Legal Studies VCE Unit 2

THE ABILITY OF JUDGES AND COURTS TO MAKE LAW
LAW-MAKING THROUGH COURTS:
• Common law was established in England by King Henry II and adopted by the Australian legal system.

• It is law developed through the courts. It is also known as judge-made law and case law.

• It can only be created when a case is brought to the courts.

• It develops through the doctrine of precedent where the reasons for decisions of courts are followed by future courts.
COURTS MAKE LAW BY:
• Deciding on a new issue that is brought before them or when a previous principle of law requires expansion to apply to a new situation.

• Statutory interpretation – interpreting the meaning of the words in an act of parliament.

• The reason for the decision of a court establishes a principle of law that is followed by future courts and forms part of the law, along with acts of parliament. The reason for the decision is called the ratio decidendi.
JUDGES MAKE LAW BY:
• Judges can only make new law when there is an actual case before the court that requires a decision and the following conditions are met:

- no relevant legislation can be applied to the facts of the case

- there are no binding precedents from higher courts within the same hierarchy

- the case is being heard in a superior court of record, usually the High Court, Federal Court or state Supreme Court
RESTRICTIONS:
• Judges can only develop or change the law when a relevant case is brought before them. A case will be brought by a person who feels aggrieved or injured and has decided to have the issue resolved in court. A person bringing a case must have ‘standing’, that is, be directly affected by the case.

• The nature of common law is that the principles of law established in a higher court are binding on lower courts in the same hierarchy. If there is a previous binding decision in a higher court in the same hierarchy then it must be followed by the lower courts.