The Way Precedent Affects Law-Making (VCE SSCE Legal Studies): Revision Notes

The Way Precedent Affects Law-Making

Introduction

The doctrine of precedent is one of four key factors that affect the ability of courts to make law. While the main role of courts is to resolve disputes, they also create case law (common law) when deciding cases. However, their law-making ability is both enabled and restricted by the doctrine of precedent.

The four factors affecting courts' law-making ability are:

• The doctrine of precedent
• Judicial conservatism and judicial activism
• Costs and time in bringing a case to court
• The requirement for standing

How precedent enables law-making

Consistency and predictability

The doctrine of precedent creates consistency and predictability in the law. Parties taking a case to court can examine past cases and anticipate how the law may apply to their situation. This helps because similar cases are decided in similar ways, based on the principle of stare decisis (stand by what has been decided).

Legal representatives can advise their clients on likely outcomes by referring to similar cases with similar facts where courts have ruled in particular ways. This predictability helps parties make informed decisions about whether to pursue legal action.

Flexibility in developing the law

The doctrine of precedent allows courts to make law because it provides flexibility for the law to develop over time. Courts can change and expand common law through several mechanisms:

Reversing - Superior courts can reverse decisions on appeal

Overruling - Higher courts can overrule previous precedents in later cases

Distinguishing - Judges can avoid following a precedent by showing the material facts differ from the case before them

Disapproving - Courts can express disapproval of a precedent, encouraging parties to appeal

Even when judges apply existing precedents, they must interpret the words and phrases used, which allows them to refine and clarify the law. This gradual process enables common law to expand and develop to meet changing circumstances.

How precedent restricts law-making

Limitations of consistency and predictability

While the doctrine creates consistency, several practical limitations restrict its effectiveness:

Difficulty and cost in locating relevant precedents - The large volume of existing cases makes finding relevant precedents difficult, time-consuming and costly. Judgments are often written in technical language, are lengthy without sub-headings, and judges may give multiple reasons for their decisions.

Difficulty identifying the legal reasoning - When precedents are established by appellate courts with three or more judges, lawyers must identify the ratio decidendi (legal reasoning) from judges who formed the majority. Judges who disagree are called dissenting judges. Sometimes there are conflicting authorities - multiple judgments on the same issue with different reasoning - requiring judges to decide which precedent is most appropriate.

Difficulty predicting future developments - Precedents can be overruled later by higher courts. Particularly for older precedents, it is difficult to predict how the High Court or Court of Appeal may treat the precedent in a new case.

Limitations of flexibility

Lower courts bound by higher court precedents - The doctrine restricts lower courts from changing the law when they are bound to follow a previous precedent established by a higher court. This may lead to unjust outcomes if courts must follow an outdated precedent and the affected party cannot afford to appeal to a higher court. However, lower courts can express disapproval of a binding precedent, which may encourage appeals and signal to higher courts that reconsideration is needed.

Reluctance to change precedents - Judges in superior courts (Supreme Court of Appeal or High Court) may be hesitant to reverse or overrule existing precedents. They may prefer to leave law-making to parliament, which can investigate the need for reform and reflect community views and values.

Courts of same standing - While not technically bound by their own previous decisions, judges in courts of the same standing consider these precedents highly persuasive and rarely overrule them. The exception is the High Court, which may overrule its own decisions to allow law to develop. Judges are not bound by precedents from other court hierarchies (interstate or overseas) or from lower courts.

Other significant restrictions

Waiting for a relevant case - Judges must wait for a relevant case to be brought before them, and only superior courts (Victorian Supreme Court or higher) can make law. Courts rely on parties being aware of their rights, willing and able to afford litigation, and determined to pursue the matter through the appeals process (which is costly and time-consuming).

Restricted to issues raised in the case - Judges can only make law on issues or matters raised in the case before them. Any thoughtful comments made "by the way" are obiter dictum (things said by the way) and do not form part of the precedent or law.

Ex post facto law-making - Courts make law ex post facto (after the event). The doctrine only permits courts to make law when a dispute is brought before them, so they make and clarify law retrospectively. If interpreting a statute or considering a precedent, courts can only clarify meaning after the dispute has arisen.

Parliament can abrogate common law - While judges can establish precedents and clarify legislation through statutory interpretation, parliament can always legislate to abrogate (cancel) common law. The exception is High Court decisions on constitutional matters. This reflects parliament's position as the supreme law-making body and fundamentally limits judges' ability to make and change law.

Summary of key points for discussion

Ways precedent enables law-making:

• Judges make common law when deciding cases, interpreting statutes, or where no existing law applies
• The principle of stare decisis ensures consistency because lower courts must follow precedents from superior courts in cases with similar material facts
• Stare decisis ensures predictability because parties can anticipate outcomes by examining past cases
• Common law is flexible because superior courts can overrule and reverse precedents, and lower courts can avoid them through distinguishing
• Courts can signal disapproval of precedents, potentially leading to appeals or parliamentary attention
• Precedents complement legislation by filling gaps and clarifying statutory meaning

Ways precedent restricts law-making:

• Lower courts must follow binding precedents even when they consider them outdated or inappropriate
• Superior courts may be reluctant to change existing precedents, preferring parliament to act as the supreme law-making body
• Except for the High Court, courts of the same standing rarely overrule their own precedents by convention
• Judges can only interpret legislation and establish precedents when an appropriate case is brought to a superior court, relying on parties willing to pursue disputes through appeals
• Courts can only clarify legislation after a dispute arises (ex post facto)
• Parliament can abrogate common law unless it involves constitutional interpretation

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