The Law Handbook 2024

Chapter 1.1: Where our laws come from 3 a law protecting the wilderness from a dam. The clash of the two inconsistent laws was tested in the High Court. The High Court followed the accepted rule that where a valid state law and a valid federal law clash, the federal law prevails. The dam was stopped. If a government does not like a court decision and a judge’s interpretation of an Act, the parliament can pass an Act specifically to overturn that decision or interpretation. Parliament can also add rules to judge-made law. In that case, parliament-made law will state all the rules for that area. Parliament can also repeal or amend Acts. Parliament is not restricted by earlier Acts, and can change laws as it wishes. A set of rules has been developed by judges to help them interpret Acts; for example, there is a rule of interpretation that says Acts are to be given their ordinary meaning unless that would lead to some absurdity. When, for example, an Act says a minister may do this or that, we know that the minister has a discretion to do something. If the Act says the minister shall do something, we know the minister must do something. These rules assist people using an Act, as they give some certainty to the meaning of commonly used words. Occasionally, the meaning of an Act is unclear and the court’s decision (if there is one) may not be helpful in clarifying the meaning. Where this occurs, the law is difficult to state one way or the other. Judge-made law 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. Some of the rules that direct the conduct of court cases and court-made law are: 1 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 court’s rules after the case has been fought. Each party in a court case accepts the judge’s authority and must do whatever the judge orders or directs to be done after the case is over. 2 If an appeal is not made within the time limits, the matter is finalised and the case cannot be re-opened. If, for example, a neighbourhood dispute over a fence is fought before the courts, the neighbours cannot go 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. In some instances, applications can be made to the court to extend the time a party has to appeal to a higher court. The courts are reluctant to make such orders unless an application is supported by strong evidence, and the interests of justice are seen to be furthered. 3 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. 4 The decision of the highest court in the court structure is final. No further appeals are possible. (For more about the court structure and hierarchy, see Chapter 1.2: An introduction to the courts.) 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 onAustralian 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