The role of judges in Australia is to interpret the laws that have been made by the Parliament of Australia; they also have the power to change laws as they apply to the cases that come before them. With the design of the courts hierarchy and the use of the doctrine of precedent, judges can update laws which will filter down through the hierarchy. Is it up to the judges to be updating laws? Firstly the key roles of Judges and the court structure in Australia will be analysed followed by the definition of precedent and an Example of how Judges make laws. 

Judge and Laws

The Hierarchy of Australian courts Starts with the Magistrates Court and goes to the Supreme Court of Australia. There is one High Court of Australia and each state has with some exceptions Magistrate courts, District Courts and a Supreme Court. The Magistrates court also known as the local court is the lowest level of the Hierarchy. It deals with Minor Criminal offences and civil cases less than $40,000; there is no jury in this court. All states have a District Court with the exception of Tasmania; it deals with serious crimes with the exception of murder, and all civil cases with the exception of admiralty and cases involving wills. The Supreme Court deals with all criminal and civil cases; it also hears appeals from the magistrate’s court and the district courts. This is the highest court in the state systems. No cases can be started in the Full Court of the Supreme Court; its purpose is purely to hear cases of appeal. The high Court of Australia is the highest court of appeal; before your case will be heard you need to seek leave for appeal, only a tenth of cases that seek leave are heard in the High Court. It consists of a Chief Justice and six Justices of the High Court. All courts in the Hierarchy are bound by previous decisions that are made by a higher court, for example a decision of the high court of Australia must be followed by the supreme court, this is called binding precedent


 In the late 19th Century the House of lords decided that all courts should be bound by the precedent of any higher court in the same hierarchy, Precedent is defined as “a judgment which has happened earlier than the present, and which can be a guide to what should be done in the present case (A&C Black, 2007, pg 209)”. A precedent is said to be binding when it comes from a higher court within the same jurisdiction and has similar facts to the current case. If a court proves that the facts are dissimilar from those of the precedent case, they are not bound to follow its judgment, this is called distinguishing. This method limits the application of precedent; a judge who does not want to follow the precedent only needs to prove that the facts in each case are dissimilar. A courts judgment can be an extensive document, the only part of the judgment that the courts are bound by is the Ratio Decidendi, the part of the law that caused the judge to make his decision. It is based on the principals of law. Not all precedents are binding, if there is a precedent in an inferior court, it is only persuasive to the court not binding, some factors to take into account when determining if a persuasive precedent should be followed are, the age of the precedent, the level of the court and the Status of the judge. Another part of a courts judgment is the Obiter Dictum, this is a part of the judges decision which states some observations that the judge had made which were relevant to the case, it does not impact the final verdict but may be taken into account in a case were one of the observations was being decided on. By using the Doctrine of precedent judges can amend laws which will be followed by the other courts.

Laws can be made in Australia in two ways via the Parliament or the Judicature, the Parliament which also consists of the Executive have the power to make any laws on any subject which it has been given authority by the constitution. This is not the case with the courts; judges can only pass new laws in regards to the cases before it. Although the laws created by judges can be deemed invalid by parliament, parliament does not have any power over the courts decision. A good example of judge made law is the case of Donoghue V Stevenson [1932]. In the case: Mrs Donoghue claimed that she drank some of the contents of a bottle of ginger beer, manufactured by Mr Stevenson, which a friend had bought for her, when the remainder of the bottle was poured into the glass a decomposing snail came out of the bottle,  Mrs Donoghue became ill and  wanted to take action against Mr Stevenson, due to the fact that her friend had bought the drink for her their was no contract between Mrs Donoghue and Mr Stevenson, therefore their was no level of care. When the case reached the house of Lords through appeal Lord Atkin stated “ …you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour….”( Pembroke, M, Thomson, J, Sarre, R, 2006, pg 154). The Judgment from this case changed the law on negligence and was adopted by almost common law countries.


The Australian society is a constantly changing place, as society progresses the current laws become dated, with the Australian legal systems hierarchy and the Doctrine of precedent Judges are able to make laws and update current laws to keep up with a constantly changing society.

Judges in Australia

Australian Legal System