Discuss the proposition that" judges make law when they decide cases.
(include, footnote,reference etc.)

Hello rodhi-ga,

The Parliament of New South Wales' website
(http://www.parliament.nsw.gov.au/prod/web/PHWebContent.nsf/PHPages/SystemofGovernmentCourtsTheJudiciary?OpenDocument)
describes the following sources of law:

The Sources of Law
There are two main sources of law in New South Wales.

1. Legislation or Statute Law 
Parliaments pass laws (or 'statutes'). These can be Federal or State
Parliaments, depending on what the laws are about. The Australian
Constitution sets out the powers of the Federal Parliament. The States
retain all other (residual) powers and may pass laws in all areas not
specifically allocated to the Commonwealth. Laws passed by parliaments
often give Ministers the power to make regulations under a particular
Act (such as road traffic rules) - thus Ministers can, in effect, amke
laws, although these can be overridden by Parliament. Generally, where
state and Commonwealth laws disagree, the court will find the
Commonwealth law to be superior. The highest or basic form of state
law is constitutional law, that established by the constitution.

2. Case Law or Common Law 
The courts are the custodians of the rights of citizens; they
interpret laws passed by parliament; and, through their decisions,
make the common law. The courts usually follow precedent; that is make
decisions based on what earlier courts have decided was the law when
similar facts were presented in a case. However, judges often have to
decide how to apply the law to a completely new situation. If there is
no legislation covering the area, the judges have to decide what the
law should be in this new situation, so as to settle the dispute
before them. Thus the common law is built up over time with the
decisions and interpretations of judges. Statue Law often has the
effect of reducing or eliminating any common law that may have existed
in the same area. In Common Law countries like Australia that have no
constitutional bill of rights, individual and property rights are
largely protected through common law.

According to Austrailian Law Online
(http://law.gov.au/auslegalsys/auslegalsys.htm):

In Australia, the law consists of:

Acts passed by the Federal Parliament acting within the scope of its
powers under the Australian Constitution, together with delegated or
subordinate legislation made under such Acts

Ordinances made in respect of the Territories, together with delegated
or subordinate legislation made under such Ordinances

Acts passed by State Parliaments and the Legislative Assemblies of the
Northern Territory, the Australian Capital Territory and Norfolk
Island, together with delegated or subordinate legislation made under
such Acts so much of the common or statute law of England that was
received, still applies to Australia and remains unrepealed, and the
Australian common law, which developed from the English common law and
is interpreted and modified by the Courts.

The following PDF file link goes into great detail about what exactly
Austrailian Federal Court Judges do:
http://www.fedcourt.gov.au/pdfsrtfs_W/what_do.pdf

Thank you for the question and if this answers your question
correctly, please rate it accordingly, and if you have any problems
with the answer please ask for a clarification and I will be glad to
help.

masters-ga

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Request for Answer Clarification by rodhi-ga on 03 Sep 2002 02:48 PDT

I'm bit confuse about your answer. What I need is as I told u above I
need to answer the followoing proposition: "judges make law when they
decide cases" so could u pls calrify it.

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Clarification of Answer by masters-ga on 03 Sep 2002 19:43 PDT

Let me know if this helps:

An article from theage.com.au by Murray Gleeson discusses the capacity
of judges to make law:

There are important practical limitations on the capacity of judges to
make law. Judges do not set their own agenda. They deal with issues
that litigants bring to them for decision. They cannot avoid questions
that have to be answered to decide the cases that come to them; and
they cannot answer questions that are not brought to them for
decision.

Australian courts do not give advisory opinions. They resolve concrete
issues raised by disputing litigants. Further, the procedures by which
they deal with those disputes mean that they are not well placed to
form an opinion on issues outside those in contest between the
parties.

It is the litigants and their lawyers who decide the information that
will be put before a court, and the arguments that will be presented.

Judges have to be independent of all interests that might otherwise
seek to influence the outcome of proceedings. In particular, they have
to be independent of the executive government. This is because so much
of their work involves dealing with disputes between the executive
government and citizens, and maintenance of the rule of law frequently
requires courts to uphold the rights of individual citizens against
the executive government.

In order to preserve their independence and to manifest their
impartiality, judges are given security of tenure. They cannot be
removed by a government displeased with their decision-making.

To read more, follow this link:
http://216.239.33.100/search?q=cache:tKvJclawjHMC:www.theage.com.au/news/2000/12/22/FFX8G0QAZGC.html+australian+judges+make+law+when+they+decide+cases&hl=en&ie=UTF-8