The Supreme Court and Precedent
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
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
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
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.
1 G. Bird, The Process of Law in Australia. (Sydney: Butterworths,
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  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  AC 375.
Benditt, T. The Rule of Precedent. New York: Oxford University Press,
Bird, G. The Process of Law in Australia. Sydney: Butterworths, 1988.
Black, H. Black's Law Dictionary. 5th ed., St Paul: West Publishing
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
Fitzgerald, P., Kewley, G. This Law of Ours. Sydney: Prentice Hall,
Galligan, B. Politics of the High Court. St. Lucia: The University of
Queensland Press, 1987.
Gibbs, H. 'The Separation of Powers - A Comparison' (1987) 17 (3)
Federal Law Review 152.
Goldstein, L. Precedent in Law. Oxford: Oxford Clarenden Press, 1987.
Graham, T. & Haddon, G. Precedent in Practice. Sydney: Law Book Co.,
Hanks, P. Australian Constitutional Law: Material and Commentary. 5th
ed., Sydney: Butterworths, 1990.
Horrigan, B. 'Implications of the Mabo Decision' (1993) 8 (2)
Australian Property Law Bulletin 21-59.
Horrigan, B. 'Taking the High Court's Jurisprudence Seriously' (1990)
4 Queensland Law Society Journal 143.
Horrigan, B. 'Towards a Jurisprudence of a High Court overruling'
(1992) 66 Australian Law Journal 199.
Kirby, M. 'In Defence of Mabo' (1994) 1 (2) The Reporter 18-21.
Lane, P. A Digest of Australian Constitutional Cases. 3rd ed., Sydney:
The Law Book Co., 1988.
Lane, P. A Manual of Australian Constitutional Law. 2nd ed., Sydney:
The Law Book Co., 1987.
Lindgren, K. 'The Law making Role of the High Court' (1994) 11
Australian Bar Review 185-186.
Malcolm, D. 'High Court and Democracy' The West Australian, 25 June
1994, p. 47, column 2.
Mason, A. 'The Use and Abuse of Precedent' (1988) 4 (2) Australian Bar
Prott, L. 'When will a Superior Court Overrule its own Decision?'
(1978) 52 (6) Australian Law Journal 304-315.
Smith, M., Pose, K. & Bryant, T. Legal Process Commentary and
Materials. 5th ed., Sydney: The Law Book Co., 1988.
Springall, R. 'Stare Decisis as applied by the High Court' (1978) 9
Federal Law Review 483.
Starke, J. 'Criteria according to which a final appellate court will
overrule an earlier decision by it' (1990) 64 Australian Law Journal
Virtue, B. 'High Court is planning new rules' (1993) 28 (6) Australian
Lawyer 18- 24; 26-28.
Von Nessen, P. 'The Use of American Precedents by the High Court of
Australia' (1992) 14 Adelaide Law Review 181.
Wade, E. & Bradley, A. Constitutional Law. London: Longmans, 1966.
Zines, L. The High Court and the Constitution. 3rd ed., Sydney: