Understanding Judge-Made Law and Precedent in Australia
Few Australian laws were made by parliaments prior to 1850. Judges decided each case as it came to court. They wrote down the reasons for their decisions, and these are called judgments. The important judgments were published in books known as law reports.
Judges were (and still are) bound by a strong tradition to decide each similar case along the lines of earlier decisions made. If the facts of the earlier cases were not exactly the same, the judge could still compare the situations and apply a common principle or develop a new, reasonably similar principle for the new facts. This is known as the doctrine of precedent. The principles and rules contained in the collection of judgments and court procedures became known as the common law.
Rules Governing Court Cases and Judge-Made Law
Some of the rules that direct the conduct of court cases and court-made law are:
- A judge’s decision in each case is binding on those involved (the parties) in that case. If you agree to the court sorting out your dispute, then you cannot seek to change the rules of the court after the case has been fought. Each party in a court case accepts the authority of the judge and must do whatever the judge orders to be done after the case is over.
- If an appeal is not made within the time limits, the matter is finalized, and the case cannot be reopened. If, for example, a neighborhood dispute over a fence is fought before the courts, and one neighbor wins and the other loses, they cannot return before another judge later to argue the same case to see if there is a different outcome. Occasionally, fresh evidence in a criminal case can be used as a reason to re-examine a court’s verdict. Examples in Australia include the famous Lindy Chamberlain murder conviction and, overseas, the English IRA pub bombings where the Guildford Four and the Birmingham Six were jailed for crimes it was later discovered they could not have committed.
- If one of the parties appeals to a higher court (within the time limit), the higher court can either agree with the lower court’s decision or make a new decision. The higher court’s decision is then binding on the parties, unless an appeal is lodged within the time limits to an even higher court.
- The decision of the highest court in the court structure is final. No further appeals are possible. (For further information about the court structure and hierarchy, see Chapter 1.2: Courts.)
The Doctrine of Precedent
The doctrine of precedent means judges in lower courts must follow decisions of higher courts, and a single judge of a court must follow a decision with more than one judge in that court.
The decisions of courts outside Australia are not binding on Australian courts, although these decisions can assist Australian courts to make decisions on new facts or new legislation. If, for example, a case before an Australian court is unusual or difficult, the judges and lawyers will look to the decisions of overseas courts for guidance or comparison.
A court, when it makes a decision, will give reasons for its decision. Another case with similar but not identical facts can be decided differently. If this happens, reasons will usually be given as to why this case should be treated differently. Each case is decided on its own facts.
The High Court of Australia
The highest court in Australia is the High Court, which consists of seven judges and is based in Canberra. The Chief Justice of the High Court is Australia’s most senior judge. The High Court need not follow its own earlier decisions, or precedents, and can make new law by deciding (with a majority of judges agreeing) to change the law. The High Court did this with the landmark Mabo decision of 1992, when the judges decided to abandon what was then the established law on Aboriginal title to land (see “Aboriginal and Torres Strait Islander law“, below). For the first time, the High Court declared the Australian legal system could recognize Indigenous legal systems that existed before white settlement.
Parliament-Made Law vs. Judge-Made Law
Parliament-made law overrules judge-made law if both apply to the same problem. However, judge-made law still applies in many areas, and the practice of following previous court decisions continues today. Not only do judges continue to develop the law in areas not covered by legislation, but they also have an important role in interpreting legislation when there is a dispute about the meaning or application of a section of an Act. The decisions that judges make in interpreting Acts become part of the common law, which other courts will refer to and follow.