← The hardest concepts in Australian law
In one breath
The High Court is the final court on every question of law in Australia, is not strictly bound by its own earlier decisions, and treats the common law as a single national body of law that it shapes for itself, with decisions from England and elsewhere only persuasive. Lower courts follow the High Court, and intermediate appellate courts follow one another unless convinced that an earlier decision is plainly wrong.
The picture
The bush track
A bush track is made by those who walked it before. A new walker follows it because it was worn by many boots and leads somewhere. Yet the walker is not blind to the ground: if a flood has washed the track into a gully, a sensible walker leaves it and marks a new way. The leader of the party, who answers to nobody ahead, may re-mark the path, but should do so with care, because others have built camps along the old way.
Lower courts are the walkers behind, and follow the marked track whether or not they would have chosen it. Intermediate appellate courts walk side by side and generally follow each other’s marks unless convinced one is plainly in the wrong place. The High Court is the leader. It treats its own marks with great respect, and before re-marking it weighs whether the old decision rested on a principle carefully worked out in a succession of cases, whether the justices were divided, whether it has caused real inconvenience, and whether it has been so widely acted on that reopening it would be unfair. Tracks laid in other countries are useful maps but not binding.
Where the picture stops working
A track runs in one direction, but precedent works along several lines. The rule comes from the reasons for decision, not every remark; some decisions have no majority reasoning; and a statute can overwrite the common law entirely. The weight given to the considerations may also differ between constitutional and private law cases.
How it really works
- 1Place the rule. The common law is uniform across Australia: the High Court has said there is one common law of the country, not a separate law in each State. State statutes may differ.
- 2Find the binding authority. A decision of the High Court binds every lower court. A decision of a State’s own higher court binds that State’s lower courts. Decisions of other jurisdictions’ courts are persuasive.
- 3For intermediate appellate courts, apply the rule in Farah: do not depart from another intermediate appellate court’s decision on the same point unless convinced it is plainly wrong.
- 4For the High Court’s own decisions, weigh the considerations before overruling: the quality of the reasoning, division among the justices, inconvenience caused and reliance on the decision.
- 5Treat foreign authority as persuasive only. Appeals to the Privy Council from Australian courts have ended, and English decisions bind no Australian court.
Why people get it wrong
- Assuming Australian courts follow English decisions. They are persuasive at most, and the High Court has declined to follow them.
- Believing the High Court is bound by its own earlier decisions in the way some courts are.
- Treating every statement in a judgment as binding. Only the reasoning needed for the decision carries authority.
- Thinking intermediate courts may freely disagree with one another. The Farah rule asks for restraint.
- Forgetting that a decision with no majority reasoning is hard to treat as authority for any one principle.
A worked example
The facts are invented
The Court of Appeal of one State and the Court of Appeal of another have each held that a clause in uniform legislation means X. A third intermediate court is asked to decide the point. It should follow them unless it is convinced they are plainly wrong, and if it is, it should say why. A trial judge in that third State is bound by that State’s own Court of Appeal and by the High Court, and treats the other two courts’ decisions as persuasive.
Change the facts: an English Court of Appeal decision is exactly on point and well reasoned. An Australian trial judge may adopt its reasoning, but is not bound to. Change them once more: the High Court is asked to overrule its own earlier decision, which was reached by a bare majority and has caused uncertainty. The Court may do so, after weighing whether the earlier case has been relied on.
Try it
An English appellate decision on a point of common law is directly on point and well reasoned. An Australian trial judge, bound by no Australian decision on the point, is asked to follow it. What is the correct position?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia, (1913) 17 CLR 261
- Parker v The Queen, (1963) 111 CLR 610
- John v Federal Commissioner of Taxation, (1989) 166 CLR 417
- Lipohar v The Queen, (1999) 200 CLR 485
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd, (2007) 230 CLR 89
Where to go next
More hard concepts in Australia law
- Procedural fairness (Administrative law)
- Native title and the common law (Property law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. Australia is a federation: the Commonwealth, the six States and the Territories each make law, and the High Court is the final court for all of it. The common law, by contrast, is one law across the country. Each page says whether the rule is constitutional, federal or common law shared by every jurisdiction, or State-by-State legislation that varies, and flags where the States and Territories differ. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources of your own jurisdiction before relying on any rule.