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Cautious But Engaged—An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases

Published online by Cambridge University Press:  28 February 2019

Extract

The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking ‘to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist slide in foreign policy and security and military strategy as well. However, these normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, and how, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used.

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Copyright © 2014 by the International Association of Law Libraries. 

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References

1 See: The Use of Foreign Precedents by Constitutional Judges (Tania Groppi & Marie-Claire Ponthoreau eds., 2013), and the international workshops: World Congress of Constitutional Law 2014: Judicial and Extra-Judicial Conversation on the Constitution, (June 16-20 2014), 19th International Congress of Comparative Law: Foreign Precedents in Constitutional Litigation (July 20-26, 2014). See also the normative work in this area such as: Porat, Iddo, The Use of Foreign Law in Israeli Constitutional Decisions, in Israeli Constitutional Law in the Making (Gideon Sapir, Daphne Barak-Erez and Aharon Barak eds., 2013); Rautenbach, Christa and du Plessis, Lourens, In the Name of Comparative Constitutional Jurisprudence: The Consideration of German Precedents by South African Constitutional Court Judges, 14 German L.J. 1539 (2013); Michael, Brent, International Law in Constitutional Interpretation: A Theoretical Perspective, 23 Pub. L. Rev. 197 (2012).Google Scholar

2 See, for instance, Parrish, Austen L., Storm in a Teacup: The U.S. Supreme Court's Use of Foreign Law 2007 U. Ill. L. Rev. 637; Cohen, Harlan Grant, Supremacy and Diplomacy: The International Law of the U.S. Supreme Court, 24 Berkeley J. Int'l L. 273 (2006); Davis, Martha, Shadow and Substance: The Impacts of the Anti-International Law Debate on State Court Judges, 47 New Eng. L. Rev. 31 (2013).Google Scholar

3 Sen. Cornyn Introduces Legislation to Keep Foreign Influence Out of U.S. Courts, U.S. Federal News, March 21, 2005, quoted in Cohen, supra note 2, at 274.Google Scholar

4 The Use of Foreign Precedents by Constitutional Judges, supra note 1.Google Scholar

5 Saunders, Cheryl and Stone, Adrienne, Reference to Foreign Precedents by the Australian High Court: A Matter of Method, in The Use of Foreign Precedents by Constitutional Judges, supra note 1.Google Scholar

6 See Lynch, Andrew and Williams, George, The High Court on Constitutional Law: The 2012 Statistics, 36 U. New South Wales L.J. 514 (2013); The High Court on Constitutional Law: The 2011 Statistics, 35 U. New South Wales L.J. 846 (2012); The High Court on Constitutional Law: The 2010 Statistics, 34 U. New South Wales L.J. 1030 (2011); The High Court on Constitutional Law: The 2009 Statistics, 33 U. New South Wales L.J. 267 (2010); The High Court on Constitutional Law: The 2008 Statistics, 32 U. New South Wales L.J. 181 (2009). See also, examining the lower courts, Mark Leeming, The Federal and State Courts on Constitutional Law: The 2013 Term, Paper Presented at Gilbert + Tobin Constitutional Law Conference (February 14, 2014).Google Scholar

7 See, e.g., Bhattacharya, Mita and Smyth, Russell, The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia, 30 J. Legal Stud. 223 (2001); Smyth, Russell, Judicial Interaction on the Latham Court: A Quantitative Study of Voting Patterns on the High Court 1935-1950, 47 Australian J. Pol. & Hist. 330 (2001); Narayan, Paresh Kumar and Smyth, Russell, What Explains Dissent on the High Court of Australia? An Empirical Assessment Using a Cointegration and Error Correction Approach, 4 J. Empirical Legal Stud. 401 (2007).Google Scholar

8 In particular, it is often difficult to determine the link (if any) between citation of sources and their actual precedential influence, particularly from simple count methods. This is not only because of the practical difficulty of determining the role of any given citation in a judgment, but also because of the difficulty of isolating the relative effects of logistical and access factors, which may strongly favour or disfavour the citation of particular sources, from a judge's subjective belief in the importance of the source. See (in the context of judicial influence analysis) Landes, William, Lessig, Lawrence, and Hall, Michael, Judicial Influence: A Citation Analysis of Federal Courts of Appeals, 27 J. Legal Stud. 271, 271-76 (1998); Bhattacharya, and Smyth, , Supra note 7, at 225-29.Google Scholar

9 See generally Cane, Peter and Kritzler, Herbert, The Oxford Handbook of Empirical Legal Research (2010); Baldwin, John and Davis, Gwynn, Empirical Research in Law, in The Oxford Handbook of Legal Studies (Peter Kane and Mark Tushnet eds., 2003); Heise, Michael, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism, 2002 U. Ill. L. Rev. 891. On citation analysis, see Landes, William and Posner, Richard, Legal Precedent: A Theoretical and Empirical Analysis, 19 J. L. & Econ. 249 (1976); Posner, Richard, The Theory and Practice of Citations Analysis, with Special Reference to Law and Economics (U. Chi. John M. Olin Law & Economics Working Paper No 83, 1999); Cross, Frank et al., Citations in the US Supreme Court: An Empirical Study of Their Use and Significance, 2010 U. Ill. L. Rev. 489; Landes, Lessig and Hall, supra note 8; Klein, David and Morrisroe, Darby, The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals, 28 J. Legal Stud. 371 (1999); Hall, Michael and Wright, Ronald, Systematic content analysis of judicial opinions, 96 Calif. L. Rev. 63 (2008); Sisk, Gregory and Heise, Michael, Judges and ideology: Public and Academic Debates about Statistical Measures, 99 Nw. U. L. Rev. 743 (2005); Bhattacharya, and Smyth, , Supra note 7; McCormick, Peter, The Supreme Court Cites the Supreme Court: Follow-up Citation on the Supreme Court of Canada, 1989-1993, 33 Osgoode Hall L.J. 453 (1996); Salzberger, Eli and Fenn, Paul, Judicial Independence: Some Evidence from the English Court of Appeal, 42 J. L. & Econ. 831 (1999).Google Scholar

10 Bhattacharya, and Smyth, , Supra note 7, at 224-25.Google Scholar

11 See descriptions of the field in Cross et al., supra note 9, 513-20; Posner, , The Theory and Practice of Citations Analysis, supra note 9, and Bhattacharya and Smyth, supra note 7, at 223-25.Google Scholar

12 See, e.g., The Use of Foreign Precedents by Constitutional Judges, supra note 1; Simon, Stephen, The Supreme Court's Use of Foreign Law in Constitutional Rights Cases: An Empirical Study, 1 J. L. & Cts. 279 (2013); Stanton, Keith, Comparative Law in the House of Lords and Supreme Court, 42 Common Law World Rev. 269 (2013); Rautenbach, and Plessis, , Supra note 1; Venter, Francois, Why Should the South African Constitutional Court Consider German Sources? Comment on Du Plessis and Rautenbach, 14 German L.J. 1580 (2013).Google Scholar

13 See Historical Foundations of Australian Law (Justin Gleeson, JA Watson and Ruth Higgins eds., 2013); Patrick Parkinson, Tradition and Change in Australian Law (5th ed., 2013).Google Scholar

14 Constitutional conventions were held in Sydney in 1891 and in Adelaide, Sydney, and Melbourne in 1897-98. The draft Constitution finalised at the Melbourne session was then ratified in popular referenda in the colonies (initially excluding Western Australia) before being passed by the Imperial Parliament. See John Williams, The Australian Constitution: A Documentary History (2004).Google Scholar

15 The main exception was s 74, regarding appeals to the Privy Council. For discussion of the negotiations between the Australian delegation and Secretary of State for the Colonies Joseph Chamberlain in relation to this change, see John M Williams, The Australian Constitution: A documentary history (Melbourne University Press, 2005), J A La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972). Covering clause 2 was also changed, to remove the statement that “This Act shall bind the Crown” and covering clause 6 was changed to remove the definition of ‘colony’ out of concern in the UK regarding the application of the original definition to the Commonwealth: see Anne Twomey, The Constitution - 19th Century Colonial Office Document or a People's Constitution? (The Constitution Papers, Subject Collection No 7, Parliamentary Research Service, Canberra 1994).Google Scholar

16 See John Quick and Rudolph Garran, The Annotated Constitution of the Commonwealth of Australia 383 (1901); Nicholas Aroney, The Constitution of a Federal Commonwealth: The making and meaning of the Australian Constitution (2009). One of the delegates to the 1891 Convention prepared a book on comparative constitutional law which was the ‘companion’ of many delegates throughout the drafting process: Baker, Richard, A Manual of Reference to Authorities for the Use of the Members of the Sydney Constitutional Convention (1891). There was also reference made in the debates to James Bryce, The American Commonwealth (1888).Google Scholar

17 See, e.g., Thompson, Elaine, The ‘Washminster’ Mutation, 15 Politics, no. 2, 1980, at 32; The Constitution and the Australian System of Limited Government, Responsible Government and Representative Democracy: Revisiting the Washminster Mutation, 24 U. New South Wales L.J. 657 (2001).Google Scholar

18 The Court has two types of original jurisdiction: that conferred by s 75 of the Constitution and that conferred by legislation made under s 76. Jurisdiction for constitutional matters falls into the second category: Judiciary Act 1903 (Cth) s 30 (Austl.). Under s 73 of the Constitution and legislation made under it, the Court also has appellate jurisdiction for all cases heard by State and Territory Supreme Courts (Judiciary Act 1903 (Cth) ss 35, 35AA (Austl.)) and for all Federal Courts. This appellate jurisdiction requires the leave of the court (Judiciary Act 1903 (Cth) s 35A (Austl.)), except in circumstances where it is entrenched under s 75 of the Constitution. The Court's jurisdiction as Australia's final court of appeal has been held to be inherent in the Constitution, a finding which has implications for the degree to which State laws can validly alter the functions of State Supreme Courts: see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 and Kirk v Industrial Commission of NSW (2010) 239 CLR 531 (Austl.).Google Scholar

19 There must be a minimum of three justices on the Court: s 71 of the Constitution.Google Scholar

20 See s 72, which states that the Justices of the High Court ‘shall be appointed by the Governor-General in Council', meaning effectively the Governor-General on advice of Cabinet.Google Scholar

21 See Lynch, Andrew, Is Judicial Dissent Constitutionally Protected?, 4 Macquarie L.J. 81 (2004); 'The Intelligence of a Future Day': The Vindication of Constitutional Dissent in the High Court of Australia—1981-2003, 29 Sydney L. Rev. 195 (2007).Google Scholar

22 See classic examples like: Owen Dixon, Jesting Pilate: and other papers and addresses (1975) and see the High Court webpage of each of the current justices at About the Justices http://www.hcourt.gov.au/justices/about-the-justices. Some Justices are particularly prolific—see for example Michael Kirby and his own website at http://www.michaelkirby.com.au/ and publications (e.g. Michael Kirby, Through the World's Eye (2000) and Judicial Activism (2004)).Google Scholar

23 See French, Robert, Judges and academics: Dialogue of the hard of hearing, 87 Australian L.J. 96 (2013).Google Scholar

24 Australian Academy of Law, Members, http://www.academyoflaw.org.au/members.html (accessed 10 October 2013).Google Scholar

25 See the Before the High Court section in the Sydney L. Rev. and http://blogs.unimelb.edu.au/opinionsonhigh/.Google Scholar

26 See for instance the extensive discussion of George Winterton, Parliament, the Executive and the Governor General (1983) and related publications in Williams v Commonwealth (2012) 86 ALJR 713 (Austl.).Google Scholar

27 Elisa Arcioni was associate to Michael Kirby in 2002, Andrew McLeod was associate to Chief Justice Robert French in 2010-2011.Google Scholar

28 See also the Bulletins released by the High Court, including a listing of new books held by the High Court library at http://www.hcourt.gov.au-/library/new-books.Google Scholar

29 The incremental independence of Australia from the United Kingdom began from Federation but was not complete until 1986 at the latest: see Sue v Hill (1999) 199 CLR 462 (Austl.), referring to Statute of Westminster 1931 (Imp), Statute of Westminster Adoption Act 1942 (Cth) (Austl.), Australia Act 1986 (Cth) (Austl.), Australia Act 1986 (Imp). For detailed analysis, see Anne Twomey, The Australia Acts 1986: Australia's Statutes of Independence (2010).Google Scholar

30 See further explanation in Part 2.Google Scholar

31 There is one main exception to this: Australia's obligations under international agreements can give rise to ‘legitimate expectations’ that administrative decision-makers will not act contrary to those obligations without affording procedural fairness to those affected: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 289-91 (Mason CJ and Deane J), 302 (Toohey J), 305 (Gaudron J) (Austl.). This expectation does not confer a substantive legal right and has been interpreted narrowly: Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1, 21 (McHugh and Gummow JJ) (Austl.). International law has also been called a ‘legitimate and important influence upon the development of the common law', particularly in the context of human rights issues: Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan J, with whom Mason CJ and McHugh J agreed) (Austl.); see also Teoh supra at 288 (Mason CJ and Deane J).Google Scholar

32 See Lynch, and Williams, , The High Court on Constitutional Law: The 2012 Statistics, supra note 6, at 517; The High Court on Constitutional Law: The 2011 Statistics, supra note 6, at 848-49; The High Court on Constitutional Law: The 2010 Statistics, supra note 6, at 1034; The High Court on Constitutional Law: The 2009 Statistics, supra note 6, at 268-69; The High Court on Constitutional Law: The 2008 Statistics, supra note 6, at 183, and also Saunders and Stone, supra note 5, at 29.Google Scholar

33 Appointed October 2012.Google Scholar

34 Gageler, Stephen, The High Court on Constitutional Law: The 2001 Term, 25 U. New South Wales L.J. 194, 195 (2002), quoting from s 76(i) of the Constitution.Google Scholar

35 This is the approach also adopted by Lynch and Williams, supra note 6, but not by Gageler, supra note 34.Google Scholar

36 Saunders and Stone, supra note 5.Google Scholar

37 See, e.g., Aroney, Nicholas, Comparative law in Australian Constitutional Jurisprudence, 26 U. Queensland L.J. 317 (2007), Hovell, Devika and Williams, George, A Tale of Two Systems: the Use of International Law in Constitutional Interpretation in Australia and South Africa, 29 Melbourne U. L. Rev. 95, Rosenberg, Gerald and Williams, John, Do Not Go Gently into That Good Right: The First Amendment in the High Court of Australia, The Supreme Court Review 439 (1997); von Nessen, Paul E, The Use of American Precedents by the High Court of Australia, 1901-1987, 14 Adelaide L. Rev. 181 (1992), Williams, George, Globalisation of the ConstitutionThe Impact of International Norms, in Reflections on the Australian Constitution 192 (Lindell, Geoff, Saunders, Cheryl and French, Robert, eds., 2003) and for a comprehensive overview of the earlier literature, see Saunders and Stone, supra note 5.Google Scholar

38 French CJ joined the Court in September 2008, so from beginning of 2009 it can be considered the ‘French CJ Court'. Bell J joined the Court in Feb 2009 (upon retirement of Kirby J) and Gageler J in October 2012 (replacing Gummow, J).Google Scholar

39 See Courts of Final Jurisdiction—The Mason Court in Australia (Cheryl Saunders ed., 1996); Pierce, Jason, Inside the Mason Court Revolution: The High Court of Australia Transformed (2006); Lloyd, Clemn, Not Peace but a Sword!—The High Court Under J.G. Latham 11 Adelaide L. Rev. 175 (1987); Schubert, Glendon, Judicial Attitudes and Policy-Making in the Dixon Court, 7 Osgoode Hall L.J. 1 (1969); Mason, Anthony, The High Court in Sir Samuel Griffith's Time: Contemporary Parallels and Contrasts 3 Griffith L. Rev. 179 (1994); Frick, Graham, The Knox Court: Exposition Unnecessary 21 Federal L. Rev. 121 (1999); Williams, George, Implied Rights under the Gleeson Court, 2 Constitutional Law and Policy Review 44 (1999); Meagher, Dan, Guided by Voices—Constitutional Interpretation on the Gleeson Court, 7 Deakin L. Rev. 261 (2002); Lynch, Andrew, The Gleeson Court on Constitutional Law: An Empirical Analysis of the first Five Years, 26 U. New South Wales L.J. 32 (2004); Smyth, Russell, Judicial Interaction on the Latham Court: A Quantitative Study of Voting Patterns on the High Court 1935-1950, 47 Australian Journal of Politics and History 330 (2001); Explaining Voting Patterns on the Latham High Court 1935-50, 26 Melbourne U. L. Rev. 88 (2002); and Douglas, Roger, Judges and Policy on the Latham Court, 4 Politics 20 (1969). See also entries in The Oxford Companion to the High Court of Australia (Michael Blackshield and George Williams eds., 2001).Google Scholar

40 See, e.g., Fremont, Jacques, The Dickson Court, The Courts, and the Constitutional Balance of Powers In the Canadian System of Government, 20 Manitoba L.J. 451 (1991); Roux, Theunix, The Politics of Principle: The First South African Constitutional Court, 1995-2005 (2013); The Warren Court: A Retrospective (Bernard Schwartz ed., 1996); Tushnet, Mark, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005).Google Scholar

41 This includes appeals/original jurisdiction/special leave applications dealt with by the full court, in the sense of more than three justices.Google Scholar

42 The full list is: Wurridjal v Commonwealth (2009) 237 CLR 309 (Austl.), Wong v Commonwealth; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 (2009) 236 CLR 573 (Austl.), K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 (Austl.), Pape v Commissioner of Taxation (2009) 238 CLR 1 (Austl.), Lane v Morrison (2009) 239 CLR 230 (Austl.), Clarke v Commissioner of Taxation (2009) 240 CLR 272 (Austl.), John Holland Pty Ltd v Victorian Workcover Authority (2009) 239 CLR 518 (Austl.), John Holland Pty Ltd v Hamilton (2009) 260 ALR 103 (Austl.), International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 (Austl.), ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 (Austl.), Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 (Austl.), Arnold v Minister Administering the Water Management Act 2000 (2010) 240 CLR 242 (Austl.), R v LK; R v RK (2010) 241 CLR 177 (Austl.), Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 (Austl.), Dickson v The Queen (2010) 241 CLR 491 (Austl.), South Australia v Totani (2010) 242 CLR 1 (Austl.), Plaintiff M61/2010E v Commonwealth; Plaintiff M69 of 2010 v Commonwealth (2010) 243 CLR 319 (Austl.), Port of Portland Pty Ltd v Victoria (2010) 272 ALR 449 (Austl.), Rowe v Electoral Commissioner (2010) 243 CLR 1 (Austl.), Hogan v Hinch (2011) 243 CLR 506 (Austl.), Wainohu v New South Wales (2011) 243 CLR 181 (Austl.), Haskins v Commonwealth (2011) 244 CLR 22 (Austl.), Nicholas v Commonwealth (2011) 244 CLR 66 (Austl.), Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508 (Austl.), Momcilovic v The Queen (2011) 245 CLR 1 (Austl.), Roy Morgan Research Pty Ltd v Commissioner of Taxation (2011) 244 CLR 97 (Austl.), Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530 (Austl.), Wotton v Queensland (2012) 246 CLR 1 (Austl.), Phonographic Performance Company of Australia Limited v Commonwealth of Australia (2012) 286 ALR 61 (Austl.), Betfair Pty Ltd v Racing New South Wales (2012) 286 ALR 221 (Austl.), Sports bet Pty Ltd v New South Wales (2012) 286 ALR 404 (Austl.), Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 (Austl.), Crump v New South Wales (2012) 86 ALJR 623 (Austl.), Clodumar v Nauru Lands Committee 245 CLR 561 (Austl.), Williams v Commonwealth of Australia (2012) 86 ALJR 713 (Austl.), Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia and Anor (2012) 86 ALJR 862 (Austl.), P.T. Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 86 ALJR 1071 (Austl.), JT International SA v Commonwealth of Australia (2012) 86 ALJR 1297 (Austl.), Plaintiff M47-2012 v Director General of Security M47/2012 (2012) 86 ALJR 1372 (Austl.), Stanford v Stanford (2012) 87 ALJR 74 (Austl.), The Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment (2012) 87 ALJR 162 (Austl.). This includes State constitutional law cases (but which constitute only 2 of the 41 cases: Port of Portland Pty Ltd v Victoria (2010) 272 ALR 449 (Austl.) and Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195 (Austl.)). Saraceni v Jones (2012) 246 CLR 251 (Austl.), a special leave application not accompanied by a ‘full’ judgment, is excluded.Google Scholar

43 The costs for accessing documents held by the High Court registry are determined by the High Court of Australia (Fees) Regulation 2012 (Cth) (Austl.), which establishes an access fee of $20 per file/case, plus a copying fee of $12 per page of a transcript (and the whole transcript must be taken), or a copying fee of $3 per page for any other document.Google Scholar

44 We acknowledge the work of Chris Frommer, our research assistant, for his hours of labour in populating our spreadsheet of raw data. In presenting our data, we take the unorthodox approach of providing many of our results both as tables and graphs. This is intended to aid in the understanding of the data as it allows for the possibility of reference to figures rather than general trends.Google Scholar

45 The very large proportion of non-US/UK materials to which Kirby J cited is probably not statistically relevant as he only participated in three constitutional cases during the period under examination. Nonetheless, the pattern of referring frequently to international material is consistent with his strongly held view that international law is a legitimate influence on constitutional interpretation: Al-Kateb v Godwin (2004) 219 CLR 562, 616-617 [150] (Austl.). This view remains a minority opinion in the Australian setting: see e.g. Al-Kateb v Godwin (2004) 219 CLR 562, 593-594 [71] (McHugh J) (Austl.).Google Scholar

46 It should be noted that discretion was exercised with respect to judging what secondary material (books and periodicals) should be properly called ‘foreign'. The decision reached was on the basis of the title and subject of the work and the context in which it appeared.Google Scholar

47 Further analysis of the relationship between submissions and judgments is being developed in a separate project, with a working title 'Tracing the sources and impetus for citation to foreign precedent in Australian constitutional litigation'.Google Scholar

48 (2012) 86 ALJR 1297 (Austl.).Google Scholar

49 See the discussion of other jurisdictions in JTI's own media release: JTI, Australia High Court Decision on Plain Packaging (Aug. 15 2012), http://www.jti.com/files/8713/4502/1042/Press_release_-_Australia_High_-Court_Ruling_August_15.pdf, and Rourke, Alison, Plain Packaging Cigarette Challenge in Australia's High Court, The Guardian (online) (Apr. 20 2012), http://www.theguardian.com/world/2012/apr/17/cigarette-plain-packaging-australia-high-court.Google Scholar

50 The relevant constitutional provision is s 51(xxxi), which gives Parliament the power to make laws with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws'.Google Scholar

51 See at 1323 [109]ff (Gummow J), a central distinction between the Australian and US principles is articulated. See also at 1325 [118] (Gummow J), and again at 1365-66 [342]-[344] (Kiefel J) on the difference between ‘takings’ and ‘acquisition'.Google Scholar

52 [139]-[143].Google Scholar

53 Another example in the cases considered in this study, but which was concerned with non-constitutional issues, is in P.T. Garuda Indonesia Ltd v Australian Competition & Consumer Commission (2012) 86 ALJR 1071 (Austl.). See the section explicitly titled with reference to foreign precedents (at 1077-78 [33]-[36] (French CJ, Gummow, Hayne and Crennan JJ), reflecting the discussion which occurred before the Court: “Before the Full Court there was extensive citation of decisions from other jurisdictions with legislation comparable to the Act” (at 1077 [33]). Citation is made to the cases, but with the conclusion that: “it appeared to be common ground that there was limited assistance to be derived from those decisions. The legislation in the United States, the United Kingdom and Canada is differently expressed and has been applied in different circumstances.” This common ground is expanded upon by the Court, which identified the relevant differences between the other jurisdictions, the principles and development of the law in those countries which made it different, and therefore irrelevant, to the questions before the Australian Court.Google Scholar

54 Cole v Whitfield (1988) 135 CLR 360 (Austl.).Google Scholar

55 Betfair Pty Ltd v Racing NSW (2012) 86 ALJR 418 (Austl.) ('Betfair'); see also the related cases of Sportsbet Pty Ltd v New South Wales (2012) 86 ALJR 446 (Austl.) ('Sportsbet') and Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 (Austl.). For an overview of these cases and s 92, see Justin Gleeson, What's left of Cole v Whitfield? 24 Pub. L. Rev. 97 (2013).Google Scholar

56 Betfair (2012) 86 ALJR 418, 427-428 [38]-[41] (French CJ, Gummow, Hayne, Crennan and Bell JJ).Google Scholar

57 (1988) 135 CLR 360.Google Scholar

58 Nevertheless, a US precedent is used in Sportsbet (2012) 86 ALJR 446 to demonstrate the possibility of a law which in its form appears to be non-discriminatory, to have the effect of a discriminatory tax (at 455 [35] (Heydon J)), in the context of a concession that by some of the parties that this could occur. However, that does not answer the question on the facts of the case, it simply provides an example from a foreign jurisdiction.Google Scholar

59 Kirk v Industrial Commission of NSW (2010) 239 CLR 531 ('Kirk').Google Scholar

60 Ibid 569-570 [60]-[64] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Note that the use of history in this case is controversial, both in the materials referred to and ignored, and the conclusions reached on the basis of the materials.Google Scholar

61 See criticism of this reasoning in Roos, Oscar, Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales, 35 Sydney L. Rev. 781 (2013).Google Scholar

62 (2010) 242 CLR 1(Austl.) ('Totani').Google Scholar

63 Id. at 30-31 [32]-[33] (French CJ).Google Scholar

64 Id. at 32 [37] (French CJ).Google Scholar

65 Id. at 42 [60] (French CJ).Google Scholar

66 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140 (Austl.) ('ICM').Google Scholar

67 Id. at 173 [55] (French CJ, Gummow and Crennan JJ), and see 188-89 [109]-[110] (Hayne, Kiefel and Bell JJ).Google Scholar

68 Id. at 178 [76] (French CJ, Gummow and Crennan JJ) and 218 [197] (Heydon J), both citing National Provincial Bank Ltd v Ainsworth (1965) AC 1175.Google Scholar

69 ICM (2010) 242 CLR 1, 190-191 [112]-[113]; 200 [145] (Hayne, Kiefel and Bell JJ).Google Scholar

70 Id. at 179 [81] (French CJ, Gummow and Crennan JJ).Google Scholar

71 (2012) 246 CLR 117 (Austl.) ('AEU v Fair Work Australia').Google Scholar

72 Australian Education Union v Lawler (2008) 169 FCR 327 (Austl.).Google Scholar

73 AEU v Fair Work Australia (2012) 246 CLR 117, 142 [51] (Gummow, Hayne and Bell JJ) (Austl.).Google Scholar

74 Id. at 151-52 [80]-[84] (Gummow, Hayne and Bell JJ).Google Scholar

75 Id. at 152 [85] (Gummow, Hayne and Bell JJ) (footnote omitted, emphasis added).Google Scholar

76 Totani (2010) 242 CLR 1, 111 [285] (Heydon J) (footnotes omitted).Google Scholar

77 Crennan, Susan, Varieties of History and The Law, Speech at the Honourable Society of Lincoln's Inn, London (Jan. 31, 2010) and Scepticism and Judicial Method, 82 Australian L.J. 169 (2008); Kiefel, Susan Section 92: markets, protectionism and proportionalityAustralian and European Perspectives, 36 Monash L. Rev. 1 (2010), given as Monash Law School's 17th Lucinda Lecture (Nov. 19, 2009), and Proportionality—A Rule of Reason, 23 Pub. L. Rev. 85 (2012), given as the Sir Anthony Mason Lecture, University of Melbourne Law School (Oct. 7 2011); English, European and Australian law: convergence or divergence?, 79 Australian L.J. 220 (2005); Comparative analysis in judicial decision-making: the Australian experience, 75 Rabels Zeitschrift für ausländisches und internationales Privatrecht 354 (2011).Google Scholar

78 Rowe v Electoral Commissioner (2010) 243 CLR 1 (Austl.) ('Rowe')Google Scholar

79 See Commonwealth Electoral Act 1918 (Cth) s 93 (Austl.).Google Scholar

80 Roach v Electoral Commissioner (2007) 233 CLR 162 (Austl.) ('Roach')Google Scholar

81 See, e.g, Rowe (2010) 243 CLR 1, 14-18 [10]-[17] (French CJ).Google Scholar

82 Id. at 111 [334].Google Scholar

83 (1819) 17 US 316.Google Scholar

84 Rowe (2010) 243 CLR 1 (Austl.), 133-34 [431]-[435].Google Scholar

85 (2011) 245 CLR 1 (Austl.).Google Scholar

86 For explanation of all the arguments in the case, see Debeljak, Julie, Who Is Sovereign Now? The Momcilovic Court Hands Back Power over Human Rights That Parliament Intended It to Have, 22 Public L. Rev. 15 (2011); Bateman, Will and Stellios, James, Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights, 36 Melbourne U. L. Rev. 1 (2012).Google Scholar

87 See, for example, Hogg, Peter and Bushell, Allison, The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such A Bad Thing After All), 35 Osgoode Hall L.J. 75 (1997), which discusses a series of cases in which a dialogue mechanism has been used by Canadian courts, and in the UK context Fenwick, Helen et al., Judicial Reasoning under the Human Rights Act (2010)—and yet note discussion of the Charter in, for instance, Byrnes, Andrew et al., Bills of Rights in Australia: History, Politics and Law (2009); Williams, George, Victorian Charter of Human Rights and Responsibilities: The Origins and Scope, 30 Melbourne U. L. Rev. 880 (2006); Kelly, James, A Difficult Dialogue: Statements of Compatibility and the Victorian Charter of Human Rights and Responsibilities Act, 46 Australian Journal of Political Science 257 (2011); Stephenson, Scott, Constitutional Re-Engineering: Dialogue's Migration from Canada to Australia, 11 International Journal of Constitutional Law 870 (2013).Google Scholar

88 Id. at 37-38 [19]-[20] (French CJ) (footnotes omitted).Google Scholar

89 Id. at 109 [238] (Gummow J).Google Scholar

90 The ‘text and structure’ approach has been the subject of significant academic criticism—see particularly Stone, Adrienne, The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication, 23 Melbourne U. L. Rev. 668 (1999) and The Limits of Constitutional Text and Structure Revisited, 28 U. New South Wales L.J. 842 (2005); Aroney, Nicholas, Justice McHugh, Representative Government and the Elimination of Balancing, 28 Sydney L. Rev. 505 (2006), and The High Court on Constitutional Law: The 2012 TermExplanatory Power and the Modalities of Constitutional Reasoning, 36 U. New South Wales L.J. 863 (2013).Google Scholar

91 See Saunders, and Stone, , Supra note 5, at 26-28.Google Scholar

92 This would contribute to the small body of scholarship on the High Court in particular time periods: see supra note 40.Google Scholar

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