SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2007: “AUSTRALIA’S CONTRIBUTION TO THE COMMON LAW”

• Date: 01 December 2008
• Author: Anthony Murray GLEESON AC QC BA (Hons), LLB (Hons)(Syd), Hon LLD (Syd); Chief Justice of Australia.
• Published date: 01 December 2008

1 I am honoured by the invitation to address your distinguished Academy. The topic was suggested to me at the time of the invitation.I was happy to take up the suggestion but conscious that my response was likely to reflect a personal, although I hope not idiosyncratic, view. Any judge, or practitioner, or law teacher, asked to assess Australia’s contribution to the common law is bound to be selective and subjective. As to selectivity, I have chosen to concentrate on aspects of the work of the High Court of Australia. There are many decisions of intermediate courts of appeal, and of individual judges, that qualify as important contributions to the law. Some of Australia’s finest and most celebrated judges never sat on the High Court. Australia has produced eminent legal scholars and teachers. Australia’s work in legislation and law reform has produced notable exports. The most familiar example is our Torrens system of land title, which has been taken up in other places including Singapore. I have confined my attention to the work of the High Court because that is an obvious place to look, and because it is a source of more than sufficient material for my purpose. As to subjectivity, I am sure that aspects of the work of the High Court other than those I have chosen would be seen by many lawyers as more significant.

2 What amounts to a judicial contribution to the law is itself a question upon which opinions differ. There are some commentators who divide the judicial world into two parts, “progressive” and “conservative”, and award congratulations according to the use of such labels. To those who admire “progressive” judges, a contribution is a decision that changes the law. The greater the change, the greater the contribution. To others, a contribution is a decision that reasserts established principle, although some change, preferably minimal or “incremental”, is accepted. Opposing camps adopt slogans, designed, like medieval battle colours, for easy recognition of friends and enemies. A description of a change in the law as “radical” may be a signal for applause or hostility, according to taste. Yet most Australian judges accept Sir Frank Kitto’s view that, in the waters of the common law, they have no more than riparian rights.1 They may disagree about what pollutes, or purifies, the waters, but they have a strong sense of custodianship of their common law heritage, and of the

threats to that heritage posed by both the illegitimate use of power and unwillingness to develop the law where necessary.

3 My purpose is to illustrate the work of the High Court, by giving examples which show it acting sometimes creatively and sometimes traditionally, sometimes boldly and sometimes cautiously, but in all cases consistently in the application of a judicial method that I believe to be in the mainstream of the common law tradition. I have selected certain areas of obvious importance, and a couple of leading High Court cases in each area, as examples of the work of the court.

4 Before going to specific topics, I should mention, without elaboration, some features of the Australian legal landscape. At Federation, in 1901, the former self-governing Australian colonies became States of the new Commonwealth. Legislative, executive and judicial power was divided between Federal and State governments by a written Constitution. What the Constitution described as a Federal Supreme Court, to be called the High Court of Australia, was established in 1903. The High Court of Australia was to have two principal functions: to resolve disputes as to the meaning of the Constitution (many of which arise between Federal and State governments); and to decide appeals from State Supreme Courts and other Federal Courts. However, subject to a presently immaterial exception relating to certain constitutional cases, for most of the 20th century appeals still lay to the Privy Council, both from the High Court and direct from State Supreme Courts. Such appeals were gradually abolished, and finally came to an end in 1986. While such appeals lasted, decisions of the House of Lords, as well as the Privy Council, were regarded as authoritative in all Australian courts. It is only since 1986 that the High Court has been, for all purposes, at the apex of the Australian judicial system. There is now a single common law of Australia, ultimately determined by the High Court.2 In Australia, as in most common law jurisdictions, Federal and State Parliaments now engage extensively in legislative intervention into all areas of the law, and much of the work of the Australian courts, including the High Court, consists of applying, and where necessary interpreting, statutes. This aspect of the High Court’s work, like its role as a constitutional court, is largely outside the scope of this paper.

5 So long as appeals to the Privy Council continued, the capacity of the common law in Australia to differ from the common law as declared in the United Kingdom was very limited. Maintaining the uniformity of the common law was one of the principal functions of the Privy Council, and that uniformity was generally regarded in Australia, throughout most of the 20th century, as a strength. There came a time, in the 1970s, when the Privy Council accepted that the common law of Australia need not be

the same as that of England,3 but in practice, so long as Australian appeals could end up in London, there was little opportunity for the common law of Australia to strike out on a course of its own. Litigants could appeal directly from State Supreme Courts to the Privy Council, and thereby avoid the effect of an unfavourable precedent in the High Court. For example, the High Court in 1976 took a particular line in relation to recovery of damages in tort for relational economic loss.4 In 1985, an appellant from the New South Wales Supreme Court bypassed the High Court and went straight to the Privy Council, which declined to follow the High Court’s 1976 decision.5 I appeared for the appellant in the last appeal from the High Court to the Privy Council, in 1980.6 The Privy Council reversed the decision of the High Court on a point of contract law in a shipping case. It is hardly surprising that, before appeals to the Privy Council came to an end, Australia’s contribution to the common law rarely took the form of rebellion. Even so, rebellion happened occasionally. An example of that, on a point of major importance in the field of criminal law, is a convenient place to begin.

I. Criminal law

6 In Australia, serious indictable offences are normally tried by jury, as in England. Although, in various jurisdictions, there has been extensive legislation in the area of criminal law, and some States have criminal codes, the common law remains important. I propose to give two examples of Australian departure from English decisions on issues of large theoretical and practical significance.

7 At common law, murder is unlawful homicide with malice aforethought.7 The act of the accused causing the death of the victim (so far as presently relevant) is done with intent to kill or inflict grievous bodily harm. Instructions given to juries on the question of proof of intent to kill or inflict grievous bodily harm became complicated by the popularity of an idea that an accused person may be presumed to have intended the natural and probable consequences of his or her actions. The notion of presumption has different meanings, according to context. A presumption may be prima facie, or conclusive; weak or strong. There is a difference between telling a jury about a presumption and explaining that, in particular circumstances, an inference of fact is open. The idea

was resisted in the High Court. In 1952, in Stapleton v The Queen,8 the court said, “[t]he introduction of the maxim or statement that a man is presumed to intend the reasonable consequences of his act is seldom helpful and always dangerous”. Yet in 1961, in Director of Public Prosecutions v Smith,9 the House of Lords approved directions to a jury referring to the supposed presumption. This confusion of the subjective notion of intention with an apparently objective test involving a questionable presumption caused problems for Australian trial judges, who were accustomed to treating decisions of the House of Lords as binding. The High Court, in 1963, instructed them not to follow the House of Lords. In Parker v The Queen,10 Dixon CJ, said of Smith:

I think it forces a critical situation in our (Dominion) relation to the judicial authority as precedents of decisions in England. Hitherto I have thought that we ought to follow decisions of the House of Lords, at the expense of our own opinions and cases decided here, but having carefully studied Smith’s case I think that we cannot adhere to that view or policy. There are propositions laid down in the judgment which I believe to be misconceived and wrong. They are fundamental and they are propositions which I could never bring myself to accept … I wish there to be no misunderstanding on the subject. I shall not depart from the law on the matter as we had long since laid it down in this court and I think Smith’s case should not be used as authority in Australia at all.

I am authorised by all the other members of the High Court to say that they share the views expressed in the foregoing paragraph.

8 In England, Smith’s case was overtaken by legislation, but in 1987, in an appeal from the Isle of Man, the Privy Council held that the House of Lords in Smith had taken an erroneous view of the common law.11 In R v Woollin,12 Lord Steyn said that it is now clear that, in Smith, the criminal law was set on a wrong course. Australia refused to take that course at a time in its legal history when such a refusal was striking.

9 Another example of the criminal law in Australia taking a different direction concerns the concept of dishonesty. Australian courts have declined...