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• Statutory interpretation


  Judges can make law when called upon to interpret the meaning of a statute
• Statutory interpretation


  1. Judges give meaning to unclear words and phrases in an Act of Parliament

  2. Judges can broaden or narrow the meaning of legislation

  3. The legal reasoning behind the judge's interpretation may establish a legal precedent
• Statutory interpretation does not change the actual words or phrases used in the statute itself
• Reasons for statutory interpretation

  • To resolve problems that occur during the drafting process
  • To resolve problems that occur when a court is applying the Act of Parliament to a court case
• Problems during the drafting process


  • Unclear terms and phrases
  • The bill might not have taken future circumstances into account
  • The intention of the bill might not have been clearly expressed
  • Mistakes in drafting of a bill
• Problems applying the act to a court case

  • The act may have become out of date and no longer reflects community views and values
  • The meaning of 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
• Is a studded belt a weapon?


  • Deing v Tarola [1993] 2 VR 163
• Effects of statutory interpretation

  • Words or phrases contained in the disputed legislation are given meaning
  • The court's decision on the meaning of the legislation is binding on the parties
  • A precedent may be set for future cases to follow
  • The meaning of the legislation (law) can be restricted or expanded
• Finality of a court's decision


  • The decision applies to parties to the case and any person who may bring a similar case in the future
  • A decision is a final statement of law unless reversed, overruled or abrogated by parliament
• Role of the courts

  • Apply existing laws made by parliament to resolve disputes
  • Make law when necessary
• The ability of courts to make law is limited, like parliament
• Australian Courts


  • Ranked in a hierarchy from lowest to highest
  • Higher courts hear more serious and complicated cases
  • Lower courts deal with more minor issues
  • Matters from state Courts of Appeal can be heard at the High Court where leave (permission) has been granted
  • The High Court is the highest judicial law-making authority in Australia
  • All courts are independent of the executive & legislative arms of government
• Doctrine of precedent


  The common law principle by which the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where material facts are similar
• Courts that can make law


  Judges in superior courts (usually those that have the power to decide cases on appeal - the Supreme Court (Trial Division and Court of Appeal and the High Court) are able to set precedents and make law
• Common law


  Law made by judges, also called judge-made law or case law
• Law-making through courts generally occurs when a court is hearing an appeal (so there is no jury) or a case when there is no jury
• Juries only determine the facts, they do not decide on points of law - that is left to judges
• Juries do not give reasons for their decisions - judges make their decision and state the legal reasoning for their decision - this reasoning forms the precedent
• When courts can make law

  1. When they resolve a dispute for which there is a statute but the words of the statute need to be interpreted (statutory interpretation)

  2. When they resolve a dispute for which there is no existing applicable law (statute or common law)

  3. When judges make such decisions, the reason for the decision (the ratio decidendi) establishes a new legal principle or rule to be followed (a precedent)
• Ratio decidendi


  The binding part of a court judgement - the reason for the decision, not the decision itself, or the sanction or remedy given
• Stare decisis


  The principle of lower courts following the reasons for the decisions of higher courts - 'to stand by what has been decided'
• Persuasive precedents


  Precedents that are not binding on a court but can influence a decision
• Obiter dicta


  Statements that are not part of the reason for the decision (and are therefore not binding) but still a matter of considered opinion - 'a thing said by the way'
• Developing and avoiding precedent

  1. ADOPT the precedent - Follow or apply it which in effect AFFIRMS it

  2. AVOID following the existing precedent - R-O-D-D
• Reversing a precedent


  When a judge in a superior court disagrees with and changes a previous precedent set by a lower court in the same case on appeal, thereby creating a new precedent which overrides the earlier precedent
• Overruling a precedent


  When a superior court decides not to follow a previously established precedent set by a lower court, in a different and earlier case, creating a new precedent
• Distinguishing a precedent


  The process by which a lower court decided that the material facts of a case are sufficiently different to that of a case in which a precedent was established by a superior court so that they are not bound to follow it
• Disapproving a precedent


  1. Where a higher court disapproves a precedent but still follows it, to convince parliament to change the law

  2. Where a court of the same standing disapproves a precedent but still follows it, to encourage a party to appeal so a superior court may reverse it

  3. Where a lower court disapproves a precedent but still follows it, to indicate to a higher court that the precedent might need to be reconsidered
• Even if courts don't apply R-O-D-D, they may still need to refine the law and make it clearer as they apply a precedent to a new case, allowing the law to expand and develop over time
• Statutory interpretation may result in the meaning of words or phrases being broadened or narrowed over time
• 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 ability of courts to make law

  While the main role of the courts is to apply existing laws made by parliament to resolve disputes, the courts have an important role to play in law-making
• The doctrine of precedent


  As part of the doctrine of precedent, judges follow a process in which they follow the legal reasoning behind the decisions of higher courts when resolving disputes
• The doctrine of precedent


  • Ensures consistency and predictability
  • Enables and restricts the ability of courts to make law
• Following a precedent ensures that


  • Like cases are decided in a like manner
  • Legal representatives are able to give advice on the likely outcome of case
  • Judges have some protection and guidance
  • Decisions made by more experienced judges in higher courts are followed in lower courts
• Limitations of the doctrine of precedent


  • The difficulty and cost involved in locating relevant precedents
  • The difficulty in identifying the legal reasoning behind a decision
  • The difficulty in predicting future developments
• Locating relevant precedents


  It can be difficult to locate precedents relevant to a particular case due to the large numbers of cases that have been previously decided
• Identifying the legal reasoning

  • Majority decisions versus dissenting judges
  • There may be conflicting authorities
• Predicting future developments


  • 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 of Appeal may treat the new precedent in a case
• Flexibility of the doctrine of precedent

  • The courts can make laws because the doctrine of precedent allows for some flexibility
  • Through the process of reversing, overruling, distinguishing and disapproving, precedents change and develop over time to allow the gradual expansion of common law
  • Statutory interpretation also allows the law to expand and develop over time