Common Law In Australia Essay

1090 words - 4 pages

Common law is the law made by judges when deciding a certain case before the court. The reasoning the judge applies becomes a precedent, to be followed by other lower courts in future matters of similarity. This is the basis for the doctrine of precedent. A precedent is either a binding precedent, the reason for a decision of a higher court that must be followed by a court of lower status in the same hierarchy; or a persuasive precedent, meaning a reason for a decision of another court that is not binding, and should only be considered for its persuasive value. It is the role of the judge in the common law system to develop and expand the common law where he or she sees fit. It is paramount for judges to base their decisions on cases on judicial precedents. The system of precedent can only operate effectively if the respective precedents are recorded. From as early as the beginning of the sixteenth century, judges produced significant cases in law reports. This process still occurs today, but is now systemised and is controlled by Councils of Legal Education in each jurisdiction (Williams 1998).

In the Australian legal system, a system of common law (case law), the doctrine of precedent is stare decisis (to go by what has been said), meaning that courts are strictly bound to follow past decisions of courts higher in the court hierarchy. Decisions from other hierarchies, for example, courts located in international jurisdictions, may be used as a form of persuasive precedent, but cannot be binding in an Australian case. The court of ultimate authority in Australia is the High Court of Australia, formed by the Commonwealth constitution. The High Court may hear appeals from the Federal Court of Australia or from respective Supreme Courts of states and territories. Below the High Court in each state and territory is a Supreme Court, followed by a Magistrates’ Court. In larger states, another court may fall between these two courts. All courts below the Supreme Court are bound to follow the decisions of the Supreme Court of that particular state. The doctrine of precedent provides for a degree of predictability and consistency that makes a judge’s ruling more straightforward, as like cases are treated alike.

While the duty of law-making is that of the Commonwealth and state parliaments, judges have no such authority. Judges can only create laws by means of case decisions. The reason for a particular decision in a case is known as the ratio decidendi, which in turn forms a binding precedent. Statements that are only taken into consideration as persuasive precedent are classed obiter dicta (statements by the way). Whilst the doctrine of precedent provides for certainty and consistency in legal decisioning, there are several disadvantages. The most prominent of these for a judge is that he may be forced to follow a ruling of a higher court based on binding precedent that may seem unjust in the circumstances. Rules may continue to be considered until...

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