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Student book answers13.1 Introduction to the courtsPages 422‒423

13.1 Check your learning

Define and explain

1 Describe the difference between statute law and common law.

Statute law is law made by legislation or Acts of Parliament, whereas common law is often referred to as ‘judge-made law’ and is made through the decisions of judges.

2 Define the terms ‘legislature’ and ‘judiciary’.

Legislature is a term to describe the parliament. Judiciary is a term used to describe the courts and tribunals.

3 Identify the highest court in Victoria and in Australia.

The highest court in Victoria is the High Court (as given in Source 1, which includes the High Court in the Victorian hierarchy, though the highest ‘Victorian court’ is the Supreme Court), and the highest court in Australia is the High Court of Australia.

Synthesise and apply

4 Suggest two benefits associated with judges making law, compared with parliaments making laws.

Judges are independent of the parliament and therefore they can make laws without pressure or influence from the government of the day. They are also appointed and not elected by the people, so they can make laws that are impartial and free from pressure of individuals and organisations.

5 Using your knowledge from Chapter 10, describe one case in which the High Court of Australia declared a federal law to be invalid because it was made beyond the Commonwealth Parliament’s law-making power.

Student answers will vary depending on the case chosen, but for the Roach case (2007) an answer may include one or more of the following points:

• The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) was challenged in the High Court (the 2004 legislation was also challenged).

• The Act extended on the 2004 legislation to ban all offenders serving a prison sentence from being allowed to vote in an election (and challenged the ban on prisoners serving a sentence of three years or more from the 2004 legislation).

• The Act was challenged in the High Court for breaching the principle of representative government.

• The High Court determined that the 2006 legislation was unconstitutional and therefore invalid because it breached the notion of representative government as provided for in Sections 7 and 24 of

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the Australian Constitution which state that the members of the houses of parliament be directly chosen by the people and, therefore, to allow for this the Commonwealth Parliament cannot exclude an entire demographic of society.

• However, the 2004 legislation was upheld as constitutional because the Commonwealth Parliament was able to limit the right to vote for substantial reasons in order to preserve representative government, and prisoners serving a sentence of three years or more fell under this category.

• Therefore, the 2006 legislation was voided and the 2004 legislation remained in force.

Analyse and evaluate

6 Which body is the highest law-maker: the Commonwealth Parliament or the High Court of Australia? Discuss.

The Commonwealth Parliament is the supreme law-making body because its purpose is to make laws and change the law on behalf of the people. The High Court resolves disputes relating to the Constitution but does not make laws; it interprets laws and decides whether they are valid or invalid.

However, because under Section 76 the High Court holds the power to interpret the Constitution and declare laws that contravene the Constitution as unconstitutional and invalid, the High Court supersedes parliament’s authority. Parliament is not able to override a decision of the High Court relating to the Constitution that allows for the High Court to act as a check on the powers of the Commonwealth Parliament.


13.2 The role of the courts in law-making ‒ precedentPages 424‒430


Define and explain

1 Explain why courts usually only make law when determining cases on appeal.

Appeals are conducted without a jury and in higher courts. In order to make law and set down precedent, the judges need to make a decision based on a question of law and provide the legal reasoning for this decision. For this reason, it is usually only in appeals, where there is no jury, and in higher courts, where judges are generally not bound by precedents that law is made by judges.

2 Explain how the doctrine of precedent provides for consistency in the common law.

The doctrine of precedent provides consistency as it forces courts to follow previous decisions, and this enables parties to look at the decisions in cases with similar fact scenarios and questions of law and to determine what may be the likely outcome. This avoids cases with similar circumstances having different results.

3 Describe two reasons why it may be difficult to establish the legal reasoning behind a previous decision.

When several judges are involved in reaching a decision, it can be difficult to determine whose decision contains the ratio. The ratio determined by the majority is considered the ratio of the case, and so the judgments of all judges in the majority must be consulted.

The ratio may not be described succinctly and could be found in various parts of the judgment.

The sheer volume of cases handed down can also mean it is difficult to establish the legal reasoning – a party would need to consider these cases and determine the material facts to decide whether a precedent is binding.


4 Explain why some precedents are binding and some precedents are persuasive. In your explanation, identify what factors a judge must take into account when deciding if a precedent is binding, and what constitutes a persuasive precedent.

Precedents are binding if they are established by a superior court in the same court hierarchy, and the material facts are similar to that of the case in the lower case.

Persuasive precedents are those which are not binding on a court but can influence the decisions made. They can include decisions from another court hierarchy, from a lower court or court of the same standing, or the obiter dicta of a decision.

When deciding if a decision is binding, the court needs to consider where it sits in the court hierarchy, and whether the precedent is from the hierarchy and from a superior court.


5 Read the legal case Shaddock v Parramatta City Council.

a Explain the material facts of this case.

The material facts are those which are vital for the decision. In Shaddock the material facts were that information was sought and relied on by an expert in the field, that the advice given was false and, due to the reliance on the advice, that the plaintiff suffered loss.

b What is the ratio decidendi in this case?

The ratio decidendi in this case was that a duty of care was owed when information was sought and relied on in the course of business and the supplier of information set up as a centre from which advice could be sought (i.e. an expert).

c How did the Shaddock case follow the obiter dictum in Hedley Byrne v Heller?

The Shaddock case confirmed the obiter dictum in Hedley Byrne as the ratio in its decision. It took that principle and applied it to its factual scenario.

6 Gemma was considering buying an empty factory with the intention of starting a panel beating business. She made enquiries of the local council about the zoning of the factory and was told that the business would be permitted in the area. She purchased the empty factory on the basis of this advice, but was later told that the area was not one in which a panel beating business could operate.

a Explain how the material facts are essentially the same as in the Shaddock case.

Gemma was seeking advice from a company that had established itself as an expert in that field and she relied on that advice in the course of business.

This is similar to the Shaddock case where Shaddock sought advice from the Parramatta City Council regarding a land purchase and any orders that may affect the use of the land or its suitability for redevelopment. The council failed to provide correct, complete advice by not advising Shaddock that a road-widening proposal would affect the parcel of land.

In both cases, the council was established as a centre from which the advice could be sought and it owed a duty of care to provide advice sought and relied upon in the course of business. Consequently, as the council in each case supplied incorrect advice they had acted negligently, breaching their duty of care.

b What do you think the outcome of this case would be? Give your reasons.

The council would likely to found to have breached a duty of care because it provided negligent advice without disclaiming responsibility. The council has authority over zoning matters and therefore was an expert in that field. Gemma sought advice in the course of purchasing a property and relied on that advice.

7 Look back at the case Donoghue v Stevenson.

a Explain the facts of this case.

Donoghue drank from a bottle of ginger beer that had a decomposed snail in the bottom and became ill. The bottle was opaque and the defect could not be seen by the retailer or Donoghue, so her friend, who purchased the bottle, sued the manufacturer.


b What was the reason for the decision in this case.

The reason was that where a manufacturer sells a product that will reach the consumer without possibility of interference, and where inspection is not possible, the manufacturer owes a duty of care to the ultimate consumer.

c Explain why you think Donoghue v Stevenson was used as a persuasive precedent in Grant v Australian Knitting Mills. In your explanation, point out the similarities and differences between these two cases.

Donoghue was used as persuasive precedent in Grant as the two cases had very similar factual scenarios, but Donoghue was made in a different court hierarchy.

Both products had a defect that was undetectable by the retailer or consumer, and therefore the goods reached the consumer in the same condition as which they had left the manufacturer. The cases were similar as in both circumstances the parties were not a party to the contract with the manufacturer. The cases differed because the type of loss suffered was different, and the type of product was different; however, as these were not material facts, they did not affect the outcome of the legal reasoning.

8 Look back at the legal case Hedley Byrne & Co Ltd v Heller and Partners Ltd.

a What is obiter dictum? Identify the obiter dictum in this case.

Obiter dictum are the comments made by the court that can be persuasive in future cases but are not part of the reasons for the decision. The obiter dictum in this case was that a duty of care ought to exist where a person seeks information and relies on that information in the course of business, and the person giving the advice does not disclaim responsibility.

b Explain the difference between the ratio decidendi and obiter dictum in relation to their effect on precedent.

The ratio decidendi is binding on a court if they are following a precedent. In contrast, obiter dictum can be persuasive but is not binding on another court.


9 ‘Given that parliament is elected to make law, courts should play no role in the law-making process.’ Discuss the extent to which you agree with this statement.

Student answers will vary, but some common responses are provided in the table below.

Points in agreement of the statement may include the following:

Points in disagreement of the statement may include the following:

• Courts are not elected bodies and so do not represent the views of the majority in the decisions they make, whereas parliament makes laws that reflect the views and values of the community.

• Courts can only make laws when an appropriate case comes before them and they are restricted to making laws in the specific legal areas relevant

• Courts are able to change the law quickly.• Precedents create consistency and

predictability.• Courts are not subject to political influence

when making a decision, providing for an unbiased, independent and objective assessment of the legal issues in a case.

• Courts make law through statutory © Oxford University Press 2018 5Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

to the case, whereas parliament is the supreme law-making body and has the primary role of making laws.

• Courts make laws ex post facto which means that decisions apply retrospectively; that is, a harm must already have occurred, whereas parliament makes laws in futuro to account for future situations with the aim of preventing future harm.

• Courts are unable to undertake comprehensive investigation into an area of law and so do not involve community consultation or expert opinion in their decision.

• Parliament is an elected body that holds the requirement to be representative of the people in the laws it makes.

interpretation where they give meaning to words and phrases in Acts of Parliament.

• Courts are able to develop areas of law by creating new areas of law or developing the law to cover new situations not included within a statute.

• Courts can fill in the gaps in legislation created by parliament.

• Courts ensure that the law does not become too rigid and inflexible by ensuring they can make changes to keep laws relevant through the processes of distinguishing, overruling and reversing precedent.


13.3 The role of the courts in law-making ‒ developing and avoiding precedent

Pages 431–437


Define and explain

1 Distinguish between the terms ‘reversing’ and ‘overruling’.

Both reversing and overruling a precedent involve a superior court changing the precedent of an earlier decision. However, a court reverses a precedent when it deals with the same case on appeal, and overrules a precedent when dealing with different and later cases.

2 Explain how lower courts can avoid following a binding precedent.

Lower courts can avoid following precedent by distinguishing the case by finding that the material facts differ and therefore the precedent should not be followed. If material facts are distinguished or found to be different, then the lower courts are not bound by the precedent.

3 Explain why a judge may express his or her disapproval of a binding precedent.

A judge may express disapproval with a binding precedent to encourage a party to appeal to a superior court, where the precedent may be changed. It can also encourage the parliament to change the law. This may be because the precedent is seen to be out of date or not appropriate for today.

4 a Explain how a court can influence parliament to change the law. Provide an example to support your view.

Courts can influence parliament to change the law by expressing their disapproval at common law (case law). Parliaments can make laws that abolish case law, such as what occurred in the State Government Insurance Commission v Trigwell, where the parliament changed the law regarding whether landowners are responsible for their wandering animals that cause damage.

b Explain how the Wrongs (Animals Straying on Highways) Act abolished the decision reached in the Trigwell case.

In the Trigwell case, the High Court upheld the old common law principle that provided immunity to landowners from being held responsible for their stock straying onto a highway. Justice Mason stated in his decision that such a change in law was better suited to be made by parliament. Consequently, the Wrongs (Animals Straying on Highways) Act specifically abolished this common law principle and made it so that landowners did hold a duty of care for their animals straying onto highways. This therefore allowed for landowners to be held liable for damage negligently caused by their animals straying onto the highway.


5 Look back at the legal case R v Klamo.

a What was the reason for the decision in this case?


There was insufficient evidence for the jury to reach any conclusion about how the baby had died, and there was no evidence to show the shaking was the cause of death.

b Explain what occurs when a court reverses a decision from a lower court. Use the case R v Klamo to illustrate your points.

When a court reverses a decision, it sets a new precedent. In the case of R v Klamo, the decision was reversed so that it was found the jury’s decision was unreasonable and the cause of death could not be found by the evidence.

c Does the judgment in this case contain an example of a previous case being distinguished? Explain.

Previous cases referred to in the judgment were distinguished on the basis that there was no evidence that Klamo was of unsound mind at the time. Presumably, the previous cases were distinguished on the basis that a material fact in those decisions was that the accused was of unsound mind at the time of the alleged offence.

6 Look back at the legal case Norris v Sibberas.

a What was the negligent advice given in this case?

The negligent advice was that the motel was a goldmine and a once-in-a-lifetime chance.

b What did the trial judge decide in this case?

The trial judge decided that the estate agent was negligent in providing this advice as the advice was relied on in the course of business and the estate agent set herself up as a centre for giving advice.

c In what way was the trial judge in Norris v Sibberas relying on the Shaddock v Parramatta City Council case? Explain.

The trial judge followed Shaddock by finding the material facts were the same whereby advice was sought regarding the purchase of a property and the advice given was wrong (as occurred in the Shaddock case). The trial judge found that Norris owed a duty of care to the purchaser (just as the council did in the Shaddock case) and by providing wrong advice was negligent because that advice was relied upon in the course of business.

d Why did the Court of Appeal reverse the decision of the original trial court?

The Court of Appeal reversed the decision by distinguishing the precedent set in Shaddock. The Court of Appeal found that the estate agent was not an expert and the couple should have consulted an accountant instead.

7 Using the decisions handed down in the Shaddock, Hedley Byrne and Norris cases, create a scenario in which negligence advice is given. In your scenario, the court will consider that person who have that advice is liable. Use the legal reasoning in each of the three cases to justify your scenario.

Student answers will vary.



8 Read the legal case Miller v Miller.

a Explain the outcome of this case.

The outcome of the case was that the High Court, on appeal, found that where two people are complicit as illegal users of a vehicle, but one person is no longer engaged in the joint illegal enterprise, a duty of care is owed.

This is evident in that while Danelle was initially engaged in the joint illegal activity (because she stole the car and agreed for Maurin to drive the vehicle), she subsequently asked Maurin (twice) to let her and her sister out of the car when his driving became erratic and dangerous. The High Court ruled that Maurin therefore did owe a duty of care to Danelle from the time that she asked to get out of the car.

b How did the decision of the High Court both reverse and overrule previous precedent?

The High Court reversed the precedent as it changed the decision made by a lower court in the same case. It also overruled the precedent set by different cases Smith v Jenkins and Gala v Preston.

c Would a case heard in Victoria be bound by the precedent set in Miller v Miller? Explain.

The case of Miller v Miller was set down by the High Court, which, despite being a federal court, is still included in the Victorian hierarchy as it can hear appeals from the Supreme Court. Therefore, a case in Victoria would be bound by the precedent.

d Do you agree with the decision in this case? Why or why not?

Student answers will vary based on their individual opinion.

e Discuss the extent to which a precedent is a final statement in law.

Given that precedents can be overruled or reversed, it is not a final statement in law. The principle of precedents acknowledges that the law can change over time as new cases arise. Precedents are flexible to ensure the law is being updated as the values of society change. However, as only superior courts can change a precedent, there is a limited flexibility to the principle.

In addition, parliament is the supreme law-making body and can overrule precedents by abrogating the common law position. This can happen in all instances but for precedents involving constitutional matters. Therefore, precedents ought never be seen as a ‘final statement in law’.

For precedents involving constitutional interpretation, a referendum would need to be held which amended the words or phrases of the Constitution which were the subject of the precedent. Given the low success of referenda being passed, precedents involving constitutional interpretation are more likely to be seen as a final statement of law, subject of course to later cases where the High Court changes or develops the common law further.

f Court cases are very expensive, and in this case the existing law was against the plaintiff. There was a real risk of not winning the case. Maurin Miller also might not have much money to pay in damages. Why would it be worth bringing a case like this? Would anyone other than Danelle think it was worth bringing the case to court? Explain your answer.

As precedents set rely on material facts, they can be applied to a number of cases with a number of different factual scenarios. It is important to develop the law in accordance with changes in society and the


principle of precedent does this. Miller v Miller did not just resolve the dispute between Maurin and Danelle, but it changed the law to affect all future persons who are involved in the joint illegal enterprise. These persons and society in general may think it was worth bringing the case.

9 Discuss the ability of judges to change the law through the methods of overruling precedents.

Student answers will vary, but may include one or more of the following points:

• Overruling allows a higher court to alter a precedent set by a lower court in an earlier case.

• Judges in superior courts may be reluctant to change the law by overruling and reversing existing precedents, preferring to leave the law-making to parliament.

• This steamlines the law by removing competing precedents that may exist at a lower level court.

• Courts must wait for a case to come before them by a party with standing.

• Courts are restricted to the areas of law specific to the case and can only overrule a precedent if this is relevant in deciding on the case.

• Through the doctrine of precedent, a higher court is not bound by the decisions of lower courts in cases of similar material fact.

• A judge may not change the law through overruling if they are acting conservatively, leaving the matter for parliament to make the change.


13.4 Statutory interpretationPages 438‒445


Define and explain

1 What is statutory interpretation?

Statutory interpretation is determining the meaning of the words and phrases contained in legislation.

2 Explain how judges make law when they are interpreting an Act of Parliament.

Judges make law by determining what a certain word or phrase means. This creates a precedent for other judges to follow when interpreting words or phrases within the same piece of legislation.

3 Read the legal case Davies v Waldron.

a Explain why the meanings of words are sometimes ambiguous. Provides examples in your answer.

The meanings of words can be ambiguous if they are too broad or if it is unclear how they apply in the context of a particular case (or a particular point of law). The ordinary meaning of words is sometimes not the interpretation intended in the purpose of the legislation. An example of this is the word ‘supply’ in relation to drug offences. Many activities could constitute ‘supplying’ drugs and in order for the law to be clear, these activities need to be defined and identifiable.

b Identify the ambiguous words that were in issue in the case.

The ambiguous words in issue in the case were ‘in charge of a motor vehicle’ and what constituted starting to drive the motor vehicle.

c How have these words been interpreted by the Supreme Court?

The words ‘in charge of a motor vehicle’ were interpreted to link the intoxicated person in charge of the car with a risk that he would drive the car when in an unfit state. Therefore, as the accused was found attempting to start the car (and was at risk of driving) he was found to be ‘in charge of the motor vehicle’ and did start to drive the motor vehicle.

4 What does it mean to say an Act of Parliament is ‘silent on an issue’?

An Act is silent on an issue where it does not specifically deal with a certain issue or situation. For example, it refers to particular types of technology but not to others. This occurs when situations arise that were not foreseen or there were gaps in the legislation.

5 Describe three possible effects of statutory interpretation.

Student answers will vary but students may describe three of the following:

• The courts can give meaning to the words or phrases that are in dispute in the Act so that there is a resolution in the case.


• The decision of the court is binding on the parties unless one of the parties appeals and the superior court reverses the decision.

• Precedents can be set for future cases that require interpretation of that word.

• The law can be narrowed or extended based on the interpretation of the word or phase.


6 Explain how a word you know of has changed its meaning over time.


7 Read the legal case Lansell House Pty Ltd v Commissioner of Taxation.

a Why is it important to know whether ciabatta is a bread or a biscuit?

The distinction was important for taxation reasons. Biscuits were subject to GST, whereas bread products were not.

b In your opinion, is mini ciabatta bread or a biscuit? Explain whether or not you agree with the decision in this case.


c Search the internet to find more information about the arguments presented in the case. Present a report giving the arguments of both sides.


8 Read the legal case Mansfield v Kelly and explain whether you think the case would apply to the following two scenarios, and what the outcome would be in each case:

a Three youths were picked up by the police for being drunk in a public place. It was 11:30 pm, and they were in a campervan parked in a supermarket car park. They were drinking and singing loudly.

A public place was defined as including ‘in a private car in a public place’. A supermarket car park is a public place, whether the campervan is considered a car or home may be an issue raised. Given they were parked in a supermarket car park and not a proper trailer park, it is likely the outcome would be being drunk in a public place.

b A 20-year-old youth had been to a party and had a few drinks. He had set off to drive but had thought better of it. He pulled over to the side of the road and got into the back of his car to have a sleep. He was picked up by the police for being drunk in a public place.

This situation is exactly the same as the case in Mansfield v Kelly and therefore, following those arguments, he would be found to be drunk in a public place.

9 Read the legal case Deing v Tarola.

a What was Chanta Deing (defendant) charged with in this case?


Deing was charged with possessing a regulated weapon without lawful excuse under Section 6 of the Control of Weapons Act because he was wearing a black leather belt, which had raised silver studs on it, to hold up his trousers.

b Explain the finding of the Magistrates’ Court. Why was the studded belt seen as a weapon?

The Magistrates’ Court found Deing guilty of the offence because the studded belt was found to be a weapon that fitted the description of one of the weapons listed in the Control of Weapons Act 1990 (Vic) which stated in Section 5(s) of the Control of Weapons Regulations 1990 ‘any article fitted with raised pointed studs which is designed to be worn as an article of clothing’.

c What did Justice Beach have to decide?

Justice Beach had to determine the meaning of the phrase ‘regulated weapon’ and whether the belt came into this definition. This was in the context of an appeal brought in the Supreme Court against the finding of the Magistrates’ Court – the appeal was on a question of law.

d Why was the definition of a weapon in the regulations seen as not relevant?

The court found that the regulations made by the Victorian executive were ultra vires (outside of their power) and therefore referred to other extrinsic materials to define the phrase ‘regulated weapon’.

e Identify two types of extrinsic material used in this case.

Justice Beach used the Oxford Dictionary and Halsbury’s Laws on England in assisting to interpret the word ‘weapon’.

f Could this case be used as an example of a reversed decision? Explain.

This is an example of a court reversing a decision as the Supreme Court rejected the decision of the lower court in the same case.

g Explain why you think Justice Beach reached the decision he did. In your explanation, comment on the dictionary meaning of the word ‘weapon’ and the findings in the case of Wilson v Kuhl; Ryan v Kuhl.

Student answers will vary, but should include one or more of the following points regarding the case of Wilson v Kuhl; Ryan v Kuhl:

• This case had also looked at the interpretation of the phrase ‘offensive weapon’.

• The findings of this case looked at the term ‘weapon’ and provided a definition of the term ‘offensive weapon’ as including physical articles which ‘of its kind are used only to inflict or threaten injury’.

• A belt is normally used to hold up pants and therefore is not normally intended to be used to inflict or threaten injury.

• In this situation, the belt was being used for its normal purpose and not with any other intent and therefore it did not fit within the definition of an offensive weapon.

h What was the outcome of this case? Why was action taken to amend the law? Explain.


The belt was found not to be a weapon as the court found that an item that is not commonly used as a weapon cannot be classed as a weapon. Action was taken to change the law as the regulations that listed the belt as a weapon were found to be ultra vires and therefore the regulations were found to be invalid.

10 Using the internet, search for a summary of a court judgment that interpreted a statute. Write a report on the case. Include in the report:

• the name of the court hearing the case

• the title of the case

• a brief summary of the facts

• the name of the statute referred to

• the section of the statute that was interpreted

• whether any precedent is being referred to and if so, the title of the case referred to.



11 ‘Courts should be able to interpret statutes as and when the need arises to meet the changing needs of the community.’ Discuss the extent to which you agree with this statement.




• Courts are not subject to political influence when making an interpretation and therefore will make an interpretation based on the original intentions of the Act and how it best applies in the current day.

• Through interpreting statutes, a court is able to fill in the gaps in legislation so that new situations that arise can be clarified and thereby protect the rights of individuals.

• Judges who take a broader interpretation of statutes are able to expand on the application of laws to better suit the needs of the community at the time.

• Courts are able to change the law quickly when interpreting a statute and applying it to the case before them.

• Judges are experts in the law and are best suited to the effects of laws and how they should be applied in everyday cases.

• Courts must wait for a case to come before them by someone with standing that requires statutory interpretation to occur and cannot just choose to interpret a statute if they feel it needs clarification.

• Judges are not elected by the people and therefore do not reflect the views and values of the community in the decisions that they make.

• Courts cannot undertake community consultation when interpreting a statute and therefore are not in a position to make decisions that reflect the needs of the community.

• Judges can be conservative in their interpretations, preferring to leave parliament to make any necessary changes to the law.

• Courts may be bound by precedent (a previous interpretation of the statute by a higher court) and therefore are unable to make changes to the law that may better reflect the needs of the community.


13.5 The doctrine of precedentPages 446‒449


Define and explain

1 Explain how a binding precedent made in the Supreme Court (Trial Division) can restrict the ability of the lower courts to make law.

A binding precedent means that the lower court is bound to follow that decision. This means that the lower courts are unable to stray beyond the binding precedent in similar fact situations, and lower courts can therefore not develop new law where there is a binding precedent.

2 Outline the main reason why parliament is generally able to pass legislation to override court decisions.

Parliament is generally able to pass legislation as they are the supreme law-making body in the country, and as representatives of the people, it is important that they can override the decisions of the court (which is appointed, not elected) in areas that are of concern to the people.

3 State the meaning of the phrase ‘courts make law ex post facto’ and explain whether or not this is a strength or weakness of the courts making law.

This phrase means that courts make law in relation to an event that has already taken place. This is a disadvantage of courts making law as it means a dispute or incident has to occur before the law can be changed or clarified. In criminal situations in particular, it means a person may be charged with an offence and found guilty of that offence before a court can decide whether the law is valid (as what happened in the Studded Belt case).


4 For each of the following scenarios, explain how the doctrine of precedent will both allow and restrict the courts in making or developing law.

a Mohamed has sued the State of Victoria in the Supreme Court of Victoria. An old precedent established in that same court has previously been disapproved by lower courts, and it does not work in Mohamed’s favour.

Although the precedent is set by the same court in an earlier decision, the precedent is persuasive and therefore the Supreme Court can choose not to follow it. However, in practice, courts generally follow a precedent made by the same court in previous cases and so Mohamed may find the Supreme Court will follow the old precedent.

b The plaintiff in a County Court case has been advised that some of the facts in its case are similar to the facts in a precedent established in the High Court, but some facts are different.

As the precedent is set in a superior court, the County Court is bound by that precedent which will restrict its law-making ability. However, as the facts are different, the case may be distinguishable, which will allow the County Court to make its own decision.


c Bernie has lost his Supreme Court case as a result of an old precedent established in the High Court. His lawyers are encouraging him to appeal.

An appeal from the Supreme Court will go to the High Court. This means that the High Court could overrule the old precedent and allow it to make new laws. However, the High Court are sometimes reluctant to do this, preferring the parliament to change the law, so they may just express disapproval instead, which would restrict their ability to change the law.


5 ‘The doctrine of precedent always restricts the ability of the lower courts to make law.’ Discuss this statement.


• A binding precedent restricts lower courts because they are required to follow the decisions of higher courts for cases of similar material fact (upholding the principle of stare decisis) thus ensuring consistency.

• Lower courts are able to make law by applying the technique of distinguishing whereby the judge can determine that the material facts of the current case are sufficiently dissimilar to the case that set the precedent. In so doing, binding precedent no longer applies and the court is able to make a new decision.

• The restriction only applies if a higher court has created precedent in that specific area of law.

• If parliament has subsequently abrogated a decision made by a higher court, then it no longer acts as a restriction on the decisions of the lower court (but parliament is then required to follow the legislation when making a decision).

6 To what extent does the doctrine of precedent enable the High Court to make law? Give reasons for your answer.


• As the highest court in the hierarchy, the High Court is not bound by any court, including itself, when making a decision.

• Binding precedent only applies to courts lower in the hierarchy following the decisions of superior courts when dealing with cases of similar material facts.

• The High Court will usually follow its previous decisions for consistency even though it only acts as persuasive precedent.

• The High Court can change the law and deviate from its previous decisions if it will result in a more just outcome.


13.6 Judicial conservatismPages 450‒452


Define and explain

1 Define the term ‘judicial conservatism’.

Judicial conservatism is when judges adopt a narrow interpretation of the law as they are reluctant to make decisions that lead to significant changes in the law.

2 Explain how judicial conservatism can impact on the way a statute is interpreted.

This means that the statute will usually be interpreted in a way that does not go beyond the established law. Significant changes are unlikely to be made when interpreting statute.


3 Read the legal case Rowe v Electoral Commissioner.

a Explain what changes were made to the Electoral Act by the Commonwealth Parliament in 2006.

The Act altered the time period available for eligible voters to enrol to vote. Prior to the changes, an individual could enrol to vote up to seven days after the issuing of writs for an election. The Act abolished this right by requiring that eligible voters must be enrolled to vote prior to the issuing of writs.

b Explain why Rowe initiated his High Court action against the 2006 amendments to the Electoral Act.

Rowe turned 18 in June and therefore was now eligible to vote. She tried to enrol 5 days after the writs were issued and therefore was now ineligible to vote. She was directly impacted by the change and sought a decision that the amendments were invalid.

c Outline the decision of the High Court and briefly explain the legal reasoning behind the decision.

The High Court decided that the restrictions would limit the people who could vote in the election, and therefore infringed Sections 7 and 24, which states the parliament are to be ‘directly chosen by the people’. The legal reasoning behind this decision was informed by the right of people to elect the parliament members.

d Explain how this case illustrates the relationship between the courts and parliament in law-making.

This case illustrates the relationship between courts and parliament in law-making through the way in which courts interpret and apply the law made by parliament to the case before them. When parliament passes legislation, there is often a need for the Act to be interpreted so that it can be applied to resolve a case heard before the court. Rowe v Electoral Commissioner demonstrates that, in applying the law regarding the eligibility of voters, the High Court was required to interpret the Australian Constitution to ensure that the law made by the Commonwealth was in keeping with the intentions of the governing document.


This case further illustrates this relationship in regard to the restrictions that the courts can place on the law-making powers of the parliament. In so doing, the courts act as a check and balance on the actions of parliament to ensure that the parliament does not act outside of its power. The High Court is able to declare any legislation made by parliament as ultra vires if it is outside of its law-making power. In Rowe v Electoral Commissioner, the High Court demonstrated this aspect of its relationship with parliament because the Commonwealth legislation was found to breach the notion of representative government protected under the Australian Constitution. Therefore, the High Court was able to declare the amendments made to the Commonwealth legislation as unconstitutional and invalid.


4 Discuss two strengths associated with judges exercising judicial conservatism (or restraint) when interpreting Acts of Parliament.

One strength of judicial conservatism is that it ensures stability in the law because judges will not extend the law much further than the established law through their interpretations. This supports the primary intention behind statutory interpretation, which is to give effect to the intentions of parliament when passing an Act.

However, this does restrict the ability of the courts to make major and controversial changes to the law since judges will be reluctant to make broader interpretations that could bring about significant changes to the way the law is applied, preferring to maintain the status quo.

This is beneficial, however, because it ensures that it is the parliament – elected by the people – that investigates and makes any significant changes to the law. Parliament has the resources to undertake comprehensive investigations into a whole area of law, whereas the courts are restricted by the specific legal issues relevant to the case before them.

A second strength of judicial conservatism is that it ensures that judges make decisions based on the law and the intentions held by parliament at the time of passing the legislation, rather than their own personal or political views. They do not attempt to make decisions on their perceptions of the views of the community because they are not elected to be a voice of the people.

That being said, this means that judges can be discouraged from considering a range of social and political factors when making law. Through not considering the current climate in terms of the views and values of the community, as well as the need to protect individuals’ rights, decisions of the court may be outdated when seeking justice.

5 Evaluate the extent to which conservative judges limit the ability of courts to make law.


Strengths of conservative judges to limit the ability of courts to make law

Weaknesses of conservative judges to limit the ability of courts to make law

• maintains stability in the law• reduces possibility of appeals on a question of

law• judges make decisions (and therefore law)

solely on legal considerations and not personal or political views

• allows parliament to make the more significant and controversial changes to the law

• discourages judges from considering a range of social and political factors when making law

• restricts the ability of the court to make significant or controversial changes to the law

• reduces creativity of judges in their decision-making


13.7 Judicial activismPages 453–455


Define and explain

1 When was the term ‘judicial activism’ first used and what, in general, did it refer to?

The term ‘judicial activism’ was first used in the 1940s in relation to US Supreme Court judges who were willing to broadly interpret the rights in the US Constitution and make decisions that declared legislation invalid where it breached the civil rights of American people.

2 What is generally meant by the term ‘judicial activism’ in relation to the contemporary Australian legal system?

In contemporary Australia, judicial activism refers to the willingness of judges to consider a range of social and political factors, including the rights of people, when making a decision.


3 Explain why the High Court’s decision in Mabo v Queensland (No. 2) was regarded as an example of judicial activism.

Mabo is regarded as an example of judicial activism as the judges were said to ‘creatively’ establish a law to give Indigenous Australians land rights. By rejecting the principle of terra nullius, the judges took into account the political and social desire at the time to establish land rights and recognise the rights of Indigenous Australians.

4 Read the legal case Plaintiff M70/2011 v Minister for Immigration and Citizenship.

a Explain the Federal Government’s proposal and circumstances that led to the initiation of the case in the High Court.

The Federal Government proposed to take in 4000 refugees awaiting re-settlement in Malaysia if Malaysia were to accept 800 asylum seekers being held in detention centres. The proposal caused controversy as it was seen as an inhumane way of dealing with asylum seekers, potentially contravened international treaties that Australia had signed, and breached domestic legislation.

b Explain why the Federal Government’s Malaysian Solution caused controversy among legal commentators, the media, academics and the general community.

The proposal was argued to be inhumane and against the spirit of international conventions Australia had signed that put an obligation on Australia to treat asylum seekers with respect and compassion. It was also said to breach the Migration Act, where asylum seekers who arrived in Australia were to have legal protection from further persecution.

c Outline the decision of the High Court and discuss whether it is an example of judicial activism.


The High Court held that the proposal breached the Migration Act and therefore was invalid. The legal reasoning reflected the increasing community view that Australia’s treatment of asylum seekers was harsh.

d Explain how this case illustrates the relationship between the courts and parliament in making law.

This case illustrates how the courts act as a check on government policies that breach law and human rights obligations under international treaties. It demonstrates the relationship held whereby the courts can place restrictions on the law-making powers of parliament, ensuring that the parliament can be checked against exceeding its law-making authority. The High Court is able to declare any legislation made by parliament as ultra vires if it is outside of its law-making power. In this case it was demonstrated by the High Court ruling that the proposal breached the Migration Act and therefore was illegal.


5 Discuss the strengths associated with judges taking a more activist approach when resolving cases.

Judicial activism allows judges to recognise the rights of people and consider a range of social and political factors when making decisions. This, in turn, ensures that judgments are fair and reflect community views at the time, rather than following laws that may be outdated.

However, judges are not an elected body and are therefore not in a position to reflect the views and values of the people. They cannot undertake community consultation or consider community opinion when making their decisions. This may result in the courts making more radical changes in the law, changes that do not in fact represent the views and values held in the community or may result in laws that are beyond the comfort level of the community.

Judicial activism also allows courts to be creative in their legal reasoning and influence significant social change that enforces the rights of individuals and minority groups. Through a broad interpretation of a statue, the rights of people may be better recognised and reflected in the law.

Consequently, however, this can result in a greater number of appeals on a question of law. The judiciary needs to remain objective and independent in their application of the law and their decisions should be based on the legal considerations relevant to the case.

6 ‘Labelling judges as conservative or active is too simplistic and does not understand the role of judges’. Discuss the extent to which you agree with this statement.

Student answers will vary, but should include one or more of the following points:

• the impact that a conservative approach has on the role of judges

• the impact that an active approach has on the role of judges

• judges’ primary role is to resolve disputes and apply the law

• judges are not elected and do not have a political agenda in their decision-making

• judges’ role is to be an independent, unbiased decision-maker

• judges have a secondary role of making law.


13.8 Cost and time in bringing a case to courtPages 456–459


Define and explain

1 Explain two factors that limit the ability of the courts to make law in a relatively speedy manner.

The complexity of the case can affect the court’s ability to make law in a speedy manner. If the case requires long pre-trial procedures, such as discovery, the case can take months or even years to resolve.

The court’s current workload can also affect the time it takes to make law as the court needs to allocate a judge to the trial – if it’s a long trial and the judge has other matters on foot this can take a while. With a backlog of cases, or lack of resources and support services, this can delay when a hearing is set down for.

2 Describe two types of costs that may prevent a party from pursuing a case.

The cost of legal representation is the costs associated with engaging a lawyer to represent a party in court and run their case. These costs can prevent a party from pursuing a case as they make lack the expertise or ability to run the case as a self-represented litigant.

Court fees are the fees associated with lodging a claim, appealing a decision and the fees for hearings and using a jury. These can be out of reach for some.

3 Do costs and delays affect plaintiffs just as much as defendants? Give reasons.

Costs can affect plaintiffs more than defendants as they are required to pay the initial lodging fee, and the hearing fees on top of the legal representation that both parties will pay for. However, a defendant also incurs some costs associated with court cases, including costs associated with appeals and legal representation.

Delays will affect both parties the same as the case will drag out the same length of time for both parties. Though the fact that the plaintiff is the one who has suffered loss or harm and is seeking a remedy may suggest that the plaintiff is more affected by delays owing to their need to be compensated.


4 Read the legal case Plaintiff M68/2015 v Minister for Immigration and Border Protection.

a Do you think the High Court justices adopted a conservative or activist approach when interpreting the law? Justify your response.

This approach was conservative as it narrowly interpreted the law and did not consider the rights of individuals, which is a feature of the activist approach.

b Why would the plaintiff’s lawyers have wanted the case resolved in a timely manner?


The case would affect where the woman would be sent and how she would be treated. As such, it was important for it to be resolved in a timely manner so that the woman was not unsure of her status as an unauthorised asylum seeker or genuine refugee.

5 Read the legal case Commonwealth v Australian Capital Territory.

a Briefly outline the key facts of this case and the High Court’s decision, including the ratio decidendi.

The ACT legalised same-sex marriage through its territory legislation. This was inconsistent with the federal Marriage Act and the High Court therefore found that the law was invalid. The ratio dicidendi was that if territory legislation could not act concurrently with the federal legislation, the territory legislation was invalid and the federal legislation would prevail (note this was not a Section 109 case, but a case that considered inconsistency between territory and federal legislation).

b Suggest why the decision was made relatively quickly compared to the Plaintiff M68/2015 v Minister for Immigration and Border Protection case.

The decision was made quickly as it was a live issue with same-sex marriages occurring immediately after the ACT law was made. There was a need for the decision to be made quickly to determine whether the marriages that had occurred were valid or not, and to prevent further marriages occurring if it wasn’t valid.

c Explain why this case did not consider Section 109 of the Australian Constitution.

Section 109 deals with inconsistencies between federal and state law, not federal and territory law. Inconsistencies between federal and territory laws are dealt with under the relevant self-government legislation.

6 Read the legal case Allen v Chadwick.

a Prepare a timeline showing the significant rulings in this case from the time of the incident to the final High Court judgment.

March 2007: incident occurred, Chadwick thrown from vehicle after it collided with a tree when Allen was driving

August 2012: original trial where Chadwick successfully sued for negligence, but damages were limited due to contributory negligence

November 2014: appeal by Chadwick based on the finding of contributory negligence, Court of Appeal overruled trial judge decision

December 2015: appeal to High Court by Allen which overruled the Court of Appeal decision by finding that Chadwick contributed to the negligence by not wearing a seatbelt

b Suggest at least three problems associated with having such a lengthy court action.

Student answers will vary but may include:

• costs associated with hearings and appeals

• inability of witnesses to recall information

• lack of resolution of the matter and ordeal – disputes festering in the community


• lack of damages awarded until final resolution – can impact on the plaintiff.


7 ‘Courts are able to make law relatively quickly.’ Discuss the extent to which you agree with this statement. Use two cases you have studied to support your response.

Student answers will vary, but some common responses are provided in the table below. (Note that a range of cases can be chosen.)



• Courts can make law quickly through their decision on a case and forming precedent that must be followed in the future for cases with similar material facts.

• The determination of a case forms precedent that is binding on the parties to the case.

• Through statutory interpretation, courts are able to make law because their interpretation forms precedent that must be read together with the act in the future.

• Courts can use methods of distinguishing, reversing and overruling to make law.

• Changes to court-made law can be very slow to develop because the court must wait for a case to come before them.

• Additionally, courts must wait for the specific legal issue to be relevant before making law in that area.

• Courts can only make law in relation to a specific issue and cannot investigate and make laws in an entire area of law.

• It can be expensive and time-consuming to take a matter to court, restricting the courts’ ability to make law relatively quickly.


13.9 The requirement of standingPages 460–463


Define and explain

1 Explain what is meant by the Latin term locus standi.

The party must be directly affected by the issues or matters in the case in order to commence a legal proceeding.

2 Explain what is meant by having a special interest in a case.

Having a special interest in a case refers to the requirement that a party must be directly affected by the issues of the case in such a manner that they are explicitly more affected by the issues in the case than a general member of the public. In order to be able to stand before the court and be heard, this special interest requires that the plaintiff must gain greater quantifiable advantage if successful, or alternatively, suffer greater material disadvantage if unsuccessful, as compared to a member of the general public.


3 Read the legal case Kuczborski v State of Queensland.

a Explain why Stefan Kuczborski launched a case in the High Court.

Stefan Kuczborski launched a case in the High Court as he felt a number of the new ‘anti-bikie’ laws breached basic human rights, such as the right to freedom of movement and association.

b Explain the High Court’s ruling in the case.

The High Court ruled that Kuczborski had no standing to bring a claim as he had not been charged with any crimes under the new laws, and therefore did not have a special interest in the subject matter of the case. The case was dismissed because there was no standing; the High Court did not consider the merits of the case.

c Explain one difficulty associated with challenging the constitutional validity of a law that was highlighted in this case.

A difficulty arises as the laws cannot be challenged until someone is charged with an offence and therefore has standing, and this can limit the ability of the court to challenge laws they believe had breached their basic rights and freedoms. This also means that a person has to actually break the law for a court to decide its validity (as opposed to a parliament which can change the law whenever it wants to).

4 Read the legal case Re McBain; Ex Parte Australian Catholic Bishops Conference.

a Describe the ruling made by the Federal Court in McBain v Victoria.

The Federal Court ruled that single women in Victoria had the right to access in vitro fertilisation.


Prior to this the Infertility Treatment Act 1995 (Vic) stipulated that a woman could only undergo fertility treatment if she was married and living with her husband in a genuine domestic relationship, or was living with a man in a de facto relationship. However, Dr McBain sought for the eligibility requirements under the Act to be declared inconsistent with the Sex Discrimination Act 1984 (Cth) which makes it an offence to discriminate against a person on the basis of, among other things, marital status. Under the Victorian legislation, McBain would meet the legislative requirements if he denied access to IVF treatment to single or lesbian women but he would be contravening the Commonwealth Act.

The Federal Court determined that the Victorian legislation was inconsistent with the Commonwealth legislation and that, on the basis of Section 109 of the Australian Constitution, the Commonwealth provision should prevail. Therefore, the Federal Court ruled that the discriminatory section of the Victorian law was invalid.

b On what grounds did the bishops lodge their case against the ruling in McBain v Victoria?

The bishops lodged their claim on the basis that the ruling in a previous case was against their religious beliefs because according to the Catholic faith, a woman should be married to a man before having children.

c Explain the High Court’s ruling in the case and explain whether or not you agree with the High Court’s decision.

The bishops were found not to have standing in the case as they had no legal, financial or special interest in the case. The result of the case would not give them an advantage or disadvantage other than their sense of dissatisfaction.

Student answers will vary based on their personal opinions in this case.

5 For each of the following scenarios, identify the parties that are likely to have standing, and those that are not. Give reasons for your answer.

a Benji was on a school camp. While riding a bike as part of one of the the camp activities he fell into a large ditch and suffered injuries to his left leg. A girl who watched the injury has suffered anxiety and depression as a result. Benji’s teachers are furious at the camp organisers.

Benji and the girl who witnessed it will likely have standing due to being directly affected by the actions of the camp.

The teachers are unlikely to have standing as the actions of the camp did not affect them more than the general public.

b Emiko is a mother of three children who attend a public high school. The Commonwealth Government has just provided funding to all the public high schools in Victoria to organise morning prayers. She has challenged it on the basis that it imposes a practice of religion. Aaron, who has no children, also wishes to challenge it as he believes it is contrary to freedom of religion.

Emiko and her children will have standing as they are directly affected by the law due to her children attending the school. Although it could be argued that it is the children, and not Emiko, who will have standing (reference to the DOGS case could be useful in student responses).

Aaron will not have standing as he is unaffected by the laws, much like the Kuczborski or McBain cases, and simply wishes to claim that the law is contrary to his beliefs.


c Misty and her friend Gerard were falsely imprisoned for a period of 15 hours by ransom holders. They both intend to sue, as do their friends who were waiting nearby and their children.

Misty and Gerard will have standing as they were directly affected by the actions of the ransom holders.

Their friends and children may have been affected if they could show loss suffered in some way, such as anxiety or depression; otherwise, they are likely to be considered to have no special interest beyond a member of the public.


6 Discuss the extent to which the High Court’s decision in the case Re McBain; Ex Parte Australian Catholic Bishops Conference is a final statement in law.


• The High Court’s decision is a final statement on the law because it is binding on the parties.

• Since the High Court is the highest court in Australia, its decision cannot be overridden by another court and therefore the decision is binding on any future cases that come before the courts dealing with the same material facts (binding precedent).

• However, the High Court is not bound by its previous decisions and therefore may choose, at a later date, to make a different ruling in a case dealing with similar material facts. This would then become the new final statement on the law that must be followed by all lower courts.

• Furthermore, parliament has the power to abrogate the decision of the High Court by passing legislation. Since this was not a constitutional case the parliament had the power to do this.

7 Discuss how the concept of standing can impact on the court’s ability to make laws.


• A court cannot hear a case until a person with standing brings it forward. Therefore, the courts must wait for an injustice to occur before they can make law in the area. Further, the party with standing must be willing to take the case to court. (Students can use Rowe as an example for this point.)

• Until a breach has occurred, the courts are not able to rectify a law.

• Court cases are time-consuming and expensive and this may dissuade an individual from taking the matter to court, even if they have been directly affected.

• An individual may be unaware of their rights and although they may be affected specifically by the law, they may not realise they can take their action to court.

• Standing ensures that only matters that have genuinely affected an individual can proceed to court. This ensures that courts are not backlogged by unnecessary cases, allowing more time for them to make laws in areas of need.

• Standing restricts the courts from making laws that could be in the public interest or common good because an individual who only has a general interest in a certain legal issue (for example, where legislation potentially breaches a right but has yet to actually do so) cannot be heard.


• Courts are restricted from making improvements to the law because standing eliminates their ability to listen to those with only an intellectual interest in the case.


13.10 The relationship between courts and parliament in law-makingPages 464–469


Define and explain

1 Explain why parliament may be dependent on the courts in law-making.

Parliaments may be dependent on the courts in law-making for interpreting the words and application of the Australian Constitution. The parliament cannot make laws to change or interpret the Constitution and so relies on the High Court to do this.

In addition, the parliament may rely on the courts to highlight areas of concern or laws that need to be changed, as per the Trigwell case in which the courts noted that a law in relation to negligence and stray animals required the attention of parliament.

2 Suggest two reasons why parliament might decide to abrogate court-made law.

Parliament may abrogate court-made law if it believes the court has interpreted the words or phrases in a way that was not the intention of parliament.

The courts may also interpret the common law in a way that is no longer appropriate but is reluctant to change the law themselves, preferring to let the parliament abrogate the law.

3 Explain how courts influence the parliament to change the law. Use one case to illustrate your response.

Courts can influence parliament to change the law when they make comments about the law in obiter dictum or when they express disapproval of a law. The courts can also influence parliament if they find themselves bound by a precedent that leads to an unjust judgment, or when the court acts in a way that causes public uproar. An increasing number of ‘one punch’ cases led the parliament to enforce mandatory sentences for this type of crime as it was suggested that the courts were handing down light sentences.


4 Working in groups, look at and investigate the Mabo case.

a Outline how this case originated.

The case was brought as a test case by five men to determine the legality of the Meriam people and their traditional ownerships over the island of Mer.

b Highlight the key legal issues raised in this case.

The key legal issues included whether Australia was terra nullius when it was colonised in the late 1700s. If it was found not to be terra nullius, the issue became who owned the land at that point and whether they have the same rights to the land now.


c To what extent was the doctrine of precedent followed in this case? Discuss.

Student answers should refer to the fact that precedent was completely overruled in this case. The doctrine of terra nullius was found to be invalid, and therefore Australia was found to have not been an ‘empty land’ before colonisation.

d Explain whether or not the High Court acted with judicial conservatism or judicial activism in this case.

The High Court acted with judicial activism in this case as they sought to recognise the rights of Indigenous Australians to the land they have occupied for centuries. It was judicial activism that led to the complete rejection of the concept of terra nullius.

e What are the consequences of this case?

Native title of Indigenous Australians was found to exist and to continue to exist and be legally recognised in certain circumstances. The decision led to changes in the law to recognise and protect native title.

f Explain how the case illustrates the relationship between courts and parliament in law-making.

The case illustrates how a decision by a court can lead to progressive changes in the law. The decision was enshrined in federal law by the passing of the Native Title Act, and mechanisms further developed to protect the decision and appropriately deal with the aftermath (native title claims).

g Develop a PowerPoint or podcast summary of this case for presentation to the class. Include in your summary:

• the key legal issues of this case

• the role of courts in law-making

• the relationship between courts and parliament in law-making.



5 ‘Courts can change how an Act of Parliament is applied.’ To what extent is this statement true? Discuss.




• By applying meaning to words or phrases in a statute through statutory interpretation, the application of the statute is altered.

• A broad interpretation can result in the Act being applied to a wider range of situations.

• A narrow interpretation of the statute can result in the Act applying to a more restricted, specific set of situations.

• Courts can only apply meaning to the words/phrases and cannot change or amend the actual words of the statute.

• Courts have to wait for a case to come before them from someone with standing before they can interpret legislation.

• Courts are restricted to interpreting legislation where it is relevant to the specific legal issues in


• Courts are able to fill in gaps in legislation through interpretation that will change the situations to which the legislation applies (for example, where an act is silent on an issue).

the case before them.• Courts may be bound by a previous interpretation

and therefore will not be able to change the way the Act is currently applied.

6 Using the internet, access legislation that has been passed this year by the Victorian Parliament. Find one Act of Parliament that has abolished a common law rule (hint: search ‘common law’ in the statute). Prepare a summary of what the common law rule was, and why it was abolished. You may need to look beyond the statute to complete your summary.

Student answers will vary depending on the year and which legislation is chosen.


Student book answersChapter 13 ReviewPages 470–471

Revision questions1 a What is statutory interpretation? Using an example, outline one reason why a court may be

required to interpret a statute.

[5 marks]

Statutory interpretation refers to a judge ascertaining the meaning of words or phrases in a statute and applying them to the case before them. The meaning then forms precedent to be read in conjunction with the legislation in the future.

Student answers will vary regarding the reason, but should look at one of the following reasons:

• The meaning of a word is ambiguous.

• The Act is silent on the matter.

• The Act may not have taken into account future circumstances.

• The use of a word may be inconsistent in the Act.

• Mistakes may occur during the drafting process.

• The Act may not cover new types of technology.

• The Act may be drafted in general terms.

• The Act may be out of date.

• The intention of the Act may be unclear.

• The meaning of words can change over time.

b Assume the Victorian Court of Appeal has resolved a dispute by interpreting an Act of Parliament. Describe one possible effect of the court’s decision.

[3 marks]

Student answers will vary, but should look at one of the following effects:

• words/phrases are given meaning

• precedent is set for future cases

• results in a binding decision on the parties

• the law is restricted through a narrow interpretation


• the law is extended through a broad interpretation.

2 Describe two features of the relationship between courts and parliament in law-making.

[5 marks]

Student answers will vary, but should include two of the following relationship features:

• Parliaments pass Acts to establish the courts and outline their jurisdiction.

• Courts apply and interpret the law.

• Parliament can abrogate the law made by courts.

• Parliament can codify the law made by the courts.

• Court decisions can influence changes in the law by parliament.

3 Discuss the extent to which the doctrine of precedent limits the ability of the courts in law-making.

[6 marks]


• Binding precedent limits the ability of courts to make law because it requires that lower courts follow the decisions of higher courts for cases dealing with similar material facts.

• However, this only applies when cases are dealing with similar material facts, so in other situations the courts are able to make law through their ruling on a case.

• Furthermore, a court is able to use the technique of distinguishing to avoid having to follow binding precedent and can create a new decision.

• Persuasive precedent allows courts to be influenced by decisions made in lower courts and courts in other hierarchies when making law.

• Techniques of reversing and overruling allow higher courts to make and develop an area of law.

• The doctrine of precedent allows the courts to establish law in an area where no statute or common law exists (for example, the development of the law of negligence).

• Binding precedent only applies to courts lower in the hierarchy so the doctrine of precedent allows for higher courts to avoid following precedent and subsequently create new precedent.

• Courts are able to expand on existing precedent and develop common law.

• Even when bound, lower courts can note their disapproval of a precedent, which can be influential to higher courts and parliament and may ultimately lead to a change in the law.

• The doctrine of precedent allows for courts to form precedent when interpreting the words or phrases in statutes that change the way the legislation is applied, and they must be read together in the future.

• However, precedents made through statutory interpretation are limited to the interpretation of the word/phrase but cannot change the actual words of, or make amendments to, the statute.


4 A writer in a legal journal once wrote, ‘Courts have had no influence on the laws made in Australia. If they find a problem with the statute, then they should highlight that problem for parliament to fix.’ Discuss the extent to which you agree with this statement.

[8 marks]




• Parliament is the supreme law-making body and therefore has the primary role of making (and amending) laws.

• Parliament is an elected body (unlike the courts) and therefore should be the source of laws made to ensure they reflect and uphold the views and values of the majority.

• Conservative decisions made show a reluctance by courts to make law in an area, leaving parliament to make the changes.

• Courts cannot undertake comprehensive changes to a statute (whereas parliament can).

• Courts cannot undertake detailed investigation of an area of law, whereas parliament is able to engage the use of experts as well as gather community input when considering changes to legislation/ creating new legislation.

• Statutory interpretation allows courts to address issues with legislation in a timely manner to resolve the case before them.

• Court decisions can highlight problems with existing laws and this may lead to public outcry. In so doing, the courts will influence the need for laws to change (for example, the amendments made to the Crimes Amendment (Bullying) Act).

• Creativity by the courts can alert parliament to the need to make new laws in a particular area (for example, the Mabo case) and this shows how courts can influence the laws made in Australia.

• Courts can influence laws and resolve problems with statutes through interpretation; for example, when a word is used inconsistently throughout an Act; when the meaning of words change over time; when the meaning of a word is ambiguous; when an Act is silent on an issue.

5 Evaluate the ability of courts to influence parliament. Use an actual case to support your response.

[10 marks]


• Court decisions can highlight problems with existing laws and this may lead to public outcry. In so doing, the courts will influence the need for laws to change (for example, the amendments made to the Crimes Amendment (Bullying) Act).

• Creativity by the courts can alert parliament to the need to make new laws in a particular area (for example, the Mabo case) and this shows how courts can influence the laws made in Australia.

• Courts can make comments in obiter and this highlights the need for legislative action that can be influential to parliament and may ultimately lead to a change in the law.

• Lenient sentences given by the courts through correct application of the law may influence parliament by demonstrating that the law relating to sentencing is no longer in tune with the needs of society.

• Parliament is the supreme-law making body and does not need to respond to the courts.


• Parliament can be influenced to make changes to the law through either codifying or abrogating a court-made law.

• Courts are restricted in their ability to influence parliament because they must wait for a case that deals with that particular area of law to come before them. Courts cannot make comments regarding an area of law unless it pertains to the case before them.

• Courts can declare a law as ultra vires and this can influence parliament to make amendments to the law.

• Courts must wait for a party with standing to bring a case forward before they can influence parliament (for example, in the case of Rowe).

(Note that students have a range of cases to choose from to support their response.)

Practice assessment task questions1 Referring to this case provide one reason for statutory interpretation.

[3 marks]

To be awarded 3 marks, students would be expected to give one reason for statutory interpretation (2 marks), with the remaining mark being awarded for the reference to the case. A sample answer appears below.

One reason for statutory interpretation is that the meaning of words can change over time. In this event, when a court is confronted with a statute, it may need to give key words in the legislation a broader reading to reflect the expectations and values of contemporary society. This was seen in the case of 'Kevin and Jennifer' (2001), where the Family Court delivered a broad interpretation of the word 'man' that allowed a person who had undergone female to male gender reassignment surgery to be legally regarded as a man at the point of marriage. In this way, the Family Court took into account that since the Marriage Act was passed in 1961, developments in medical technology had not made gender reassignment possible, and this should be recognised under law.

2 What role, if any, could the High Court have had in this case?

[2 marks]

To be awarded 2 marks, students would be expected to refer to the court hierarchy and the fact that the losing party in this case, the Attorney-General for the Commonwealth, could lodge an appeal against the decision of the Full Court of the Family Court. This appeal would be on a point of law and would proceed to the High Court.

3 Using examples of actual cases you have studied, distinguish between a court overruling and reversing a decision.

[4 marks]

To be awarded 4 marks, students would be expected to explain at least one difference between the processes of reversing and overruling as they apply to the doctrine of precedent (2 marks). While both processes involve a change to the common law, overruling involves two separate cases and reversing involves only one case, which has been taken on appeal to a superior court.


It would be expected that students would refer to actual cases that they have studied this year, which could be drawn from the contemporary media.

In the case R v Klamo (2008), Klamo was convicted in the Supreme Court of the manslaughter of his four-week-old son. Klamo had admitted that he shook the baby a week or two before he died, and there was no evidence to show that the accused was of unsound mind at the time. One of the grounds of appeal was that the trial judge erred in his directions that the jury had to be unanimous as to the cause of death. The Court of Appeal upheld the appeal and found that the jury’s verdict was unreasonable. Klamo was acquitted. This reversed the decision of the Supreme Court because there was no evidence showing that the shaking by Klamo was the cause of death.

While the reversing of the original precedent in the Klamo case involved one case, overruling involves changing a precedent in a different and later case. So, for example, a precedent set by the Trial Division of the Supreme Court in ‘Case A’ can be overruled by the Victorian Court of Appeal in ‘Case B’. In the same way, the High Court can overrule a precedent set by a decision of the Victorian Court of Appeal in a different case.

4 In your view, did the Full Court adopt a conservative or activist approach in this case? Justify your answer.

[3 marks]

To be awarded 3 marks, students would be expected to define the terms 'conservative' and 'activist' (2 marks) and then make a comment on this 'Kevin and Jennifer’ case. Some of the key points relevant to this response are as follows.

A conservative approach by a court occurs where the judges regard it as their role not to create important legal principles and regard this as the function of the parliament. This means that the courts interpret the existing law in such a way as to maintain the status quo.

An activist role played by a court involves the judges interpreting the existing law in such a way as to create new legal principles to apply to that fact situation. In this case, the judges see their role as developing legal principles to meet the needs of a modern society.

In the 'Kevin and Jennifer' case, the Family Court adopted an activist role in allowing a person to marry legally in an acquired gender as a result of gender reassignment surgery. This decision was all the more activist in nature because the Family Court had, in the process, not adopted a persuasive precedent from Britain from 1970 that a person's gender is fixed at birth for the purpose of marriage (Corbett v Corbett)

5 Discuss the extent to which the interpretation of the Marriage Act in this case will have on future cases.

[5 marks]

To be awarded 5 marks, students would need to cover a range of points, taking into account the doctrine of precedent. Some of the key points are given below.

• The decision by the Court of Appeal would become binding precedent (ratio decidendi) that would apply to all future cases involving people who have undergone gender reassignment and seek to marry in their acquired gender. Given that the original decision of the Family Court, which was made by Justice Corbett in 2001, was upheld by the Full Court of the Family Court, this decision would be binding on the Family Court in its original jurisdiction.

• The decision in the case of ‘Kevin and Jennifer’ could be disapproved if another case proceeded to the Full Court of the Family Court, and in the latter case, the court did not adopt the decision from the ‘Kevin and Jennifer’ case and created a new precedent.


• In any appeal that proceeded to the High Court, the judges would be able to overturn any decision of the Family Court given that the High Court is the ultimate court in Australia for the hearing of appeals.

• At any time, acting within its jurisdiction, the Commonwealth Parliament can intervene and abrogate the decision in the case of ‘Kevin and Jennifer’. This would change the existing law and the original precedent from 2001 would no longer apply.

6 Evaluate the ability of the courts to change the Marriage Act.[8 marks]

To be awarded 8 marks, students would be expected to address key issues relating to the courts as a law-maker. While a range of points would be relevant here, some of the key issues are as follows.

• The primary role of the courts is to settle disputes, while the creation of legal principles is its secondary role.

• Courts are able to interpret statutes such as the Marriage Act when the need arises, and can change the meanings of words or phrases in legislation made by the parliament. In the process, the courts may also broaden or narrow the application of law and thus change the focus of the law.

• Through overruling, reversing and distinguishing, the courts are able to develop common law in the area of marriage.

• The courts are able to declare a law ultra vires if it is outside the law-making powers of the parliament that is making the law. In his way, the law is changed, with specific sections of legislation being declared invalid.

• The role of the courts in regard to changing the existing legal principles is enhanced by the fact that judges are unconcerned by fear of voter backlash. Judges in the Family Court and the High Court have guaranteed tenure until the age of 70. This means that when they hear and decide a case, they can make decisions based purely on the facts of the case and the most appropriate legal principles to decide that case. Unlike the parliament, the judges do not have to face election through popular vote.

• The ‘ability’ of the courts to change the Marriage Act depends on a case arising that is brought before the courts for resolution. Unless a case arises, judges are unable to become involved in the law-making process and can have no influence over the interpretation of words contained in legislation.

• The extent to which the courts can have an impact on the Marriage Act depends on the willingness of judges to undertake an activist role. If the judges regard their role as not interfering with the will of the parliament, then it is unlikely that they would seek to read the legislation in such a way as to change the Marriage Act.

Total: 25 marks


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