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.
