Queensland v Commonwealth (1977)

Question 2 Queensland v Commonwealth (1977)

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  1. In Queensland v Commonwealth (1977), it is evident that the court can overrule earlier decisions. Q A common understanding that emerge from this ruling is that High Court does not take a restrictive view of the Doctrine of Precedent, given that it is the final court of appeal as well as the constitutional court of the country. Queensland v Commonwealth (1977) Through this ruling, the High Court shows its desire to use the advantage of creativity and flexibility, especially when the previous ruling are deemed “manifestly wrong”[1], “fundamentally wrong”[2], or “plainly erroneous”[3]. Therefore, the decision to overrule previous decisions can only done when the court believe that there was a problem with the previous ruling and this problem should not be continued, hence the need to set new precedent. In Brodie v Singleton Shire Council (2001)[4], the judges made it clear that in continuation of a state of affairs that dicredits Australia legal system, even though mandated by the precedent, court should look into the authorities constituting this precedent.  However, the court has made it clear that overruling previous decisions can only be done in exceptional circumstances and with greater caution to ensure there is harmony in the legal system[5].
  2. The doctrine of precedence requires that a case that is similar to a preceding case should be ruled like the preceding cases, especially if the ruling has been made by a higher court. This means there is hierarchical application of this doctrine with the highest court in the land making landmark ruling that should be followed by the lower courts. In Australia, the High Court is the supreme court of the land, which means all the other courts supposed to take precedent from its ruling. However, in Queensland v Commonwealth (1977) the court made a dramatic turn from this doctrine by exercising judicial creativity, a power that is vested in the judiciary, although it does not in anyway discard the Doctrine of Precedent. It is because of this judicial creativity that has enabled the High Court to set new precedents, especially in instances where previous rulings were erroneous, like in Atlas Tiles Ltd. v Briers (1978) 52 ALJR 707. 10
  3. Australian court precedent has taken a dramatic turn in the recent past, after being overwhelmingly influenced by the English precedent. Untill 1970s and 1980s, the Committee of the Privy Council of London acted as the supreme court for Australian cases, which means it set precedent for all the lower courts in Australia[6]. However, severance of all the legal and constitutional link with the Privy Council meant that Australian courts were not bound by English Precedent. Since then, Australian High Court, which became the supreme court of the land, has to set new precedents that will bind the future court decisions. The decision on Queensland v Commonwealth (1977) is a good example of how the  High Court of Australian is trying to set new precedent away from the English precedent.

[1] Australian    Agricultural    Co    v     Federated    Engine-Drivers    and     Firemen’s Association of Australasia  (1913) 17 CLR 26 1, per Isaacs  J at 278

[2] McGinty v Western Australia  (1996) 186 CLR 140, per McHugh J at  235

[3] Babaniaris v Lutony  Fashions Pty Ltd  (1987) 163 CLR 1, per Mason J at 13.

[4] Brodie v Singleton Shire Council  (2001) 206 CLR 512.


[5] Hughes & Vale Pty Ltd v New South Wales (1953) 87 CLR 49, perKitto J at 102.

[6] Skelton v Collins  (1966) 115 CLR 94, per Kitto J at 104; Viro v The Queen (1978) 141 CLR 88, per Gibbs J at 118