Australian Law: The Changing Faces

Running head: LEGAL FREEDOMS

Australian Law: The Changing Faces


Australia and the English Law was once strictly bound by certain laws that were hard to change simply because the adherence to precedents was required so as to alleviate confusion and frustrations.  As times have changed so has this doctrine.  Where once much of the United States Law was bound by English law, this too is reversing and allowing Judges to have more say in sentencings and the faces of changing the laws.  The prior minimalism attitude and actions are now stretching the bounds of what has never before been known.

Judicial activism can be a positive or negative thing contingent upon how it is used.  In much of the United States Judicial activism isn’t necessarily not allowed but it is definitely looked down upon due to the political nature of any form of activism.  Judges are supposed to remain impartial and in an activism case that isn’t always so easy.  This aside the judges have great latitude to make decisions, even in lower courts, regarding precedent changes.

In Australia, the legal system is a bit different.  The Doctrine of Precedent is the bedrock or foundation of common law.  The Doctrine maintains a strict adherence to the law already set forth which can make it tough for attorneys and judges alike when dealing with defending a case or making a legal decision.  There is no other way, no other answer other than what is found in the Doctrine.

The United States has over turned many of it’s decisions, made many new precendents over the years depending upon situations and evidentiary values which in turn forms new laws on a consttant basis.  Australia on the other hand, once the law is set, that’s it.  There is a form of reliability, predictability and a safety net of sorts in being able to depend on the same laws on a continual basis.  The lower courts in Australia abide by these precedents of the Superior courts and once a decision is made there is no going back to a higher court to ask it to be over turned.  This seems to be an archaic form of law even though it also seems to have worked for many years.  This isn’t much adaptable when taking into account behaviors, experience and will help in maintaining the reformation of what is already there whereas the United States is constantly always seems to be in turmoil and is always reforming.

The Judicial Committee of the Privy Council made the final decisions that affected all of Australia and it wasn’t until the advent of modern times (The Internet and separations), the constitutional separation from the Privy and Justice Lionel Murphy who saw a “risk of serious injustice in too rigid an adherence to precedent.” (AUSTRALIAN BAR REVIEW PRECEDENT LAW, PRACTICE & TRENDS IN AUSTRALIA) that started changing this.  Also the Human Rights Act of 1998-2000 (A Human Rights Act for Australia.) gives way for being able to view and act upon different view points and to be able to change laws by way of over turning previous precedents, just as the USA does.

Australia’s legal system did not take into account nor allow dissenting opinions by any of the Justices. Nor did they allow  the opinions to become part of the final say.  The Privy determined that this allowance makes the decision making process more difficult  and complex in deciding case outcomes thus having the strict adherence to precedent law only.

The question has been asked; “Is it legitimate for Judges to engage in Judicial Activism in the Australian legal system?”  Under the Australian law, prior to 1998-2000, the answer was no.  Since the implementation of the Human Rights Act this is slowly changing.  The basic faces  and concept of fairness and rights versus minimalism is allowing the Justices more flexibility to become more involved with the decision making process when facing a difficult legal decision.  This further has allowed the rights and freedoms of individual to be less and less violated.  This also has given leeway to allow lower court judges to help maintain the stability of fairness and equality.

While the basic idea of allowing judges more opinions is changing, the magistrates courts still have limited capacity to change or set precendents simply because there is no lower court.  These courts are more of the persuasive in nature.  Technically speaking in a thin line area, the persuasiveness of these courts can and now do help quietly reset the balance of precendents.  The magistrate courts do have a predetermined sentencing for any criminal acts which is normal throughout many countries and they also have the ability to now sentence outside of this predetermination.  The outside of sentencing can be suspended sentences or less time for a crime.  It can never be more.  The legislation of Australia is trying to change the face of this but the lower courts are doing their best to hang onto this form of freedom.

In the end, the final say and faces of the Australian legal system has changed and is still ever changing.  Where once the common law of Australia was born from English or British Law and formed very strict adherences, Australia now allows case decisions and precedents that have been set else where such as those that have been made precedents in the USA.  This obviously allows for a detour through Australian law should it not seem to apply.

In an astute moment of thought of past histories, it is strange to think that the law of the United States was originally buil upon by English Law and now that much of that law has changed, Common and original English Law is turning towards the United States and other countries in which to help and rely on to make legal decisions regarding court cases.  With this in mind, this gives much latitude for both higher and lwer courts in which to make or change precedents.

So in short, while the opinions of judges are still not sought in a jocular way to form precedent changes, they are being allowed to make these changes by way of using another countries set of values and legal system, thus being able to act in the “quiet” way of setting their own precedent.  The judges who wanted this freedom to form opinions were never officially granted this and by way of being allowed to use other precedents, the judges got almost exactly what they wanted.  They obtained the freedom to dissimilate the common law of Australia by being allowed to go outside the realm of their locality.  In this, the common law of Australian can remain intact, in a basic concept and continue forth in what they deem as a strict adherence to their original common law and precedental lack of changes and maintain their minimalist outlook.  This is nothing more to having blinders on or being too lazy to address the situations properly due to the amount of work it would take.

Over time it just became easier to allow the use of someone else’s written words than to reshape their own legal system.


The Hon Justice Michael Kirby AC CMG. AUSTRALIAN BAR REVIEW


British Institute of Human Rights, Changing Lives (2nd Ed, 2008)

Doctor Mark Cooray 18.4 The Doctrine of Precedent.

Graeme Innes . A Human Rights Act for Australia. Queensland Charter Group. 6 March 2009. Brisbane. T. Precedent. Michael Coper, and George Williams (eds), Oxford Companion to the High Court of Australia (2001, reprinted 2003, online edition 2007). Retrieved June 16, 2008. are the sources of Australian law?