The Citation Practices of the High Court of Australia, 1905–2015
| Author | Russell Smyth,Ingrid Nielsen |
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | http://doi.org/10.1177/0067205X19875030 |
| Subject Matter | Articles |
Article
The Citation Practices
of the High Court of Australia,
1905–2015
Russell Smyth* and Ingrid Nielsen**
Abstract
We provide an empirical study of the High Court’s citation to case law and secondary sources at
decade intervals between 1905 and 2015. We document trends in the number and type of citations
over time, both for the Court as a whole and for the individual Justices. We find that in each of the
sample years between 1905 and 1975, the Court cited relatively few authorities and for most of
this period the majority of citations were to the Court’s own previous decisions or to decisions of
the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the
Court cited more authority. The Court cited an increasing proportion of its own previous deci-
sions over this period as well as a higher proportion of authority from a more diverse range of
sources, including secondary sources, largely at the expense of citations to English cases. We
conclude that this reflects the emergence of a distinct Australian common law with the High Court
as its final arbitrator.
I Introduction
Writing 45 years ago, in what has now become a classic paper, Sir Frank Kitto posed the question:
Why write judgments?
1
His Honour’s answer was that ‘the delivery of reasons is part and parcel of
the open administration of justice’.
2
But, typically, judges do not just give reasons for their
decision. Most of the time, they also cite case law and so-called secondary authority
3
in support
of their reasons. The basis for judges providing reasons for their decision, and justifying those
reasons with citations to authority, has been explained by Lawrence Friedman, Robert Kagan, Bliss
Cartwright and Stanton Wheeler as follows:
* Professor and Deputy Dean (Academic Resourcing), Monash Business School, Monash University. The author may be
contacted at russell.smyth@monash.edu.
** Professor and Head of the Department of Management, Monash Business School, Monash University. We thank Adren
Choon and Alicia Eng for research assistance on this project and Sandeep Gopalan, Matthew Groves, Shiri Krebs, Dan
Meagher, Ben Saunders and two re ferees for very helpful comment s on earlier versions of this arti cle. All views
expressed, and any errors, should be solely attributed to the authors. The author may be contacted at ingrid.
nielsen@monash.edu.
Federal Law Review
2019, Vol. 47(4) 655–695
ªThe Author(s) 2019
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DOI: 10.1177/0067205X19875030
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Judges, generally speaking, have derivative, rather than primary authority. Even though they have great
power, they are not supposed to act free and unfettered. A judicial decision does not stand on its own.
According to our legal theory, judges decide ‘according to law’. They are not free to decide cases as
they please. They are expected to involve appropriate legal authority for their decisions.
4
Written reasons, together with citation to authority, provides the best record we have of the
thought process underpinning how judges decided a case. When these reasons and the authorities
that are cited are examined for an appellate court over a considerable period of time, this exercise
can provide insights not only into the major influences on the evolution of the common law in a
given country, but also into trends in what the judges consider to be legitimate legal reasoning.
Again, as Friedman and his colleagues describe it:
Everybody knows—at least since the legal realists hammered home the point—that a judicial opinion
does not tell us what went on in judges’ minds. It may be mere rationalization. But, we can say, with
some certainty, that the [judgment] and its reasoning show what judges think is legitimate argument
and legitimate authority, justifying their behaviour. And such thoughts are important.
5
Scholars interested in judicial reasoning and how it has evolved over time have used citation
analysis to study the authorities that judges cite. The first such study was John Merryman’s seminal
study of the citation practice of the California Supreme Court in 1950.
6
There has, since, been one
or more citation studies published for courts in several jurisdictions inclu ding Canada,
7
New
Zealand,
8
Singapore,
9
the United Kingdom
10
and the United States.
11
There have also been several
studies of the citation practices of courts in Australia, including the Family Court,
12
the Federal
Court,
13
State Supreme Courts
14
and the New South Wales District Court.
15
We add to this
literature by providing a study of the High Court’s citation to case law and secondary authority
at decade intervals between 1905 and 2015.
While there are a number of citation studies for the High Court,
16
each of these studies are
focused on citations to specific forms of authority
17
and/or provide a snapshot of the Court’s
citation practice for a few specific years.
18
There is no comprehensive study of the citation practice
of the Court spanning its entire history. This is a gap in our understanding of the citation practices
of Australian courts, and of the High Court in particular, that the present study seeks to fill. The
closest study to ours in breadth is Russell Smyth’s entry on the citation practice of the Court in the
Oxford Companion to the High Court of Australia.
19
While that study also provided an analysis of
the Court’s citations over an extended period,
20
we go further than, and in so doing improve on,
that study in important respects.
First, Smyth examined the citation practice of the Court in 1920, 1940, 1960, 1980 and 1996.
We sample a larger number of years at decade, rather than two-decade, intervals. Our study begins
in the formative years of the Griffith Court (1905) and our last year is toward the end of the French
Court (2015). Hence, unlike the earlier study, we examine the citation practice of the Court
throughout the Griffith Court and during the first 15 years of the new millennium, spanning the
Gleeson Court and most of the French Court.
Second, Smyth’s study collapses several categories of citations. Thus, for example, he only
provides figures for citations to lower English courts as a whole, citations to courts in countries
other than Australia or England as a whole and citations to secondary authorities as a whole.
Compared with Smyth’s study, we provide much more detailed information on what gets cited. For
example, we document, and discuss, citations to specific English courts, courts in specific
656 Federal Law Review 47(4)
countries other than Australia and England, types of secondary authorities, including specific legal
periodicals and texts, and the citation practice of specific judges.
We contribute to the empirical literature on judicial reasoning in the High Court and the citation
practice of courts in common law countries in three ways. First, we provide a long-term perspec-
tive. There are few studies for any court that provide an analysis of citation practice in the long run,
while sampling at decade intervals. Extant studies are William Manz’s study of the citation
practices of the New York Court of Appeals at decade intervals from 1850 to 1993,
21
Friedman
et al’s study of the citation practices of 16 State Supreme Courts in the United States at decade
intervals between 1870 and 1970
22
and a series of studies for the Australian State Supreme Courts
at decade intervals from 1905 to 2005.
23
Most of the other citation studies use a small sample of cases from one or two recent years.
24
Citation studies that focus on one or more recent years can provide insights into what the current
members of the Court perceive as legitimate authorit y. This can be useful for certain sets of
individuals, such as court librarians or counsel appearing before the Court.
25
However, such
studies cannot say anything about changes in judicial reasoning over time. An examination of
citation practice in the long run has the advantage that ‘changes in [citation] patterns may be
barometers of changes in the way judges think about their roles and about the sources and limits of
their power’.
26
Discussing changing citation patterns in the United States context, Karl Llewellyn
draws a distinction between the late 19
th
century in which appellate courts wrote short judgments,
in which there were relatively few citations to authority, and the 1930s and 1940s, when appellate
courts began to write longer judgments laced with citations to authority. He suggests that in the late
19
th
century judges decided cases more with reference to legal principle and rules, while by the
1930s and 1940s legal realism was influencing judicial reasoning.
27
With the rise of legal realism,
judges focused more on the economic and social implications of their decisions and, in so doing,
cited more authorities in the context of discussing competing policy choices.
28
Changes in legal reasoning and the judicial role, linked to the number and type of authorities
that judges cite, have similarly been observed in the High Court. For example, John Gava discusses
the increased tendency for judges in the High Court in the 1990s to cite academic writing in their
reasons,
29
a practice that he criticises.
30
He suggests that increasing citation to law reviews was
associated with the emergence of an instrumentalist view of the judicial role, which he contrasts
with the traditional common law method, evident, for example, in the Dixon Court.
31
Gava
argues that this also reflects a fundamental change in the judicial role, in which instead of being
primarily concerned with settling disputes between parties and overseeing an incremental evolu-
tion in the common law, judges draw on academic authority to implement policy and pre-empt
the Parliament.
32
This view is shared by some judges; most notably Justice Dyson Heydon who
has argued that the rise of ‘judicial activism’ in the Mason Court ‘tend[ed] to the destruction of
theruleoflaw’.
33
Others see the change in judicial role under Sir Anthony Mason in more positive terms. Justice
Michael Kirby, for instance, has stated: ‘The overthrow of the declaratory theory of the law has led
to the recognition by scholars, practitioners and judges that law is expounded by judges who
sometimes have choices that will be made by reference to considerations of legal authority,
principle and authority’.
34
More recently, Justice Margaret Beazley discusses what she suggests
was ‘a discernible shift’ from long judgments with lots of citation to authority that characterised
the Mason Court, Brennan Court and early years of the Gleeson Court to ‘a minimalist, largely
propositional style of reasons’ in the latter years of the French Court.
35
Her Honour suggests this
Smyth and Nielsen 657
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