Foundations of
Australian Law
Fourth Edition
Chapter 4
How courts make laws
Copyright © 2013 Tilde Publishing and Distribution
Chapter overview
This chapter looks at the concepts of




Common law
Doctrine of precedent
Judgments and precedents
Statutory interpretation
Common Law
• Developed in England under the
Westminster system
• Comprised of a collection of past
decisions of judges and the facts of cases
• Past decisions of judges are called
precedents and are recorded in law
reports
Precedents
• Set by Australian Federal Courts can be
found in Commonwealth Law Reports
(CLRs)
• Set by state courts can be found in the
relevant state law reports
Doctrine of precedent
Process of deciding a case
…
• Persuasive precedents



Decisions made by lower court levels
Decisions made by courts in the same
hierarchy
Decisions referred to by courts in other
court hierarchies
Binding and Persuasive Precedents in the
Australian Court Hierarchy
High Court of Australia
...
• Changing and updating precedents




Overruling
Reversing
Distinguishing
Disapproving
Cornerstones of Australian Law: Chapter 4
…
• Judgements and precedents

Parts of a judgement: Table 4.1
...

Precedents: Figure 4.7
Ratio decidendi
• Binding part of the precedent
• Judge's legal reasoning for reaching
his/her decision
• Lower courts must follow the ratio
decidendi established in higher courts
• Difficult to identify as it found throughout
a judgment
Obiter dictum
• Persuasive part of a precedent
• Comments, opinions and observations
made by the judge throughout the
judgment
• Often referred to as ‘a statement or
statements said by the way’

Summary of ratio decidendi and
obiter dictum: Table 4.2
Statutory interpretation
• Common law rules




Literal rule
Golden rule
Purposive approach rule
Class rule (maxim of ‘ejusdem generis’)
...
Statutory interpretation: Figure 4.8
Cornerstones of Australian Law: Chapter 4
...
• Interpreting Acts

Acts Interpretation Act 1901 (Cth)
- Section 15AA of the Acts Interpretation Act 1901
(Cth)

State legislation
• Problems associated with statutory
interpretation
Cornerstones of Australian Law: Chapter 4
Chapter review
In this chapter you have looked at




Common law
Doctrine of precedent
Judgments and precedents
Statutory interpretation