After the Australia Acts: The High Court's Attitude to Changing the Common Law (1987-2016)

Abstract

The end of Privy Council appeals in 1986 was a transformative event in Australia's common law history. This article examines the High Court of Australia's attitude to changing common law doctrines in the period 1987-2016, covering the Mason, Brennan, Gleeson and French Courts. Throughout this period, it is shown that the Court has consistently been willing to overturn and modify common law rules for the sake of achieving coherence and certainty to the law. However, it is argued that the Mason Court espoused a bolder vision of the permissible bases for change, in contrast to the Gleeson and French Courts. The Mason Court derived new common law rights from general principles, and invoked contemporary values and international human rights norms to change common law doctrines. In the Gleeson and French eras, a majority of judges were disinclined to consider justifications of this nature, even when opportunities existed.

Keywords: High Court of Australia, Change in the Common Law, Judicial Law-Making, Abolition of Privy Council Appeals