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Published online by Cambridge University Press: 01 January 2025
We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.
We thank Adren Choon and Alicia Eng for research assistance on this project and Sandeep Gopalan, Matthew Groves, Shiri Krebs, Dan Meagher, Ben Saunders and two referees for very helpful comments on earlier versions of this article. All views expressed, and any errors, should be solely attributed to the authors.
1. Sir Frank Kitto, ‘Why Write Judgments?’ (1992) 66 Australian Law Journal 787. While published in 1992, the article was presented at the Convention of Judges of the High Court and of the Supreme Courts of the States and Territories in 1973. Sir Harry Gibbs, ‘Judgment Writing’ (1993) 67 Australian Law Review 494 at 495 described it as a ‘memorable address’. Later, Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189, at 189 stated, ‘it has become staple reading for newly appointed superior judges in Australia’.
2. Ibid 790. See also Jason Bosland and Jonathan Gill, ‘The Principle of Open Justice and the Judicial Duty to Give Reasons’ (2014) 38 Melbourne University Law Review 482.
3. Secondary authority, which can be either legal or nonlegal in nature, consists of books, dictionaries, encyclopedias, government reports, journal/review articles, restatements and internet sources, such as blogs and Wikipedia. See, eg, Wes Daniels, ‘Far Beyond the Law Reports: Secondary Source Citations in United States Supreme Court Opinions, October Terms 1900, 1940, 1978’ (1983) 76 Law Library Journal 1; Russell Smyth, ‘Other than Accepted Sources of Law? A Quantitative Study of Secondary Source Citations in the High Court’ (1999) 22 University of New South Wales Law Journal 19 (‘Other than Accepted Sources of Law?’); Coleen Barger, ‘On the Internet, Nobody Knows You Are a Judge: Appellate Judges Use of Internet Material’ (2002) 4 Journal of Appellate Practice and Process 417. For a discussion of the use of Wikipedia in the New South Wales District Court, see Russell Smyth, ‘What Do Trial Judges Cite? Evidence from the New South Wales District Court’ (2018) 41 University of New South Wales Law Journal 211, 247–8 (‘What Do Trial Judges Cite?’).
4. Lawrence Friedman et al, ‘State Supreme Courts: A Century of Style and Citation’ (1981) 33 Stanford Law Review 773, 793 (emphasis in original).
5. Ibid 794 (emphasis in original).
6. John Merryman, ‘The Authority of Authority: What the California Supreme Court Cited in 1950’ (1954) 6 Stanford Law Review 613.
7. See, eg, Vaughn Black and Nicholas Richter, ‘Did She Mention My Name? Citation of Academic Authority by the Supreme Court of Canada, 1985–1990’ (1993) 16 Dalhousie Law Journal 377; Peter McCormick, ‘Judicial Authority and the Provincial Courts of Appeal: A Statistical Investigation of Citation Practices’ (1993) 22 Manitoba Law Journal 286; Peter McCormick, ‘The Evolution of Coordinate Precedential Citation in Canada: Interprovincial Citations of Judicial Authority, 1922–1992’ (1994) 32 Osgoode Hall Law Journal 721; Peter McCormick, ‘Do Judges Read Books Too? Academic Citations by the Lamer Court 1991–96’ (1998) 9 Supreme Court Law Review 463 (‘Do Judges Read Books Too?’); Peter McCormick, ‘Second Thoughts: Supreme Court Citation of Dissents and Separate Concurrences’ (2002) 81 Canadian Bar Review 369; Peter McCormick, ‘The Supreme Court Cites the Supreme Court: Follow Up Citation on the Supreme Court of Canada, 1989–1993’ (1995) 33 Osgoode Hall Law Journal 453. In addition, see Peter Hogg and Allison Bushell, ‘The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Is Not Such a Bad Thing After All)’ (1997) 35 Osgoode Hall Law Journal 75, which examined the Canadian Charter cases.
8. See, eg, Jeremy Finn, ‘An Interchange of Ideas—The Flow of Legal Information Across the Tasman’ (2010) 16 Canterbury Law Review 99; Grant Hammond, ‘Judges and Academics in New Zealand’ (2013) 25 New Zealand Universities Law Review 681; Russell Smyth, ‘Judicial Citations—An Empirical Study of Citation Practice in the New Zealand Court of Appeal (2000) 31 Victoria University of Wellington Law Review 847; Russell Smyth, ‘Judicial Robes or Academic Gowns?—Citations to Secondary Authority and Legal Method in the New Zealand Court of Appeal’ in Rick Bigwood (ed), Legal Method in New Zealand (Butterworths, 2001) 101.
9. Lee Zhe Xu et al, ‘The Use of Academic Scholarship in Singapore Supreme Court Judgments 2005–2014’ (2015) 33 Singapore Law Review 25.
10. Peter Clinch, ‘The Use of Authority: Citation Patterns in the English Courts’ (1990) 46 Journal of Documentation 287; Keith Stanton, ‘Use of Scholarship by the House of Lords in Torts Cases’ in James Lee (ed), From House of Lords to Supreme Court (Oxford, 2011) 201–26.
11. See, eg, Robert Archibald, ‘Stare Decisis and the Ohio Supreme Court’(1957) 9 Western Reserve Law Review 23; Kevin Bennardo, ‘Testing the Geographical Proximity Hypothesis: An Empirical Study of Citations to Nonbinding Precedents by Indiana Appellate Courts’ (2015) 90 Notre Dame Law Review 125; Mary Bobinski, ‘Citation Sources and the New York Courts of Appeal’ (1985) 34 Buffalo Law Review 965; Brett Curry and Banks Miller, ‘Case Citation Patterns in the U.S. Courts of Appeals and the Legal Academy’ (2017) 38 Justice System Journal 164; Charles Johnson, ‘Citations to Authority in Supreme Court Opinions (1985) 7 Law & Policy 509; James Leonard, ‘An Analysis of Citations to Authority in Ohio Appellate Decisions Published in 1990’ (1994) 86 Law Library Journal 129; Richard Mann, ‘The North Carolina Supreme Court 1977: A Statistical Analysis’ (1979) 15 Wake Forest Law Review 39; William Manz, ‘Citations in Supreme Court Opinions and Briefs: A Comparative Study’ (2002) 94 Law Library Journal 267 (‘Citations in Supreme Court Opinions and Briefs’); William Manz, ‘The Citation Practices of the New York Courts of Appeal, 1850–1993’ (1995) 43 Buffalo Law Review 121 (‘The Citation Practices of the New York Courts of Appeal’); John Merryman, ‘Towards a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950, 1960 and 1970’ (1977) 50 Southern California Law Review 381 (‘Towards a Theory of Citations’); Lee Petherbridge and David Schwartz, ‘An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship’ (2012) 106 Northwestern University Law Review 995; William Reynolds, ‘The Court of Appeals of Maryland: Roles, Work and Performance’ (1978) 38 Maryland Law Review 148; William Turner, ‘Comment: Legal Periodicals—Their Use in Kansas’ (1959) 7 Kansas Law Review 490.
12. Zoe Rathus, ‘Mapping the Use of Social Science in Australian Courts: The Example of Family Law Children’s Cases’ (2016) 25 Griffith Law Review 352.
13. See, eg, Russell Smyth, ‘The Authority of Secondary Authority: A Quantitative Study of Secondary Source Citations in the Federal Court’ (2000) 9 Griffith Law Review 25; Russell Smyth, ‘Law or Economics? An Empirical Investigation of the Impact of Economics on Australian Courts’ (2000) 28 Australian Business Law Review 5 (‘Law or Economics’).
14. See, eg, Dietrich Fausten, Ingrid Nielsen and Russell Smyth, ‘A Century of Citation Practice on the Supreme Court of Victoria’ (2007) 31 Melbourne University Law Review 733; Ingrid Nielsen and Russell Smyth, ‘One Hundred Years of Citation of Authority on the Supreme Court of New South Wales’ (2008) 31 University of New South Wales Law Journal 189; Russell Smyth, ‘Trends in the Citation Practice of the Supreme Court of Queensland Over the Course of the Twentieth Century’ (2009) 28 University of Queensland Law Journal 39; Russell Smyth and Dietrich Fausten, ‘Coordinate Citations Between Australian State Supreme Courts Over the Twentieth Century’ (2008) 34 Monash University Law Review 53; Russell Smyth, ‘Citations of Foreign Decisions in Australian State Supreme Courts Over the Course of the Twentieth Century: An Empirical Analysis’ (2009) 22 Temple International & Comparative Law Journal 409; Russell Smyth, ‘Citing Outside the Law Reports: Citations of Secondary Authorities on the Australian State Supreme Courts Over the Twentieth Century’ (2009) 18 Griffith Law Review 692 (‘Citing Outside the Law Reports’); Russell Smyth, ‘The Citation Practices of the Supreme Court of Tasmania, 1905–2005’ (2007) 26 University of Tasmania Law Review 34; Russell Smyth, ‘Citation to Authority on the Supreme Court of South Australia: Evidence from a Hundred Years of Data’ (2009) 29 Adelaide Law Review 113; Russell Smyth, ‘A Century of Citation of Case-Law and Secondary Authority in the Supreme Court of Western Australia’ (2008) 34 University of Western Australia Law Review 145.
15. Smyth, ‘What Do Trial Judges Cite?’ (n 3).
16. See, eg, Elisa Arcioni and Andrew McLeod, ‘Cautious But Engaged—An Empirical Study of the Australian High Court’s Use of Foreign and International Materials in Constitutional Cases’ (2014) 42 International Journal of Legal Information 437; Karen Schultz, ‘Backdoor Use of Philosophers in Judicial Decision-Making? Antipodean Reflections’ (2016) 25 Griffith Law Review 441; Smyth, ‘Other than Accepted Sources of Law?’ (n 3); Russell Smyth, ‘Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non-Legal Periodicals in the High Court’ (1999) 17 University of Tasmania Law Review 164 (‘Academic Writing and the Courts’); Russell Smyth, ‘Citations by Court’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 97 (‘Citations by Court’); Paul Von Nessen, ‘The Use of American Precedents by the High Court of Australia, 1901–1987’ (1992) 14 Adelaide Law Review 181; Smyth, ‘Law or Economics?’ (n 13).
17. For example, among the studies cited in footnote 16, Von Nessen focuses on citations to United States precedent; Arcioni and McLeod focuses on citations to foreign legal materials in constitutional cases; Schultz focuses on citations to philosophers; Smyth, ‘Academic Writing and the Courts’, focuses on citations to law reviews; Smyth, ‘Other than Accepted Sources of Law?’, focuses on citations to secondary authorities as a whole (including law reviews); Smyth, ‘Law or Economics’, focuses on citations to secondary sources concerned with law and economics.
18. For example, among the studies cited in footnote 16, Arcioni and McLeod’s study is restricted to constitutional cases decided between 2009 and 2012; Smyth, ‘Academic Writing and the Courts’, covers cases reported between 1990 and 1997; Smyth, ‘Other than Accepted Sources of Law?’, covers cases reported in 1960, 1970, 1980, 1990 and 1996; and Smyth, ‘Law or Economics’, covers cases reported in volumes 150–92 of the Commonwealth Law Reports. Schultz (1903–2016) and Von Nessen (1903–87) provide longer-term analyses, but both are restricted to very specific citation types; namely, citation to philosophers and to United States precedent respectively.
19. Smyth, ‘Citations by Court’ (n 16).
20. See the results reported in the table in Smyth, ‘Citations by Court’ (n 16) 98.
21. Manz, ‘The Citation Practices of the New York Courts of Appeal’ (n 11).
22. Friedman et al (n 4).
23. See references cited (n 14).
24. This is true of both the US studies—see, eg, Merryman, ‘The Authority of Authority’ (n 6); Leonard (n 11); Mann (n 11) (all use cases decided in a single recent year) and some of the early Australian studies—see, eg, Russell Smyth, ‘What Do Intermediate Appellate Courts Cite? A Quantitative Study of the Citation Practice of Australian State Supreme Courts’ (1999) 21 Adelaide Law Review 51 (sample of recently cases decided in each of the State Supreme Courts); Russell Smyth, ‘Citation of Judicial and Academic Authority in the Supreme Court of Western Australia’ (2001) 30 University of Western Australia Law Review 1 (sample of recently decided cases in the Western Australia Supreme Court).
25. Russell Smyth, ‘What Do Judges Cite? An Empirical Study of the “Authority of Authority” in the Supreme Court of Victoria’ (1999) 25 Monash University Law Review 29, 31.
26. Friedman et al (n 4) 794.
27. Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Little Brown, 1960) 51, 140–1.
28. Friedman et al (n 4) 794.
29. John Gava, ‘Law Reviews: Good for Judges, Bad for Law Schools?’ (2002) 26 Melbourne University Law Review 560.
30. Ibid. see also John Gava, ‘The Rise of the Hero Judge’ (2001) 24 University of New South Wales Law Journal 747.
31. Gava, ‘Law Reviews: Good for Judges, Bad for Law Schools?’ (n 29).
32. Ibid.
33. Justice Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 47 Quadrant 9.
34. Justice Michael Kirby, ‘Welcome to Law Reviews’ (2002) 26 Melbourne University Law Review 1.
35. Justice Margaret Beazley, ‘Judgment Writing in Final and Intermediate Courts of Appeal: A Dalliance on a Curiosity’ (2015) 27(9) Judicial Officers Bulletin 79, 79.
36. Ibid 81.
37. See references cited (n 14).
38. Smyth, ‘What Do Trial Judges Cite?’ (n 3).
39. Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001’ (2004) 32 Federal Law Review 255. The study also complements more recent empirical studies of decision-making on the High Court by Lynch and Williams, although those studies are restricted to constitutional cases—see Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2016 and French Court Statistics (2017) 40(4) University of New South Wales Law Journal 1468 and the complete list of their earlier annual studies contained in the appendix to their article. See also David Carter, James Brown and Adel Rahmani, ‘Reading the High Court at a Distance: Topic Modelling the Legal Subject Matter and Judicial Activity of the High Court of Australia, 1903–2015’ (2016) 39 University of New South Wales Law Journal 1300. These authors use machine learning methods to analyse aspects of judicial style on the High Court (although not citation practice) over the same period as the current study.
40. Martin Shapiro, ‘Toward a Theory of Stare Decisis’ (1972) 1 Journal of Legal Studies 125.
41. The classification of judicial citations into hierarchical, consistency, coordinate, deferential and leadership was developed by Peter McCormick, who is the author of several studies of the citation practices of Canadian courts—see, eg, Peter McCormick, ‘Judicial Citation, the Supreme Court of Canada and the Lower Courts: The Case of Alberta’ (1996) 34 Alberta Law Review 870, 876–81.
42. See, eg, Leslie Zines, ‘Dixon Court’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 220, 220. Zines records that the Victorian Bar Association referred to the Dixon Court as the finest court in the English-speaking world, while Lord Denning described the Dixon Court as the High Court’s ‘Golden Age’ and suggested that during this time its reputation exceeded even that of the House of Lords.
43. See Russell Smyth, ‘Who Gets Cited? An Empirical Study of Judicial Prestige in the High Court’ (2000) 21 University of Queensland Law Journal 7 (Dixon); Richard Posner, ‘The Learned Hand Biography and the Question of Judicial Greatness’ (1994) 104 Yale Law Journal 511, 534–40 (Learned Hand); Richard Posner, Cardozo: A Study in Reputation (Cardozo, 1990).
44. Smyth, ‘Other than Accepted Sources of Law?’ (n 3) 22–4.
45. Kirby, ‘Welcome to Law Reviews’ (n 34) 8.
46. See James Acker, ‘Social Science in Supreme Court Death Penalty Cases: Citation Practices and their Implications’ (1991) 8 Justice Quarterly 421.
47. Michael Kirby, ‘On the Writing of Judgments’ (1990) 64 Australian Law Journal 691, 708.
48. Beazley (n 35) 82.
49. Heydon (n 33).
50. Gibbs (n 1) 499.
51. Sir Gregory Gowans, ‘Reflections on the Role of a Judge’ (1980) Summons 66.
52. Sir Garfield Barwick, A Radical Tory (Federation Press, 1995) 224.
53. John Doyle, ‘Judgment Writing: Are there Needs for Change?’ (1999) 73 Australian Law Journal 737, 739–40; Bryan Beaumont, ‘Contemporary Judgment Writing: The Problem Restated’ (1999) 73 Australian Law Journal 743, 744.
54. Carleton Kemp Allen, Law in Making (Law Book Company, 4th ed, 1945) 241.
55. Reference re Validity of the Wartime Leasehold Regulations [1950] 2 DLR 1. See also G Nicholls, ‘Legal Periodicals and the Supreme Court of Canada’ (1950) 28 Canadian Bar Review 422.
56. Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, 637–8, 650, 652; Mills v Mills (1938) 60 CLR 150, 181–2.
57. Sir Owen Dixon, Jesting Pilate and Other Papers and Addresses (WS Hein, 2nd ed, 1997) 156.
58. Lord Rodger, ‘Judges and Academics in the United Kingdom’ (2010) 29(1) University of Queensland Law Journal 29, 29–30; Chief Justice Robert French, ‘Judges and Academics—Dialogue of the Hard of Hearing’ (Inaugural Patron’s Lecture, Australian Academy of Law, 30 October 2012) 12.
59. See, eg, A T Denning (as Lord Denning then was), ‘Review of PH Winfield A Textbook of the Law of Torts’ (1947) 63 Law Quarterly Review 516.
60. See, eg, Kitto (n 1) 792; Kirby, ‘Welcome to Law Reviews’ (n 34) 6–8; Sir Anthony Mason, ‘Legal Research, Its Function and Importance’ in Geoffrey Lindell (ed), The Mason Papers (Federation Press, 2007) 345–60; Justice Susan Kenny, ‘The Melbourne University Law Review: 45 Years On’ (2001) 1 Melbourne University Law Review Alumni Association Newsletter, 3, 4; Justice Virginia Bell, ‘Examining the Judge: Launch of Issue 40(2) of the UNSW Law Journal’ (Speech, Sydney, 29 May 2017) 1 <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/bellj/bellj29May2017.pdf>.
61. For example, in Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, 488, Lord Goff wrote in glowing terms of the value he derived from academic authorities. However, in the later decision of Hunter v Canary Wharf [1997] AC 655, 697, Lord Goff was critical of the relevant academic authorities on the basis that they only presented ‘opinion’ and contained no ‘analysis’. See also Peter Cane, ‘What a Nuisance!’ (1997) 113(10) Law Quarterly Review 515, 518–19.
62. French (n 58) 16.
63. Ibid 16–17.
64. Privy Council (Appeals from the High Court) Act 1975 (Cth).
65. Viro v The Queen (1978) 141 CLR 88.
66. Sonali Walpola, ‘The Development of the High Court’s Willingness to Overrule Common Law Precedent’ (2017) 45(2) Federal Law Review 291, 294. On the policy of following the House of Lords, see Piro v W. Foster and Co Ltd (1943) 68 CLR 313, 320 (Latham CJ). On the policy of following decisions of the English Court of Appeal, see Sexton v Horton (1926) 38 CLR 240, 244–5 (Knox CJ, Starke J). As Walpola discuses, the High Court followed the English Court of Appeal when the law was settled. In one case (Wright v Wright (1948) 77 CLR 191, 210), when the High Court did not follow the English Court of Appeal, this was because the Court could not ascertain what the settled law was in England.
67. (1963) 111 CLR 610.
68. Ibid 632–3.
69. (1978) 141 CLR 88.
70. Walpola (n 66) 295.
71. See Michael Kirby, ‘Precedent Law, Practice and Trends in Australia’ (2007) 28(3) Australian Bar Review 243. See also John v Federal Commissioner of Taxation (1989) CLR 166 CLR 417, 438 where Mason CJ, Wilson, Brennan, Dawson and Gaudron JJ stated: ‘There is no doubt that this Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken.’ In Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49, 56–8, Gibbs CJ, with the concurrence of Stephen J (59) and Aickin J (66), proposed four issues to consider when deciding whether the Court should overrule earlier decisions. One, the earlier decisions did not rest upon a principle that had been carefully worked out in a significant succession of cases. Two, difference exists between the reasoning of the Justices constituting the majority in one of the earlier decisions. Three, the earlier decisions had not achieved the result expected or desired, but, instead, had led to considerable inconvenience. Four, the earlier decisions had not been independently acted on in a manner which militated against reconsideration.
72. Kirby, ‘Precedent Law, Practice’ (n 71).
73. See ibid. See also Leslie Zines, Constitutional Change in the Commonwealth: The Commonwealth Lectures, Delivered at the University of Cambridge on 8, 15, and 22 November 1988 (Cambridge University Press, 1991).
74. Ibid.
75. Queensland v Commonwealth (Second Territory Senators’ Case) [1977] HCA 60 [3] (Murphy J).
76. See Justice Rolston Nelson, ‘New Final Appellate Courts in the Commonwealth and the Doctrine of Precedent’ (2006) 32(4) Commonwealth Law Bulletin 635, 639, where it is suggested that final courts of appeal in Commonwealth countries should treat each other’s decisions with the highest of respect.
77. (1986) 162 CLR 376.
78. Ibid 390.
79. Chief Justice Murray Gleeson, ‘The Influence of the Privy Council on Australia’ (2007) 29(2) Australian Bar Review 123, 133. For similar statements, see Sir Anthony Mason, ‘Future Directions in Australian Law’ (1987) 13(3) Monash University Law Review 149, 154; Justice Michael Kirby, ‘In Praise of Common Law Renewal: A Commentary on PS Atiyah’s “Justice and Predictability in the Common Law”’ (1992) 15(2) University of New South Wales Law Journal 462, 464.
80. McCormick, ‘Judicial Citation, the Supreme Court of Canada and the Lower Courts’ (n 41) 881.
81. Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34(2) Sydney Law Review 239.
82. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The constitutional and judicial basis for a single common law was explained in Lipohar v The Queen (1999) 200 CLR 485. See Liam Boyle, ‘An Australian August Corpus: Why There Is Only One Common Law in Australia’ (2015) 27(1) Bond Law Review 27.
83. Australasian Legal Information Institute (Web Page) <http://www.austlii.edu.au>.
84. The first sitting of the High Court was 6 October 1903.
85. As Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 124, puts it: ‘Minor errors are inevitable in such a large numerical compilation. The possibility of overlooking an item, double counting or placing a number in the wrong column is always present. However, since [studies such as these are] most concerned with general trends and [do] not attempt to draw conclusions from small statistical variations, minor errors have no significant effect on the findings’. The authors did a spot check on approximately 10% of the sample cases at random and found the worksheets to be accurate. The results recorded in the tables were also thoroughly checked for internal consistency. Hence, we are confident that the reported results are an accurate representation of what the Court cited in the sample years.
86. Merryman, ‘The Authority of Authority’ (n 6) 652.
87. Bell (n 60) 3.
88. See McCormick, ‘The Supreme Court Cites the Supreme Court’ (n 7) 462; Stephen Choi and Mitu Gulati, ‘Choosing the Next Supreme Court Justice: An Empirical Ranking of Judicial Performance’ (2004) 78(1) Southern California Law Review 23, 56–67.
89. See Richard Posner, ‘An Economic Analysis of the Use of Citations in the Law’ (2000) 2(2) American Law and Economics Review 381, 385, 387.
90. Beazley (n 35).
91. Groves and Smyth (n 39) 258–9.
92. See Judiciary Act (No 2) 1984 (Cth) s 3(1).
93. Authors’ calculations from the raw statistics on special leave applications reported in the High Court of Australia Annual Report 2016–2017, 22.
94. Chief Justice Murray Gleeson, ‘A Changing Judiciary’ (2001) 75(9) Australian Law Journal 547, 553. Justice William Gummow makes a similar point, stating, ‘in Barwick’s day, the Court had an enormous number of appeals as of right. You only had to have a common law case with £1500 or $3000 at stake—unbelievable really—and you had an appeal as of right. If you look at old volumes of the Commonwealth Law Reports at the back there’ll be dozens of appeals which they more or less had to do on the spot, and which were of no general legal significance at all. That was a huge burden on them’. Martin Clark, ‘Justice Gummow Reflects on His Time on the High Court’ on Opinions on High (Blog Post, 2 October 2013) <http://blogs.unimelb.edu.au/opinionsonhigh/2013/10/02/clark-gummow/>.
95. Groves and Smyth (n 39) 259–60.
96. Friedman et al (n 4) 795; Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 126.
97. A proviso to this statement is that the Griffith Court extensively cited US authority, particularly in the early constitutional cases. We discuss this further below. But this practice largely ceased following Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers Case’). The Court cited relatively few cases from countries other than Australia and England in the period 1925–85.
98. Groves and Smyth (n 39) 262.
99. Ibid 265.
100. Chief Justice Gleeson, ‘The Centenary of the High Court: Lessons from History’ (Speech, Thirteenth AIJA Oration in Judicial Administration, 3 October 2003) 8 <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_3oct.html>.
101. Groves and Smyth (n 39) 265.
102. On Dixon CJ, see Philip Ayres, Owen Dixon (Miegunyah Press, 2003) 83, who records that most of Dixon’s judgments were written in the alcove of his study at ‘Yallambee’, his house in Melbourne. On Barwick CJ, Kitto and Windeyer JJ, see David Marr, Barwick (Allen & Unwin, 1980) 222. Kitto (n 1) advocated that judgments should be written, rather than dictated, because the discipline involved helped to improve precision and felicity of expression.
103. For example, in the Dixon Diaries, Sir Owen Dixon records that Williams and Taylor JJ dictated the draft of their joint judgment with Dixon CJ in Orr v University of Tasmania (1957) CLR 526. See Ayres (n 102) 262–3.
104. Marr (n 102).
105. See Michael Kirby, ‘What Is It Really Like to Be a Justice of the High Court of Australia? A Conversation Between Law Students and Justice Kirby’ (1997) 19(4) Sydney Law Review 514, 516 (‘What Is It Really Like to Be a Justice of the High Court of Australia?’). His Honour recalls looking in the drawer of his desk, which used to belong to Aikin J, and finding a cassette on which Aikin J had dictated parts of his judgment in Onus v Alcoa of Australia Limited [1981] HCA 50.
106. Gibbs (n 1) 495.
107. Groves and Smyth (n 39) 263. See also Sir Gerard Brennan, ‘Decision Making Process’ in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 197. High Court Rules 2004 (Cth) rr 44.02.1 and 44.03.1, as amended and in force, 1 January 2018 require that written submissions be no longer than 20 pages in length.
108. Rebecca Craske and Richard Haigh, ‘Judgment Production’ in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 369, 370.
109. Groves and Smyth (n 39) 263–4.
110. Although, in the early years of the Court, associates were sometimes relatives or friends of the Justice’s family. Katharine Young records that one of the first associates was Griffith CJ’s son, and later Justices employed relatives or the children of friends, see Katharine G Young, ‘Open Chambers: High Court Associates and Supreme Court Clerks Compared’ (2007) 31(2) Melbourne University Law Review 646, 658, n 91. Andrew Leigh, ‘Associates’ in Tony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 34, notes that Griffith, Barton, O’Connor, Isaacs, Higgins, Gavan Duffy, Powers, Rich, Latham, Williams, Webb, Kitto and Jacobs all employed close relatives, often without legal training or with undistinguished academic records, as associates. This practice likely reduced the level of research assistance that their associates provided.
111. Marr (n 102) 222.
112. Groves and Smyth (n 39) 266. In an article published in 2000, Andrew Leigh records that all but one of the High Court Justices employed two associates. See Andrew Leigh, ‘Behind the Bench: Associates in the High Court of Australia’ (2000) 25(6) Alternative Law Journal 291, 291.
113. Leigh, ‘Associates’ (n 110) 34–5.
114. Jacqueline Elliott, ‘The High Court of Australia Library—Changes Since 1967’ (2003) 11 Australian Law Librarian 172, 174.
115. Petal Kinder, ‘A Walk Through the Past and the Present with a View to the Future of the HCA Library with Relevance to Court Libraries and Libraries in General’ (2015) 23 Australian Law Librarian 28, 28.
116. Elliot (n 114) 174–5. Similarly, James Merralls, ‘The Library of Sir Owen Dixon’ (2017) 160 Victoria Bar News 58, 58, recalls the High Court library at the time he served as an associate to Sir Owen Dixon (1960–61) as follows: ‘In neither [Melbourne nor Sydney] was there an adequate court library. The library in Melbourne was in the centre of the building. It contained sets of the basic English and Australian reports and statutes, a set of Halsbury’s Laws of England, Australian and English digests and a few recent editions of popular text books. A bare bones library. The Justices depended substantially on the Supreme Court library across the lane. The Sydney library was meagre. The library room was also occupied by typists. There were few text books and the Supreme Court library was nowhere near’.
117. Marr (n 102) 222, states that the High Court library was expanded in the period Sir Garfield Barwick was Chief Justice to carry series of United States reports to accommodate, Barwick CJ’s ‘taste [in constitutional cases] for [citing] obscure United States authorities’.
118. Amelia Simpson, ‘Research Assistance’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 600.
119. Groves and Smyth (n 39) 266. According to the High Court Annual Report 2016–2017, 33, the Court’s library holdings in Canberra now total 150,213 volumes. The High Court website records ‘[t]he main strengths of the collection are law reports, including some 19th century US state reports, and historical texts including a set of nineteenth-century legal treatises on microfiche’: ‘About the Library’, High Court of Australia (Web Page) <http://www.hcourt.gov.au/library/about-the-library>.
120. Groves and Smyth (n 39) 262.
121. Graeme Orr, ‘Verbosity and Richness: Current Trends in the Craft of the High Court’ (1998) 6 Torts Law Journal 291, 292.
122. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
123. Of course, it may be suggested that the Mason era judges made the law more contestable and unsettled by writing longer judgments. Moreover, judgments in the Gleeson, French and possibly Kiefel eras are also long, and it is arguable that there is not anything particularly in flux about the law now.
124. See, eg, Kirby, ‘Welcome to Law Reviews’ (n 34); Sir Anthony Mason, ‘Centenary of the High Court of Australia’ (2003) 5(3) Constitutional Law and Policy Review 41; Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93, 111; Sir Anthony Mason, ‘Law Making Role: Reflections’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 422; Sir Anthony Mason, ‘The Role of a Constitutional Court in a Federation’ (1986) 16 Federal Law Review 1, 28; Justice Michael McHugh, ‘The Law Making Function of the Judicial Process’ (1988) 62 Australian Law Journal 15 (Part 1), 116 (Part 2); Justice Michael McHugh, ‘Law and Democracy: The Judicial Method’ (Speech, Australian Bar Association Conference, 5 July 1998) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/mchughj/mchughj_london1.htm>; Justice Kenneth Hayne, ‘Concerning Judicial Method: Fifty Years On’ (2006) 32 Monash University Law Review 223, 244. More generally, on the open recognition of competing policy choices on the Mason Court: see Leslie Zines, ‘Legalism, Realism and Judicial Rhetoric in Constitutional Law’ (2002) 5(2) Constitutional Law and Policy Review 21; Stephen Gageler, ‘Beyond the Text: A Vision of the Structure and Function of the Constitution’ (2009 Winter) Bar News 30; Michael Pelly, ‘Bringing Personal Views to the Judicial Table’ (2017) 91 Australian Law Journal 611; Jason Pierce, Inside the Mason Court Revolution: The High Court of Australia Transformed (Carolina Academic Press, 2006); Tanya Josev, The Campaign Against the Courts: A History of the Judicial Activism Debate (Federation Press, 2017); Geoffrey Lindell, ‘“Judge & Co.”: Judicial Law-Making and the Mason Court’ (1998) 5(1) Agenda 83.
125. In discussing Sir Anthony Mason’s evolving approach to recognizing policy choices from a Justice on the Barwick and Gibbs Courts, to Chief Justice in the Mason Court, Michael McHugh, ‘The Constitutional Jurisprudence of the High Court: 1989–2004’ (2008) 30(1) Sydney Law Review 5, 6, has suggested: ‘It was the political, economic and societal changes that commenced in the 1980s that are the true explanation of what has been called Mason I and Mason II as a judge. I think that he regarded Australia’s evolving status as an independent nation as inevitably requiring a change in the approach of High Court justices to judging’.
126. See, eg, Smyth, ‘What Do Judges Cite?’ (n 25); Fausten, Nielsen and Smyth, ‘A Century of Citation Practice on the Supreme Court of Victoria’ (n 14). Observe that the Supreme Court of Victoria prefers to cite its own recent decisions and more recent decisions of the High Court in preference to older cases.
127. See, eg, Merryman, ‘Towards a Theory of Citations’ (n 11) 394–6; Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 136–7; Friedman et al (n 4) 807.
128. R E Burton and R W Kebler, ‘The “Half-Life” of Some Scientific and Technical Literatures’ (1960) 11(1) Journal of the Association for Information Science and Technology 18.
129. See Merryman, ‘Towards a Theory of Citations’ (n 11) 395. On the depreciation of precedent or ‘legal capital’, see William M Landes and Richard A Posner, ‘Legal Precedent: A Theoretical and Empirical Analysis’ (1976) 19 Journal of Law and Economics 249.
130. Merryman, ‘Towards a Theory of Citations’ (n 11) 398; Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 137.
131. An example is the law on rape in marriage, on which in R v L (1991) 174 CLR 379, 390, the High Court stated: ‘In any event, even if the respondent could, by reference to compelling early authority, support the proposition that is crucial to his case, namely, that by reason of marriage there is an irrevocable consent to sexual intercourse, this Court would be justified in refusing to accept a notion that is so out of keeping with the view society now takes of the relationship between the parties to a marriage’. One exception to the High Court preferring to cite more recent cases is that the Court likes, if possible, to trace an existing principle back to (sometimes very) old authority. An example is that whenever it gives Commonwealth legislative power a broad construction, such as the Tasmanian Dam Case (Commonwealth v Tasmania 158 CLR 1), and the WorkChoices case (NSW v Commonwealth (2006) 229 CLR 1) it will cite, and usually quote from, the Engineers Case (n 97). The same tends to happen in Chapter III cases, in which the High Court cites Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254) in support of the steadfast proposition that there is a strict separation of judicial power from legislative and executive power at the federal level. More recently, when discussing the principle of legality—which is largely a contemporary phenomenon originating in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309—the High Court routinely cites the very old case of Potter v Minihan (1908) 7 CLR 277 as first enunciating the principle.
132. Russell Smyth, ‘The Prestige of Australian State Supreme Courts Over the Twentieth Century’ (2010) 45(3) Australian Journal of Political Science 323.
133. Ibid 327.
134. Sir Owen Dixon is reported to have referred to Sir Leo Cussen ‘as the greatest of all judges’: ‘Sir Leo Cussen’ (Web Page) <https://web.archive.org/web/20051226145357/http:/www.leocussen.vic.edu.au/content.asp?p=28>.
135. Troy Simpson, ‘Appointments that Might Have Been’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 23, 25.
136. David Zaring, ‘The Use if Foreign Decisions by Federal Courts: An Empirical Analysis’ (2006) 3 Journal of Empirical Legal Studies 297, 325.
137. Gleeson, ‘The Influence of the Privy Council on Australia’ (n 79).
138. Walpola (n 66) 297. See also Alex C Castles, An Australian Legal History (Law Book, 1982), 510; Justice John Toohey, ‘Toward an Australian Common Law’ (1990) 6 Australian Bar Review 185, 191.
139. (1963) 111 CLR 610.
140. See generally Walpola (n 66) 298–9. See also Victoria v The Commonwealth (1971) 122 CLR 353, 396 (Windeyer J) on the factors that consolidated nationhood.
141. (1963) 111 CLR 610.
142. Walpola (n 66) 298–311.
143. Mason, ‘Future Directions in Australian Law’ (n 79) 149–54. See also Sir Gerard Brennan, ‘Speech on Swearing in as Chief Justice’ (Speech, High Court of Australia, 21 April 1995) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/brennanj/brennanj_swearing.htm>, who states: ‘With the abolition of the last appeals from Australian Courts to the Privy Council, this Court was charged with the ultimate responsibility of declaring the law for this country. This did not mean that we were free to cast aside the priceless heritage of the common law of England, but it did mean that this Court had to examine critically those rules of the common law including the rules of statutory interpretation in the light of our own history, culture and social conditions. Long-standing rules of tort and contract, of land law, equity and administrative law have been revisited in recent years’.
144. Mason, ‘Future Directions in Australian Law’ (n 79). See also Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 138 (Mason CJ), where it was said that the Australia Acts ‘marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people’; Paul Finn, ‘Statutes and the Common Law’ (1992) 22 University of Western Australia Law Review 7.
145. Kirby, ‘Precedent Law, Practice’ (n 71) 243; Gleeson, ‘The Influence of the Privy Council on Australia’ (n 79); Chief Justice Paul de Jersey, ‘The Role of the Supreme Court of Queensland in the Convergence of Legal Systems’ (Conference Paper, XVI Congress of the International Academy of Comparative Law, University of Queensland, 19 July 2002) 16.
146. Kirby, ‘Precedent Law, Practice’ (n 71) 243. See also Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 23–5 where McHugh and Gummow JJ suggested that UK public law has become so heavily influenced by European notions that it would not easily transpose to Australia.
147. Gleeson, ‘The Influence of the Privy Council on Australia’ (n 79).
148. Ibid.
149. Gavin Drewry, Louis Blom-Cooper and Charles Blake, The Court of Appeal (Hart Publishing, 2007). The authors conclude that the Court of Appeal occupies a ‘crucial position as, to all intents and purposes, the court of last resort—indeed a supreme court—for most civil litigants’: at 184.
150. Ibid 1–2.
151. Smyth, ‘Citations of Foreign Decisions’ (n 14) 427.
152. de Jersey (n 145) 6.
153. (1904) 1 CLR 91, 113.
154. Ibid.
155. Engineers Case (n 97).
156. Ibid 146.
157. Richard Latham, ‘The Law and the Commonwealth’ in William Hancock (ed), Survey of British Commonwealth Affairs: Volume 1—Problems of Nationality (1918–1936) (Oxford University Press, 1937) 510.
158. Von Nessen (n 16) 210, makes this argument. Of course, in some instances, the raw numbers do not reveal the full influence. This is evident from the influence of Marbury v Madison, 5 US (1 Cranch) 137 (1803) (‘Marbury v Madison’) on the development of judicial review of administrative action in Australia. In A-G (NSW) v Quin (1990) 170 CLR 1, 33–6, Brennan J cited Marbury v Madison to fashion what has now become the orthodox approach to judicial review of administrative action in Australia. Brennan J’s approach leans heavily on Marbury v Madison, but the many later citations have referred to Quin and not the US case that so clearly influenced it.
159. Kirby, ‘Precedent Law, Practice’ (n 71).
160. In April 2017, the Council of Chief Justices of Australia and New Zealand established an International Working Group, the role of which is to facilitate international judicial contact and exchange: see High Court of Australia Annual Report 2016–2017 (Report, 30 November, 2017) 24. Accounts of several international judicial exchanges involving High Court Justices, including interactions with the judiciary from Canada, China, Hong Kong, Japan, Laos, New Zealand, Singapore, Sri Lanka, Thailand and the UAE are also included: at 25.
161. Dan Meagher, ‘The Principle of Legality and a Common Law Bill of Rights—Clear Statement Rules Head Down Under’ (2016) 42 Brooklyn Journal of International Law 65.
162. Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 134. See also Bennardo (n 11) who finds that the Indiana Appellate Courts are more likely to cite opinions of State Supreme Courts that are more geographically proximate to Indiana.
163. Petherbridge and Schwartz (n 11) 1368.
164. See, eg, Friedman et al (n 4) 815; Manz, ‘Citations in Supreme Court Opinions and Briefs’ (n 11) 140.
165. Orr (n 121).
166. Black and Richter (n 7) 391.
167. Daniels (n 3) 16.
168. Leigh, ‘Behind the Bench’ (n 112) 297; P W Young, ‘Judgment Writing’ (1996) 70 Australian Law Journal 513, 514. Justice Michael Kirby has stated that he wrote his own judgments—see Kirby, ‘What Is It Really Like to Be a Justice of the High Court of Australia?’ (n 105) 520.
169. Leigh, ‘Behind the Bench’ (n 112) 297.
170. Gava, ‘Law Reviews: Good for Judges, Bad for Law Schools?’ (n 29) 561–9.
171. Ibid.
172. Kirby, ‘Welcome to Law Reviews’ (n 34) 6.
173. (1963) 111 CLR 610.
174. (1978) 141 CLR 88.
175. A more detailed table that contains a list of all legal texts cited by the Court over the sample years is available from the authors.
176. While the prominence of Barak’s Proportionality: Constitutional Rights & Their Limitations at first may seem surprising, most of these citations occur in the joint judgment of French CJ, Kiefel, Bell and Keane JJ in McCloy v New South Wales [2015] HCA 34 and may reflect that Kiefel J has been a strong proportionality advocate. This illustrates that the personal idiosyncrasies and predilections of the judges can be an important factor in what secondary sources get cited, particularly when most, or all, of the citations are in a single year. It is also noteworthy that Barak was the Chief Justice of the Isreali Supreme Court—perhaps his position and experience as a judge resonated with Kiefel J and the other High Court Justices.
177. Daniels (n 3) 16.
178. Manz, ‘The Citation Practices of the New York Courts of Appeal’ (n 11) 138.
179. Merryman, ‘Towards a Theory of Citations’ (n 11) 408.
180. Ibid 413.
181. Ibid.
182. Even more so if the statement is from a First Edition. See, eg, the exchange between Dixon CJ and the then Solicitor General for Victoria, Sir Henry Winneke, in Tait v The Queen (1962) 108 CLR 620 (‘Tait’s Case’) regarding Chitty’s Pleading and Practice of the High Court of Chancery. Sir Henry cites Chitty for a proposition in oral argument. Dixon CJ asks him the Edition to which he is referring. Sir Henry responds the 2nd Edition. Dixon CJ asks, ‘I suppose it should be in the first?’, to which Sir Henry responds, ‘I should think so your Honour’. The full transcript of the proceedings before the High Court sitting in Melbourne on 31 October 1962 are reproduced in Creighton Burns, The Tait Case (Melbourne University Press, 1962) 163–81. The exchange between Dixon CJ and Sir Henry Winneke regarding Chitty is recorded at 176.
183. Smyth, ‘Other than Accepted Sources of Law?’ (n 3) 48 (Table 5B).
184. Smyth, ‘Citing Outside the Law Reports’ (n 14) 717 (Table 5).
185. Black and Richter (n 7) 390 (1985–1990); McCormick, ‘Do Judges Read Books Too?’ (n 7) 490 (Table XII) (1990–1996).
186. A more detailed table that contains a list of all law journals cited by the Court over the sample years is available from the authors.
187. Smyth, ‘Other than Accepted Sources of Law?’ (n 3) 43 (Table 4).
188. Smyth, ‘Academic Writing and the Courts’ (n 16) 179 (Table 2).
189. Smyth, ‘Citing Outside the Law Reports’ (n 14) 719 (Table 6).
190. Smyth, ‘What Do Trial Judges Cite?’ (n 3) 249 (Table 6).
191. Ibid 248.
192. See, eg, Oliver Maru, ‘Measuring the Impact of Legal Periodicals’ (1976) 1 Law & Social Inquiry 227, 233.
193. For the Supreme Court of Canada, see McCormick, ‘Do Judges Read Books Too?’ (n 7) 481 (Table 6). For the Supreme Court of the United States, see Daniels (n 3) 30–2 (Appendix 2).
194. See Manz, ‘The Citation Practices of the New York Courts of Appeal’ (n 11) 146–7, who makes a similar point.
195. Engineers Case (n 97).
196. Zelman Cowen, Isaac Isaacs (Oxford University Press, 1967) 142. See also Zelman Cowen, ‘Isaac Isaacs’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 359, 360. See also Geoffrey Sawer, Australian Federalism in the Courts (Melbourne University Press, 1967) 130 who states: ‘his speaking style was often rhetorical and verbose, like his judgments’.
197. See Groves and Smyth (n 39) 279–80.
198. David Ash, ‘Sir George Rich’ (Winter 2010) Bar News: The Journal of the New South Wales Bar Association 68. This observation has even added force when it is recognized that it is entirely possible that the one judgment of McTiernan in which Dixon concurred may well have been written by Dixon. In the Dixon Diaries, Dixon records that not only did McTiernan and Rich regularly attach their names to Dixon’s judgments, but that Dixon actually wrote sole-authored judgments which have been attributed to McTiernan and Rich—see Philip Ayres, ‘Dixon Diaries’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 222. Somewhat provocatively, using machine learning techniques, Yanir Serrousi, Russell Smyth and Ingrid Zuckerman, ‘Ghosts from the High Court’s Past: Evidence from Computational Linguistics for Dixon Ghosting for McTiernan and Rich’ (2011) 34(3) University of New South Wales Law Journal 984, find that about 4% of McTiernan’s judgments and 18% of Rich’s judgments were very likely authored by Dixon.
199. Clem Lloyd, ‘Not Peace but a Sword!—The High Court under J G Latham’ (1987) 11(2) Adelaide Law Review 175, 181.
200. See Smyth, ‘Other than Accepted Sources of Law?’ (n 3) 59 (Table 6E); Smyth, ‘Academic Writing and the Courts’ (n 16) 185 (Table 5).
201. See John Lehane, ‘William Gummow’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 314, 314. Justice William Gummow rejoined the Law Faculty at the University of Sydney following his retirement from the High Court. A select list of his publications is available at his University of Sydney website: The University of Sydney, ‘Professor William Gummow’ (Web Page) <https://sydney.edu.au/law/about/people/profiles/william.gummow.php>.
202. Orr (n 121) 298, refers to Kirby as ‘a prolific legal commentator’. Russell Smyth, ‘Judges and Academic Scholarship: An Empirical Study of the Academic Publication Patterns of Federal Court and High Court Judges’ (2002) 2(2) QUT Law and Justice Journal 198, reports the results of an empirical study of the academic publishing patterns of Federal Court and High Court judges over the period between 1975 and 2000 based on publications listed in the AGIS and APAIS databases. That study found that Kirby had published over 300 journal articles, including 40 in the Australian Law Journal alone. This was over three times more than the next highest publisher, which was Sir Anthony Mason who had published 100 articles. The long list of Justice Michael Kirby’s publications and speeches are listed on his personal website: Michael Kirby, ‘The Hon Michael Kirby AC CMG’ (Web Page) <https://www.michaelkirby.com.au>.
203. Kirby, ‘Welcome to Law Reviews’ (n 34) 6.
204. See, eg, Gava, ‘Law Reviews: Good for Judges, Bad for Law Schools?’ (n 29) 30; Orr (n 121) 298–9.
205. Groves and Smyth (n 39); Carter et al (n 39); Lynch and Williams (n 39).
206. Llewellyn (n 27).
207. See, eg, Kirby, ‘Welcome to Law Reviews’ (n 34); Mason, ‘Centenary of the High Court of Australia’ (n 124); Mason, ‘The Use and Abuse of Precedent’ (n 124); Mason, ‘Law Making Role: Reflections’ (n 124); Mason, ‘The Role of a Constitutional Court in a Federation’ (n 124); McHugh, ‘The Law Making Function of the Judicial Process’ (n 124); McHugh, ‘Law and Democracy: The Judicial Method’ (n 124); Hayne (n 124).
208. See Nicholas Aroney and Benjamin B Saunders, ‘On Judicial Rascals and Self-Appointed Monarchs: The Rise of Judicial Power in Australia’ (2017) 36(2) University of Queensland Law Journal 221.
209. Andrew Lynch, ‘The High Court—Legitimacy and Change: Review Essay: Haig Patapan, Judging Democracy—The New Politics of the High Court of Australia’ (2001) 29(2) Federal Law Review 295.
210. Gleeson CJ and French CJ referred to values inherent in the common law, rather than ‘community values’, which was a popular depiction of values favoured by the Mason Court. See Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (2000) 20 Australian Bar Review 4, 9, where his Honour referred to ‘values inherent in the law’. See also Chief Justice Robert French, ‘Law Making in a Representative Democracy: The Durability of Enduring Values’ (Lecture, Catherine Branson Lecture Series Adelaide, 14 October 2006) 5, where his Honour states: ‘The common law itself embodies values. As it develops it confronts courts with choices which may involve the application of existing values or their displacement by a competing value’.
211. See, by way of analogy, the notion of a consensual norm on the High Court—Russell Smyth, ‘Historical Consensual Norms in the High Court’ (2002) 37(2) Australian Journal of Political Science 255; Paresh Narayan and Russell Smyth, ‘The Consensual Norm on the High Court of Australia: 1904–2001’ (2005) 26(2) International Political Science Review 147. These studies for the High Court build on earlier work on a consensual norm on the United States Supreme Court. See Gregory A Caldeira and Christopher JW Zorn, ‘On Time and Consensual Norms in the Supreme Court’ (1998) 42(3) American Journal of Political Science 874.
212. See John M Williams, ‘Swelling the Ranks of the Peripatetic Unemployed: The First Decade of the High Court of Australia’ (Lecture, High Court of Australia Public Lecture Series, 8 June 2011), 19–20. Williams emphasises that in the early constitutional cases, the Court was ‘approaching a blank page’ in which it was not settled whether the Court should follow the Privy Council, as was initially preferred in some of the State Supreme Court decisions. See, eg, Wollaston’s Case (1902) 28 VLR 357, 363–4), or the Supreme Court of the United States which show that there was no settled norm as to which cases would be cited.
213. Murphy J famously suggested that a rigid adherence to precedent was ‘eminently suited to a nation populated by sheep. See Justice Lionel Murphy, ‘The Responsibility of Judges’ in Gareth Evans (ed), Law Politics and the Labor Movement (Legal Services Bulletin, 1980) 5. Murphy J’s judgments, however, have been rarely referenced by judges in more recent cases, even in the implied rights cases in which the reasoning had similarities with Murphy J’s approach to interpreting the Constitution. See Michael Kirby, ‘Lionel Murphy and the Power of Ideas’ (1993) 18(6) Alternative Law Journal 253; Lisbeth Campbell, ‘Lionel Murphy and the Jurisprudence of the High Court Ten Years On’ (1996) 15(1) University of Tasmania Law Review 22.
214. Merryman, ‘Towards a Theory of Citations’ (n 11) 418.
215. Ibid.
216. Of the judges that have sat on the High Court, Murphy J is the obvious example. See Murphy (n 213).
217. Merryman, ‘Towards a Theory of Citations’ (n 11) 418 (emphasis in original).
218. Ibid.
219. Friedman et al (n 4) 793.
220. Merryman, ‘Towards a Theory of Citations’ (n 11) 418.
221. Susan Kiefel CJ, ‘Judicial Methods in the 21st Century’ (Supreme Court Oration, Banco Court, Supreme Court, 16 March 2017) 6.
