State, with Reasons, Whether This Quotation Is Consistent with the Use of the Doctrine of Binding Precedent in Australian Courts.
- Submitted by: jake2o
- Views: 1258
- Category: Other
- Date Submitted: 01/29/2010 01:40 AM
- Pages: 6
- Report this Essay
“Now it is the function of the judges, I believe, to bring laws up to date with the expectations and needs of our society.” High Court Justice Lionel Murphy addressing the National Press Club 1980.
State, with reasons, whether this quotation is consistent with the use of the doctrine of binding precedent in Australian courts.
High Court Justice Lionel Murphy’s statement can be considered consistent with the doctrine of binding precedent. There have been many decisions made by the High Court that reflect this statement, however, when considering the relevance of his statement to the doctrine of precedent, the position of a judge dictates the function they can perform. The doctrine of binding precedent limits judges in their power to modernise laws if the judge sits in a court that is bound by stare decisis.
The context and intent of Justice Murphy’s statement is important to consider. Justice Murphy made this statement during his appointment as a Justice of the High Court of Australia and therefore an examination of this court is the most relevant. It is also of significant interest to examine the Constitution of Australia, as the High Court (as well as the Federal Court of Australia), through its decisions, determine the interpretation and application of the constitution and through this influence the rights of all Australians.
Justice Murphy’s statement highlights the possibility that previous rulings based on precedents that are outdated are failing to meet the needs of our society and it is up to judges to make decisions now to overrule existing laws that are no longer relevant or good.
The decision to overrule terra nullius made by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR signified a change in Australia’s attitude toward the existing precedents set by British common law and highlighted how existing laws are not in the best interests of our society.
Justice Brennan, a sitting judge on the case, discussed the notion that...
State, with reasons, whether this quotation is consistent with the use of the doctrine of binding precedent in Australian courts.
High Court Justice Lionel Murphy’s statement can be considered consistent with the doctrine of binding precedent. There have been many decisions made by the High Court that reflect this statement, however, when considering the relevance of his statement to the doctrine of precedent, the position of a judge dictates the function they can perform. The doctrine of binding precedent limits judges in their power to modernise laws if the judge sits in a court that is bound by stare decisis.
The context and intent of Justice Murphy’s statement is important to consider. Justice Murphy made this statement during his appointment as a Justice of the High Court of Australia and therefore an examination of this court is the most relevant. It is also of significant interest to examine the Constitution of Australia, as the High Court (as well as the Federal Court of Australia), through its decisions, determine the interpretation and application of the constitution and through this influence the rights of all Australians.
Justice Murphy’s statement highlights the possibility that previous rulings based on precedents that are outdated are failing to meet the needs of our society and it is up to judges to make decisions now to overrule existing laws that are no longer relevant or good.
The decision to overrule terra nullius made by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR signified a change in Australia’s attitude toward the existing precedents set by British common law and highlighted how existing laws are not in the best interests of our society.
Justice Brennan, a sitting judge on the case, discussed the notion that...