The Supreme Court And Precedent Essay, Research Paper

Many recent decisions by the High Court have come under the

spotlight of public scrutiny. Questions have been raised over the

Court’s adherence to the Doctrine of Precedent and the Separation of

Powers doctrine. This paper will examine the theoretical

and practical issues placed upon the High Court from the Precedent

doctrine.

The Doctrine of Precedent requires that ‘like cases be decided

alike’. If a case now before the court has facts and raises issues

similar to those of a previously decided case, then the present case

will be decided in the same way as the earlier one. In this way, the

earlier case, referred to as ‘a precedent’ will have provided a legal

basis on which the latter case and subsequent cases could be decided1

. Generally, lower courts are bound to follow the decisions of courts

higher than them in the same hierarchy. With the abolition of all

avenues of appeals to the Privy Council, the High Court is the most

superior court in Australia2 . The closely connected principle of

stare decisis is defined as ‘the policy of courts to stand by

precedent and not to disturb a settled point’3 .

In Australia, there is still a need to maintain the use of the

doctrine because it provides a level of cohesion and consistency in

the law and society4 . Many pundits believe that some of the recent

decisions handed down by the High Court have departed from the

Doctrine of Precedent, this could not be further from the case. In

Mabo v Queensland5 the High Court merely exercised judicial

creativity, a power legitimately allocated to the judiciary which does

not discard the Doctrine of Precedent. Furthermore this may be

attributed to the shift in precedential stature of many of the High

Court’s previous decisions from strictly binding to persuasive, an

attitude adopted following the House of Lords Practice Statement of

19666 . But despite this change in the way stare decisis is applied by

the High Court, the extent of its use has not declined.

The Court has always departed from precedent, in 1913 the High

Court concluded that it could depart from precedent, and should such a

proper case arise, they would do so7 . High court cases such as Cullen

v Trappell8 where the full court overruled a two year old decision in

Atlas Tiles Ltd. v Briers9 as erroneous; and also in Mabo v Queensland

where it declared the status of Terra Nullius given to Australia as

settled lands in 1788 needed reconsideration. When the High Court

overrules binding precedents, this does not suggest a decrease in the

use of precedent as a principle. In Mabo, it seemed more appropriate

for the High Court to use precedent from other court hierarchies10 ,

such as the rejection of Terra Nullius by the international Court in

Western Sahara11 .

Some believe the Doctrine of Precedent brings inflexibility

and limits the Court’s ability to adopt rapid changes in society. Such

advantages are overridden by guarantees of impartiality and the

provision of certainty and stability12 . Blackburn J in the Gove Land

Rights case13 was of a similar opinion. Precedent also underpins the

role and public expectations of judges as to their impartiality and

strict adherence to the law.

The Court does however understand that the law has to adapt

with changes in society. The use of judicial creativity by the Court,

does not suggest a departure from precedent. Judicial creativity

provides a means for the Court to adapt law to modern society.

Therefore, If application of judicial creativity is intertwined with

the notion of precedent, then the idea that the use of precedent is

declining can be negatived. When the High Court does depart from long

held precedent, it is merely setting down new precedents14. This does

not suggest a ‘decline’ in the use of precedent but rather the

foundations of new precedents where the court evolves with societal

change.

There are limitations to judicial creativity. Since the

decision of Queensland v Commonwealth15 the issue of overruling has

become harder to justify. Where the court does make decisions

contrary, a high level of justification is required. Gibbs J said,

‘It is only after the most careful and respectful consideration of

earlier decisions, and after giving due weight to all circumstances,

that a Justice may give effect to his own opinions in preference to an

earlier decision of the court’16 . When the court does overturn and

restate aspects of common law in Australia it is merely declaring the

law for the future and not just for an instant.

There are strong arguments against the unrestrained power of

the High Court to function in its creative capacity; as an extreme

of this would jeopardise the use of the Doctrine of Precedent. Unlike

parliament, courts do not have advisory committees nor are they

accountable for their decisions. However, in the end it is up to

parliament to decide, through a system of checks and balances inherent

in the Australian system of government and law. If parliament is

dissatisfied with a decision of the High Court it can merely overrule

its decision as long as it does not impeach upon the provisions

contained within the Constitution17 .

The importance of precedent is summed up in the words of Lord

Gardiner in London Tramways Co. v London City Council18 where he said,

‘…[justices] regard the use of precedent as an indispensable

foundation upon which to decide what is the law and its application to

individual cases. It provides at least some degree of certainty upon

which individuals can rely in the conduct of their affairs, as well as

a basis for an orderly development of legal rules’19. Certainty leads

to stability, and it is of the foremost importance in creating order

in society.

With the dynamic nature of the High Court as Australia’s

highest court has come the need for a change in the precedential

stature of many of its past decisions from strictly binding to

persuasive. The courts adherence to and use of the Doctrine of

Precedent as a fundamental principle of common law has not decreased.

The doctrine has encompassed both binding and persuasive decisions

despite the emphasis upon those which are authoritative. As the Court

enters the next century, so too will the foundations upon which

Australia became a nation and with it, the beliefs of an entire

melting pot of people as diverse as the universe itself.

—

Footnotes

1 G. Bird, The Process of Law in Australia. (Sydney: Butterworths,

1988) 234.

2 Privy Council (Appeals from the High Court) Act 1975 (Cth).

3 H. Black, Black’s Law Dictionary (5th ed., St Paul: West Publishing

Co., 1979) 1059.

4 Bird, op. cit. 235.

5 Mabo and Others v State of Queensland (No. 2) (1992) 175 CLR 1.

6 J. Stone, ‘The Lords at the Crossroads – When to Depart and How!’

(1972) 46 Australian Law Journal 483.

7 Australian Agricultural Co. v Federated Engine-Drivers and Firemen’s

Association of Australasia (1913) 17 CLR 261, 274.

8 Cullen v Trappell (1980) 54 ALJR 295.

9 Atlas Tiles Ltd. v Briers (1978) 52 ALJR 707.

10 Virtue, B. ‘High Court is planning new rules’ (1993) 28 (6)

Australian Lawyer 23.

11 [1975] 1 CJR 12.

12 Bird, op. cit. 236.

13 Milirrpum and Others v Nabalco Pty Ltd. and The Commonwealth of

Australia (1971) 17 FLR 141.

14 M. Kirby, ‘In Defence of Mabo’ (1994) 1 (2) The Reporter 19.

15 Queensland v The Commonwealth (1977) 139 CLR 585.

16 id. 620.

17 D. Malcolm, The West Australia, 25 June 1994, page 47, column 2.

18 London Tramways Co. v London City Council [1898] AC 375.

19 ibid.

—

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