The use of Foreign Law by the High Court of Australia

Published date01 June 2018
Date01 June 2018
DOI10.1177/0067205X1804600201
Subject MatterArticle
/tmp/tmp-17mFNIzb2wg5Nt/input THE USE OF FOREIGN LAW BY THE HIGH COURT OF
AUSTRALIA
Sarah Spottiswood*
ABSTRACT
Justices of the High Court of Australia have a broad discretion to follow foreign judicial
decisions based on whether they consider a decision to be persuasive. But it is difficult
to assess what it is about a foreign decision that makes it likely to be followed by the
High Court. This has created uncertainty that is problematic for both litigants and the
court. To help address the uncertainty associated with the High Court’s use of foreign
decisions, this article identifies common factors that explain when the High Court is
likely to follow foreign decisions. By drawing on theories of persuasive authority and
closely analysing decisions from 2015 and 2016, I argue that the High Court is more
likely to follow foreign decisions that: (1) are about legislation or instruments with
similar words to those in dispute; (2) emanate from certain jurisdictions; (3) are from
apex or appellate courts; (4) are raised by litigants; and (5) reflect values common to the
Australian legal system. Conversely, the area of law, international consensus and the
date of foreign decisions are unlikely to influence the High Court’s willingness to follow
foreign decisions. These factors can help litigants use foreign decisions effectively and
may be used by legal scholars to scrutinise the legitimacy of the High Court’s use of
foreign decisions and to address the normative question of how the High Court should
use foreign law.
I INTRODUCTION
The use of foreign law by superior national courts is an increasing trend globally.1 In
2015 and 2016, the High Court of Australia referred to foreign decisions in 57 of its 98
decisions.2

*
LLM (Cantab), LLB (Hons), BA (Monash). I would like to thank Dr John Allison of the
University of Cambridge for his supervision, advice and encouragement. I would also like to
thank Tim Mason, Alice Taylor, Duncan Wallace and the anonymous reviewers for their
insightful comments on earlier versions of this article. I am grateful for funding provided by
Cambridge Australia Scholarships and the Cambridge Trust which enabled the research for
this article to be completed.
1 See Cheryl Saunders, ‘Judicial Engagement with Comparative Law’ in Tom Ginsburg and
Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2012) 571, 586.
2 See below Section V.

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Volume 46
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Although the High Court has always used foreign decisions,3 the majority decision
to adopt a proportionality test used by European Courts in McCloy v New South Wales4
brought renewed attention to the High Court’s use of foreign law in constitutional cases.
Two Justices strongly opposed the foreign test on the basis that it was ill-suited to the
Australian constitutional question. 5 Some commentators also questioned the
appropriateness of the test in Australian law.6
The High Court saw a role for foreign decisions on many other occasions in 2015 and
2016. Foreign decisions were followed in a range of matters including those concerning
the patentability of genes,7 vicarious liability of schools for abuse by teachers,8 and the
validity of credit card late payment fees.9 There were also a number of occasions when
the High Court decided not to follow the approach taken by foreign courts. For example,
in matters concerning restrictions on political donations,10 advocate’s immunity11 and
extended joint criminal enterprise,12 the approaches taken in other jurisdictions were
not followed.
Whether the High Court will follow foreign decisions is unpredictable. High Court
Justices have typically explained their reliance on decisions of foreign courts by
reference to the persuasive force of each individual decision. The High Court’s broad
discretion to follow a foreign decision based on its persuasive value has created
uncertainty that is problematic for both litigants and the court for three key reasons.
First, the uncertainty surrounding when the High Court will follow foreign decisions
exposes the court to the criticism that foreign decisions are being ‘cherry picked’ or
arbitrarily selected to bolster the judge’s personal view. 13 Second, without any
indication of when the High Court is likely to follow foreign decisions, there is
uncertainty for litigants who may waste time and resources on finding and putting
foreign law to the court. Third, the lack of a shared understanding amongst the

3 See, eg, D’Emden v Pedder (1904) 1 CLR 91.
4 (2015) 257 CLR 178 (‘McCloy’).
5 Ibid 234–8 [140]–[152] (Gageler J), 287–8 [336]–[339] (Gordon J).
6 See, eg, Anthony Mason, ‘The Use of Proportionality in Australian Constitutional Law’ (2016)
27 Public Law Review 109, 121–3; Justin Gleeson, ‘The Increasing Internationalisation of
Australian Law’ (2017) 28 Public Law Review 25, 33; Scott Stephenson, ‘Complications and
Consequences of Constitutional Comparison’ on The University of Melbourne Law School,
Opinions
on
High
(2
November
2015)
; Anne
Twomey, ‘McCloy and the Revised Test of Proportionality’ (Speech delivered at the ALRC
Freedoms
Symposium,
Sydney,
8
October
2015)
; Shipra Chordia,
‘Proportionality and McCloy v New South Wales: Close But Not Quite?’ on AUSPUBLAW (1
March 2016) .
7 D’Arcy v Myriad Genetics Inc (2015) 258 CLR 334 (‘D’Arcy’).
8 Prince Alfred College Inc v ADC (2016) 258 CLR 134 (‘Prince Alfred College’).
9 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 (‘Paciocco’).
10 McCloy (2015) 257 CLR 178.
11 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1.
12 Miller v The Queen (2016) 259 CLR 380 (‘Miller’).
13 Cheryl Saunders, ‘The Use and Misuse of Comparative Constitutional Law’ (2006) 13 Indiana
Journal of Global Legal Studies 37, 67; Christopher McCrudden, ‘A Common Law of Human
Rights? Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford
Journal of Legal Studies 499, 507.

2018
The Use of Foreign Law by the High Court of Australia
163
_____________________________________________________________________________________
interpretive community of when foreign decisions may be followed by the High Court
undermines the acceptance of decisions based on foreign law by the interpretive
community.
To help address the problems associated with the uncertainty arising from the High
Court’s discretion to follow foreign decisions, this article identifies common factors that
explain when the High Court is likely to follow foreign decisions. Drawing on theories
of persuasive authority and 2015 and 2016 decisions, I argue that the High Court is more
likely to follow foreign decisions that:
(1) are about legislation or instruments with similar words to the matter in dispute;
(2) are from certain jurisdictions;
(3) are from apex or appellate courts;
(4) are raised by litigants; and
(5) reflect values common to the Australian legal system.
Identifying these factors reduces uncertainty for litigants who can use the factors to
guide their use of foreign decisions. If litigants find and rely on foreign decisions that
conform to these factors, court and litigant resources can be allocated more efficiently
than at present where litigants have little guidance about when the High Court might
be disposed to follow foreign decisions. A common understanding of when foreign
decisions are likely to be followed will also encourage greater acceptance amongst the
interpretive community of High Court decisions based on foreign law. Moreover, the
common factors provide a basis for legal scholars to consider broader questions of the
legitimacy of the High Court’s recourse to foreign decisions.
Of course, the degree to which a foreign decision is persuasive to the High Court will
also depend on its reasoning, relevance and likeness to the matter in issue. But, as this
article will show, there are numerous features of foreign decisions that make them
persuasive beyond their particular reasoning.
As McCrudden identifies, studies on the use of foreign law by domestic courts raise
three main questions: ‘empirical questions (how far does it happen, and where?), a
jurisprudential question (can we identify criteria which help explain why it does or does
not happen?) and a normative question (is it legitimate?)’.14 This article answers the
empirical question for High Court decisions handed down in 2015 and 2016. Primarily,
however, it is directed to the jurisprudential question, identifying factors that explain
why the High Court follows foreign decisions. As my conclusion will show, one value
of addressing the jurisprudential question is that it will promote inquiry into the
normative question. Without an understanding of when the High Court is likely to
follow foreign decisions, it is not possible to analyse the legitimacy of the High Court’s
approach.
To date, most judicial and academic debate surrounding the use of foreign law has
been directed to the legitimacy of its use in constitutional decisions. The debate emerged
about a decade ago in US Supreme Court jurisprudence, 15 and subsequently

14 McCrudden, above n 13, 499.
15 See, eg, Atkins v Virginia, 536 US 304, (2002); Lawrence v Texas, 539 US 558, (2003); Roper v
Simmons, 543 US 551, (2005); Richard Posner, ‘No Thanks, We Already Have Our Own
...

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