" Judges (Courts) do not 'make' law but merely interpret the law.

"

The above statement contain the whole legislative system in itself. To analysis the above
statement one must be aware and clear about the functioning of judges or courts. Most of all
Judges are considered as decision makers in the pursuit of justice on the basis of there following
functions :

i) They assess the evidences presented before them

ii) They interpret the law
iii) Control the hearing and trials in their courtrooms
iv) Make their decisions with reference of law

As per the above major functions of the judges it clear that they don’t play any role to making
law rather their decisions and justice are depends upon already defined acts and law or it can be
said that judges are the separate body of law interpreters which is entirely different from the law
makers. The validity of this statement can be further analyze with the reference of doctrine of
separation of powers :

The doctrine of separation of powers :-

As per the doctrine of separation of power in Australia divides the powers of the Government into three
branches:

POWER OF THE GOVERNMENT

Legislative Executive Judicial

1 ) Legislative : - This branch is responsible for making laws or it can say that legislature makes the
laws.

2) Executive :- The executive put the laws into operation.

3) Judicial :- The judiciary interprets the laws

In the country of Australia there is little separation between the executive and the
legislature, with the executive required to be drawn from, and maintain the confidence of, the
legislature. As per the ideas provided by various famous scholars like Kairys, Griffith and
Waldron all accept that judges do have discretion, and therefore they do to some extent make
liaw. As per the doctrine of separation of powers laws are made at parliamentary level or at
legislative branch but in some cases this doctrine may be overlapped as per the circumstances
where situations are entirely unique, in such extraordinary situations judges do make significant
amendments in law according to situation as per the case of Airedale N.H.S. Turst Vs. Bland
(1993)(i). In this case Tony Bland was a young football supporter who was caught in the
Hillsborough crush which reduced him to a state of comma, and in this case judges have to
decide his fate . He has been kept alive in this state for three years with the help of
Euthanasia and life support machines. His brain was still working, which control rest of his body
parts and indicate that he is still alive. But he was not conscious and there is no hope for
recovery. As it was clear that there was no chance and hope of recovery, the hospital authorities
with the consent of the parents Tony Bland applied for a declaration that it might lawfully
discontinue all life-sustaining treatment and medical support measures designed to keep him
alive in that unconscious state, including the termination of ventilation, nutrition and hydration
by artificial means. The court had to decide whether it was lawful to stop supplying the drugs
and artificial feeding that were keeping Mr Bland alive, even though it was known that doing so
would mean his death soon afterwards. And the decision was granted by the court, Nevertheless,
the courts had no option but to make a decision one way or the other, and they decided that the
action was lawful in the circumstances, because it was in the patient’s best interests. So it can be
said that in certain cases where law is not clear regarding the particular situation in that case
judges play their own role to keep the justice alive. It can be further clarify with the help of
doctrine of precedent;

The doctrine of precedent :

This is an important principle in the field of law it emphasis that each court is bound with the
decisions of the higher court in the same judicial hierarchy. Further the highest court in judicial
hierarchy can overrule it's previous decision, and a decision of a court of different hierarchy may
be of considerable weight, but will not be binding, as it was decided in the case of Lipohar v R
[1999](2) . in this case The ultimate foundation of precedent which binds any court to statements
of principle, ‘that a court or tribunal higher in the hierarchy of the same juristic system, and thus
able to reverse the lower court’s judgement, has laid down that principle as part of the relevant
law.' In simple worlds it can be said that the law expounded in one case should be followed in
later similar cases by the lower courts as "stand by the things which has been decided". So as
per this doctrine the decision given by higher court or it can be said the decisions of the judges of
the higher court in an hierarchy may become the law for the judges of the lower courts in the
same hierarchy.

i
(1) Airedale N.H.S. Trust v Bland [1993] A.C. 789 House of Lords

(2) Lipohar v R [1999] HCA 65; 200 CLR 485; 74 ALJR 282; 168 ALR 8
Mobo Vs. State of Queensland (No.2)

(3)
As decided in the case of Mobo Vs State of Queensland (No. 2) The High Court’s decision
fundamentally changed the manner in which land law was interrupted in Australia, predominately due
to the fact that it reversed the historical doctrine of ‘terra nullis’ on which the basis of all previous British
possession of land claims in Australia were based. On 20th May 1982 Eddie Mabo, David Passi, James
Rice and others brought an action against the State of Queensland and the Commonwealth of Australia
in the High Court for the purposes of claiming land rights to the Murray Islands based upon their local
custom and traditional native title. In this case plaintiff , Mobo representing the Merriam people, had
occupied certain islands in Queensland long before colonial occupation. These islands were annexed to crown
in the year 1879. This declared that upon annexation of the islands in 1879, everything became vested solely
in the state of Queensland. his case concerned the question of ownership and title, in particular, whether the
common law doctrine of tenure could coexist with native title. The judgment was given by the court as " This
Indigenous Peoples' land title, or native title, stems from the continuation within common law of their
rights over land which pre-date European colonisation of Australia. In the absence of an effective
extinguishment by the crown, this title presents through inheritance the original occupants' right to
possession of their traditional lands in accordance with their customs and lores." In 1992, at only 55,
Eddie died of cancer. Five months later the High Court of Australia overturned the doctrine of terra
nullius. The Mobo Judgement become a significance law in the Australian economy. The Mabo judgment
is a very important step towards the achievement of justice in Australia. The native title is effectively the
recognition at law of the right of Aborigines to inherit land from their families. As such, it is the same
right as is being enjoyed by rich Aboriginal Australians since colonization. As Mabo’s legacy unfolds in the
shape of the Native Title Act 1993, Australia, as a nation, comes to realise the important role that land
use, access and ownership has. It is the duty of all concern with justice. that they make the effort to
ensure that such reforms are achieved. So it is very much clear from the historical case of Mobo how
valuable interpretation of judges became a mile stone for the all mining and native title cases.