the doctrine of precedent and the relationship between courts and parliament in lawmaking

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).