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The Supreme Court And Precedent Essay Research

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 .


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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.



Bibliography


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1987.


Bird, G. The Process of Law in Australia. Sydney: Butterworths, 1988.


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


Co., 1979.


Cullen, R. ‘Mabo v Queensland’ (1990) 20 (1) University of Western


Australia Law Review 190-194.


Fitzgerald, G. E. ‘Law Reform – the Judges Role’ The Mayo Lecture, 2


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Fitzgerald, P., Kewley, G. This Law of Ours. Sydney: Prentice Hall,


1978.


Galligan, B. Politics of the High Court. St. Lucia: The University of


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Gibbs, H. ‘The Separation of Powers – A Comparison’ (1987) 17 (3)


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Malcolm, D. ‘High Court and Democracy’ The West Australian, 25 June


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753.


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


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Wade, E. & Bradley, A. Constitutional Law. London: Longmans, 1966.


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Butterworths, 1992.

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