LAWS1001A Lecture Notes - Lecture 3: Family Law Act 1975, Singleton Council, Terra Nullius
2 Jul 2018
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Precedent in Australian Courts:
General Principles govern the way in which Courts operate, these include:
- Court bound by decisions of a superior Court.
- Court not bound by decisions of Court at same level or subordinate.
- Court will depart from previous decisions reluctantly, in order to preserve stability.
- Court will often observe “comity” of decisions of courts of equivalent rank in other jurisdictions.
- Court will depart from previous decisions when decision is plainly wrong.
High Court and Precedent:
High Court has both original and appellate jurisdiction, established pursuant to Constitution, s71 and
High Court of Australia Act 1979 (cth). It is not bound by any decision of a state, federal or foreign
court, but its decisions are binding on all state and federal courts. Even obiter statements should be
followed by subordinate courts, as outlined in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007)
230 CLR 89.
The High Court, however, is bound by its own decisions in some circumstances. A single judge is not
bound by the decision of another single-judge of the High Court, however is by decisions of two or
more justices of the High Court. The Full Court, is not bound by any decisions, even its own- but
departing from its own decisions should be done with reluctance.
“There is no doubt that this Court has power to review and depart from its previous decisions.
However, such a course is not lightly undertaken…” (Johns v Federal Cmr Taxation (1989))
The HCA has ruled in a few circumstances, and is outlined in the following:
■ Johns v Federal Commissioner of Taxation (1989) 166 CLR 417 at 438
– There are no absolute rules
– But 4 indicia are relevant
– “(1) earlier decisions did not rest upon a principle carefully worked out in a significant succession of cases.
– (2) a difference between the reasons of the Justices constituting the majority in one of the earlier decisions.
– (3) earlier decisions had achieved no useful result but on the contrary had led to considerable inconvenience.
– (4) earlier decisions had not been independently acted on in a manner which militated against
reconsideration…”
■ Imbree v McNeilly (2008) 236 CLR 510 at 526:
– “[To these ] we would add, if the change is necessary to maintain a better connection with more
fundamental doctrines and principles.
It should be highlighted that there is a particular caution applied in Constitutional cases,
stemming from the fact that the parliament has no power to alter the constitution without
proceeding to referendum.
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Majority view (Gleeson CJ, Gummow, Hayne & Heydon)
– “In our view, the Court should be taken as having departed from a previous decision, particularly one
involving the interpretation of the Constitution, only where that which purportedly has been overthrown has
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been replaced by some fresh doctrine, the elements of which may readily be discerned by the other courts in
the Australian hierarchy.”
Minority view (McHugh, Kirby Callinan JJ)
– “the duty of each Justice is to the fundamental law of the nation. In the history of this Court the rule of
obedience to a majority holding of the Court on a point of law has not been uniformly treated as applying in
the same way to a constitutional ruling. Nevertheless, whilst adhering to (and often expressing) individual
views concerning the meaning of the Constitution, it is normal for Justices of this Court to give effect to
majority rulings on the Constitution, if only to avoid the spectacle of deliberate persistence in attempts to
overrule recent constitutional decisions on identical questions on the basis of nothing more intellectually
persuasive than the retirement of a member of a past majority and the replacement of that Justice by a new
appointee who may hold a different view.”
Constitutional Interpretation is also complicated by the two schools of thought- those who
maintain that the Constitution should be interpreted strictly, in in accordance with the
words of the “Founding Fathers” and thus only referenda should change it (The Dead Hand),
and those who argue that the Constitution must be read as a living and contemporary
document (The Living Tree). See slides for more details.
The Mason Era (1978-1995) was a time in which the HC showed itself increasingly willing to
depart from earlier authorities, largely on the basis of the principles set out in Johns, but
also to move the law forward during a period of rapid social change. Examples of cases in
this time include Mabo (1992) which recognised native title and abolished terra nullius, and
R v L (1991) which abolished the common law rule that husbands couldn’t rape their wives-
as there was an irrevocable consent to sexual intercourse that extended from marriage.
After the Mason Era, the HC returned itself to conservatism, however has still departed
from earlier cases in some circumstances- such as Brodie v Singleton Shire Council (2001)
and Esso Australia v Fed Cmr Taxation (1999) SEE PPP14.
Federal Court and Precedent:
Federal Courts have both original and appellate jurisdiction, established under the Federal
Court of Australia Act 1976 (cth), The Family Law Act 1975 (cth) and the Federal Circuit
Court of Australia Act 1999 (cth).
Single judges of the federal court are bound by decisions of the full court, and also the High
Court.
Single judges are not bound by single-judge decisions:
La Macchia v Minister for Primary Industries (1992) 110 ALR 201, 204:
“The doctrine of stare decisis does not, of course, compel the conclusion that a judge must
always follow a decision of another judge of the same court. Even a decision of a single
justice of the High Court exercising original jurisdiction, while “deserving of the closest and
respectful consideration”, does not make that demand upon a judge of this court.”
Nevertheless, a departure must be done so conservatively.
The Family Court:
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Document Summary
General principles govern the way in which courts operate, these include: Court bound by decisions of a superior court. Court not bound by decisions of court at same level or subordinate. Court will depart from previous decisions reluctantly, in order to preserve stability. Court will often observe comity of decisions of courts of equivalent rank in other jurisdictions. Court will depart from previous decisions when decision is plainly wrong. High court has both original and appellate jurisdiction, established pursuant to constitution, s71 and. It is not bound by any decision of a state, federal or foreign court, but its decisions are binding on all state and federal courts. Even obiter statements should be followed by subordinate courts, as outlined in farah constructions pty ltd v say-dee pty ltd (2007) The high court, however, is bound by its own decisions in some circumstances.
