Australian Politics and Policy - Senior, 2019a

Courts
Suchrightsarefoundinthecommonlaworgrantedbythelegislaturethrough
statutes.
Perhaps the most essential power of the courts is to provide a binding and
authoritative decision so that the dispute between the parties is finally determined,
at least once any appeal process is completed. Once authoritatively determined,
the decision, whether private or public in nature, can be enforced by the executive
government if it is not willingly accepted by one of the parties.
Although not specifically mentioned in the statement of Griffith CJ quoted
above, other cases emphasise the importance of a fourth feature of the courts’
decision-making process: to adjudicate a controversy by applying ‘judicial process’. 7
‘Judicial process’ will be touched upon when discussing the separation of powers
doctrine later in this chapter. It is sufficient for now to observe that ‘judicial process’
is deciding a controversy ‘in accordance with the methods and with a strict
adherence to the standards which characterise judicial activities’. 8
Historical development
Australia’s common law system is inherited from England. The term common law
reflects one of this legal system’s theoretical aims: to create a ‘common’ system of
law. That is, a system of law that applies to all, regardless of wealth, station or
political influence. From a practical perspective, common law rules are created by
the courts when they decide a dispute. To explain how it has decided a particular
dispute, the court issues a judgement outlining the rules of law that have been
applied. The rules of law or precedents in these judgements are then developed,
modified or extended by later courts when they decide similar or analogous
disputes. Courts that are lower in the hierarchy must follow the precedents created
by higher courts. The requirement that judges follow the judgements of earlier
courts is referred to as the doctrine of precedent.
In England, the common law has existed since the 12th century, when the
King appointed judges to act as his ‘surrogates’ to dispense justice. The judges were
known collectively as the King’s Court. 9 While originating in a time when the King
of England ruled with almost absolute power, the common law was not developed
to only and always benefit the King. Rather, the common law ‘was founded in
notions of justice and fairness of the judges, consolidated by their shared culture,
their professional collegiality, and a growing tradition’. 10 Indeed,withtheriseofthe
commonlawtherealsograduallydevelopedaviewthattheKing’spowerwasnot
absolute but was subject to limits. Of course, the King’s power diminished further
7 Graham v Minister for Immigration and Border Protection [2017] HCA 33, [39].
8 R v Spicer; Ex parte Australian Builder’s Labourers Federation (1957) 100 CLR 277.
9 Crawford and Opeskin 2004, 6–7.
10 Crawford and Opeskin 2004, 6.
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