State,_with_Reasons,_Whether_This_Quotation_Is_Consistent_with_the_Use_of_the_Doctrine_of_Binding_Precedent_in_Australian_Courts.

“Now it is the function of the judges, I believe, to bring laws up to date with the expectations and needs of our society.” High Court Justice Lionel Murphy addressing the National Press Club 1980. State, with reasons, whether this quotation is consistent with the use of the doctrine of binding precedent in Australian courts. High Court Justice Lionel Murphy’s statement can be considered consistent with the doctrine of binding precedent. There have been many decisions made by the High Court that reflect this statement, however, when considering the relevance of his statement to the doctrine of precedent, the position of a judge dictates the function they can perform. The doctrine of binding precedent limits judges in their power to modernise laws if the judge sits in a court that is bound by stare decisis. The context and intent of Justice Murphy’s statement is important to consider. Justice Murphy made this statement during his appointment as a Justice of the High Court of Australia and therefore an examination of this court is the most relevant. It is also of significant interest to examine the Constitution of Australia, as the High Court (as well as the Federal Court of Australia), through its decisions, determine the interpretation and application of the constitution and through this influence the rights of all Australians. Justice Murphy’s statement highlights the possibility that previous rulings based on precedents that are outdated are failing to meet the needs of our society and it is up to judges to make decisions now to overrule existing laws that are no longer relevant or good. The decision to overrule terra nullius made by the High Court in Mabo v Queensland (No 2) (1992) 175 CLR signified a change in Australia’s attitude toward the existing precedents set by British common law and highlighted how existing laws are not in the best interests of our society. Justice Brennan, a sitting judge on the case, discussed the notion that although Australian law is influenced by precedent, it is not strictly bound by this doctrine: ‘Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies.’ Justice Gerard Brennan, Mabo v Queensland (No 2) (1992) 175 CLR at 29. This recognition that Australian law is not bound by previous rulings is consistent with the view of Justice Murphy and the application of precedent in an Australian court. It is also of note that Justice Brennan refers to the law as organic, which strongly indicates that the law is not set in stone, but rather, can grow as needed. Justice Kirby makes a significant statement regarding the Mabo case and he touches on the idea that the law is constantly being refined and, that the precedent set by common law can indeed be overruled: ‘The Mabo decision made clear the circumstances in which the common law of Australia may be overruled as it advances to a higher principle. In so doing, it provided invaluable guidance for future courts faced with like problems in completely different areas of the law, less controversial.’ (Kirby 1994) This goes beyond of the initial statement of Justice Murphy as it includes the idea that future courts will be faced with problems similar to this case. Combining the organic description of the law from Justice Brennan and the clear ruling that precedent can be overturned, it is clear that Justice Murphy’s statement is a parallel to the application of precedent in Australian courts. It is interesting to note that the doctrine of terra nullius was first documented and implemented in 1835 by Governor Bourke: ‘Whereas... His Majesty’s Subjects have taken possession of vacant Lands... under the pretence of a contract ... with the Aboriginal Natives...for the possession, title, or claim ...within the limits of the Government ... is void and of no effect...’. (Bourke 1835) When Governor Bourke set this doctrine of terra nullius down, consideration of the beliefs of the settlers and, the relationship Australia had with England at the time may lead us to determine that, on the basis of probability, it was the correct decision in relation to the needs of our society. If we consider that slavery was still the norm for the British Empire, which allowed importation of slaves into its colonies until 1807 and continued using slaves in the British West Indies until 1827, it is conceivable that the powers of New South Wales considered that they were treating the indigenous population favourably. Considering the actions of Governor Bourke against Justice Murphy’s statement, it could be conceived that this decision was made to bring up to date the laws in relation to the white population of Australia at the time. However, this is a perfect example of a common law that needed intervention of judges to meet the expectations and needs of our society, which fortunately is exactly what was achieved. In Cole v Whitfield (1988) 165 CLR the ruling of the court relates to the interpretation of “absolutely free” in Section 92 of the constitution. The determination is not as poignant in this case, however t he actions of the judges is. The High Court delivered a unanimous judgment and used Constitutional Convention debate records to consider the history of the drafting of Section 92. The court then considered the role and purpose of this section in today’s society and determined that if “absolutely free” were treated as freedom from restrictions, the result would be chaotic. This is a great example of the High Court interpreting the constitution with a view to modernise the law. In Al-Kateb v Godwin (2004) 219 CLR Justice McHugh made a relevant statement regarding the interpretation of laws and whether they should consider the expectations and needs of society: ‘Many constitutional lawyers ... now accept that developments inside and outside Australia since 1900 may result in insights concerning the meaning of the Constitution that were not present to earlier generations. Because of those insights, the Constitution may have different meanings from those perceived in earlier times’ Al-Kateb v Godwin (2004) 219 CLR at 24 This statement correlates directly with Justice Murphy’s statement that it is up to the judges to bring laws up to date. It is difficult to consider the future interpretation of a Constitution and therefore the High Court’s rulings need to reflect the current needs of society and that precedent is not set in stone. It can be seen that the courts use precedent as a tool for consideration rather than a bind, and that the courts make exceptions to achieve the most appropriate ruling for the society at a given point in time. Future courts may find our rulings to be outrageous in 180 years and surely; it is the function of the judges to ensure that the laws of the future are in line with the needs and expectations of the society they influence. Clearly, Justice Murphy’s statement is consistent with the use of the doctrine of binding precedent in Australian courts. References Books Michael Kirby 1994 .In defense of Mabo. Make a better offer: The politics of Mabo.p 34. Cases Mabo v Queensland (No 2) (1992) 175 CLR Cole v Whitfield (1988) 165 CLR Al-Kateb v Godwin (2004) 219 CLR Proclamations Proclamation of Governor Bourke, 10 October 1835 (UK)