The Supreme Court and Precedent
The Supreme Court and PrecedentMany 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...
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