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The High Court's Use of the Doctrine of 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 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. 
1 G. Bird, The Process of Law in Australia. (Sydney:
Butterworths, 1988) 234. 

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

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,

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

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. 
Benditt, T. The Rule of Precedent. New York: Oxford
University Press, 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 September 1994. 
Fitzgerald, P., Kewley, G. This Law of Ours. Sydney:
Prentice Hall, 1978. 
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., 1983. 
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
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 Review 111. 
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 753. 
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: Butterworths, 1992. 


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