The Supreme Court And Precedent Essay Research

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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.