Unit 3 Area of Study 3 - Role of the Courts in Law-Making

VCE Legal Studies 2013

Unit 3 Area of Study 3 - Role of the courts in law-making

Key knowledge -This knowledge includes:

·  the ability of judges and courts to make law

·  the operation of the doctrine of precedent

·  reasons for interpretation of statutes by judges

·  effects of statutory interpretation by judges

·  strengths and weaknesses of law-making through the courts

·  The relationship between courts and parliament in law-making.

Key skills - These skills include the ability to:

·  define key legal terminology and use it appropriately

·  discuss, interpret and analyse legal information and data

·  apply legal principles to relevant cases and issues

·  describe the nature, importance and operation of courts as law-makers

·  analyse the impact of courts in law-making

Mabo case, Kevin case, Menhennitt ruling on abortion

·  critically evaluate the law-making processes of courts

cases as above dot point plus rape in marriage case (1985)

·  discuss the relationships between law-making bodies

Deing case (studded belt); Kevin case; Malaysia solution judgement 2011

Introduction

Although the primary role of courts is to settle disputes, judges are actively involved in law-making through two means:

·  The development of common law principles where no statute law exists. An example of this type of law-making was the High Court’s Mabo (No. 2) judgment.

·  Statutory interpretation: reading, interpretation and application of words contained in legislation. In statutory interpretation, judges rely on materials such as dictionaries, interpretation sections in Acts, and speeches made in Parliament contained in Hansard. There are also common law rules for interpretation that are used by judges.

The doctrine of precedent and the ability of judges to make law

Courts have the ability to create law after a situation occurs and a decision needs to be made on legal issues. This type of law-making is known as ex post facto; after the fact. Precedents can relate to:

·  The development of common law principles; or

·  The interpretation of words in legislation. In this case, lower courts must apply the judge’s interpretation of words or phrases from that particular piece of legislation when faced with that same law.

The operation of the doctrine of precedent

The key elements of the doctrine of precedent are outlined below:

·  Legal principles handed down by courts are interpreted and applied in future cases according to the doctrine of precedent. This involves decisions of higher courts being binding on lower courts in the same hierarchy in similar cases. This is binding precedent. The doctrine of precedent is based on the principle of stare decisis; to stand by things that have been decided.

·  The component of a judge’s ruling that is binding is the ratio decidendi; legal principles that arise from the facts of that case. The part of the judgment that is binding is the legal principles, not the actual verdict or outcome. This is a common error made by students.

·  The obiter dictum is comments made ‘by the way’ in the course of a judgment, which are relevant to the case. The obiter dictum can be used by judges to explain persuasive precedents or indicate to the parliament that reform of the law is necessary.

·  A higher court can overrule or reverse an earlier decision of a lower court in that hierarchy in a similar case. Overruling involves two separate cases, with the first heard earlier in a lower court and the second case being heard in a different matter in a superior court in the same hierarchy. In contrast, reversing only involves only the one case and relates to judgments on appeal to a higher court. Most binding precedents are delivered in the High Court and the Court of Appeal.

·  When studying precedent, it is important to remember that persuasive precedent operates. This occurs where decisions of lower courts and same standing courts in the same hierarchy are persuasive in similar cases. Also, decisions of interstate and overseas courts are persuasive. This is an important element of the courts as a law-maker and is a significant strength of their roles.

·  Judges avoid binding precedent through distinguishing. In such cases, a judge can distinguish an earlier decision if it can be established that the facts of the present case are different to the earlier case to such a degree that the judge in the later case can issue his/her own ruling.

·  A judge may disapprove an earlier persuasive decision by not adopting it. This occurs where courts of same standing in the same hierarchy do not follow their own previous decisions in similar cases. This indicates that a change in law is necessary, because the earlier ruling is no longer appropriate. The difficulty is that in a later case in a lower court, a judge or magistrate may be faced with a range of ratio decidendis on the one issue that have been made by two or more superior judges. The confusion that results from disapproving is overcome by a definitive ratio decidendi from the Court of Appeal or the High Court or by Parliament codifying the law.

The effect of interpretation by judges

Once judges have read, interpreted and applied words in legislation, that particular interpretation will then become binding on all courts lower in the hierarchy when faced with that particular legislation. For example, if the High Court made a ruling relating to Commonwealth legislation, the particular meaning given by the judges would then be applicable law throughout the nation. Therefore, if people wish to thoroughly investigate the law in a particular area, they would need to read the following:

·  Legislation passed by Parliament

·  Reports of Parliamentary committees, Royal Commissions or the VLRC.

·  The Minister’s Second Reading speech when the original Bill was introduced, found in Hansard.

·  Judicial decisions relating to that legislation. The ratio decidendi of the judgment would give a precise interpretation of the legislation.

·  Any obiter dictum comments by judges as to the application of the law.

Once a court has interpreted and applied legislation, Parlt may act to codify or consolidate the law. This means that the legal principles created by the judge may be written into a statute and changed according to the wishes of the Parlt. It is important to remember that Parliament is sovereign. It is the supreme law-maker and any case law delivered by a judge might be codified by Parliament.

Significant cases

Statutory interpretation

Transsexuals Re Kevin and the Validity of Marriage of a Transsexual

It is a requirement of a valid ceremony of marriage under the Marriage Act 1961 (Cwlth) that the parties be a male and a female at the date of their marriage. On 12 October 2001 Justice Chisholm of the Family Court of Australia handed down his decision in Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074 which found that a post-operative female to male transsexual had validly married.

Facts

The husband (Kevin) between October 1995 and September 1998 had undergone sex reassignment surgery. He met his current partner (Jennifer) in 1996. She perceived him as a man and they started living together in February 1997. She was aware of his transsexual situation. In September 1997 the couple applied to an IVF program and Jennifer became pregnant by anonymous sperm donor. In March 1998 Jennifer changed her name to Kevin's. In October 1998 Kevin obtained a new birth certificate on which his sex was shown as male.

Kevin was eligible for a passport showing his changed name and stating his sex as male. Kevin had been treated as a man for a variety of legal and social purposes, including by his employer, Medicare, the Tax Office, banks and clubs. Kevin's family, friends and work colleagues accepted him as a man, husband and a father. Psychiatric examination of Kevin revealed no evidence of psychosis or delusional disorder.

In mid-1999 Kevin and Jennifer took steps to get married. They gave notice to an authorised marriage celebrant, and made a statutory declaration under the Marriage Act 1961 (Cwlth) stating that they believed that there was no legal impediment to the marriage. On 21 August 1999, the celebrant issued a Certificate of Marriage. Kevin and Jennifer applied for a declaration of validity of marriage and the Commonwealth opposed that application. At issue was the question of whether the husband was a man at the date of the marriage.

Decision Key Findings

§  The words 'man' and 'woman' when used in legislation have their ordinary contemporary meaning according to Australian usage and that meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment.

§  Corbett v. Corbett (otherwise Ashley) [1971] P 83 does not represent Australian law to the extent that there may be circumstances in which a male who at birth had female gonads, chromosomes and genitals may nevertheless be a man at the date of his marriage.

§  On the facts of the case, the husband at birth had female chromosomes, gonads and genitals, but was a man for the purpose of marriage law at the time of marriage having regard to all the circumstances and in particular:

§  he had always perceived himself to be a male; he was perceived by those who knew him to have had male characteristics since he was a young child;

§  at the time of marriage he was perceived as a man, and accepted as a man by family, friends and work colleagues;

§  he was accepted as a man for a variety of social and legal purposes; and

§  his marriage as a man was accepted in full knowledge of his circumstances by family, friends and work colleagues.

Corbett (Persuasive precedent)

The leading English case on the question of who is a man and who is a woman for the purpose of the law of marriage first arose in the Corbett v Corbett (otherwise Ashley) [1971]. The judge in that case found that the question of sexual identity for the purposes of the law of marriage should be determined by biological criteria. Thus in that case, the fact that April Ashley had subsequently undergone sexual reassignment surgery was irrelevant. Justice Chisholm in Re Kevin held that Corbett does not represent Australian law.

What is a 'man'?

The Commonwealth argued in Re Kevin that the meaning of the word 'man' in the Marriage Act 1961 (Cwlth) should be taken to be the meaning that would have been given to the word when the legislation was passed in 1961 and that that was the meaning stated in Corbett.

Justice Chisholm was of the opinion that:

§  available legal authorities do not show that there is any general rule of construction that ordinary words should be given the meaning they had at the time the legislation was made;

§  there was no convincing reason to conclude that the legislature in 1961 would have had in mind, or should be deemed to have had in mind, a definition of 'man' that incorporated the Corbett approach;

§  it was extremely unlikely that the legislature in 1961 would have envisaged transsexuals and it would be highly artificial to proceed on the basis that they did think about it and wished to incorporate a specific definition invented ten years after the legislation became law; and

§  there was no suggestion in the legal authorities that the right approach to determining the meaning of 'man' and 'woman' is to ignore medical knowledge and base the decision on what the legislature might have thought the words meant at the time of the relevant legislation.

International legal developments

Justice Chisholm in Re Kevin reviewed legal developments in other countries regarding the legal recognition of a transsexual's reassignment, including recognition for marriage purposes. Justice Chisholm found that in Europe, while there is no common approach and preconditions vary, there is a growing tendency to recognise a transsexual's acquired gender.

Justice Chisholm pointed to the fact that Austria, Denmark, Belgium, Finland, France, Germany, Italy, the Netherlands, Portugal and Sweden allow a transsexual to marry in the reassigned sex. In contrast England, South Africa and Canada continue to follow Corbett.

In New Zealand it has been held that Corbett does not represent the law and a transsexual's change of sex is recognised for the purpose of the validity of a marriage.

Focus questions

1.  Outline the key facts of the Kevin case.

2.  In your own words, explain the requirements for a valid marriage under the Marriage Act 1961 (Cwlth).

3.  Explain the persuasive precedent that existed for the Family Court in this case. Was this precedent adopted by the Family Court of Australia? Give reasons for this decision.

4.  Outline the relationship between the parliament and the courts that is highlighted in this case.

5.  To what extent does the Kevin case demonstrate the strengths and weaknesses of the parliament AND the courts as law-makers?

Plain packaging of cigarettes

From Big tobacco loses High Court battle over plain packaging The Age 15/08/12

In August 2012, the federal government secured a big win over big tobacco with the High Court ruling Labor's plain packaging laws are constitutionally valid. The decision is expected to have significant influence globally with both the United Kingdom and New Zealand considering plain packaging.