Common Law in Australia

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...

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...sapproval. These four principles ensure that case law is maintained, that a degree of consistency occurs throughout the common law system; and that judges can develop and expand the common law to ensure justice in cases of relevance tried in a society of modern values.

Works Cited

Beazer, M, Humphreys, M & Filippin, L., 2010, Justice and Outcomes, 11th edn, Oxford University Press, Melbourne.

Harris, BV, 2002, ‘Final appellate courts overruling their own “wrong” precedents: the ongoing search for principle’, Quarterly Review, vol. 118, no. 408, pp. 412.

Kirby, M, 2006, ‘Precedent - report on Australia’, International Academy of Comparative Law Conference.

Mason, The Hon Sir A, 1988, ‘The use and abuse of precedent’, Australian Bar Review, vol. 4, no.1, pp. 93.

Williams, CR, 1998, ‘The theory and practice of precedent’, Legal Date, vol. 10, no. 2, pp. 1-4.