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Federal Law Review |
Imagine this scenario. A court composed of an even number of judges is deciding the constitutionality of national legislation critical to the efficient administration of justice in a federal state. In argument, the chief law officers of all representative governments ask that the legislation be upheld as it was reached through a lengthy negotiated compromise of all the parties. By virtue of an equal split of opinion between the six judges hearing the case, a legislative 'sleight of hand'[1] is triggered and the scheme is found to be constitutional. Twelve months on, the same court agrees to reconsider its previous decision. Things are generally unchanged, the same arguments are presented. The matter, however, is heard by a differently-composed, odd-numbered bench. If ever the combined desire of all governments was that a court should heed the ancient maxim 'stare decisis et non quieta movere—stand by the thing decided and do not disturb the calm'[2]—it would be now. Instead, a majority finds that the same scheme is unconstitutional; it therefore collapses. One lone dissenter asks, 'what has changed?'[3] Of course, this scenario is not imaginary but is a real example of High Court members playing out their disagreements in a relatively recent duo of cases, Gould v Brown[4] and Re Wakim; Ex parte McNally.[5]
Constitutional decision-making that overturns existing precedent can have far-reaching effects. The High Court's decision in Re Wakim, invalidating a jurisdictional cross-vesting scheme found constitutional merely a year before in Gould, had a huge impact on pending litigation. A similarly serious overturning effect occurred only two years prior to Re Wakim in Ha v New South Wales,[6] which eliminated a large source of revenue that prior to Ha the States had relied upon.
In constitutional cases, the arguments for having as sound a basis as possible for overruling are arguably even more compelling than for non-constitutional cases. For one, the effects are more permanent than in ordinary litigation. Where government disagrees with a court's constitutional decisions, it has only two options: it can either seek to amend the Constitution by submitting a referendum to the people, or hope to litigate a fresh case in which the principle of stare decisis will be ignored. Parliament, in other words, cannot take a second crack at things. Moreover, reconsidering constitutional decisions gives the High Court great power and control over fundamental issues related to society in general, including issues surrounding parliamentary sovereignty. While overruling non-constitutional precedents is of course not without its dangers, it is only in constitutional reconsiderations that decisions must be weighed against a 'sworn loyalty' to the 'organic law of the Constitution'.[7]
Thus, this paper is concerned with the mechanics of overruling in constitutional cases. It is not intended to revisit the nature of stare decisis and precedent. There have been a number of different meanings ascribed to these doctrines and some very deep philosophical thinking has been spent on developing theories about precedent and judicial reasoning.[8] It is also largely a doctrinal examination of overruling decisions of the High Court—it is our view that this straightforward form of analysis is in marked need of elaboration and consequently unnecessary in this paper to explore other perspectives.
Stare decisis can operate as a rule which excludes a court from reconsidering any other reasons for a decision, or it can mean simply a court is generally bound by a previous decision but is not precluded from reconsidering the reasons for that decision.[9] According to Ronald Dworkin, who subscribes to the latter approach, judges are always able to find the right answer to a particular issue because a relaxed view of precedent allows them ultimately to turn to legal principles for the correct solution.[10] When it comes to the actual practice of constitutional overruling, however, it is our view that revisiting constitutional decisions is not something to be treated as simply 'part of the process' of general judicial decision-making. The pronouncements of many High Court Justices show that it is fundamentally different from non-constitutional decision-making. In this paper we therefore examine certain conceptual and procedural shortcomings most pertinent, or exclusive, to the overruling of constitutional decisions. The ultimate goal of the paper is to point out certain issues which, if addressed, would make for a more consistent and widely acceptable process of overruling.
Calls have been made for an explicit and detailed treatment of the wider considerations involved in revisiting constitutional decisions, even though the Court has not ignored the issue entirely.[11] In John v Federal Commissioner of Taxation[12] the Court derived a four factor test to apply to all overruling cases: (i) do the earlier decisions rest upon a principle that is worked out in successive cases?; (ii) is there a difference in reasoning between the majority Justices in one of the earlier decisions?; (iii) has the earlier decision not achieved a useful result, but rather caused considerable inconvenience?; and (iv) have the earlier decisions been acted upon in such a manner as to militate against reconsidering?[13] But even in non-constitutional cases, reference to these factors may simply belie the impetus behind overruling.
The most significant shortcoming in constitutional overruling has been the uncertainty surrounding the factors that the High Court has taken into account in deciding whether to overrule constitutional precedents. The paper firstly attempts to categorise and critique a number of concerns which the High Court's Justices have accepted as being relevant in revisiting its constitutional decisions. Given the importance of constitutional overruling and the unique set of competing concerns, it is surprising that a detailed analysis of the existing case law in this context has rarely occurred.[14] Although the literature has recognised that constitutional overruling warrants separate treatment,[15] discussion usually has canvassed the cases without attempting to organise them. Even where authorities have been reviewed extensively, not enough attention appears to have been devoted to classifying and weighing the criteria employed by the Court in overruling or upholding constitutional precedents as compared to overruling precedents in other areas of law.[16] By analysing a variety of constitutional cases, we discuss certain considerations that the Court has weighed against what a Justice deems to be a correct interpretation of the Constitution. Although we acknowledge the force behind the argument that correctness should be the paramount consideration in every overruling,[17] it is noted that many Justices have repeatedly shied from such a categorical stance. The paper therefore also examines the purposes that could be served by the Court's consideration of factors other than correctness.
The final part of the paper looks at other more 'mechanical' issues which also impinge on the soundness of the overruling process, such as evenly divided decisions as precedents and the absence of settled overruling procedures. Solutions are suggested where possible but the core aim is to highlight the current problems affecting the Court's methods of constitutional overruling.
'It is not ... better that the Court should be persistently wrong than that it should be ultimately right' was the famous assertion by Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australia,[18] where he invited the Court to pursue a correct interpretation of the Constitution above all else. Strictly adhering to this stance would mean automatically overruling any precedent where a majority disagreed with its reasoning. For example, Murphy J repeatedly employed this approach, he being a vigorous exponent of the view that precedents are no obstacle to a judge giving effect to what he or she believes is the 'correct' interpretation of the Constitution.[19]
Other judges have usually not been as ready as Murphy J to simply overrule a constitutional precedent that is inconsistent with their interpretation. Most would support a view that a written Constitution need not be inconsistent with the concept of stare decisis.[20] Justice Williams in Hughes and Vale Pty Ltd v New South Wales[21] thus commented that differences of opinion on the Court were not enough to permit upsetting lines of constitutional precedents.[22] Justice Aickin in Queensland v Commonwealth[23] similarly explained that in contemplating overruling a precedent it is not enough for a judge merely to be satisfied that it is wrong.[24]
Nevertheless, while judges have generally refrained from characterising their task as concerned only with correct constitutional interpretation, their statements have often suggested that beyond a certain point correctness will be the overriding concern. In early decades various Justices advocated overruling when a precedent was 'clearly' or 'manifestly' wrong.[25] Half a century later Barwick CJ in Damjanovic & Sons Pty Ltd v Commonwealth stated that overruling would be needed when an error in precedent was 'clearly made out',[26] while McHugh J in McGinty v Western Australia found the reasoning in a line of constitutional precedents, due for overruling, to be 'fundamentally wrong'.[27] A unanimous Court summarised this stance in Lange v Australian Broadcasting Corporation[28] saying that 'it cannot be doubted that the Court will re-examine a decision if it involves a question of "vital constitutional importance" and is "manifestly wrong"'.[29] Although the looseness of these terms suggest that they may not be defined standards or terms of art, they continue to be used by the Court. All create the impression that a judge's conviction as to the correctness of a precedent must at some point be given effect, despite competing considerations. However, such thresholds have not been, and arguably cannot be, satisfactorily defined. Crucial issues remain as to the appropriateness of these ill-defined terms, and of the role that they have been allowed to play in the Court's process of reconsideration. Arnold Bennett, in one of the few critical approaches to this problem, suggested that reversing previous decisions should be based not on specific factors such as the composition of the bench, the currency of the decision or the eminence of the previous decision, but on the absolute conviction of the rightness of a decision, albeit with an openness and deeper understanding of the process of stare decisis and overturning.[30] Patrick Keyzer, also speaking in a constitutional context, was more categorical in his stance. He argued that:
Once a judge of the High Court has reached the conclusion that a previous decision is wrong on doctrinal grounds, then it follows that there can be no particular rule or rules or set of factors to guide the exercise of the Court's discretion to reconsider its earlier decisions.[31] (emphasis in original)
This view, however, has not been wholeheartedly adopted by the High Court and even if eventually seen as appropriate by the Court, it may not prevent future references to abstract notions of correctness from disguising some of the underlying reasons for a Justice's course of action.
The problem boils down to whether judges are being asked the impossible—to find ways of linking the twin ideas of correctness and precedent. While it is reasonable to argue that they sometimes may only be marginally related, we believe that the High Court has ignored tackling the issue head on, and instead relied upon subtle indicators of how to apply certain factors in deciding whether to overrule constitutional cases. A more pragmatic method would be to allude to the inevitability of using a factor-based approach in future reconsiderations and assess the suitability of various aspects related to precedent and correctness. This is not to 'elevate pragmatism over constitutional imperatives';[32] rather it is to accept that 'pragmatism' has become part and parcel of constitutional overruling. The important point is that factors other than correctness in constitutional overruling cases have never been systematically analysed. We have divided our discussion up into four main factors: individual right, reliance, public inconvenience and public perception.
In Street v Queensland Bar Association,[33] a New South Wales barrister was refused admission by the Queensland Bar unless he guaranteed he would practise principally in Queensland. He argued that this requirement infringed s 117 of the Constitution.[34] The High Court was thus asked to overrule Davies and Jones v Western Australia[35] and Henry v Boehm,[36] which held such requirements constitutional as they applied equally to all persons. Chief Justice Mason acknowledged that he was faced with two constitutional decisions where, except for one dissenter, all the judgments supported Queensland's argument. The Chief Justice, however, disagreed with the original majority decision.
In itself, this disagreement could have been sufficient to allow Mason CJ to overrule the decisions, had he viewed his overriding duty as giving effect to his belief as to the correct interpretation of the Constitution. Instead Mason CJ added a short qualifier, concluding that he should overrule the two precedents as they supported an incorrect interpretation of 'an important provision in the Constitution dealing with individual rights central to federation.'[37] Similarly, Brennan J in the case stated that 'the doctrine of stare decisis...is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms'.[38]
Similar reasoning was used by Gummow J in Newcrest Mining (WA) Ltd v Commonwealth.[39] He stated that when an issue before the Court relates to 'an important provision of the Constitution which deals with individual rights ... the ... Court has a responsibility to set the matter right.'[40] Partly as a result of this reasoning, Gummow J went on to overrule Teori Tau v Commonwealth,[41] which had denied the applicability of the right to just terms in relation to property acquisitions under the territory power.
In none of these instances do the Justices' choices appear to have been based on a universal duty to hand down a correct interpretation of the Constitution. Rather, each maintained that, once the Court is asked to consider an individual right granted or protected by a constitutional provision, then deciding upon the 'correct' interpretation for that section, rather than one supported by precedent, becomes the overriding aim. This approach does not mean that prior decisions are ignored—Brennan J did point out in Street that the precedents involved should certainly be granted 'great respect'.[42]
In these decisions the need to adhere to precedent has been inversely related to the importance of the constitutional subject matter involved. In particular, constitutionally enshrined individual rights have been categorised as being more important than some 'other' constitutional principles and thus more likely to outweigh the need to preserve precedents. Strong authority for this can be found in Gibbs J's judgment in Commonwealth v Hospital Contribution Fund of Australia.[43] In pointing out that no rights would be adversely affected if the precedent being considered was overruled, he contrasted this with the situation in Western Australia v Commonwealth.[44]
Once it is accepted that a hierarchy of constitutional decision-making might affect overruling, a further question arises: is overruling only more appropriate where it will increase an individual right or does the same higher standard apply where it would restrict it? In other words, is stare decisis less important to incorrect interpretations of constitutional rights that had previously expanded such a right or should it be treated the same? It is not clear in either Street or Newcrest whether their Honours' readiness to overrule was influenced by the fact that the constitutional right involved in each case had been restricted by precedent.
Logically, if the ultimate aim is to correctly interpret constitutional rights, why should the approach be partially motivated by identifying only constitutional protections or expansions of individual freedoms and rights?[45] Restricting a constitutional right arguably has an unacceptable effect upon the right holder, but expanding the right will often adversely affect others, which could be equally unacceptable if the result arises from an erroneous interpretation of the Constitution. Justice McHugh explained in Newcrest that if an earlier decision denying the right to just terms in compulsory acquisitions of property by the Territories had been 'plainly wrong', then justice for the 'dispossessed holders of native title' would have justified an overruling.[46] Conversely, if the decision had instead incorrectly confirmed the right to just terms in such circumstances, justice for those wrongly compelled to pay compensation arguably should also have warranted an overruling. If these decisions mean that the Court accepts that reconsiderations of authorities dealing with constitutional rights are ultimately governed by a Justice's constitutional interpretation, then its willingness to overrule should not waver when it means depriving parties of a right they previously enjoyed.
On the other hand the tenor of these decisions suggest that the Court would be less inclined to take away rights than to ensure protection of rights. This is especially true where individual rights are vying against collective or governmental rights—the Court's past attitude appears to have been driven by a need to prevent restricting rights. It is probably not a coincidence that the overruling cases in this area usually involved precedents that had supported an inappropriately narrow interpretation of a provision. Hence McHugh J's emphasis in Street that the decisions had 'greatly reduce[d]', rather than 'incorrectly interpreted', 'the scope of a great constitutional protection'.[47] In fact, a number of judgments in Street and in Newcrest indicate the Court taking into account the erosion, rather than the correct interpretation, of a constitutional right as a counterbalance to a concern with stare decisis.
From this brief overview it is apparent that the High Court needs to more explicitly develop its reasoning relating to the consequences of varying constitutional rights. The Court has not been clear on this point. It is still not known whether a constitutional precedent that incorrectly expands an individual's constitutional right should be accorded less respect or whether the question simply relates to notions of correctness.
Constitutional rights are not the only rights that can be significantly affected by an overruling of constitutional authorities. Statutory legal rights or privileges may be enacted either because of a pre-existing constitutional precedent, or ex ante upon a constitutional decision. In the First Territorial Senators Case,[48] the Court held valid a Commonwealth Act which established Senators in the Australian Capital Territory and the Northern Territory. Chief Justice Barwick and Gibbs and Stephen JJ dissented. Two years later, in the Second Territorial Senators Case,[49] the Court was asked to overrule the First Territorial Senators Case. Chief Justice Barwick declared that once a judge is convinced that a precedent is erroneous, 'the duty to express what is the proper construction is paramount.'[50] He held that the decision should be overruled. Both Gibbs and Stephen JJ declined to take the same path. Justice Stephen was not prepared to deny Senate representation to the Territories as the 'price of a personal decision to treat a particular precedent authority as appropriate for reconsideration.'[51] In doing so, Stephen J upheld a decision in which he had dissented, and with which he continued to disagree.[52] Justice Gibbs mirrored Stephen J's approach, expressing his duty to be to adhere to the constitutional precedent even though his view clearly remained that it had been wrongly decided.[53]
Justices Gibbs and Stephen both admitted that the original decision did not represent their view of the Constitution. Their Honours' reasoning thus implies a willingness to relegate the meaning of the Constitution, as perceived by each Justice, to a less than paramount position. This willingness was in the context of deciding the fate of a substantial right, but a right that was not enshrined in the Constitution. Justice Stephen's clarification that the case 'was very much one upon which different minds might reach different conclusions, no one view being inherently entitled to any pre-eminence'[54] seems inconsistent with his assertion that he would not have decided the constitutional issues 'at all differently'.[55]
Justices Gibbs' and Stephen's judgments are to be contrasted with the statements in Street and Newcrest that the importance of constitutional issues mean that a judge's convictions must take effect. It is possible that the lesser importance of the subject matter (statutory rights as opposed to constitutional rights) may mean that the doctrine of stare decisis is to be given effect. It also adds weight to the conclusion that the Court shows a greater propensity to overrule where it means extending, rather than restricting, rights.
Another theory may explain Gibbs and Stephen JJ's actions in the Territorial Senators cases. In the original case they would have seen themselves as individually obliged to give voice to their constitutional viewpoints. No decision had as yet altered the constitutional landscape with regards to the residents of the Territories. After the First Territorial Senators Case, where their particular interpretation did not find favour, their Honours may have chosen to act as members of a collective judicial body whose decision could not be sacrificed due to an individual disagreement. That is not to say that they saw the first decision as meaning that 'what before was uncertain and perhaps indifferent, has now become ... permanent'.[56] Rather, the Court as a whole had approved of a new right and a member of the Court could not so easily and so speedily do away with it. Of course, this leaves Barwick CJ's dogmatism unexplained.
One way of reconciling the various viewpoints in these cases is to accept that arguments justifying an extension of individual rights reign supreme, and that correctness, or personal conviction, or the importance of precedent, are simply approaches used to achieve that result. Whatever the answer, the real problem is the imprecision of language used. It opens the door, as we have done, to speculation as to why some decisions are overruled and others not and therefore leads to a high degree of subjectivity. Given the importance of the task that the Court is engaged in, whatever conclusion is adopted as to what the relevant Justices meant, the point illustrates the lack of consistency from one case to the next.
While one hopes that their Honours would not have gone too far before their conviction of the incorrectness of a decision would have encouraged them to overrule, the approach adopted in the Territorial Senators Case is not an anomaly. As mentioned, in Hospital Contribution Fund (No 1),[57] Gibbs J contrasted the situation where no rights would be adversely affected with the situation in the First Territorial Senators Case, accepting implicitly the methodology adopted in both the Territorial Senators cases.[58]
The High Court has thus actively incorporated in the overruling process an assessment of the potential for change to individual rights, albeit not altogether consistently. But individual interests are not the only concerns that can be so affected. Constitutional decisions revisiting the validity of entire governmental schemes have also been overruled. In these cases, reliance interests become crucial.
Stare decisis in American constitutional adjudication has been touted as promoting 'system-wide stability and continuity by ensuring the survival of governmental norms'.[59] Although Australia's Constitution lacks many elements of the United States Constitution upon which the United States Supreme Court is asked to adjudicate, there have been a number of High Court decisions deciding the fate of governmental programs. The two central questions that arise in these situations are the degree to which the Court has been mindful of governmental reliance and what should be the function and weight accorded to such reliance. These issues can best be illustrated by contrasting what can be termed 'financial reliance' cases, with cases pertaining to other types of legislative and executive reliance.
The High Court has repeatedly demonstrated a reluctance to overrule constitutional precedents that governments have relied upon financially. The starkest example is the line of cases dealing with licence fees. In Dennis Hotels Pty Ltd v Victoria[60] the Court held to be constitutional a licence where the fee for the licensee was calculated on the value of alcohol purchased over a fiscal period occurring prior to the time the licence was applicable. In Dickenson's Arcade Pty Ltd v Tasmania[61] the Court held constitutional similar fees relating to tobacco licensing.
The Court repeatedly refused to overrule the holdings in Dennis Hotels and Dickenson's Arcade despite hearing a number of subsequent cases on excise. These cases ended up providing the constitutional basis for various licensing schemes representing 16 per cent of the States' revenue base.[62] The decisions that followed Dennis Hotels and Dickenson's Arcade reveal the Court's great concern with the fiscal reliance that state governments had placed upon the original cases. This is demonstrated most starkly by judgments that refuse to review previous decisions and by the significant lengths taken to avoid overruling. In these cases, the Court seems to propose different tests from those it fashioned for overruling individual rights cases. For example, in H C Sleigh Ltd v South Australia,[63] Jacobs J expressed a need for the Court to be 'convinced' of both the decision's wrongness and, crucially, its causing of intolerable 'social, economic or political consequences'[64] before it could disturb the 'delicate' fiscal arrangements of States relying on the faith of existing constitutional decisions.[65] The Court placed even greater emphasis on fiscal reliance in Evda Nominees Pty Ltd v Victoria.[66] A six-member majority made it clear that it would not even consider whether to overrule Dennis Hotels, 'particularly since the States have organized their financial affairs in reliance on them.'[67] Given the brevity of the judgment, it is difficult to glean the reasoning behind such a categorical refusal. It is apparent, though, that the majority saw fiscal reliance as an obstacle to reconsidering the constitutional precedents. In Evda, the Court appears to have neglected Jacobs J's suggestion in H C Sleigh that the Court also needed to be convinced of the incorrectness of the precedents before assessing financial reliance arguments.
The case of Gosford Meats Pty Ltd v New South Wales[68] supports further the argument that the Court's continuing reliance on Dennis Hotels and Dickenson's Arcade was based on something other than their correctness. In Gosford Meats, Gibbs CJ pointed out that it was illogical to hold, as in Dennis Hotels, that a licence fee quantified by reference to past sales or purchases of goods is not a tax upon the sale or purchase, while a licence fee quantified by reference to past production is a tax upon production (as the majority held).[69] This paradox was subsequently repeated in other cases.[70]
In Philip Morris Ltd v Commissioner of Business Franchises,[71] Mason CJ and Deane J reiterated that a decision would need to be overruled if clearly demanded by the terms of the Constitution[72] but seized upon the fact the decision in this case could be 'rationalised' as relating to the licensing of particular products, namely alcohol and tobacco.[73] Underlying all the rationalising, however, appears to be a marked concern with reliance. The judges admitted that the 'revenue collected by the States and the Northern Territory from business franchise fees has risen markedly',[74] weakening the characterisation of the fees as primarily a necessity of regulation. Inescapably, Mason CJ's and Deane J's stance was virtually necessary if their aim was to preserve the precedents and the schemes that they supported. But then their Honours' carefully worded justification for upholding the Dennis Hotels line of cases deliberately highlights the importance of preserving financial reliance. When Mason CJ and Deane J were joined by Brennan and McHugh JJ in Capital Duplicators Pty Ltd v Australian Capital Territory (No 2)[75] it was with marked hesitation that the four person majority argued there were 'some grounds' for placing alcohol and tobacco in special categories when ascertaining whether licence fees were excise duties.[76] Far more vigorous, however, were their assertions that there were 'very strong practical reasons why the rule of stare decisis should be observed' in relation to the Dennis Hotels line of constitutional precedents.[77] The only practical reason is that States were relying on these precedents.
Despite this background, the Court performed a dramatic volte-face in Ha on the reliance issue. The new four person majority of Brennan CJ and McHugh, Gummow and Kirby JJ was aware of the 'serious implications for the revenues of the States and Territories' but ultimately found the 'maintenance of constitutional principle' to be paramount.[78] This decision may be seen as a return to correctness as the ultimate consideration; unfortunately that does not explain why such a conclusion was rejected for so long. Their Honours declared that the Dennis Hotels formula could not support what in reality was a revenue raising tax, where the States had far overreached their entitlement to levy licence fees.[79] Arguably, it should have been obvious to the Court that the States had overreached any such entitlement long before Ha. Curiously, the majority allowed Dennis Hotels and Dickenson's Arcade to stand, but pointed out the lack of a basis for the special regulatory characterisation adopted in Philip Morris and repeated in Capital Duplicators (No 2).[80]
In isolation, the results in the licence fee cases could be attributed to a tortuous history rather than an active acknowledgment by the Court of the need to address fiscal reliance. The Court's pronouncements in relation to uniform taxation three years prior to Dennis Hotels, however, confirm its use of financial reliance as a relevant issue in assessing whether to overrule. In South Australia v Commonwealth[81] the Court held to be constitutional a number of Commonwealth Acts which prevented the States from levying income tax. The Commonwealth then proceeded to enact new legislation that consolidated its control of income taxation. In Victoria v Commonwealth the Court was then asked to reconsider the matter.[82]
Of greatest concern to the States had been grants legislation which empowered the Commonwealth to make annual grants to a State provided that it did not levy income taxation in the relevant year. The recently appointed Chief Justice Dixon held, seemingly regrettably, that the First Uniform Tax Case's validation of this law should not be overruled. Notably, his Honour never tried to establish that the original interpretation of s 96 of the Constitution in the First Uniform Tax Case was the correct one, admitting instead that if the issue had arisen in his Court for the first time, the opposite conclusion might very well have been reached.[83] This is an unusual admission, showing Dixon CJ's well known frankness. He was unconvinced of the rightness of the earlier decision, but rather, repeatedly appealed to the 'cumulative authority'[84] of earlier decisions and the fact that the First Uniform Tax Case was merely an extension of other precedents in their interpretation of the grants power.[85]
So how does this help bolster the argument that the Court uses fiscal reliance as a touchstone for deciding whether to overrule? It could instead be argued that Dixon CJ was simply endorsing the doctrine of stare decisis.[86] But that begs the question of why precedential authority exists at all. It fails to take into account the role that governmental financial reliance plays in causing constitutional precedents to be respected. Respecting precedents is not an end in itself. Reliance exists as part of a social contract between the Court and Parliament. It is a means of ensuring that the Court's willingness to overrule its decisions does not cause undue disruption. In this case, as well as in the licence fee decisions, the Court's caution ensured that the fiscal arrangements of the nation were not unduly disrupted by overrulings. Thus, the Chief Justice acknowledged the entrenchment of uniform taxation in the Commonwealth's fiscal makeup, which the effluxion of time and deference to the precedent facilitated.[87] Chief Justice Dixon did overrule the First Uniform Tax Case on one point,[88] but was very much aware that this overruling would be unlikely to impair the uniform tax scheme in practical terms.[89]
Fiscal reliance is not the only form of reliance to have been considered in overruling. In many areas Parliaments will legislate, and governments act, in a manner assumed to be constitutional by virtue of existing judicial precedent. Where the Court is asked to revisit such cases it faces the burden of impairing extant legislation, or neutralising important actions by the Executive which have been relied upon.
The Court in Uther v Federal Commissioner of Taxation[90] held valid a New South Wales statute that reduced the priority at common law of debts owed to the Commonwealth. Partly in reliance on Uther the States enacted uniform Companies Acts which incorporated priority provisions closely mirroring those of the legislation examined in the decision. In Commonwealth v Cigamatic Pty Ltd[91] the Commonwealth then challenged the central holding in Uther. The majority of the Court overruled Uther's holding that the Companies Acts' provision was invalid. Justice Menzies (with whom Kitto and Owen JJ agreed) admitted that had the relevant matter not been 'one of vital constitutional importance' he would have adhered to precedent.[92] His Honour did not delineate any practical approach to assessing 'importance', and ultimately chose to overrule Uther. Justice Menzies' emphasis is clear—the importance of preserving the constitutional status quo depends on the importance of the constitutional question before the Court. Implicit in this statement is the notion that a correct constitutional meaning is not seen as always being paramount. Justice McTiernan, who had dissented in Uther, declined to overrule it. Of the reasons that 'urged' his Honour not to accede to an overruling, he described as 'compelling' the fact that an overruling would disrupt an important feature of the newly enacted Companies Acts.[93] Admittedly, McTiernan J suggested that his refusal was partly due to the State Attorneys-General not having been heard on the question. This, however, underscores the importance McTiernan J accorded to reliance-based actions by the States. His refusal to overrule again points to the conclusion that the impact upon the constitutional status quo was more compelling than the pursuit of a correct constitutional meaning. Justice Taylor, dissenting, did go on to reconsider and ultimately agree with the holding in Uther. Nonetheless his Honour stated that the fact that Uther had been relied upon in enacting new legislation was a 'cogent matter ... for consideration' in the process of deciding whether to overrule the decision.[94]
The two cases of Teori Tau and Newcrest show another side of reliance. In Teori Tau a unanimous Court held that the right to just terms guaranteed by s 51(xxxi) of the Constitution did not apply to property acquisitions carried out under the s 122 territory power. One of the issues the Court came to consider in Newcrest was whether Teori Tau should be overruled. In Newcrest Kirby J 'reject[ed] the suggestion that the Court's response to an application to reopen past authority is controlled by the reliance which ... Parliaments have placed upon past authority. There can be no estoppel against the Constitution.'[95] Justice Kirby's point is that legislative reliance by governments cannot control the Court's views.
No one is suggesting that the presence of reliance should automatically forbid examination of correctness. In the decisions discussed earlier, it is not clear whether the Court was allowing reliance to 'control' overruling. On the other hand, the decisions at least suggest that reliance must be part of the process undertaken in reconsidering constitutional precedents. Even Kirby J admitted that considerations of reliance would 'be a reason for hesitation to depart from established authority and for requiring convincing argument to reach the alternative view'.[96] Such hesitancy is required for crucial practical reasons. As McTiernan J pointed out in Hughes, eliminating stare decisis from constitutional adjudication could endanger the stability of the law, as legislation is often reliant on prior constitutional decisions.[97]
The reliance, however, must be seen to be proper. In Hospital Contribution Fund (No 1) Gibbs CJ and Wilson J pointed out that the only action taken by the States in relying on precedents were their attempts to neutralise the effect of the decisions. Chief Justice Gibbs saw this as an indicator of a lack of reliance (or, in our view, a kind of negative reliance), thus facilitating his overruling the cases without acknowledging any potential detriment.[98] By so doing, the Court has not only professed a need to ascertain the presence of legislative reliance, but also its nature. It is now more likely governments will ensure appropriate evidence of reliance is available before seeking High Court overruling.
An examination of the 'reliance' cases suggests that the Court has not accorded other types of legislative and executive reliance the same weight as fiscal reliance when considering whether to overrule earlier precedent. The most obvious reason may be that in those few cases where legislative or executive reliance existed it was inappropriate for the Court to find reliance outweighing competing demands. But there are also greater difficulties in ascertaining the level of reliance in these cases, especially as compared to cases of fiscal reliance, where the potential loss of revenue is quantifiable. This leads to the problem of what weight to give reliance in assessing overruling. For example, in Newcrest Gummow J came to the conclusion that Teori Tau could be overruled as it had not 'been significantly acted upon by the Parliament or territorial legislatures',[99] begging the question as to what his Honour would have considered 'significant' reliance. The imprecise nature of this factor should not be fatal, however, to its place in the overruling process. The Court could ensure that any weight accorded to such reliance is as far as possible based on concrete analysis rather than general impressions.
The Court's oft-professed inclination to more readily accede to an overruling of constitutional as opposed to general law precedents enjoys support.[100] As McHugh J restated in Re Tyler; Ex parte Foley,[101] avenues for altering constitutional pronouncements are restricted to either a High Court challenge or a referendum.[102] Chief Justice Rehnquist of the United States Supreme Court, for example, has argued that as there are fewer reliance interests which would be affected in constitutional adjudication, constitutional decisions should be given less weight in contrast with property and contractual law precedents.[103] There are problems with this thesis, however. Strong arguments have been made that constitutional amendment was expressly made difficult in order to promote stability in governmental arrangements. A readiness to overrule undermines such stability.[104]
The need for the Court to be acutely aware of the importance of governmental stability is important. Constitutional judgments do not exist in a conceptual vacuum, nor can their findings be restricted to the parties to the dispute. As Australia's constitutional arbiter, the High Court's function is to settle disputes stemming from differing readings of the Constitution. But each constitutional precedent also defines how the nation is governed—its indirect impact often being far greater than that on the immediate participants. From its role as an adjudicator, the Court plays, reluctantly or otherwise, a contributing role in organising government. Arguments such as Chief Justice Rehnquist's downplay this role somewhat. He equates the importance of reliance to the number of identifiable interests. This ignores the fact that governmental reliance can be of such magnitude that ignoring it becomes perilous to the proper functioning of the state. On the other hand, the Court should not blindly accept that overruling is forbidden when a previous decision has been acted upon by either governments or citizens who organise their affairs in accordance with its postulates.[105] There is at least a need for a more nuanced approach that neither ignores the fact that governmental affairs may have been arranged in reliance on a constitutional precedent nor makes reliance an absolute. Great difficulty arises in deciding what role and weight should be accorded to reliance. Governmental stability should not be an overriding factor, but should be a vital element of the process of determining constitutional legitimacy.
On the other hand, continued approval of constitutional precedents simply to preserve the fiscal, legislative or executive status quo is unacceptable. The legal fictions, the at times illogical reasoning, and the categorical refusals which various members of the Court employed in order to avoid overruling Dennis Hotels and Dickenson's Arcade preserved governmental reliance far beyond what was constitutionally acceptable. Witness Menzies J in Dickenson's Arcade, who spoke of the 'faith' that the state governments had invested in the prior decisions of the Court relating to excise duties.[106] Artificially protecting reliance in order to maintain stability can mean that when such preservation is no longer sustainable, the resulting damage is unnecessarily extensive, as was highlighted in Ha. Although there is no bright line demarcation point, and hindsight is often the only guide, it is important for the Court to take the long view as to whether refusing to overrule might encourage greater, unacceptable levels of reliance.
It is possible that in the future Justices may heed the call to give effect to their view of the Constitution regardless of other factors.[107] Given that an examination of past cases shows this to be unlikely, what we hope for in future overruling decisions is an explicit, thorough assessment by each judge as to whether the strength of their convictions about a particular constitutional interpretation outweighs the need to preserve governmental or social stability. And this may require a better class of social science or economic evidence brought to the Court. So far the biggest shortcoming in most overruling cases is the absence of anything approaching a true assessment of reliance. When judges speak in terms of 'significant effects' and 'delicate fiscal arrangements' none of us are any the wiser.
To make matters more complicated, governmental reliance and individual liberty interests are not the only factors referred to in overruling cases. The Court has at times made explicit reference to something broader than direct governmental reliance, in terms which could be defined as 'public inconvenience'. At other times the Court even appears to have assessed how public perceptions may be affected as a result of a constitutional decision.
'Public inconvenience', in the sense of the consequences of altering decisions that are widely approved of and the effects of refusing to overrule a decision that is widely condemned, has been relied on by the Court when discussing overruling. For example, in Re Wakim the Court undid Gould's validation of a significant scheme of cooperative legislation. There was no reliance on High Court precedent when first enacting the scheme, but great inconvenience flowed from the Court's decision to disregard Gould, causing Kirby J to highlight that the decision would invalidate extremely useful legislation.[108] Chief Justice Gibbs also noted in Hospital Contribution Fund (No 1) that constitutional authorities had led to 'considerable inconvenience'.[109]
The Court may admittedly lend less weight to governmental actions it has not previously been asked to sanction. In a similar vein, it is less likely to overrule a precedent which Parliament had relied upon to enact legislation, than a precedent that subsequently approved existing legislation. In both cases, however, judges have recognised the potential for inconvenience as an element of the overruling matrix.
A refusal to assess inconvenience may result in constitutional adjudication that is inappropriately inflexible. An apt example of this is found in some of the decisions rendered by the Privy Council during its time as Canada's final constitutional court. It repeatedly refused to depart from its previous constitutional decisions,[110] completely disregarding the often great inconvenience that resulted from a precedent's continued survival. As a result, Canadian legislatures made frequent attempts to avoid the consequences of inopportune constitutional authorities.[111] If the Privy Council had placed any emphasis at all on the protests of the legislatures, a different approach may have been taken.
At times the Court appears to have considered even less tangible factors, such as the effect that an overruling has on the public perception of the judiciary and the justice system. Sometimes this may be linked to inconvenience but it has also been used as a factor in its own right.
In several decisions, High Court Justices have referred to the 'expectations' of the public as a relevant consideration in assessing the reasonableness of an overruling. In the Second Territorial Senators Case, Gibbs J declined to overrule a precedent with which he disagreed as it would mean 'defeat[ing] the expectations of the people of the Territories ...— expectations and beliefs that were ... encouraged by the decision of this Court'.[112] Similarly, in Re Tyler, McHugh J appealed to the expectations of the Parliament and the individuals responsible for administering justice.[113] Perhaps fortunately, these public expectations seem to have been taken into account as indicators of the inconvenience and instability that overruling could bring—for example by quickly stripping Territorians of Senate representation—rather than as a way of ensuring the Court satisfied public opinion of its inviolability.
In Hospital Contribution Fund (No 1), Wilson J recognised that the precedents had been decided 'in the face of united opposition from both the Commonwealth and State Governments.'[114] This fact, in conjunction with other factors, placed them in a 'special category'. In Re Wakim, Kirby J emphasised that the 'collective voice' of all the governments and Parliaments of the nation had been 'heard in ... Court, in unique harmony, to urge that the constitutional status quo, achieved after the Court's earlier decision, be maintained.'[115] On the other hand, Gummow and Hayne JJ argued that 'the support of all governments in Australia' could not 'relieve the Court of deciding what it is that the Constitution permits or requires.'[116] In the sense that a correct interpretation of the Constitution should be arrived at by each Justice according to his or her own understanding, as supported by precedent, rather than by assessing which interpretation is seen as correct by 'popular opinion', Gummow and Hayne JJ are right. Nevertheless, as the cases already discussed document, the constitutional overruling process has rarely, if ever, been exclusively a question of correct constitutional interpretation.
Assessing public opinion allows the Court to take into account practical views of the potential consequences of upholding or departing from a prior decision. If correctness was to be the only criterion for overruling, then public opinion would be irrelevant. Given that Justices have accepted other factors as relevant, public opinion can be seen as an indicator of the 'inconvenience' that could flow from an overruling decision. Properly considering public approval in an existing precedent need not mean abdicating the duty to decide upon the correctness of a particular authority. After all, government may support a decision which if overruled would create great inconvenience to its administration but which would relieve citizens, or other institutions, of an inappropriate burden. Where the Court finds unanimous support for a particular option, however, as was the case in Re Wakim, it could recognize and assess the great potential for inconvenience caused by overturning it.
The Supreme Court of Canada has been more overt in recognising the importance of public opinion in formulating rulings. In Vriend v Alberta,[117] Justice Iacobucci for the majority recognised the fact that more than ever, courts cannot remove themselves from society at large: 'hardly a day goes by without some comment or criticism to the effect that under the Charter courts are wrongfully usurping the role of the legislatures.'[118] In a very candid statement in R v Burlingham[119] Justice L'Heureux Dubé warned her colleagues that they were out of step with public opinion.[120] Moreover, in a published interview, Justice Bastarache made it clear that the links between public scrutiny, public opinion and legitimacy are real: 'it's essential that the court be in step with the general public'.[121]
If the Court is not averse to examining public support in its reconsiderations, it should be aware of the difficulty of quantifying the level of approval that exists. Moreover, it must be attentive to the tightrope it walks in assessing whether such a level is sufficient to warrant an overruling or upholding.[122] As an example, in the Second Uniform Tax Case Fullagar J pointed to the fact that 'only two of the six States' were challenging the legislation that was based on precedent. To him this indicated that the original decision should not be reopened.[123] This 'counting of heads' as a means of illustrating the low degree of opposition to a precedent underscores the inadequacy of paying lip service to public approval. A more sophisticated analysis, at the very least requiring economic and sociological information gathered by experts, is warranted in these situations. Again, our point is that the Court should explicitly weigh the relevant factor; we are not attempting to prescribe what weight should be given. Each situation being different, it would need an assessment of what the support actually represented in each case.
Given the suggestion that the Court should take into account 'support' for a precedent in assessing the effect an overruling may have, it is interesting to examine instances when support has apparently been taken into account almost for its own sake. In some instances members of the Court appear to have suggested that public perceptions should play a greater role in the overruling process than that argued for here.
Justice Harlan, of the United States Supreme Court, explained that adherence to precedent is supported by 'the necessity of maintaining public faith in the judiciary'.[124] Similarly, Brennan J argued in John v Federal Commissioner of Taxation[125] that an overruling is an exceptional course to take as it 'is in a sense a diminution of the Court's authority as well as an acknowledgment of Justices' past error.'[126] These comments acknowledge that judges sitting on constitutional courts do not easily dismiss the effect that overruling may have on public perception. This is not to say, however, that the Court, in reconsidering constitutional cases, should weigh public perceptions for their own sake.
A general respect for precedents in constitutional decision-making supports the worthwhile belief that all organs of governments are bound by the law.[127] The High Court plays an integral part in the governance of the nation by sitting as the peak, and often sole, constitutional umpire. The fact that changes in its public standing do not generally affect its work does not detract from the need to maintain public faith in its processes. The doctrine of precedent performs symbolic functions in relation to the constitutional and political interaction between the courts and the legislature.[128] Views such as those espoused by Gareth Evans, suggesting that High Court pronouncements are obscure, and marginally relevant to the general public,[129] are thus somewhat misplaced.
In our view the Court should be concerned with the effect its actions would have on its public standing, but not in the way that is perhaps most obvious. The Court's concern over public opinion should only be with the effect of its process, not its conclusions. Once the Court is satisfied that the process of overruling has taken into account all legitimate considerations, the Court should be indifferent to the effect on public opinion of a result. Beyond that, it must be stressed that there is a marked difference between a proper overruling of a widely supported decision and an improper overruling of a widely criticised precedent. The former may generate immediate negative reaction, but in the long term confirms the integrity of the Court's approach to constitutional adjudication. The latter may momentarily satisfy public opinion, but ultimately detracts from public confidence in the Court's processes and sets unacceptable standards for future reconsiderations.
The discussion so far has confirmed that High Court Justices have often professed to look beyond the need to interpret correctly the Constitution in the reconsideration process. Unfortunately this approach has not been accepted universally and, more importantly, not applied consistently even by those who have supported it in principle. Least enlightening have been holdings that where 'important' constitutional provisions were under scrutiny, stare decisis was 'less cogent' than would have normally been the case in constitutional adjudication.[130] The immediate practical difficulty with this approach is obvious. What are constitutional questions of lesser importance which would permit a preservation of precedent?
Of much greater concern, however, is the willingness of members of the Court to characterise respect for stare decisis as a trade off against the pursuit of constitutional correctness, and one which they are prepared to make in some circumstances and not others. Sometimes Justices declare that the meaning of the Constitution is paramount. Thus McHugh J noted in McGinty that '[j]udges as diverse in their approach...as Barwick CJ and Murphy J have stated that it is the duty of justices of this Court to apply its text and not the judicial decisions on the text. Judicial exposition of the Constitution does not replace the Constitution or its meaning.'[131] In other cases, such as Menzies J's judgment in Cigamatic, adherence to precedent is required where a matter is not of vital constitutional importance. Asserting the paramountcy of the Constitution, therefore, as a reason for not adequately addressing the consequences of a course of action leads to a lack of consistency in the approach to overruling. Factors relevant in one instance are disregarded in another.
Understanding the reasoning employed in precedents and the role precedents play in a common law system is an integral part of the process judges must undertake to arrive at so-called correct constitutional meanings. Judges are certainly not expected to discover what their predecessors have done and 'servilely tread in their footsteps.'[132] Conversely, nothing in the Constitution supports a judge making laws as they go along from a divined sense of justice.[133] Whether this means that the concept of precedent itself imbues the Court with authority, or whether general acceptance of the judiciary comes from, to paraphrase Ronald Dworkin, principles arising from a sense of moral appropriateness combined with a coherent extant body of law, is a matter for deeper philosophical reflection.[134]
What suffices for this discussion is an understanding that there is tension in all overruling cases between respect for precedent (and all that it entails) and a sense for what is right (however that is perceived). As Windeyer J explained in Damjanovic, respect for constitutional precedent 'restrains the predilections and idiosyncrasies of an individual judge from dominating his interpretation of the Constitution.'[135] Thus stare decisis provides a history and a framework for the subsequent legal reasoning of the Justices. But, as is already evident in many decisions, it has not sat well with many High Court Justices to confine themselves to a requirement that each Justice give due consideration to the prior interpretations of the Court. Past pronouncements suggest that a judge may properly consider principles expounded by constitutional authorities, yet fall far short of acting in a way that supports what they see as the underlying reasons for constitutional stare decisis. Justice McHugh rightly asserted in McGinty that any respect for precedent should not replace the duty to interpret the Constitution, but the duty to interpret the Constitution should also not subsume a duty to respect precedent. As Stephen J warned in the Second Territorial Senators Case, the power to overrule a previous decision should be exercised by the Court only 'after the most careful scrutiny of the precedent authority in question and after a full consideration of what may be the consequences of doing so'.[136] There are extremely valid reasons for the latter duty. While it can appear perverse for a court to adhere to decisions which it finds depart from the law,[137] the need to do so is a practical reflection of the fact that the Court decides whether to overrule against a backdrop of constitutional arrangements shaped by the Court's own prior pronouncements. In sum, taking all these duties into consideration should produce Dworkin's demonstrably correct answer.[138]
The approach to questions of overruling should not be influenced by the view that outside factors must only be accorded their full weight where a judge is less than convinced of a particular constitutional meaning. Nor should precedents be given their proper standing only if the provision being considered is of a lesser significance. These compromises make for less than sound lines of authority, as already discussed.
Justice Wilson indicated in Hospital Contribution Fund (No 1) that the Court must firstly decide whether a decision is considered to be correct according to the Constitution and, if not, whether it should be overruled.[139] One way to ensure that all issues are adequately addressed, is to thoroughly, and explicitly, engage in this two-step analysis. If an earlier decision is found to be incorrect, then the next step must be to assess whether it should then be overruled. At this stage, relevant factors include those outlined in John v Federal Commissioner of Taxation, but, as we have discussed in the context of constitutional cases, these need to be examined in light of other matters at play, including the effect on individual rights, the extent of governmental reliance and the possible inconvenience caused. This procedure would enhance consistency by restricting judges from 'opting out' of the need to consider the second issue simply by stating that stare decisis is not as relevant in certain situations. As Henry Monaghan notes, remarking on the United States Supreme Court: stare decisis strikes 'with all the predictability of a lightning bolt'.[140] Ensuring that our High Court's use of constitutional overruling is not similarly fated would add stability to our constitutional system and enhance trust in the Court.
Our elusive search above for some kind of consistency in approach flows from a perception that in the past the process involved in revisiting constitutional decisions has not inspired as much confidence as it should, given its frequently momentous consequences. In a way, what the High Court (or at least some of its Justices) has done is practise a form of Dworkin's 'conventionalism,' which he sees as an inferior type of decision-making.[141] While we have attempted to highlight some common thematic areas—liberty interests, reliance and inconvenience, for example—it is obvious that the Court itself has frequently not treated these as analytical tools but more as terms of convenience. This ambiguity relating to the factors taken into account in the process is a significant area of concern and cries out for some strong judicial pronouncements. Our approach, by deconstructing some of the more specific concerns that a court should observe in constitutional cases only, tries to incorporate Dworkin's better approach of 'adjudicative integrity.'[142] Unfortunately, this is only a small step forward as there are other facets in the process of overruling that require a new approach. It is to these that we now turn.
There are other issues that affect the nature of constitutional overruling in addition to the general concerns that exist over correctness and precedent. We discuss four: compositional changes in the bench; decisions that create no precedent; terminology problems and comparing overruling with distinguishing. These are briefly examined below.
Justice Kirby pointed out in Re Wakim that 'an "accident of the Court's constitution"' had caused a rapid, profound change to an extremely important constitutional issue.[143] Given that the Court has explicitly refrained from giving effect to a true interpretation due to notions of certainty, stability and public faith, the issue of whether a change on the bench should be enough to allow a reconsideration cannot be overlooked. While criticism of its review in Re Wakim may be dismissed by the argument that it was no precedent at all (see Part III.B below), Gould is by no means an isolated example of the Court's apparent willingness to re-examine constitutional questions following changes in membership but without any other apparent change in the 'constitutional landscape'. The First Territorial Senators Case was a majority opinion that came to be quickly re-examined, even if the decision was ultimately upheld. Justice Gibbs pointed out in the Second Territorial Senators Case that the only event which had occurred to justify revisiting a 'question of grave constitutional importance' decided two years earlier was 'that one member of the Court has retired, and another has succeeded him'.[144]
Justice Scalia of the United States Supreme Court has argued that the public recognises that court line up changes frequently provide the very impetus to overturn decisions.[145] Although it is arguable that the Australian public is less aware of their highest court's actions, Scalia J's point is still valid in our context. Cases such as Re Wakim and Ha received extensive media coverage. The argument fails to address the fact that the public may also be aware of the doctrine of stare decisis, and therefore presumably the needs which it serves.[146] As Kirby J pointed out, the long standing requirement that courts must 'keep the scale of justice steady, and not liable to waver with every new judge's opinion' may be said to have been visibly violated in Re Wakim.[147]
There are two aspects to consider when debating how a change in the composition of the bench affects the consideration of overruling. There is firstly the issue as to whether such a change on its own should be enough for the Court to review a decision. Aligned with this question is the secondary matter of whether the Court should refrain from overruling if a new bench is the only trigger, even if a majority of the newly composed Court is conceptually opposed to a precedent. These questions reveal a dialectic between the need for stability and consistency in constitutional law—whether a court should adopt an 'institutional' refusal to overrule—and the paramountcy of the judicial oath taken by each Justice—what is the correct interpretation of the Constitution?
Chief Justice Barwick explained in the Second Territorial Senators Case that while a change in the composition of the Court is not itself a reason to reconsider a constitutional precedent, it should also not be an obstacle to the Court reaching what it considers is the right conclusion.[148] Bennett makes the same point, noting that a change of Justices in itself is not an appropriate ground for review, but that it is the individual conviction of a new judge that matters.[149] The United States Supreme Court has created a partial solution to this problem by preventing new appointees from voting on rehearing petitions, a matter generally discussed in the certiorari application.[150] It would not work as effectively in Australia, due in part to different procedural mechanisms for hearing cases. The High Court can hear constitutional cases at first instance so any form of restricted voting applying only to leave to appeal hearings would be incomplete. Moreover, even if these hearings acted as an effective clearing house for constitutional cases, there are additional shortcomings. The two most obvious are the difficulty in defining a 'newly appointed' Justice and the problem where a court experiences multiple membership changes. This latter concern occurred in Australia with the recent appointments of Hayne J, Callinan J and Gleeson CJ in a relatively short period of time. In such a case, much of the Court could be disqualified and bring into question the accuracy of the result.
A more appropriate approach could require that, generally, some other element or circumstance be identified before the Court acceded to an overturning of a precedent (such as the appearance of any one of the factors mentioned previously). Conversely, if the Court came to the conclusion that there were no other changes in the constitutional status quo, it could refrain from hearing a matter involving overruling. In other words, the appointment of a new Justice should not automatically allow the Court to accede to a reconsideration. If, however, a perceived need to overrule, coming as a result of the process discussed in the first section of this paper, were appropriate, it should not be eroded by the existence of a compositional change. This form of approach would depend on the Court adopting some form of internal mechanism for reconsidering a precedent. A subsequent overruling would then be less likely to be criticised by the Justices themselves as stemming from a change in the make-up of the Court.
It is a vexing question as to what to do in the situation where a decision is evenly divided.[151] While the Court has accepted, even if inconsistently, that it is inappropriate to strictly adhere to legal correctness when faced with substantial practical concerns, it has persistently rejected such a need when faced with decisions lacking a majority.
Where the Court is evenly divided upon an appeal, s 23(2)(a) of the Judiciary Act 1903 (Cth) deems the decision appealed from to be affirmed, as was the case in Gould. Where an original decision of the Court is evenly divided, s 23(2)(b) provides that the decision of the Chief Justice or, if unavailable, of the senior Justice, will prevail.
A number of early High Court decisions confirmed that evenly divided judgments would not be considered binding, save in relation to the parties to the immediate dispute.[152] More recent views are no less categorical. Chief Justice Barwick confirmed in Milne v Federal Commissioner of Taxation[153] that 'on the theory of judicial precedent, a case decided by what is sometimes styled "a statutory majority" forms no precedent.'[154] Justice Gibbs explained the practical consequences of this view in Federal Commissioner of Taxation v St Helens Farms (ACT) Pty Ltd,[155] establishing that the question whether it is proper to reconsider an evenly split decision does not arise, 'for it is not binding.'[156] Thus, there has been an almost universal refusal by the High Court to accord these split decisions precedential authority; in fact, they are given very little weight at all in subsequent hearings. As always, it is the iconoclast Murphy J who has argued that the basis for the legislation creating 'statutory majority' judgments is not sound.[157] Despite his pleas, the legislative provisions continue to stand unchallenged, and evenly divided benches continue to settle cases. Again, while this problem is not confined to constitutional decisions, it is in relation to constitutional reconsiderations that the potential for uncertainty and inconvenience is greatest.[158]
The Court's refusal to classify these decisions as precedents may clearly follow from the legislative provisions, but it can lead to incongruous results. An example is the decision in Re Wakim. Despite having upheld the validity of the national cross-vesting arrangements in its 3-3 decision in Gould, just over one year later the Court proceeded to rule the scheme unconstitutional, with most of the judges being dismissive of, or completely ignoring, Gould. Although they have no legal significance, it is worth considering remarks made by Gaudron J during an application hearing related to Re Wakim. Her Honour conceded that Gould may have 'be[en] without precedent value'[159] but repeatedly pointed out that at the time Gould had the effect of upholding the validity of the cross-vesting legislation.[160] In an immediate practical sense, Gaudron J was reluctant to devote further time to a matter already 'rehearsed' and whose arguments had so recently been 'canvassed comprehensively'.[161] In the same case, McHugh J asserted that the orders in Gould had 'no constitutional effect' and for constitutional purposes were 'a nullity'.[162] These comments highlight that although the lack of precedential value of an evenly divided decision is taken for granted by the Court, the results of such a categorical conclusion are not wholly satisfactory, even to a judge who later joins the majority in overturning the previous decision. Even though the results are entirely due to legislative invention, it is artificial to argue that these decisions only settle issues between immediate parties. After all, if the 3-3 split in Gould had upheld an opposite conclusion by the lower court, the cross-vesting scheme would have been invalidated for all litigants. Further, as Barwick CJ pointed out in Milne, the views expressed by a statutory majority may be acted upon for substantial lengths of time before the holdings of a divided decision are reconsidered, causing the validity of such actions to remain uncertain,[163] at the same time as increasing the pool of reliance on such decisions.
On the other hand, casting the discussion in terms of whether constitutional decisions such as Gould are 'precedents' unnecessarily narrows the Court's options. A better approach would recognise the significance of the constitutional result reached by split decisions, without necessarily lending precedential weight to the reasoning involved. Such an approach would have caused the Re Wakim Court to actively consider protecting, as far as was reasonable, the constitutional status quo attained in Gould in a similar vein to the protection granted to the excise duty cases, for example. The less practical alternative would be for the Court to discontinue hearing constitutional questions with even-numbered benches, whether by its own choice (the Judiciary Act not mandating the practice) or through legislative intervention. Of course this would still leave open the situation where a member of the bench hearing a case is unable later to take part in the decision, but it would go some way towards improving the unsatisfactory results of split decisions.
The High Court has employed the terms 'reconsideration' and 'overruling' inconsistently. Sometimes the terms are used synonymously while at other times they represent different steps in the process of revisiting constitutional precedents. At times the Court has focused on the possibility of 'overruling' as a substantive issue of a case.[164] In other cases, 'reconsideration' has been declared a threshold issue. For example, in Evda the majority, highlighting sufficient reliance interests, curtly stated its refusal to reconsider the Dennis Hotels cases.[165] Justice Deane argued that counsel should not be prevented from arguing the reasons why a particular decision is wrong, but he accepted that circumstances can make revisiting a decision inappropriate.[166] By way of contrast, in Street Mason CJ stated his reluctance to 'depart from' the previous decisions, then almost immediately referred to their 'reconsideration'.[167] Even more perplexing was McHugh J's assertion in the same case that a precedent should be overruled because the various factors involved did not prevent reconsideration.[168] It almost seems as if the approach taken in Evda was influenced by a conviction that the extent of governmental reliance made an overruling unacceptable, and a reconsideration an unnecessary use of the Court's time.
Much of this confusion would be resolved by formalising the two-step approach outlined earlier. The benefit of first examining correctness means the Court must turn its mind to the substance of the issue, looking at it in an internally-sceptical way.[169] Otherwise, it becomes easier for the Court to refuse to focus upon the correctness of a precedent for fear that once the issue is examined it will be unable to uphold the decision. In the Second Territorial Senators Case, for example, Stephen J declared himself unprepared to deny Senate representation to the Territories as the 'price of a personal decision to treat a particular precedent authority as appropriate for reconsideration,'[170] although he admitted that he would not have decided the invalidity of the reasoning involved 'at all differently.'[171]
This is not to say that our approach is one to which we are irrevocably wedded. A strong case could be made that the Court should first undergo an analysis of the constitutional overruling factors to enable it to determine whether a particular factor is significant enough to automatically prevent reconsidering a precedent. Such a preliminary examination would also allow the Court to decide whether new or changed conditions (including the possibility of a changed bench) exist that warrant an overruling. What is of utmost importance, however, is to see that a more formal process is instituted and that confusion between terminology is minimised. In the end, an open and consistent approach, one that must be expressly followed, rather than the piecemeal and confusing approach currently in vogue, is all that is asked of the Court. The Court may opt to incorporate this process in terms of deciding whether to give 'leave' for the reopening of a constitutional decision, as was done in Brownlee v The Queen.[172] We acknowledge the reasons, expounded by Kirby J in Brownlee, however, why 'a barrier of leave' may be inappropriate.[173] We would therefore rather see parties being permitted to put forward any pertinent arguments as long as there is formalisation (in the sense of addressing the material factors) whenever the Court decides to overrule.
In the Second Territorial Senators Case, Aickin J recognised the possibility of distinguishing a decision as a factor in the review process, accepting that overruling could be unnecessary if the 'prior decision can be confined as an authority to the precise question which it decided'.[174] Members of the Court have at times distinguished a decision on the basis that overruling it, although logically correct, would have had unacceptable repercussions. This has allowed them to sidestep the need to give effect to their interpretation of the Constitution. This was shown by the decision to allow Dennis Hotels to stand which was logically incompatible to the reasoning in Gosford Meats. Justices Mason and Deane explained, however, that the Court had repeatedly confirmed that Dennis Hotels could stand on its own facts, although its general application would have been unacceptable.[175]
Such a course of action does not reflect the aims generally given to the process of distinguishing a decision. As Mason J pointed out in H C Sleigh 'the reasons for choosing to distinguish rather than to follow the earlier decision must be explored so that the course which is emerging in development of a principle, great or small, can be the better predicted.'[176] Distinguishing as a means for a court to achieve a particular result is probably neither rare, nor startling. Nevertheless, in constitutional adjudication, distinguishing a case largely on the basis of practical concerns has resulted in inconsistencies in the development of constitutional principles, undermining constitutional stability. As Mason CJ and Deane J admitted in Philip Morris, allowing Dennis Hotels to stand on its facts gave rise to a principle 'inconsistent with the broad approach of the authorities'.[177]
The suggestion, made early in the discussion, that the duty to correctly expound the Constitution appears ultimately to be the High Court's overriding concern in reconsiderations of constitutional precedents, has not been borne out in practice. The Court has accepted that other factors can not only influence, but also decide, such issues.
The Court's piecemeal and often inconsistent approach to constitutional overruling is evident in some of its past decisions. In future, the Court should take into account pertinent practical concerns in thorough, express terms. Zines' argument that overruling factors do not constitute 'rule[s] of judicial conduct'[178] is well taken—in this paper we have not engaged in any discussion as to the weight each judge should accord each particular factor. But the emphasis in the cases and commentary so far has been on the need for a weighing of all concerns, not on how such weighing is to take place. We have posited a possible approach to this.
In addition, the Court must also address several 'mechanical' shortcomings in the manner it reconsiders constitutional decisions, such as the effects of compositional changes, the willingness to respect evenly divided decisions once they have significantly altered the constitutional landscape and the need for more consistency in its overruling procedures and terminology.
Justice Murphy declared in the Second Territorial Senators Case that '[t]he doctrine of stare decisis is not part of the Constitution and the High Court is not debared [sic] from altering its previous decisions'.[179] Past decisions have shown that neither does the need to interpret the Constitution debar the Court from according other pertinent concerns their due weight through a thorough, consistent process of review. As Isaacs J admitted in Australian Agricultural, immediately after prompting the Court above all to obey the Constitution, 'circumstances countervailing the primary duty of giving effect to the law' cannot be ignored.[180] As with all judging, there is ultimately a balance to be struck—while no exact guidelines can be formulated, it behoves the Court to be direct and avoid reasoning by the use of easy, but unhelpful, terminology.
[*] Solicitor—Mallesons Stephen Jaques (Melbourne). This paper is based on a thesis submitted for the requirements of an LLB (Honours) at Deakin University, 2000.
[**] Visiting Professor, Osgoode Hall Law School (2002–04) and Director of Programs, Osgoode Hall Professional Development Centre.
[1] Transcript of Proceedings, Re Wakim; Ex parte McNally (High Court of Australia, Gummow J, 2 December 1998), <http://www.austlii.edu.au/au/other/hca/ transcripts/1998/S74/4.html> (Copy on file with authors).
[2] James Rehnquist, 'The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court' (1986) 66 Boston University Law Review 345, 347.
[3] Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511, 595 (Kirby J).
[4] [1998] HCA 6; (1998) 193 CLR 346 ('Gould').
[5] [1999] HCA 27; (1999) 198 CLR 511 ('Re Wakim').
[6] [1997] HCA 34; (1997) 189 CLR 465 ('Ha').
[7] See Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia [1913] HCA 41; (1913) 17 CLR 261, 278 (Isaacs J).
[8] An excellent and thorough description of the different conceptions of stare decisis can be found in Stephen Perry, 'Judicial Obligation, Precedent, and the Common Law' (1987) 7 Oxford Journal of Legal Studies 215. Joseph Raz, Practical Reason and Norms (1975) and Ronald Dworkin, Law's Empire (1986) are perhaps the best of a long line of philosophical tracts considering these issues.
[9] See Raz, above n 8, ch 4–5 (first mode of practical reason corresponds to the strict view of stare decisis), and Dworkin, above n 8, 24, who uses the term 'strict' precedent where judges are obliged to follow earlier decisions even if they believe them wrong and 'relaxed' precedent which requires judges to give weight to past decisions and follow them unless they believe them to be wrong enough so that the initial presumption in their favour is displaced.
[10] See also Ronald Dworkin, Taking Rights Seriously (1977). Dworkin in Law's Empire, above n 8, 453, notes that judges will often signpost reversals through hints and dicta. This may be true, but for our discussion, we are more interested in constitutional cases where little or no warning is given.
[11] Bryan Horrigan, 'Towards a Jurisprudence of High Court Overruling' (1992) 66 Australian Law Journal 199, 216–7.
[12] [1989] HCA 5; (1989) 166 CLR 417.
[13] Ibid 439.
[14] For quite a comprehensive analysis see Patrick Keyzer, 'When is an issue of "Vital Constitutional Importance"? Principles which Guide the Reconsideration of Constitutional Decisions in the High Court of Australia' (1999) 2 Constitutional Law and Policy Review 13.
[15] See, eg, Arnold Bennett, 'The Territories Representation Case—Stare Decisis in Constitutional Cases' (1978) 52 Australian Law Journal 664; Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) [8.35]–[8.37]; Michael Zander, The Law-Making Process (4th ed, 1994) 235.
[16] See, eg, Leslie Zines, The High Court and the Constitution (4th ed, 1997) 433–44.
[17] As argued throughout in Keyzer, above n 14.
[18] [1913] HCA 41; (1913) 17 CLR 261, 278 ('Australian Agricultural').
[19] A point noted by Zines, above n 16, 434.
[20] See Henry Monaghan, 'Stare Decisis and Constitutional Adjudication' (1988) 88 Columbia Law Review 723, 770.
[21] [1953] HCA 14; (1953) 87 CLR 49 ('Hughes').
[22] Ibid 85.
[23] [1977] HCA 60; (1977) 139 CLR 585 ('Second Territorial Senators Case').
[24] Ibid 625.
[25] See Australian Agricultural [1913] HCA 41; (1913) 17 CLR 261, 278, 279 (Isaacs J).
[26] [1968] HCA 42; (1968) 117 CLR 390, 396 ('Damjanovic').
[27] [1995] HCA 46; (1996) 186 CLR 140, 235 ('McGinty').
[28] [1997] HCA 25; (1997) 189 CLR 520 ('Lange').
[29] Ibid 554 (citations excluded).
[30] Bennett, above n 15, especially at 669–71.
[31] Keyzer, above n 14, 15.
[32] Ibid 17.
[33] [1989] HCA 53; (1989) 168 CLR 461 ('Street').
[34] Section 117 of the Australian Constitution provides that '[a] subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.'
[35] [1904] HCA 46; (1904) 2 CLR 29.
[36] [1973] HCA 32; (1973) 128 CLR 482.
[37] Street [1989] HCA 53; (1989) 168 CLR 461, 489.
[38] Ibid 518–9.
[39] [1997] HCA 38; (1997) 190 CLR 513 ('Newcrest').
[40] Ibid 613.
[41] [1969] HCA 62; (1969) 119 CLR 564 ('Teori Tau').
[42] [1989] HCA 53; (1989) 168 CLR 461, 519.
[43] [1982] HCA 13; (1982) 150 CLR 49 ('Hospital Contribution Fund (No 1)').
[44] [1975] HCA 46; (1975) 134 CLR 201 ('First Territorial Senators Case').
[45] As noted by Jeremy Kirk, the High Court has been motivated by constitutional protections of human rights—see 'Constitutional Implications from Representative Democracy' (1995) 23 Federal Law Review 37.
[46] [1997] HCA 38; (1997) 190 CLR 513, 576.
[47] [1989] HCA 53; (1989) 168 CLR 461, 588.
[48] [1975] HCA 46; (1975) 134 CLR 201.
[49] [1977] HCA 60; (1977) 139 CLR 585.
[50] Ibid 593.
[51] Ibid 604.
[52] Ibid.
[53] Ibid 600.
[54] Ibid 603.
[55] Ibid 604.
[56] Herbert Broom, Broom's Legal Maxims (10th ed, 1939) 90.
[57] [1982] HCA 13; (1982) 150 CLR 49.
[58] Ibid 57–8.
[59] Monaghan, above n 20, 749.
[60] [1960] HCA 10; (1960) 104 CLR 529 ('Dennis Hotels').
[61] [1974] HCA 9; (1974) 130 CLR 177 ('Dickenson's Arcade').
[62] See Denis James, Federal and State Taxation: A Comparison of the Australian, German and Canadian Systems (1997) Parliamentary Library, Australian Parliament, <http://www.aph.gov.au/library/pubs/CIB/1997–98/98cib05.htm> at 31 March 2003 (Copy on file with authors).
[63] [1977] HCA 2; (1977) 136 CLR 475 ('H C Sleigh').
[64] Ibid 513; see also 501 (Mason J).
[65] Ibid 501–2, 513.
[66] [1984] HCA 18; (1984) 154 CLR 311 ('Evda').
[67] Ibid 316.
[68] [1985] HCA 5; (1985) 155 CLR 368 ('Gosford Meats').
[69] Ibid 379–80.
[70] See, eg, Philip Morris Ltd v Commissioner of Business Franchises [1989] HCA 38; (1989) 167 CLR 399, 481 (Toohey and Gaudron JJ).
[71] [1989] HCA 38; (1989) 167 CLR 399 ('Philip Morris').
[72] Ibid 438.
[73] Ibid 439.
[74] Ibid 420.
[75] [1993] HCA 67; (1993) 178 CLR 561 ('Capital Duplicators (No 2)').
[76] Ibid 591.
[77] Ibid 591–2.
[78] [1997] HCA 34; (1997) 189 CLR 465, 503.
[79] Ibid.
[80] Ibid 501.
[81] [1942] HCA 14; (1942) 65 CLR 373 ('First Uniform Tax Case').
[82] [1957] HCA 54; (1957) 99 CLR 575 ('Second Uniform Tax Case').
[83] Ibid 609.
[84] Ibid 611.
[85] Ibid. Crucially, Fullagar J, with whom Williams J was in complete agreement, was more explicit than Dixon CJ. His Honour pointed out that the questions being reconsidered had been litigated in the original decision, and asserted that 'if ever there was a case for the application of the rule of stare decisis, this ... [was] that case' (at 655).
[86] Examples of cases that have discussed this concept include Hospital Contribution Fund (No 1), John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 and Street [1989] HCA 53; (1989) 168 CLR 461.
[87] Second Uniform Tax Case [1957] HCA 54; (1957) 99 CLR 575, 601.
[88] Ibid 616.
[89] Ibid 601 (also confirmed by Fullagar J at 657).
[90] [1947] HCA 45; (1947) 74 CLR 508 ('Uther').
[91] [1962] HCA 40; (1962) 108 CLR 372 ('Cigamatic').
[92] Ibid 389.
[93] Ibid 380–1.
[94] Ibid 385.
[95] [1997] HCA 38; (1997) 190 CLR 513, 646–7.
[96] Ibid 651.
[97] [1953] HCA 14; (1953) 87 CLR 49, 76.
[98] [1982] HCA 13; (1982) 150 CLR 49, 58; see also 73 (Wilson J).
[99] Ibid 614 (emphasis added).
[100] See Kirk, above n 45, 70 and Horrigan, above n 11, 211–12.
[101] [1994] HCA 25; (1994) 181 CLR 18 ('Re Tyler').
[102] Ibid 38.
[103] See Payne v Tennessee, 501 US 808, 828 (1991).
[104] For an overview of this debate, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory (3rd ed, 2002) ch 30. For this argument in the United States context, see Frank Easterbrook, 'Stability and Reliability in Judicial Decisions' (1988) 73 Cornell Law Review 422, 430.
[105] See Horrigan, above n 11, 212, who sets this out as one of ten considerations the Court has formulated for overruling all cases, not specifically constitutional ones. He makes the point that the factors are 'defeasible in nature and do not amount to definite rules ... [or an] indubitable formula', 211.
[106] [1974] HCA 9; (1974) 130 CLR 177, 212.
[107] See, generally, Keyzer, above n 14.
[108] [1999] HCA 27; (1999) 198 CLR 511, 602–3.
[109] [1982] HCA 13; (1982) 150 CLR 49, 57.
[110] See, eg, Attorney General for Ontario v Canada Temperance Federation [1946] AC 193, 206.
[111] See Bora Laskin, 'The Supreme Court of Canada: A Final Court of and for Canadians' (1951) 29 Canadian Bar Review 1038, 1070.
[112] [1977] HCA 60; (1977) 139 CLR 585, 600. To some extent this is even more true today, given the plethora of constitutional judgments exceeding 100 pages that tax even the most ardent lawyer or law scholar.
[113] [1994] HCA 25; (1994) 181 CLR 18, 39–40.
[114] [1982] HCA 13; (1982) 150 CLR 49, 72.
[115] [1999] HCA 27; (1999) 198 CLR 511, 598–9.
[116] Ibid 572.
[117] [1998] 1 SCR 493 ('Vriend').
[118] Ibid [133].
[119] [1995] 2 SCR 206 ('Burlingham').
[120] Ibid [72–4].
[121] C Schmitz, quoting Bastarache J, 'Justice: Top Court Goes "Too Far"' Ottawa Citizen, (Canada), 13 Jan 2001, A7.
[122] Some knowledge of the sociological theory of 'tipping points' might be useful to Justices placed in this position. For a good popular overview of this phenomenon, see Malcolm Gladwell, The Tipping Point (2000).
[123] [1957] HCA 54; (1957) 99 CLR 575, 655.
[124] Moragne v States Marine Lines, 398 US 375, 403 (1970).
[125] [1989] HCA 5; (1989) 166 CLR 417.
[126] Ibid 451.
[127] Note, 'Constitutional Stare Decisis' (1990) 103 Harvard Law Review 1344, 1350.
[128] See William Twining and David Miers, How to do Things with Rules (2nd ed, 1982) 275.
[129] Gareth Evans, 'The Most Dangerous Branch? The High Court and the Constitution in a Changing Society' in AD Hambly and JD Goldring (eds), Australian Lawyers and Social Change (1976) 13, 74.
[130] See, eg, Street [1989] HCA 53; (1989) 168 CLR 461, 489 (Mason CJ) and 518–19 (Brennan J); Newcrest [1997] HCA 38; (1997) 190 CLR 513, 613 (Gummow J); Cigamatic [1962] HCA 40; (1962) 108 CLR 372, 389 (Menzies J).
[131] [1995] HCA 46; (1996) 186 CLR 140, 235.
[132] Bauerman v Radenius (1798) 101 ER 1186, 1189 (Lord Kenyon).
[133] See Dennis Rose, 'Judicial Reasonings and Responsibilities in Constitutional Cases' (1994) 20 Monash University Law Review 195, 212, quoting D F Dugdale, 'A Polite Response to Mr Justice Thomas' (1993) 23 Victoria University of Wellington Law Review 125, 128.
[134] See Dworkin, above n 10, 40.
[135] [1968] HCA 42; (1968) 117 CLR 390, 407–8.
[136] [1977] HCA 60; (1977) 139 CLR 585, 602 (emphasis added).
[137] Monaghan, above n 20, 752.
[138] See Dworkin, Law's Empire, above n 8, viii–ix, and Taking Rights Seriously, above n 10, 40.
[139] [1982] HCA 13; (1982) 150 CLR 49, 70.
[140] Henry Monaghan, 'Our Perfect Constitution' (1981) 56 New York University Law Review 353, 390.
[141] Dworkin, above n 8, ch 4, especially pages 127–29.
[142] Ibid ch 7.
[143] Re Wakim [1999] HCA 27; (1999) 198 CLR 511, 598.
[144] [1977] HCA 60; (1977) 139 CLR 585, 600.
[145] South Carolina v Gathers, 490 US 805, 824 (1989).
[146] See Amy Padden, 'Overruling Decisions in the Supreme Court: The Role of a Decision's Vote, Age and Subject Matter in the Application of Stare Decisis After Payne v. Tennessee' (1994) 82 Georgetown Law Journal 1689, 1719.