Terms of Convenience: Examining Constitutional Overrulings by the High Court
| Author | Richard Haigh,Gian Boeddu |
| DOI | 10.22145/flr.31.1.5 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
TERMS OF CONVENIENCE: EXAMINING
CONSTITUTIONAL OVERRULINGS BY THE HIGH COURT
Gian Boeddu*and Richard Haigh**
I INTRODUCTION
Imagine this scenario. A court composed of an even number of judges is deciding the
constitutionality of national legislation critical to the efficient administration of justice
in a federal state. In argument, the chief law officers of all representative governments
ask that the legislation be upheld as it was reached through a lengthy negotiated
compromise of all the parties. By virtue of an equal split of opinion between the six
judges hearing the case, a legislative 'sleight of hand'1 is triggered and the scheme is
found to be constitutional. Twelve months on, the same court agrees to reconsider its
previous decision. Things are generally unchanged, the same arguments are presented.
The matter, however, is heard by a differently- composed, odd-numbered bench. If ever
the combined desire of all governments was that a court should heed the ancient
maxim 'stare decisis et non quieta movere—stand by the thing decided and do not disturb
the calm'2—it would be now. Instead, a majority finds that the same scheme is
unconstitutional; it therefore collapses. One lone dissenter asks, 'what has changed?'3
Of course, this scenario is not imaginary but is a real example of High Court members
playing out their disagreements in a relatively recent duo of cases, Gould v Brown4 and
Re Wakim; Ex parte McNally.5
Constitutional decision-making that overturns existing precedent can have far-
reaching effects. The High Court's decision in Re Wakim, invalidating a jurisdictional
cross-vesting scheme found constitutional merely a year before in Gould,had a huge
impact on pending litigation. A similarly serious overturning effect occurred only two
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*Solicitor—Mallesons Stephen Jaques (Melbourne). This paper is based on a thesis
submitted for the requirements of an LLB (Honours) at Deakin University, 2000.
**Visiting Professor, Osgoode Hall Law School (2002–04) and Director of Programs, Osgoode
Hall Professional Development Centre.
1Transcript of Proceedings, Re Wakim; Ex parte McNally (High Court of Australia, Gummow
J, 2 December 1998), <http://www.austlii.edu.au/au/other/hca/
transcripts/1998/S74/4.html> (Copy on file with authors).
2James Rehnquist, 'The Power That Shall Be Vested in a Precedent: Stare Decisis, the
Constitution and the Supreme Cour t' (1986) 66 Boston University Law Review 345, 347.
3Re Wakim; Ex parte McNally (1999) 198 CLR 511, 595 (Kirby J).
4(1998) 193 CLR 346 ('Gould').
5(1999) 198 CLR 511 ('Re Wakim').
168 Federal Law ReviewVolume 31
____________________________________________________________________________________
years prior to Re Wakim in Ha v New South Wales,6 which eliminated a large source of
revenue that prior to Ha the States had relied upon.
In constitutional cases, the arguments for having as sound a basis as possible for
overruling are arguably even more compelling than for non-constitutional cases. For
one, the effects are more permanent than in ordinary litigation. Where government
disagrees with a court's constitutional decisions, it has only two options: it can either
seek to amend the Constitution by submitting a referendum to the people, or hope to
litigate a fresh case in which the principle of stare decisis will be ignored. Parliament, in
other words, cannot take a second crack at things. Moreover, reconsidering
constitutional decisions gives the High Court great power and control over
fundamental issues related to society in general, including issues surrounding
parliamentary sovereignty. While overruling non-constitutional precedents is of course
not without its dangers, it is only in constitutional reconsiderations that decisions must
be weighed against a 'sworn loyalty' to the 'organic law of the C onstitution'.7
Thus, this paper is concerned with the mechanics of overruling in constitutional
cases. It is not intended to revisit the nature of stare decisis and precedent. There have
been a number of different meanings ascribed to these doctrines and some very deep
philosophical thinking has been spent on developing theories about precedent and
judicial reasoning.8 It is also largely a doctrinal examination of overruling decisions of
the High Court—it is our view that this straightforward form of analysis is in marked
need of elaboration and consequently unnecessary in this paper to explore other
perspectives.
Stare decisis can operate as a rule which excludes a court from reconsidering any
other reasons for a decision, or it can mean simply a court is generally bound by a
previous decision but is not precluded from reconsidering the reasons for that
decision.9 According to Ronald Dworkin, who subscribes to the latter approach, judges
are always able to find the right answer to a particular issue because a relaxed view of
precedent allows them ultimately to turn to legal principles for the correct solution.10
When it comes to the actual practice of constitutional overruling, however, it is our
view that revisiting constitutional decisions is not something to be treated as simply
_____________________________________________________________________________________
6(1997) 189 CLR 465 ('Ha').
7 See Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of
Australasia (1913) 17 CLR 261, 278 (Isaacs J).
8An excellent and thorough description of the different conceptions of stare decisis can be
found in Stephen Perry, 'Judicial Obligation, Precedent, and the Common Law' (1987) 7
Oxford Journal of Legal Studies 215. Joseph Raz, Practical Reason and Norms (1975) and Ronald
Dworkin, Law's Empire (1986) are perhaps the best of a long line of philosophical tracts
considering these issues.
9See Raz, above n 8, ch 4–5 (first mode of practical reason corresponds to the strict view of
stare decisis), and Dworkin, above n 8, 24, who uses the term 'strict' precedent where judges
are obliged to follow earlier decisions even if they believe them wrong and 'relaxed'
precedent which requires judges to give weight to past decisions and follow them unless
they believe them to be wrong enough so that the initial presumption in their favour is
displaced.
10See also Ronald Dworkin, Taking Rights Seriously (1977). Dworkin in Law's Empire, above
n 8, 453, notes that judges will often signpost reversals through hints and dicta. This may
be true, but for our discussion, we are more inter ested in constitutional cases where little or
no warning is given.
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