prepared to take their case to court.
Then it can be a very lengthy and
expensive process.
Question
Marks
Suggested answer
8. To what extent do parliaments and courts act
as a partnership in law making? Justify your
view.
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4 marks – discussing the four ways that courts and parliaments interact. ;
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parliaments make laws to establish courts.
Courts apply and interpret the law made by parliament
Parliament can change or confirm law made by the courts
Court decisions can prompt a change in the law made by parliament.
1 mark for the full explanation of each of these methods.
2 marks – discussing example of the interaction between courts and parliament in law making
(Mabo v. Queensland (1992).
1 mark – indicating extent of agreement
Total
/50