After the Australia Acts: the High Court’s attitude to changing the common law (1987–2016)

ABSTRACT

The end of Privy Council appeals in 1986 was a transformative event in Australia’s common law history. This article examines the High Court of Australia’s attitude to changing common law doctrines in the period 1987–2016, covering the Mason, Brennan, Gleeson and French Courts. Throughout this period, it is shown that the Court has consistently been willing to overturn and modify common law rules for the sake of achieving coherence and certainty to the law. However, it is argued that the Mason Court espoused a bolder vision of the permissible bases for change, in contrast to the Gleeson and French Courts. The Mason Court derived new common law rights from general principles, and invoked contemporary values and international human rights norms to change common law doctrines. In the Gleeson and French eras, a majority of judges were disinclined to consider justifications of this nature, even when opportunities existed.

KEYWORDS:

• High Court of Australia
• change in the common law
• judicial law-making
• abolition of Privy Council appeals

Acknowledgments

For their valuable comments, the author thanks participants at the 2017 Australia and New Zealand Law History Society Conference, Justice Stephen Kós (President of the Court of Appeal in New Zealand) and Professor Steve Hedley.

Notes

1 Sir Anthony Mason, ‘The Judge as Law-Maker’ (1996) 3 James Cook University Law Review 1; Tom Bingham, The Business of Judging: Selected Essays and Speeches (Oxford University Press 2000) 28; Sir Robin Cooke, ‘The New Zealand National Identity’ (1987) 3 Canterbury Law Review 171, 171–72; Bora Laskin, ‘The Role and Functions of Final Appellate Courts: The Supreme Court of Canada’ (1975) 53 Canadian Bar Review 469, 477–78. For an early acknowledgment of judicial law-making in common law matters, see Lord Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law 22, 22.

2 Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, 142 (High Court of Australia (HCA)) (emphasis added) (Theophanous).

3 The ‘Australia Acts’ comprise the Australia (Request and Consent) Act 1985 (Cth), the Australia Acts (Request) Act 1985 (passed by each State), the Australia Act 1986 (Cth), and the Australia Act 1986 (UK).

4 As noted in this article, a growing sense of independence in common law matters is seen earlier in the 20th century, particularly from the 1960s.

5 The complete abolition of Privy Council appeals contributed to a ‘judicial mindset’ under which the High Court ‘undertook a new responsibility for shaping the law for Australia’: Tony Blackshield, Michael Coper, and George Williams, ‘Privy Council’ in Tony Blackshield, Michael Coper, and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press 2002) 560, 563. For strong judicial acknowledgments that the Australian common law can take a different path to English law, see: Mabo v Queensland (No 2) (1992) 175 CLR 1, 29 (Brennan J) (HCA) (Mabo); Paciocco v Australia & New Zealand Banking Group Ltd [2016] HCA 28 [6]–[10] (French CJ) (HCA).

6 See, eg, Michael McHugh, ‘The Constitutional Jurisprudence of the High Court: 1989–2004’ (2008) 30 Sydney Law Review 5; Gian Boeddu and Richard Haigh, ‘Terms of Convenience: Examining Constitutional Overrulings by the High Court’ (2003) 31 Federal Law Review 167; Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years’ (2003) 26 University of New South Wales Law Journal 32; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2016 and French Court Statistics’ (2017) 40 University of New South Wales Law Journal 1468 (since 2003, the authors have published annual analyses regarding the High Court’s constitutional jurisprudence).

7 See McHugh, ‘The Constitutional Jurisprudence of the High Court’ (n 6) 8–9.

8 Notably, the assertion of a conservative shift has been expressed both by judges who have espoused a liberal conception of the judicial law-making function (see Justice Michael Kirby, ‘Ten Years in the High Court—Continuity & Change’ (2005) 27 Australian Bar Review 4, 9–10) as well as those who have advocated judicial restraint (see Justice John Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Australian Bar Review 110, 123).

9 See, eg, Jonathan Burnett, ‘Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees’ (2007) 29 Sydney Law Review 163; Thalia Anthony, Lorana Bartels, and Anthony Hopkins, ‘Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice’ (2015) 39 Melbourne University Law Review 47; JW Carter and others, ‘Terms Implied in Law: “Trust and Confidence” in the High Court of Australia’ (2015) 32 Journal of Contract Law 203.

10 Fiona Wheeler and John Williams, ‘“Restrained Activism” in the High Court of Australia’ in Brice Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford University Press 2007) 19, 56; Haig Patapan, ‘High Court Review 2001: Politics, Legalism and the Gleeson Court’ (2002) 37 Australian Journal of Political Science 241, 242. Extrajudicial speeches and writings of Chief Justices (and other High Court judges) during the period studied are considered in some detail in section 5 of this article.

11 Patapan, ‘High Court Review’ (n 10) 241 and generally 241–43. See generally, Sir Owen Dixon, ‘Concerning Judicial Method’ (1956) 29 Australian Law Journal 468, 469–72.

12 See Patapan, ‘High Court Review’ (n 10) 242.

13 See, eg, Mason, ‘The Judge as Law-Maker’ (n 1) 3; Sir Anthony Mason, ‘The Australian Judiciary in the 1990s’ (1994) 2 Australian Law Librarian 65, 67–68.

14 Paul Kildea and George Williams, ‘The Mason Court’ in George Williams and Rosalind Dixon (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press 2015) 244, 258; Wheeler and Williams (n 10) 67. As discussed in this article, certain decisions of the Mason Court (and to a lesser extent, the Brennan Court) were openly criticised by the government.

15 As shown in this article, one species of change that falls within orthodox legal methods concerns the overturning and modification of doctrines that are inconsistent with higher order accepted general principles. Such changes grounded in ‘coherence’ have been seen throughout the 30-year period examined, including in the Gleeson and French eras.

16 See Harold Luntz, ‘Torts Turnaround Downunder’ (2001) 1 Oxford University Commonwealth Law Journal 95; Harold Luntz, ‘A View from Abroad’ [2008] New Zealand Law Review 97; Pam Stewart and Anita Stuhmcke, ‘High Court Negligence Cases 2000–10’ (2014) 36 Sydney Law Review 585. Their findings will be referenced in detail later in this article.

17 See Mason, ‘The Judge as Law-maker’ (n 1) 7; Reid (n 1) 24.

18 Relevant High Court decisions were found both by searching online case databases and conducting a detailed examination of the literature regarding the development of the Australian common law. In particular, as this study is limited to cases where the High Court has explicitly overturned a common law rule, using appropriate search terms in online case databases is considered a reliable method as judgments necessarily adopt certain characteristic expressions to indicate a rule is no longer part of the common law (eg, ‘overrule’, ‘overturn’, and ‘should no longer be followed’).

19 See, eg, David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 (HCA) (David Securities); Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (HCA) (Burnie Port Authority); Northern Territory v Mengel (1995) 185 CLR 307 (HCA); Brodie v Singleton Shire Council [2001] HCA 29 (HCA) (Brodie); Imbree v McNeilly [2008] HCA 40 (HCA).

20 See, eg, Mabo (n 5); Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67 (HCA) (Esso).

21 See, eg, Dietrich v The Queen (1992) 177 CLR 292 (HCA) (Dietrich); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (HCA) (Teoh).

22 This view has been expressed by both Mason and Gleeson: see Sir Anthony Mason, ‘Reflections on the High Court of Australia’ (1995) 20 Melbourne University Law Review 273, 280; Murray Gleeson, ‘Australia’s Contribution to the Common Law’ (2008) 82 Australian Law Journal 247, 248. See also Blackshield and others (n 5) 563; Wheeler and Williams (n 10) 22–23.

23 Mark Lunney, A History of Australian Tort Law, 1901–1945: England’s Obedient Servant? (Cambridge University Press 2017) 45.

24 ibid 111–26. Here, Lunney analyses in detail how judges in numerous Australian decisions innovatively avoided (through the process of distinguishing) the Privy Council’s decision in Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, which denied the plaintiff damages for nervous shock where she had sustained no physical injury. A degree of autonomy is also illustrated in the highly reasoned approach that Australian judges took to resolving novel cases based on first principles where there was no direct English authority on point: see Lunney 37–41; 43–45.

25 See Sonali Walpola, ‘The Development of the High Court’s Willingness to Overrule Common Law Precedent’ (2017) 45 Federal Law Review 291, 294–98 (as outlined here, prior to the 1960s, the High Court even overruled its own common law decisions to conform to subsequent English common law developments).

26 (1963) 111 CLR 610 (Parker) (HCA).

27 ibid 632–33. With the concurrence of the whole Court, Dixon CJ declared that the High Court would not follow House of Lords’ decisions where the Court disagreed with their Lordships’ exposition of the law.

28 Skelton v Collins (1966) 115 CLR 94 (HCA) and Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 (HCA) provide early examples; in each case, which respectively concerned the award of general damages and exemplary damages in tort, the High Court refused (for reasons grounded in legal principle) to adopt the position taken in recent House of Lords’ decisions.

29 See Tanya Josev, ‘Parker v The Queen and Dixon’s Diminishing Confidence in the Privy Council’ in John Eldridge and Timothy Pilkington (eds), Sir Owen Dixon’s Legacy (Federation Press 2019) 25, 31–35. Josev notes that Dixon had, in the mid-1950s, even drafted his own proposal for the abolition of appeals and submitted it to Prime Minister Menzies.

30 Walpola (n 25) 298–99.

31 Commonwealth, Parliamentary Debates, House of Representatives, 23 September 1965, 1197 (Gough Whitlam, Leader of the Opposition).

32 This was effected by the Privy Council (Limitation of Appeals) Act 1968 (Cth).

33 This occurred pursuant to the Privy Council (Appeals from the High Court) Act 1975 (Cth).

34 There are four such identified instances: Viro v The Queen (1978) 141 CLR 88 (Viro) (HCA) (which concerned a point of criminal law procedure); Atlas Tiles Ltd v Briers (1978) 144 CLR 202 (HCA) and Cullen v Trappell (1980) 146 CLR 1 (HCA) (which concerned respectively the calculation of damages for breach of contract and tort); and Baker v Campbell (1983) 153 CLR 52 (HCA) (which concerned the scope of legal professional privilege). See Walpola (n 25) 304–5.

35 (1978) 142 CLR 583 (HCA).

36 (1979) 142 CLR 617 (HCA).

37 ibid 634. On the comparative conservativism of Mason at this time, see John Doyle, ‘Implications of Judicial Law-Making’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 84, 90–91.

38 See Walpola (n 25) 307.

39 Sir Garfield Barwick, ‘The State of the Australian Judicature’ (1977) 51 Australian Law Journal 480, 485; Viro (n 34) 175 (Aickin J); Sir Anthony Mason, ‘Jurisdictional and Procedural Constraints on the Evolution of Australian Law’ (1984) 10 Sydney Law Review 253, 256.

40 See above (n 3) for details of the relevant legislation.

41 See, eg, Burnie Port Authority (n 19) (the rule in Rylands v Fletcher was effectively abolished but remains part of English tort law); David Securities (n 19) (the distinction between mistakes of law and fact in restitutionary claims was discarded by the High Court of Australia prior to English courts reaching the same position in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (United Kingdom House of Lords (UKHL)).

42 Dale Gibson, ‘Development of Federal Legal and Judicial Institutions in Canada’ (1995) 23 Manitoba Law Journal 450, 489–90. See generally, Chief Justice Bora Laskin, ‘English Law in Canadian Courts Since the Abolition of Privy Council Appeals’ (1976) 29 Current Legal Problems 1. However, in New Zealand, although Privy Council appeals were abolished only in 2003, Lord Cooke describes a more independent approach much earlier, prior to the end of appeals: Cooke, ‘The New Zealand National Identity’ (n 1) 182; Sir Robin Cooke, ‘Empowerment and Accountability: The Quest for Administrative Justice’ (1992) 18 Commonwealth Law Bulletin 1326, 1330.

43 See Jason L Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press 2006) 81–94, 178–89. See also Justice MH McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37, 39; Kirby, ‘Ten Years in the High Court’ (n 8) 8–10.

44 GC Lindsay ‘Building a Nation: the Doctrine of Precedent in Australian Legal History’ in Justin T Gleeson, JA Watson and Ruth CA Higgins, Historical Foundations of Australian Law—Volume 1: Institutions, Concepts and Personalities (Federation Press 2011) 267, 281. See also Wheeler and Williams (n 10) 57, who question ‘whether the Mason Court itself could have maintained its initial pace and direction of change over a longer period’. High Court judges have commented to similar effect, extrajudicially: Sir Gerard Brennan, ‘Looking to the Future’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 264, 265; Chief Justice Kiefel, ‘The Adaptability of the Common Law to Change’ (Australasian Institute of Judicial Administration, Brisbane, 24 May 2018) <cdn.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/KiefelCJ24May2018.pdf.pdf> accessed 29 September 2020, 5.

45 See Paciocco (n 5) [9] (French CJ).

46 See Leslie Zines, ‘The Common Law in Australia: Its Nature and Constitutional Significance’ (2004) 32 Federal Law Review 337, 344–45; Kathleen Foley, ‘The Australian Constitution’s Influence on the Common Law’ (2003) 31 Federal Law Review 131, 132–33. As to the (earlier) alternative view of separate common law systems in each State, see Alex C Castles, An Australian Legal History (Law Book Company 1982) 511–12.

47 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 562–63 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) (HCA) (Lange); Lipohar v The Queen [1999) HCA 65 [43]–[47] (Gaudron, Gummow and Hayne JJ) (HCA) (Lipohar). In Lipohar, Gaudron, Gummow, and Hayne JJ specifically note that leading cases during the Mason era are predicated on the assumption of a uniform common law of Australia.

48 Trigwell (n 36).

49 Burnie Port Authority (n 19).

50 [1868] UKHL 1 (UKHL).

51 Brodie (n 19).

52 Civil liability legislation has reinstated the immunity in all Australian jurisdictions except the Northern Territory. See Joachim Dietrich, ‘Duty of Care under the Civil Liability Acts’ (2005) 13 Torts Law Journal 17, 30.

53 Reid (n 1) 24–25; McHugh (n 43) 43; Mason, ‘The Judge as Law-maker’ (n 1) 7; Gleeson, ‘Australia’s Contribution to the Common Law’ (n 22) 257; Murray Gleeson, ‘Law and Change’ (Flinders University Investigator Lecture, Adelaide, 19 November 2008) <cdn.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/gleeson19nov08.pdf> accessed 29 September 2020, 4.

54 As shown in the appendix, the Mason, Brennan, Gleeson, and French Courts have each been prepared to overturn common law rules on these grounds (column 3 indicates the basis for change).

55 See, eg, R v Howe [1987] AC 417, 436 (Lord Bridge) (UKHL); Lagden v O’Connor [2003] UKHL 64 [102] (Lord Walker) (UKHL); A v Hoare [2008] UKHL 6 [20]–[25] (Lord Hoffman) (UKHL). See also JW Harris, ‘Towards Principles of Overruling – When Should a Final Court of Appeal Second Guess’ (1990) 10 Oxford Journal of Legal Studies 135, 153; Louis Blom-Cooper, ‘1966 and All That: The Story of the Practice Statement’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords: 1876–2009 (Oxford University Press 2009) 128, 137. For a Canadian illustration of overruling on the basis of an indefensible inconsistency in the law, see Highway Properties Ltd v Kelly, Douglas and Co Ltd [1971] SCR 562, 575–76 (Laskin J) (Supreme Court of Canada (SCC)).

56 Mason, ‘The Judge as Law-maker’ (n 1) 3; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, 256–57 (Deane J) (HCA) (Pavey); Burnie Port Authority (n 19) 545 (Mason CJ, Deane, Dawson, Toohey, Gaudron JJ); Miller v Miller [2011] HCA 9, [15]–[16] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ) (HCA). See also Ken Kress, ‘Coherence and Formalism’ (1993) 16 Harvard Journal of Law and Public Policy 639, 646–47; Andrew Fell, ‘The Concept of Coherence in Australian Private Law’ (2018) 41 Melbourne University Law Review 1160, 1164–65, 1173–79. In recent years, the High Court has also given some importance to the notion that the common law should develop consistently with relevant statutory schemes: Miller (n 56) [23]–[28] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ). To date, this consideration has been used to justify why a new rule should not be recognised but has not been invoked as a basis for changing the common law: see Elise Bant, ‘Statute and Common Law: Interaction and Influence in Light of the Principle of Coherence’ (2015) 38 University of New South Wales Law Journal 367, 369–74.

57 Fell (n 56) 1164.

58 See Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645, 652–53 (Mason CJ), 661 (Wilson, Dawson, and Toohey JJ) (HCA). See also Harris (n 55) 154.

59 See, eg, Burnie Port Authority (n 19) 544–45 (Mason CJ, Deane Dawson, Toohey, and Gaudron JJ); David Securities (n 19) 375–76 (Mason CJ, Deane, Toohey, Gaudron, and McHugh JJ); Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, 406 (Mason CJ and Wilson J), 421–23 (Brennan J) (HCA) (Waltons Stores). It is also noted that judges who served in the Mason era began this process of finding unifying principles in the first part of the 1980s, before the Australia Acts: see, eg, Jaensch v Coffey (1984) 155 CLR 549, 583–86 (Deane J) (HCA); Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 487–88 (Mason, Wilson, Deane, and Dawson JJ) (HCA).

60 Perell makes a similar observation in relation to the process by which the Supreme Court of Canada has changed the common law, noting how one particular decision ‘set the stage’ for change in a subsequent decision: Paul M Perell, ‘Changing the Common Law and Why the Supreme Court of Canada’s Incremental Change Test Does Not Work’ (2003) 26 Advocates’ Quarterly 345, 355.

61 David Securities (n 19).

62 Pavey (n 56).

63 Burnie Port Authority (n 19) 556 (Mason CJ, Deane Dawson, Toohey, and Gaudron JJ) (this reasoning was invoked by the majority in eliminating the rule in Rylands v Fletcher).

64 Northern Territory v Mengel (n 19) 344 (Mason CJ, Dawson, Toohey, Gaudron, and McHugh JJ). The Court here overruled Beaudesert Shire Council v Smith (1966) 120 CLR 145 (HCA), which had recognised tortious liability independently of negligence, trespass or nuisance, for losses caused by the unauthorised actions of another. As to Mason Court cases which changed the law of negligence, see L J Priestley, ‘Influences on Judicial Law-Making’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 99, 99–100.

65 See, eg, Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 334 (Brennan CJ) (HCA); Brodie (n 19); Beckett v New South Wales [2013] HCA 17 (HCA) (Beckett). However, the opportunity to overturn rules, widely regarded as anomalous, has not always been taken: see, eg, Barclay v Penberthy [2012] HCA 40, [27] (French CJ and Gummow, Hayne, Crennan and Bell JJ) (HCA).

66 Brodie (n 19) [107] (but the decision was not unanimous, with Gleeson CJ, Hayne and Callinan JJ dissenting). Similarly, in another tort decision, Imbree v McNeilly (n 19), the Gleeson Court overruled Cook v Cook (1986) 162 CLR 376 (HCA) because it ‘departed from fundamental principle’: [72] (Gummow, Hayne, and Kiefel JJ).

67 Esso (n 20).

68 ibid [58]–[61] (Gleeson CJ, Gaudron, and Gummow JJ).

69 Beckett (n 65).

70 (1924) 35 CLR 275 (HCA).

71 (n 65) [4], [53]–[54] (French CJ, Hayne, Crennan, Kiefel, and Bell JJ).

72 (n 58) 653 (Mason CJ), 661 (Wilson, Dawson, and Toohey JJ). The decision concerned the appropriate jury direction where self-defence arises for determination on a charge of murder. The Mason Court overruled Viro (n 34) because experience had shown that the jury direction formulated in that case was too complex and hard to apply.

73 [2009] HCA 27, [32]–[34] (French CJ), [110]–[114] (Gummow, Hayne, Crennan, Kiefel, and Bell JJ). The French Court appealed centrally to promoting the certainty and efficiency of litigation in justifying its conclusion that case management principles can be considered in deciding whether to allow an amendment to pleadings. The decision involved a rejection of the High Court’s earlier approach in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (HCA).

74 [2000] HCA 36 (HCA) (‘John Pfeiffer’).

75 ibid [75]–[83] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ), [153] (Kirby J). See further Sir Anthony Mason, ‘Legislative and Judicial Law-Making: Can We Locate an Identifiable Boundary’ (2003) 24 Adelaide Law Review 15, 31, which notes that the previous law had created confusion and had been ‘heavily criticised’.

76 Koop v Bebb (1951) 84 CLR 629 (HCA); McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 (HCA); Stevens v Head (1993) 176 CLR 433 (HCA).

77 cf Justice Heydon, writing extrajudicially (prior to his appointment to the High Court), who considered Brodie (n 19) to be an instance of judicial activism: (n 8) 128. As is evident from that article, Justice Heydon openly expresses a conservative view as to the role of the judiciary in changing the common law.

78 See, eg, David Securities (n 19); Brodie (n 19); Beckett (n 65).

79 Dixon (n 11) 469.

80 Australia’s ratification of an international treaty does not automatically create legally enforceable obligations under Australian law (unless incorporated into domestic law by statute): Teoh (n 21) 286–87 (Mason CJ and Deane J).

81 See the table in the appendix (column 3).

82 McHugh (n 43) 43; Mason (n 1) 6–7.

83 See, eg, Mabo (n 5), where relevant contemporary social values were considered to reflect fundamental common law principles as well as international human rights norms.

84 Generally, as to the momentous nature of the Mason Court’s common law legacy, see Kildea and Williams (n 14) 244–55; Wheeler and Williams (n 10) 32–41; Doyle (n 37) 93–96.

85 Kildea and Williams (n 14) 259.

86 ibid 247.

87 Wheeler and Williams (n 10) 34. See also, Lavarch, who opines that, ‘it is not overstating the position’ that certain Mason Court cases ‘affected some of our most basic legal doctrines and positions’: Michael Lavarch, ‘The Court, the Parliament and the Executive’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 15, 15.

88 As will be outlined, this group was consistently in the majority in key decisions that changed common law doctrine. In an essay which opens by summarising the legacy of the Mason Court, Emerton and Goldsworthy note that Mason CJ, Deane, Gaudron and Toohey JJ were ‘at the forefront of its most progressive decisions’: Patrick Emerton and Jeffrey Goldsworthy, ‘The Brennan Court’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press 2015) 261, 261. See also Pierce (n 43) 209.

89 (1996) 187 CLR 1 (HCA) (Wik).

90 Kildea and Williams (n 14) 253.

91 ibid 258. See also Emerton and Goldsworthy (n 88) 262, who note that Attorney-General Lavarch (who held office between 1993–1996) stated publicly that the government wanted to ‘rein in’ the ‘judicial activism’ of the Mason Court.

92 Wheeler and Williams (n 10) 58. This view is expressed specifically with respect to non-constitutional matters.

93 ibid 58–59. See generally 57–59.

94 Rosalind Dixon and Sean Lau, ‘The Gleeson Court and the Howard Era: A tale of Two Conservatives (and Isms)’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press 2015) 284, 296–97. Dixon and Lau note that this strong adherence to precedent, which characterises the legalist approach, also meant that the Gleeson Court generally abided by (even ‘innovative’) precedents of the Mason Court. Rather, as will be outlined, the commitment to legal conservatism is seen in a resistance to instigating common law change based upon the novel grounds recognised in the Mason era.

95 ibid 296–97.

96 Justice Gaudron evidently accepted that the Court has a responsibility to create new common law in appropriate cases (her Honour was consistently in the majority in controversial common law decisions from the Mason era). However, as a member of the Gleeson Court, her Honour did not champion minority common law positions in the way that Justice Kirby did, and it appears her Honour may have given importance to consensus within the Court, this being consistent with observations made of her Honour’s approach in a constitutional setting: Lynch (n 6) 59.

97 Kirby ‘Ten Years in the High Court’ (n 8) 10. Justice Kirby commented further that ‘[i]t is at least doubtful that the innovative cases on native title, constitutional free speech and effective rights to legal representation in serious criminal trials would have been decided in the same way had they first presented today’: ibid 10.

98 See above (n 9).

99 Dixon (n 11) 472.

100 ibid.

101 See Justice Kenneth Hayne, ‘Letting Justice Be Done Without the Heavens Falling’ (2001) 27 Monash University Law Review 12, 20; Heydon (n 8) 116. As noted later, both Justices Hayne and Heydon (particularly the latter) are among several judges from the Gleeson and French eras who have explicitly endorsed a preference for orthodox judicial methods.

102 This was true of several Mason Court decisions discussed below, particularly Dietrich (n 21), which effectively expanded the rights of criminal defendants, and Theophanous (n 2) and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 (HCA) (Stephens), where the scope of the common law of defamation was narrowed on account of an implied freedom of political communication derived from the Australian Constitution.

103 (1991) 171 CLR 468 (HCA) (McKinney).

104 Dietrich (n 21).

105 McKinney (n 103) 478 (Mason CJ, Deane, Gaudron, and McHugh JJ); Dietrich (n 21) 299 (Mason CJ and McHugh J), 326 (Deane J), 353 (Toohey J), 362 (Gaudron J).

106 Dietrich (n 21) 298 (Mason CJ and McHugh J).

107 Robin Cooke, ‘The Road Ahead for the Common Law’ (2004) 53 International and Comparative Law Quarterly 273, 276–77.

108 McKinney (n 103) 474–75 (Mason CJ, Deane, Gaudron, and McHugh JJ).

109 ibid 484.

110 ibid 485–86.

111 See, eg, Margo Kingston, ‘High Court Decision to Cost State’ The Age (Melbourne, 14 November 1992) 13; Greg Barns, ‘The Simple Path to Justice for All’ Australian Financial Review (Sydney, 16 March 1993) 17.

112 See Wheeler and Williams (n 10) 38–41 for an extended discussion of the importance of this decision; see also Kildea and Williams (n 14) 254–55. As to the appropriateness of the Court engaging in judicial law-making in Dietrich, given the policy considerations involved, see Doyle (n 37) 94.

113 Dietrich (n 21) 315 (Mason CJ and McHugh J), 337 (Deane J); 361–62 (Toohey J); 369 (Gaudron J).

114 ibid 324.

115 ibid 321.

116 Senate Legal and Constitutional References Committee, Parliament of Australia, Inquiry into the Australian Legal Aid System: Second Report (1997) 51–58 [4.10]–[4.37]. See also Doyle (n 37) 94.

117 See Ronald M Dworkin, ‘The Model of Rules’ (1967) 35 University of Chicago Law Review 14, 27–28; Ronald Dworkin, Law’s Empire (Hart Publishing 1986) 269–71.

118 McKinney (n 103) 479–84 (Brennan J); 488 (Dawson J); Dietrich (n 21) 316, 321–25 (Brennan J), 344–45 (Dawson J).

119 The proximity test fell out of favour from the latter part of the 1990s, and was decisively rejected by the High Court in Sullivan v Moody [2001] HCA 59 [47]–[48] (Gleeson CJ, Gaudron, McHugh, Hayne, and Callinan JJ) (HCA).

120 See, eg, Hawkins v Clayton (1988) 164 CLR 539 (HCA); Bryan v Maloney (1995) 182 CLR 609 (HCA) (Bryan) (with respect to this decision, see McHugh (n 43) 41).

121 Mabo (n 5).

122 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 (Trident), 123–24 (Mason CJ and Wilson J), 147–48 (Deane J), 172 (Toohey J) (HCA). While Deane J reasoned in terms of a trust having been created for the benefit of the third party (rather than a contractual right), in common with Mason CJ and Wilson J, and with Toohey J, this was sourced in the ‘joint intention’ of the contracting parties: 147. As to the significance of this decision, see Mason, ‘Legislative and Judicial Law-Making’ (n 75) 30–31; McHugh (n 43) 40.

123 See generally, Priestley (n 64), which surveys Mason Court decisions that changed or developed the common law.

124 Waltons Stores (n 59) 406 (Mason CJ and Wilson J), 421–23 (Brennan J). The significant doctrinal extension effected by Waltons Stores was recognising that estoppel in equity could be relied on generally as a cause of action: see Sir Anthony Mason, ‘Changing the Law in a Changing Society’ (1993) 67 Australian Law Journal 568, 571–72. In Waltons Stores itself, the relief to the plaintiff extended beyond that hitherto recognised in the existing doctrine of ‘proprietary estoppel’, since the plaintiff sought damages against a would-be-lessee (in traditional proprietary estoppel, the plaintiff has sought to enforce an obligation against a landowner).

125 (1996) 186 CLR 71 (HCA).

126 See Mclnerney v MacDonald [1992] 2 SCR 138 (SCC).

127 Ronald Sackville, ‘Why Do Judges Make Law: Some Aspects of Judicial Law Making’ (2001) 5 University of Western Sydney Law Review 59, 73. Subsequently, the Privacy Act 1988 (Cth) was amended to recognise such an entitlement.

128 (1997) 188 CLR 159 (HCA) (Hill).

129 ibid 168. The novelty of the issue raised was specifically highlighted by Brennan CJ. The same issue was considered by the House of Lords in White v Jones [1995] UKHL 5 (UKHL), their Lordships concluding (by 3:2 majority) that a duty existed.

130 Hill (n 128) 233 (Gummow J). See also 166–67 (Brennan CJ).

131 Heydon (n 8) 123.

132 Luntz, ‘Torts Turnaround Downunder’ (n 16); Luntz, ‘A View From Abroad’ (n 16).

133 Stewart and Stuhmcke (n 16).

134 Luntz’s analysis in ‘Torts Turnaround Downunder’ (n 16), which covers the period 1987–1999, extends to torts more broadly. Empirically oriented, the studies by Luntz and Stewart and Stuhmcke in aggregate cover the outcomes of all negligence appeals in the High Court from 1987 to 2010.

135 Luntz, ‘Torts Turnaround Downunder’ (n 16) 96. Luntz’s plaintiff success percentage takes account of plaintiff success in both plaintiff appeals and defendant appeals.

136 ibid 97.

137 Stewart and Stuhmcke (n 16) 595. Specifically in relation to personal injury decisions, Luntz’s findings show that the rate of plaintiff success dropped from 80% to 37% when the period 1987–1999 is compared to 2000–2007 (this is the combined metric for successful plaintiff outcomes across plaintiff appeals and defendant appeals): see Luntz, ‘Torts Turnaround Downunder’ (n 16) 97; Luntz, ‘A View From Abroad’ (n 16) 99.

138 Stewart and Stuhmcke (n 16) 595.

139 ibid 591. Only three cases decided in the period 2000–2010 (just over 2% of the dataset) were governed by statutory tort reforms enacted in 2002 and 2003, which attempted to curb negligence liability. Stewart and Stuhmcke state that the ‘application of the common law had already moved towards low rates of plaintiff success in High Court litigation prior to any impact from tort law reform legislation’: 585.

140 ibid 592, 596.

141 [2004] HCA 16 (HCA) (Woolcock).

142 Bryan (n 120).

143 Woolcock (n 141) [31]–[32] (Gleeson CJ, Gummow, Hayne, and Heydon JJ), [111]–[112] (McHugh J).

144 ibid [171]–[172].

145 See, eg, see Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19 (HCA) and Commonwealth v Yarmirr [2001] HCA 56 (HCA) (Yarmirr), concerning vicarious liability and native title, respectively. Kirby J dissented in both cases. For a critique of the majority approach in Sweeney, see Burnett (n 9). Yarmirr is discussed shortly.

146 Yarmirr (n 145).

147 ibid [285]–[300], [316]–[320].

148 [2014] HCA 32 (HCA) (Barker).

149 [2013] HCA 37 (HCA) (Bugmy).

150 Chief Justice Robert French, ‘Law Making in a Representative Democracy: The Durability of Enduring Values’ (Catherine Branson Lecture, Adelaide, 14 October 2016) <cdn.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj14Oct2016.pdf> accessed 29 September 2020, 8.

151 (n 148) [26] (French CJ, Bell and Keane JJ), [109] (Kiefel J), [117] (Gageler J).

152 ibid [16]–[18] (French CJ, Bell, and Keane JJ here discuss the Federal Court’s decision and reasons).

153 ibid [1], [39]–[41] (French CJ, Bell, and Keane JJ).

154 Carter and others (n 9) 230.

155 (n 149) [41] (French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ).

156 Anthony, Bartels, and Hopkins (n 9) 67–73.

157 See R v Ipeelee [2012] 1 SCR 433, [60]–[79] (LeBel J delivering the judgment of the majority of the Court) (SCC).

158 Anthony and others (n 9) 74.

159 See generally, HP Lee, ‘The Implied Freedom of Political Communication’ in HP Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press 2003) 383, 395–401. Relatedly, the Supreme Court of Canada has recognised that the common law should develop consistently with the Canadian Charter of Rights and Freedoms (a constitutional document in that jurisdiction): Perell (n 60) 355. However, compared to the Canadian position, at least in Theophanous (n 2), a majority of the High Court envisaged a greater potential for constitutional principles to directly impinge on the common law of defamation: see Theophanous (n 2) 130 (Mason CJ, Toohey, and Gaudron JJ).

160 Theophanous (n 2).

161 Stephens (n 102).

162 The majority comprised Mason CJ, Toohey, and Gaudron JJ (who delivered a joint judgment) and Deane J (who delivered a separate judgment). In both Theophanous (n 2) and Stephens (n 102), the dissenting judges were Brennan, Dawson, and McHugh JJ.

163 As to the significance of these decisions, see Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (Cambridge University Press 2000) 53–55; Kildea and Williams (n 14) 244.

164 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (HCA); Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (HCA).

165 Theophanous (n 2) 140 (Mason CJ, Toohey and Gaudron JJ).

166 For a detailed analysis, see GFK Santow, ‘Aspects of Judicial Restraint’ (1995) 13 Australian Bar Review 116, 137–41. See also, Justice Ronald Sackville, ‘Continuity and Judicial Creativity – Some Observations’ (1997) 20 University of New South Wales Law Journal 145, 145–46.

167 See, eg, Tom Burton and Michael Dwyer, ‘Free Speech Breakthrough’ Australian Financial Review (Sydney, 13 October 1994) 1; Robert Pullan, ‘Court Gives Australians Reason to Hope’ Sydney Morning Herald (Sydney, 13 October 1994) 15.

168 Theophanous (n 2) 149.

169 ibid 153–54.

170 ibid 142.

171 Kildea and Williams (n 14) 251–52.

172 Emerton and Goldsworthy (n 88) 267.

173 Lange (n 47).

174 ibid 566, 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, and Kirby JJ). As noted above, in Theophanous (n 2) the Mason Court had recognised that the discussion on political matters was an occasion of qualified privilege, but the majority in that decision did not outline the expanded defence in detail given its view that direct constitutional protection was available.

175 ibid 570–75 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow, and Kirby JJ). The Court here describes in detail how the expanded common law defence of qualified privilege would operate. As to the point that Lange cemented the Court’s recognition that the Constitution can change the common law, see H P Lee (n 159) 399–401. See also Mason, ‘Legislative and Judicial Law-Making’ (n 75) 31–32.

176 Lipohar (n 47) 509 [55], [57] (Gaudron, Gummow, and Hayne JJ); John Pfeiffer (n 74) [69]–[73], [91], [101]–[102] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ); Roberts v Bass [2002] HCA 57 [67] (Gaudron, McHugh, and Gummow JJ). See generally, Foley (n 46).

177 John Pfeiffer (n 74) [73]–[75] (Gleeson CJ, Gaudron, McHugh, Gummow, and Hayne JJ). See also Gleeson (n 53) 9.

178 Dixon (n 11) 472.

179 McHugh (n 43) 38.

180 See Kildea and Williams (n 14) 246, who note the Mason Court’s willingness to rely upon ‘extra-legal materials reflective of community attitudes’ in developing Australian law.

181 Mason, ‘The Judge as Law-maker’ (n 1) 12–13; Mason, ‘Legislative and Judicial Law-Making’ (n 75) 29–30; Sir Anthony Mason, ‘Rights, Values and Legal Institutions: Reshaping Australian Institutions’ [1997] Australian International Law Journal 1, 1–12.

182 As Sir Anthony Mason has stated, ‘courts do not initiate cases’: ‘The Judge as Law-maker’ (n 1) 6.

183 See, eg, Miliangos v George Frank (Textiles) Ltd [1976] AC 443 (UKHL), where the House of Lords abolished the rule that damages can only be awarded in British Pounds.

184 See, eg, Arthur JS Hall & Co v Simons [2002] 1 AC 615 (UKHL). In abolishing the advocates’ immunity (from suits in negligence), the House of Lords appealed to modern society’s high expectations of lawyers, and the establishment of ‘a consumerist society in which people have a much greater awareness of their rights’: 682 (Lord Steyn). See also Blom-Cooper (n 55) 137.

185 AVG Management Science Ltd v Barwell Developments Ltd [1979] 2 SCR 43 (SCC). In abolishing the rule in Bain v Fothergill (1873) LR 7 HL 158 (UKHL), the Court noted that it originated from a time when there was no reliable system of land registration in England: ibid 48 (Laskin CJ, delivering the judgment of the Court). See Perell (n 60) 355–56.

186 R v Salituro [1991] 3 SCR 654, 669–70 (SCC). See Perell (n 60) 359. Perell notes that the Supreme Court of Canada has appealed to changing social norms within the confines of its self-imposed policy to make only incremental change to the common law. However, Perell considers that the incremental change test is ‘indeterminate’ and the Court nonetheless considers that it can effect significant changes: ibid 352, 370–71.

187 R v Hines [1997] 3 NZLR 529, 538–39 (Richardson P and Keith J) (New Zealand Court of Appeal (NZCA)); Dahya v Dahya [1991] 2 NZLR 150, 156–57 (Cooke P) (NZCA). See also Richard Scragg, ‘The New Zealand Court of Appeal and the Doctrine of Stare Decisis’ (2003) 9 Canterbury Law Review 294, 297–301.

188 Mason, ‘The Judge as Law-maker’ (n 1) 13–14; Mason, ‘Legislative and Judicial Law-Making’ (n 75) 20–22. See generally the discussion in Bryan v Maloney (n 120) 618–19, 626–28 (Mason CJ, Deane, and Gaudron JJ) and Cattanach v Melchior [2003] HCA 38 [227]–[239] (Hayne J) (HCA).

189 Mason, ‘The Judge as Law-maker’ (n 1) 13.

190 Cattanach (n 188) [228] (Hayne J).

191 Mason, ‘The Judge as Law-maker’ (n 1) 13.

192 David Wood, ‘Community Values and Judicial Decisions’ (2001) 11 Journal of Judicial Administration 43, 45; Heydon (n 8) 131.

193 John Braithwaite, ‘Community Values and Australian Jurisprudence’ (1995) 17 Sydney Law Review 351, 353.

194 ibid 353–54.

195 Mason, ‘The Judge as Law-maker’ (n 1) 12. See also Mabo (n 5) 42 (Brennan J); Dietrich (n 21) 319 (Brennan J).

196 Mason, ‘The Judge as Law-maker’ (n 1) 12–13; McHugh (n 43) 40–41; Justice Michael Kirby, ‘Judicial Activism: Power Without Responsibility? No, Appropriate Activism Conforming to Duty’ (2006) 30 Melbourne University Law Review 576, 589–90; Chief Justice French (n 150) 5.

197 Kildea and Williams (n 14) 248.

198 See Wheeler and Williams (n 10) 33.

199 Tanya Josev, The Campaign Against the Courts: A History of the Judicial Activism Debate (Federation Press 2017) 130. By contrast, as noted earlier, the decisions in Theophanous (n 2) and Stephens (n 102) attracted criticism from the Keating Government, as did the administrative law decision in Teoh (n 21), discussed later in this article.

200 Mabo (n 5) 42. Mason CJ and McHugh J agreed with the reasons for judgment of Brennan J.

201 Mason, ‘The Judge as Law-maker’ (n 1) 13.

202 Mabo (n 5) 58 (Brennan J).

203 McHugh (n 43) 47.

204 (1991) 174 CLR 379 (HCA).

205 See Mason, ‘The Judge as Law-maker’ (n 1) 9.

206 R v L (n 204) 390 (Mason CJ, Deane, and Toohey JJ). As to the importance of contemporary values in explaining this decision, see Mason, ‘The Judge as Law-maker’ (n 1) 3; McHugh (n 43) 41, 45. See also PGA v The Queen [2012] HCA 21, [16] (French CJ, Gummow, Hayne, Crennan, and Kiefel JJ), where the Court acknowledged that R v L had definitively settled the common law on this point.

207 See, eg, Secretary of the Department of Health and Community Services v JWB (1992) 175 CLR 218, 304–5 (Deane J) (HCA); McKinney (n 103) 474, 478 (Mason CJ, Deane, Gaudron, and McHugh JJ); Ridgeway v The Queen (1995) 184 CLR 19, 31–32 (Mason CJ, Deane, and Dawson JJ), 75 (Gaudron J) (HCA); Bryan (n 120) 618 (Mason CJ, Deane, and Gaudron JJ).

208 Dietrich (n 21) 336–37. On the justificatory appeal to contemporary values in this decision, see Sackville, ‘Continuity and Judicial Creativity’ (n 166) 148–50; Wheeler and Williams (n 10) 39; Heydon (n 8) 131.

209 [2002] HCA 52 (HCA).

210 ibid [65].

211 ibid. See also [152]–[155] (Kirby J), giving similar reasons. Gleeson CJ, McHugh J, and Callinan J in separate judgments did not consider that the existing common law rule should be overturned.

212 Although the minority (Gleeson CJ, Hayne J, and Heydon J, delivering separate judgments) in Cattanach (n 188) referred extensively to values, this was not for the purpose of bringing the common law into line with perceived progress in community thinking on an issue (as in Mabo (n 5)); rather, the ‘sanctity of life’ was invoked to argue that the plaintiff’s damages from a negligent sterilisation should not extend to the costs of raising a child. As suggested by Kirby J and Callinan J in the majority, the (minority’s) arguments against damages appeared to be based in personal moral values: [135]–[137] (Kirby J), [291]–[292] (Callinan J).

213 See Anthony, Bartels, and Hopkins (n 9) 67–71.

214 [2006] HCA 58 (HCA).

215 ibid [90]–[91].

216 ibid [19] (Gleeson CJ, Gummow, Hayne, Callinan, Heydon, and Crennan JJ).

217 Michael Kirby, ‘The Growing Impact of International Law on the Common Law’ (2012) 33 Adelaide Law Review 7, 22. See also Hilary Charlesworth and others, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423, 446–57.

218 See Trendtex Trading Corporation v Central Bank of Nigeria [1977] 2 WLR 356, 365–69 (Lord Denning); Gleaves v Deakin [1980] AC 477, 482–84 (Lord Diplock). See generally Higgins, ‘International Law’ in Louis Blom-Cooper, Brice Dickson and Gavin Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, 2009) 457, 458–59, 460–62; Kirby, ‘The Growing Impact’ (n 217) 22; Charlesworth and others (n 217) 446–57.

219 Kirby, ‘The Growing Impact’ (n 217) 23.

220 Kristen Walker, ‘Treaties and the Internationalisation of Australian Law’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 204, 212–18.

221 Mabo (n 5) 42.

222 ibid. As to the recognition in Mabo of international law as a basis for developing the common law, see Walker (n 220) 212–13.

223 Dietrich (n 21) 337. As to the acceptance of international law principles in Dietrich, see Walker (n 220) 213–15.

224 Teoh (n 21).

225 See Walker (n 220) 218–27 for a detailed analysis of the way in which international law was used to develop the common law in Teoh.

226 ibid 220. As to the significance of Teoh, see Patapan, ‘Judging Democracy’ (n 163) 61–63.

227 Teoh (n 21) 288–92 (Mason CJ and Deane J). Toohey J and Gaudron J also constituted part of the majority. McHugh J dissented.

228 ibid 291 (Mason CJ and Deane J), 301–2 (Toohey J).

229 On the Executive’s negative response, see the detailed account in Walker (n 220) 224–25. Here, Walker refers to the joint statement of the Minister for Foreign Affairs (Gareth Evans) and the Attorney-General (Michael Lavarch) following Teoh. See also Emerton and Goldsworthy (n 88) 262, which notes that the Labor Government had been ‘angered’ by Teoh.

230 See Matthew Groves, ‘Treaties and Legitimate Expectations – The Rise and Fall of Teoh in Australia’ (2010) 15 Judicial Review 323, 326–27. For media articles, see, eg, Mark Riley, ‘The Court Puts Spotlight on Treaties’ Sydney Morning Herald (Sydney, 8 April 1995) 3; Padraic P McGuiness, ‘Force of Law as Dictated by United Nations Convention’ The Age (Melbourne, 11 April 1995) 12.

231 As to the Gleeson Court, see Wheeler and Williams (n 10) 57–59; Dixon and Lau (n 94) 294. As to the French Court, see Marilyn J Pittard, ‘The Triumph of Practical Fairness Over Legitimate Expectation in Australian Administrative Law’ (2017) 29 Singapore Academy of Law Journal 856, 868–77.

232 [2002] HCA 28 (HCA).

233 ibid [958].

234 Yarmirr (n 145).

235 ibid [292]–[299].

236 See Patapan, ‘Judging Democracy’ (n 163) 63. Here Patapan notes the potentially ‘far-reaching’ implications of Teoh, commenting that ‘Teoh would seem to have subjected the Australian legal regime to the major human rights treaties … that form the fabric of international human rights laws’.

237 See generally, Walker (n 220) 218–21; I A Shearer, ‘International Legal Notes: The Growing Impact of International Law on Australian Domestic Law—Implications for the Procedures of Ratification and Parliamentary Scrutiny’ (1995) 69 Australian Law Journal 404.

238 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex p Lam [2003] HCA 6 [47], [81]–[83] (McHugh and Gummow JJ), [121]–[122] (Hayne J), [140]–[148] (Callinan J) (HCA) (Lam). Relatedly, see Dixon and Lau (n 94) 294, who note that the Gleeson Court showed ‘scepticism toward international human rights arguments’ in ‘key administrative law cases’.

239 For French Court decisions that accepted the Gleeson Court’s narrow view in Lam (n 238), see Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 [65] (Gummow, Hayne, Crennan and Bell JJ); Minister for Immigration and Border Protection v WZARH [2015] HCA 40 [29]–[30] (Kiefel, Bell, and Keane JJ).

240 See Pittard (n 231); Groves (n 230) 332–33.

241 Groves (n 230).

242 See generally Josev, The Campaign Against the Courts (n 199) 119–21; Patapan, ‘Judging Democracy’ (n 163) 5–6.

243 See, eg, ‘Future Directions in Australian Law’ (1987) 13 Monash University Law Review 149; ‘Changing the Law’ (n 124); ‘An Australian Common Law?’ (1996) 14 Law in Context: A Socio-Legal Journal 81; ‘The Judge as Law-maker’ (n 1); ‘Rights, Values and Legal Institutions’ (n 181).

244 Mason, ‘Australian Judiciary in the 1990s’ (n 13) 68.

245 Wheeler and Williams (n 10) 32–33. This was true of Mabo (n 5), Dietrich (n 21), and Teoh (n 21), as well as Theophanous (n 2) and Stephens (n 102) (which also raised constitutional issues).

246 Cheryl Saunders, ‘The Mason Court in Context’ in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (Federation Press 1996) 2,5, quoted in Kildea and Williams (n 14) 257.

247 Emerton and Goldsworthy (n 88) 262.

248 ibid 261. The authors comment that Gummow J’s judgments had the ‘trappings of orthodox legalism’ but also note that he showed creativity during his tenure in the High Court, especially in a constitutional setting.

249 Josev, The Campaign Against the Courts (n 199) 152; Kildea and Williams (n 14) 258. However, it should be noted that Deane J was replaced by an ‘equally progressive’ Kirby J, well known for his promotion of international law as a basis for developing the common law: Emerton and Goldsworthy (n 88) 263.

250 See generally, the analysis of Sir Gerard Brennan’s legacy in Belinda Baker and Stephen Gageler, ‘Brennan, Gerard Francis Brennan’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press 2001) 66–68.

251 Even in Dietrich, where he dissented, Brennan emphasises that ‘the genius of the common law system consists in the ability of the courts to mould the law to correspond with the contemporary values of society’: (n 21) 319. On the rare occasions in which Brennan examined the subject of common law change in an extrajudicial capacity, the views expressed were consistent with the legitimate role for judicial law-making that he espoused in Mabo (n 5): See Sir Gerard Brennan, ‘The Internationalisation of Australian Law’ (Launch of the Sydney Law Review 17(2), Sydney, 27 July 1995) <www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_review.htm> accessed 29 September 2020.

252 Wik (n 89).

253 On the point that Wik involved an application of Mabo (n 5), rather than a derivation of new principle, see Wheeler and Williams (n 10) 43.

254 See generally, Josev, The Campaign Against the Courts (n 199) 155–58. For newspaper articles, see Ben Mitchell and Paul Chamberlin, ‘Reaction to Wik decision divided’ The Age (Melbourne, 24 December 1996) 4; Geoff Kitney, ‘Urgent Talks on Native Title’, The Sydney Morning Herald (26 December 1996) 2.

255 See Emerton and Goldsworthy (n 88) 263.

256 Kildea and Williams (n 14) 258. See also Reginald S Sheehan, Rebecca D Gill and Kirk A Randazzo, Judicialization of Politics: The Interplay of Institutional Structure, Legal Doctrine, and Politics in the High Court of Australia (Carolina Academic Press 2012) 27.

257 See Kildea and Williams (n 14) 258.

258 Dixon and Lau (n 94) 305–6.

259 Murray Gleeson, ‘Courts and the Rule of Law’ (University of Melbourne Rule of Law Series, Melbourne, 7 November 2001) <www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_ruleoflaw.htm> accessed 29 September 2020. See also Gleeson, ‘Australia’s Contribution to the Common Law’ (n 22) 257–58.

260 Josev, The Campaign Against the Courts (n 199) 173.

261 This would clearly include Justice Kirby, as well as Justice Gaudron, and also Justice McHugh. While Michael McHugh (who served on the High Court from February 1989 to October 2005) dissented in some controversial Mason Court decisions (notably, Theophanous (n 2) and Stephens (n 102), as well as Teoh (n 21)), he explicitly acknowledged a legitimate law-making function for common law judges (see McHugh (n 43)).

262 See Dixon and Lau (n 94) 297. Justice Kirby similarly comments to this effect, opining that ‘[t]here can be no doubt that the philosophical balance of the High Court has shifted significantly’ since the mid-1990s: Justice Kirby ‘Ten years in the High Court’ (n 8) 9–10. Extrajudicial speeches and writings of Justices Heydon, Hayne and Kiefel, which show a preference for judicial restraint will be considered shortly.

263 Until March 2013, the majority of justices had been appointed by the previous Howard Government: Anika Gauja and Katharine Gelber, ‘The French Court’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press 2015) 311, 312.

264 See Josev, The Campaign Against the Courts (n 199) 197–99. The only notable exception was the French Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 (HCA), where it was held that the Gillard’s Government’s agreement with Malaysia to transfer the processing of asylum seekers to that country (the so-called ‘Malaysia Solution’) was invalid under the Migration Act 1958 (Cth). In relation to this decision, see Josev, The Campaign Against the Courts (n 199) 198; ibid 319–20.

265 See Josev, The Campaign Against the Courts (n 199) 97.

266 See (n 150) 6.

267 ibid 7–9. French discusses Bugmy (n 149) and Barker (n 148) here.

268 Heydon (n 8).

269 ibid 113.

270 ibid 131.

271 ibid 127–28.

272 Gleeson, ‘Courts and the Rule of Law’ (n 259); French (n 150) 6–9; Kiefel (n 44) 5–8; Justice Hayne (n 101) 17–20.

273 Hayne (n 101) 17, 20.

274 Chief Justice Kiefel here opines that appealing to contemporary values inevitably involves subjective perception and that ‘some [judges] may be more sensitive to social change and more amenable to reform’: (n 44) 5.

275 ibid 7–8.

276 This was true of Dyson Heydon and Ian Callinan, who had each denounced the Mason Court for engaging in judicial activism prior to their appointment to the Bench. See Josev, The Campaign Against the Courts (n 199) 168–70. As discussed, Heydon’s position and argument was conveyed in some detail in an article in the Australian Bar Review (n 8).

277 Dixon and Lau (n 94) 295–96.

278 Wik (n 89).

279 Heydon (n 8).

280 Indeed, Justice Kirby has commented to this effect, stating, ‘had I served in the Mason Court, I doubt that I would have dissented very often from the then majority of the High Court’: Justice Kirby, ‘Ten years in the High Court’ (n 8) 17. George Williams made the same observation in a radio interview on the eve of Murray Gleeson’s retirement, opining that Kirby ‘would have been very much in the middle of the Court during the Mason era, yet a decade later finds himself utterly on the outer’: ABC Radio National, ‘Retiring Chief Justice Murray Gleeson’, The Law Report, 19 August 2008 <www.abc.net.au/radionational/programs/lawreport/retiring-chief-justice-murray-gleeson/3200662> accessed 29 September 2020.

281 As noted earlier, insight into Chief Justice Kiefel’s judicial philosophy can be gained from a 2018 extrajudicial speech concerning change in the common law: see Kiefel (n 44).

282 It has been publicly noted that Chief Justice Kiefel’s opinions overwhelmingly reflect the orders of the Court. See eg, Michael Pelly, ‘High Court troika “the most powerful bloc of judges in history”’ Australian Financial Review (9 August 2018) <www.afr.com/companies/professional-services/high-court-troika-the-most-powerful-bloc-of-judges-in-history-20180731-h13cmt> accessed 29 September 2020.

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Sonali Walpola

Sonali Walpola completed a PhD at the Australian National University (ANU) in 2015, and lectures in Commercial Law and Tax Law at the ANU. Sonali’s PhD involved a historical and contemporary analysis of the bases for enforcing promises at law and in equity. In addition to promissory liability, Sonali researches the emergence and development of Australian common law, and tax law and policy. Sonali has published in the Federal Law Review and Australian Tax Forum, and previously worked in a commercial law firm.