The use of Foreign Law by the High Court of Australia

Abstract

<jats:p> 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. </jats:p>

A Global Community of Courts? Modelling the Use of Persuasive Authority as a Complex Network

“…A survey of US federal court case law citation practice between 1945 and 2005 revealed that citation of foreign decisions is a relatively rare phenomenon in the United States that is generally confined to cases where international issues are squarely presented by the facts [28]. In Australia, an analysis of decisions of the High Court of Australia between 2015 and 2016 found that court tended to cite foreign judicial decisions emanating from jurisdictions that reflect values common to the Australian legal system, particularly where the cited case considers statutory language that is similar to that which is in dispute [29]. Most recently, an analysis of United Kingdom Supreme Court decisions found that citations to foreign jurisprudence occurred in just under 30% of that court's decisions [30].…”

“…Assumption 3: Geographic proximity: Homophily, the principle that similarity breeds connection, has been found to influence a range of network settings, including paper citation networks [52] and social networks [53]. A recent study examining an Australian case law citation network observed that judges in that country generally favoured the jurisprudence of countries that reflect their social values and legal traditions [29]. There are any number of points of similarity between national legal systems, including socioeconomic factors, language, style of constitution and government.…”

“…In Assumption 3, we draw on Spottiswood's [29] study of the High Court of Australia and assume that in making choices as to which foreign country to cite from, judges will generally favor the jurisprudence of countries that share similar values. We use geographic proximity as the proxy for similarity and assume that countries that are close in distance are more likely to share values than countries that are separated by larger distances.…”