How does the doctrine of precedent shape lawmaking, and how do courts and parliament interact?
the doctrine of precedent and the relationship between courts and parliament in lawmaking
A focused VCE Unit 4 answer to the doctrine of precedent. Covers stare decisis, ratio decidendi and obiter dicta, the techniques of distinguishing, reversing, overruling and disapproving, and the dialogue between parliament and the courts.
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What this dot point is asking
VCAA wants you to explain how courts use precedent and how courts and parliament interact in lawmaking. Expect a 5-8 mark medium response or a stimulus-based extended response.
The answer
Stare decisis
The doctrine of precedent is captured in the Latin maxim stare decisis et non quieta movere ("to stand by things decided and not disturb settled points"). Under stare decisis:
- decisions of higher courts in a hierarchy bind lower courts in the same hierarchy;
- only the ratio decidendi (legal reasoning essential to the decision) binds;
- obiter dicta (other statements made in passing) are persuasive but not binding.
The Australian hierarchy
The Australian court hierarchies (federal and state) sit beneath a single apex: the High Court of Australia.
In Victoria:
- High Court of Australia. Decisions bind every Australian court.
- Supreme Court of Victoria - Court of Appeal. Binds the Trial Division and lower Victorian courts.
- Supreme Court of Victoria - Trial Division. Binds the County Court, Magistrates' Court and VCAT.
- County Court of Victoria. Binds Magistrates' Court only by persuasion; same-level decisions are not binding.
- Magistrates' Court of Victoria.
The High Court is the only Australian court that can overrule its own previous decisions. It does so cautiously (Australian Agricultural Co v Federal Court of Australia (2002) 209 CLR 285).
Identifying the ratio decidendi
The ratio is the legal principle or rule on which the decision rests. Finding it requires reading the judgement carefully. The headnote of a law report is a starting point but is not authoritative. Where a court is divided, the ratio is found in the reasoning of the majority.
The four techniques
- 1. Distinguishing
- A lower court finds the material facts of the present case different from those of the binding precedent. The precedent does not apply. Distinguishing allows incremental development without overturning precedent.
- 2. Reversing
- An appellate court reverses the decision of the lower court in the same case. The decision below is set aside.
- 3. Overruling
- A higher court rejects the precedent of a lower court (or of itself) in a different case. The earlier decision is no longer good law.
- 4. Disapproving
- A court signals disagreement with a precedent without formally overruling. Common where the court is same-level and cannot bind, or where the question is not directly before it.
The dialogue between parliament and the courts
The relationship is iterative.
- Parliament codifies court decisions
- The Native Title Act 1993 (Cth) codified the common-law recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1.
- Parliament abrogates court decisions
- The Wrongs (Animals Straying on Highways) Act 1984 (Vic) reversed Trigwell v State Government Insurance Commission (1979) 142 CLR 617.
- Courts interpret statutes
- Sometimes broadly, sometimes narrowly. Parliament can amend if dissatisfied. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 set the modern framework.
- Courts develop common law where parliament is silent
- The High Court can recognise a new tort, a new defence, a new cause of action (within constitutional limits). Sullivan v Moody (2001) 207 CLR 562 illustrates the High Court's cautious approach to recognising novel duties of care.
Strengths and limitations
Strengths. Consistency, predictability, equal treatment of like cases. Allows incremental development of law. Provides reasoned justification for outcomes.
Limitations. Rigid where social conditions change rapidly. Difficult to identify the ratio in complex cases. Conservative bias (lower courts are bound even by precedents the higher court might revisit).
How flexibility survives within a binding system
At first glance stare decisis looks rigid: lower courts must follow higher courts. In practice the four techniques and the dialogue with parliament keep the system flexible. A lower court that considers a precedent unjust can distinguish it on the facts; an appellate court can reverse the case before it; a higher court can overrule an old precedent in a fresh case; and even where a court cannot overrule, it can disapprove and signal that the law should change. If the courts cannot move, parliament can abrogate by statute. The result is a system that is consistent and predictable for ordinary cases yet still able to adapt, which is the balance examiners ask you to evaluate.
Exam-style practice questions
Practice questions written in the style of VCAA exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2023 VCAA8 marksExplain the doctrine of precedent and discuss the relationship between parliament and the courts in lawmaking.Show worked answer →
An 8-mark response needs stare decisis, ratio and obiter, the four techniques (distinguishing, reversing, overruling, disapproving), and the codification-abrogation dialogue.
Doctrine of precedent. Stare decisis ("to stand by things decided") binds lower courts in a hierarchy to follow decisions of higher courts in the same hierarchy. Only the ratio decidendi (the legal reasoning essential to the decision) is binding; obiter dicta (other statements) are persuasive only.
The four techniques.
- Distinguishing - finding the present facts materially different from those of the binding precedent.
- Reversing - an appellate court reversing the lower court in the same case.
- Overruling - a higher court rejecting a precedent set by a lower court in an earlier case (or the High Court rejecting its own previous decisions).
- Disapproving - a same-level or higher court signalling that a precedent is wrong without formally overruling it.
The dialogue.
- Parliament can codify a court decision into statute (e.g. Native Title Act 1993 (Cth) codifying Mabo v Queensland (No 2) (1992) 175 CLR 1).
- Parliament can abrogate a court decision (e.g. the Wrongs (Animals Straying on Highways) Act 1984 (Vic) reversing Trigwell v SGIC).
- Courts can interpret statutes, sometimes narrowing them. Parliament can then amend.
Significance. The doctrine of precedent provides consistency and predictability while the abrogation and codification dialogue allows the law to adjust to changes in society.
Markers reward the four techniques with examples, the codification/abrogation distinction, and at least one named case.
VCAA 20244 marksDistinguish between ratio decidendi and obiter dicta, and explain why this distinction matters for the doctrine of precedent.Show worked answer →
A 4-mark distinguish item rewards the two definitions plus why the difference is significant.
Ratio decidendi is the legal reasoning essential to the court's decision, the principle on which the outcome rests. Obiter dicta are statements made by the way (comments, hypotheticals, observations) that are not essential to the decision.
Why it matters. Only the ratio decidendi is binding on lower courts in the same hierarchy under stare decisis. Obiter dicta are persuasive only, so a lower court may consider them but is not bound to follow them. Correctly identifying the ratio therefore determines what part of a judgement actually constrains future courts, which is the core of how precedent operates. Persuasive obiter from a senior court (for example a unanimous High Court) can still strongly influence later decisions even though it does not bind.
Markers reward both definitions, the binding-versus-persuasive consequence, and the point that identifying the ratio is what makes precedent work.