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 
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. 


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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