Doctrine of Binding Precedent in Australias Courts - Case Study Example

Name: Tutor: Course: Date: 1. Doctrine of Binding Precedent in Australia’s Courts Donald James Gifford introduces the doctrine of binding precedent in the book chapter titled “The Doctrine of Precedent.” The doctrine of precedent states that whatever has been decided by superior courts should be regarded as law and binding to all courts until or unless overruled or altered by a higher court in the same hierarchy, or an Act of Parliament. For instance, the State Supreme Courts abide by the verdict of the High Court of Australia even if they believe these decisions are wrong. However, the High Court of Australia has the legal right to review its own earlier decisions as deems fit (Gifford 56-62). The doctrine of precedent is of vital importance in the courts of Australia and other countries because it allows consistency and harmony in the society as all people regardless of age, background, creed or sex will be tried and judged in a court of law with justice and fairness. In application of doctrine of binding precedent, what should be considered is not the decision as a whole but the major principle of law, that is, the ratio decidendi, which is binding and applicable to other courts (Chiarella16). What the judge gives in his ruling that is not binding to other courts is known as obiter dicta (Brassil 27). There are two rules of precedent. A binding precedent is one in which lower courts are required to follow the decision of superior courts while in the persuasive precedent, superior courts are not required to follow resolutions from lower courts though they can use them to make decisions (Brassil 27). Most judges are moving to rulings that are strictly binding rather than persuasive because of the rapid social change in the society. The doctrine of precedent can be hazardous in that once this decision has been laid out, it is very difficult to remove or alter it regardless of rapid social change. However, it is the function of the judges to bring laws up to date with the expectations and needs of the society. One of the reasons why this is needed, according to Brassil is because of the change of circumstances in the community (27). However, this does not suggest a decrease in the use of precedent as a principle. In matters that need a clear distinction in a case, judicial precedent must be avoided. The judge has an obligation to show that precedent does not apply because the facts of the case are different. Secondly, a judge from a higher court can decide to reverse a ruling or decision that a lower court has passed when the party takes it for an appeal. In this case, the judge must prove its irregularity, overrule the lower court’s decision and pass a new precedent. Overruling is applied when two similar but separate cases have different ruling. For instance, in Case X at a lower court, a defendant was found guilty. A similar Case Y at a higher court, the defendant was acquitted based on the conclusion that the precedent of case X was wrong. It is therefore the responsibility of the judge to overrule this precedent and apply his own in Case Y. In High Court lawsuits such as Cullen v Trappell (1980) 54 ALJR 295, the court took precedence in a two year old decision in Atlas Tiles Ltd as erroneous (Bird 234). There are other instances where a decision is ignored and not overruled. In such matters, the judge of the higher court decides to disapprove the ruling and initiate his own precedent. Some people believe that the Doctrine of Precedent is rigid and therefore unfit for a changing and advancing society. Others see the need for judges to be creative in their rulings. Judicial creativity allows judges to adapt the law to a modern society. The use of judicial creativity is linked to precedent in that it avails new precedents to the existing ones (Bird 234). There must be careful consideration when judges use judicial creativity because they are not only providing solutions to disputes, but they are also shaping the law for the future. Along this line, Gibbs said that once the most cautious and courteous deliberation on earlier decisions has been made, and after giving due weight to all situation, a Justice may bestow effect to his own judgment in preference to an earlier verdict of the court (Lauterpacht and Greenwood 731). The disadvantage of using judicial creativity is the fact that unlike parliament, courts do not have advisory committees. In addition, they are not accountable to the decisions that they make. The solution is in parliament where they can check the inconsistency and overrule the decision according to the provisions of the constitution (Malcolm 47). In view of this, Lord Gardiner said in London Tramways Co. v. London City Council [1898] AC 375 said that justices regard the use of precedent as a crucial foundation upon which to make decisions over what is the law and its relevance to individual cases. In addition, it provides at least some degree of conviction upon which people can rely in the carrying out of their affairs, as well as a basis for a methodical growth of legal rules' (Slapper and Kelly 81). Statutes or Acts of parliament are passed by the federal or state parliament. These acts go through stages until they later receive the Royal Ascent to become law. This law is binding to its citizens. In Australia and other countries, these acts of parliament can be challenged when they offend or contradict the constitution. It is therefore the responsibility of the High Court to safeguard the interests of the people by ensuring that these legislations comply with the constitution, its provisions and limitations. In conclusion, Donald James Gifford literature argues that it must emphasized that the main aim of courts of whatever status is not to develop the law in general, but to find a just solution to a disputes between the parties in particular case. It is the responsibility of the judiciary to safeguard laws that are just, equal and binding to all citizens. The citizens of a country must be able to trust their judges in their efforts to implement the law so as to discourage them from taking the law into their own hands. References Bird, G. The Process of Law in Australia. Sydney: Butterworths, 1988. Brassil, Belinda. Excel Preliminary Legal Studies. Australia: Pascal Press, 2000. Gifford, Donald. Understanding the Australian Legal System .Australia: Routledge, 1997. Lauterpacht, Elihu and Greenwood, C. J. International Law Reports. Cambridge University Press, 1999. Malcolm, D. ‘High Court and Democracy’ The West Australian. Sydney: Butterworths, 1994. Slapper, Gary & Kelly, David. The English legal system. (7th ed.) London: Routledge Cavendish, 2004 2. The Key to Agency is Policy Agencies act on behalf of either the government or institutions by implementing the decisions that they have made. The main function of an agency is to act on behalf of its principle whether it is the government or an institution. There are clear guidelines that define the objectives, responsibilities and goals of an agency and these are defined by the principle before the formation of an agency and during its functioning. In government, agencies are formed to address particular issues in the society. These include things like security, energy and the environment. These agencies implement decisions made by the government on specific items. An agency on security will address security issues and that on energy or environment will tackle corresponding issues depending on the guidelines it has been given. Within government policies are the guidelines that dictate the responsibilities, functions or work that a particular agency will carry out. It is therefore important to note what public policies are and why they are at the core of the working of agencies. Public policies are policies made by the government to address societal issues. What is a public policy? Gerston defines public policy as an amalgamation of decisions, commitments and actions made by people who hold or influence government posts of authority (7). Public policies are made as resolutions by the government in response to the needs of the public. Public policies are an outcome of the association between politics and government. They therefore are vital in defining the existing values and offering solutions to existing problems. Agencies need clear guidelines to define what their mandates are and these clear guidelines form the basis of operation for the agencies. Agencies are implementers of public policies and without these policies agencies are rendered useless. In the society several agencies can be placed to address the same fundamental issue, for example security, and this sometime leads to agencies having a conflict because of their mandates in the society. Clearly defined policies will avoid such conflicts because they will be able to define exactly what needs to implemented and this will act as a guidance as to which agency should implement it (Sabatier 10-11). A breakdown in policymaking and interpretation normally leads to a breakdown in the implementation work done by agencies. Policies determine how agencies are formed, their function and work that they carry out. This means that they are at the centre of agencies. When an agency is seen not to be effectively carrying out its function then it is important to look at the policies to determine where the problem is. Yanow argues that in order for an agency to effectively implement its duties, it must early on create its own identity and image internally and externally in order to communicate policy meanings to its intended audience or readers (19) Policy therefore forms the blueprint for agency formation and functioning. An effective agency is one that can effectively implement policies that it was formed to address and this makes policy the core and key of agency. References Yanow, Dvora. How does a policy mean? : interpreting policy and organizational actions. Washington, DC: Georgetown University Press, 1996. Gerston, Larry, N. Public policy making: process and principles. New York: M.E Sharpe, 2004. Sabatier, Paul, A. Theories of the policy process: Theoretical lenses on public policy. New York: Westview Press, 1999. Read More