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What's the Deal with Obiter Dicta?

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Reading a case can be difficult and trying to find the ratio can be even trickier, especially where each judge writes a separate judgment. When they arrive at the same conclusion, sorting through their reasoning almost makes you think “Okay, what was the point of that?” This is even more so the case when the ratio has been overruled but you’re expected to read it for “seriously considered obiter”. Obiter may seem unimportant, but guess what? It’s binding.

Isn’t obiter just the rest of the case and everything that’s not the ratio and the facts? Not exactly. An easy rule of thumb is that obiter dicta aren’t the ratio, previous case law, the facts or orders. Its weight may vary, depending on whether it’s a passing comment, or a rule-like statement about how the law would apply to a scenario not found on the facts.

Obiter isn’t just fluff. In fact, it’s often persuasive. But how persuasive is ‘persuasive’? If the statement is more than just a passing comment, it should be considered, not disposed of. Per the High Court’s decision in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007), ‘seriously considered’ obiter of a High Court majority is binding on lower courts.

How does this affect your studies? Consider the following examples. A question may ask whether a certain case could be decided differently today (“Given the trend in High Court constitutional jurisprudence towards accepting practical operation of the law in determining whether it validly engages a s 51 head of power, how would Western Australian Airlines (1976) be decided today?”), or an essay may require you to discuss an uncertain area of law (“The two approaches to standing law in Australian Conservation Foundation Inc v Commonwealth (1980) and North Coast Environment Council Inc v Minister for Resources (No 2) (1994) cannot be reconciled. Discuss.”). A discussion of obiter can reinforce your argument by demonstrating that it is capable of judicial acceptance, even if they were not directly related to the cases in which they were raised.

The value of obiter can also be clearly seen in moots, which often require an engagement with contentious areas of the law, which means researching obiter. In most of the moots that I’ve participated in, a judge has almost always asked if certain obiter dicta in a High Court judgment would be binding on lower courts (the answer is yes if seriously considered: see Farah above).

So go forth and be sure not to neglect obiter. You never know when it may come in handy!

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