“Now it is the function of the judges, I believe, to bring laws up to date with the expectations and needs of our society.” High Court Justice Lionel Murphy addressing the National Press Club 1980.
State, with reasons, whether this quotation is consistent with the use of the doctrine of binding precedent in Australian courts.
High Court Justice Lionel Murphy’s statement can be considered consistent with the doctrine of binding precedent. There have been many decisions made by the High Court that reflect this statement, however, when considering the relevance of his statement to the doctrine of precedent, the position of a judge dictates the function they can perform. The doctrine of ...view middle of the document...
Justice Brennan, a sitting judge on the case, discussed the notion that although Australian law is influenced by precedent, it is not strictly bound by this doctrine:
‘Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies.’ Justice Gerard Brennan, Mabo v Queensland (No 2) (1992) 175 CLR at 29.
This recognition that Australian law is not bound by previous rulings is consistent with the view of Justice Murphy and the application of precedent in an Australian court. It is also of note that Justice Brennan refers to the law as organic, which strongly indicates that the law is not set in stone, but rather, can grow as needed.
Justice Kirby makes a significant statement regarding the Mabo case and he touches on the idea that the law is constantly being refined and, that the precedent set by common law can indeed be overruled:
‘The Mabo decision made clear the circumstances in which the common law of Australia may be overruled as it advances to a higher principle. In so doing, it provided invaluable guidance for future courts faced with like problems in completely different areas of the law, less controversial.’ (Kirby 1994)
This goes beyond of the initial statement of Justice Murphy as it includes the idea that future courts will be faced with problems similar to this case. Combining the organic description of the law from Justice Brennan and the clear ruling that precedent can be overturned, it is clear that Justice Murphy’s statement is a parallel to the application of precedent in Australian courts.
It is interesting to note that the doctrine of terra nullius was first documented and implemented in 1835 by Governor Bourke:
‘Whereas... His Majesty’s Subjects have taken possession of vacant Lands... under the pretence of a contract ... with the Aboriginal Natives...for the possession, title, or claim ...within the limits of the Government ... is void and of no effect...’. (Bourke 1835)
When Governor Bourke set this doctrine of terra nullius down, consideration of the beliefs of the settlers and, the relationship Australia had with England at the time may lead us to determine that, on the basis of probability, it was the correct decision in relation to the needs of our society. If we consider that slavery was still the norm for the British Empire, which allowed importation of slaves into its colonies until 1807 and continued using slaves in the British West Indies until 1827, it is conceivable that the powers of New South Wales considered that they were treating the indigenous population favourably.