Smyth, Russell --- "Other than 'Accepted Sources of Law'?: A Quantitative Study of Secondary Source Citations in the High Court" [1999] UNSWLawJl 40; (1999) 22(1) UNSW Law Journal 19
[*] BEc(Hons) LLB(Hons) MEc (Monash) PhD (London), Lecturer, David Syme School of Business, Faculty of Business and Economics, Monash University.
[1] J Merryman, "Toward a Theory of Citations: An Empirical Study of the Citation Practice of the California Supreme Court in 1950, 1960 and 1970" (1977) 50 Southern California Law Review 381 at 381.
[2] See J Merryman, "The Authority of Authority: at the California Supreme Court Cited in 1950" (1954) 6 Stan L Rev 613; J Merryman, note 1 supra; R Archibald, "Stare Decals and the Ohio Supreme Court" (1957) 9 Western Reserve Law Review 23; P Brown and W Haddad, "Judicial Decision-Making on the Florida Supreme Court: An Introductory Behavioural Study" (1967) 19 University of Florida Law Review 566; W Reynolds, "The Court of Appeals of Maryland: Roles, Work and Performance - Part II: Craftmanship and Decision Making" (1978) 38 Maryland Law Review 148; R Mann, "The North Carolina Supreme Court 1977: A Statistical Analysis" (1979) 15 Wake Forest Law Review 39; LFriedman, R Kagan, B Cartwright and S Wheeler, "State Supreme Courts: A Century of We and Citation" (1981) 33 Stan L Rev 773; and R Kagan, B Cartwright, L Friedman and S Wheeler, "The Evolution of State Supreme Courts" (1984) 76 Mich L Rev 961
[3] See D Maggs, "Concerning the Extent to Which the Law Review Contributes to the Development of the Law" (1930) 3 Southern California Law Review 181; C Newland, "Legal Periodicals and the United States Supreme Court" (1959) 7 Kansas Law Review 477; W Turner, "Legal Periodicals: Their Use in Kansas" (1959) 7 University of Kansas Law Review 490; R Scurlock, "Scholarship and the Courts" (1964) 32 University of Missouri at Kansas City Law Review 228; N Bernstein "The Supreme Court and Secondary Source Material: 1965 Term" (1968) 57 Georgetown Law Journal 55; W Daniels, "'Far Beyond the Law Reports': Secondary Source Citations in United States Supreme Court Opinions October Temis 1900, 1940 and 1978" (1983) 76 Law Library Journal 1; J Ackers, "Thirty Years of Social Science in Supreme Court Criminal Cases" (1990) 12 Law and Policy 1; and J Ackers, "Social Science in Supreme Court Death Penalty Cases: Citation Practices and Their Implications" (1991) 8 Justice Quarterly 421.
[4] As far as I am aware, there are two previous studies of citation practice in Australian courts: P von Nelsen, "The Use of American Precedents by the High Court of Australia" [1992] AdelLawRw 8; (1992) 14 Adel LR 181 (citation to United States cases in the High Court 1901-87); R Smyth, "What do Judges Cite? - An Empirical Study of the 'Authority of Authority' in the Supreme Court of Victoria" (1999) 25 Mon LR (forthcoming) (citation to case law and secondary authority in the Supreme Court of Victoria in 1970, 1980 and 1990).
[5] For the purpose of this paper, secondary authorities include all references other than citations to those sources traditionally considered to be primary. Hence, excluded are citations to constitutions, statutes, case law, court roles, administrative regulations, executive orders, parliamentary debates and parliamentary committee reports. This definition is consistent with previous studies, see N Bernstein, note 3 supra at 56; and W Daniels, note 3 supra at 3.
[6] The judges, themselves, have also been much more ready to recognise their role in making the law. See Sir D Dawson, "Do Judges Make Law? Too Much?" (1996) 3 Judicial Review 1; Sir A Mason, "The Judge as Lawmaker" (1996) 3 James Cook University Law Review 1; M Kirby, "Judicial Activism" [1997] UWALawRw 1; (1997) 27 UWALR 1.
[7] G Nicholls, "Legal Periodicals and the Supreme Court of Canada" (1950) 28 Canadian Bar Review 422 at 445 states: "law cannot be divorced from its social context and especially where the court has a choice, where it is playing a creative role, it must turn wherever it can for assistance and by the discriminating use of aids supplementary to precedent and statute - one of which is the legal periodical - strive to make the law meet social ends".
[8] Von Nelsen, note 4 supra.
[9] On the last point see C Weiss, "The Diffusion of Social Science Research to Policymakers: An Overview" in G Melton (ed), Reforming the Law: Impact of Child Development Research, Guilford Press (1987).
[10] The term the 'Mason Court' is used in this paper only as a useful shorthand. C Saunders, "The Mason Coud in Context" in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia, Federation Press (1996) 2 at 4 states: "References to the 'Mason Court' are of course a convenience rather than an attempt to overstate the influence which a single Justice may have had on a court of seven in which the responsibility to give 'individual expression to the law' clearly is taken very seriously". See also the comments by Sir G Brennan, "A Tribute to Sir Anthony Mason" 10 at 10-11; and Sir A Mason, "A Reply" 113 in the same volume.
[11] Compare with Mean's justification for using 1950 as a reference year in his original study: note 2 supra at 651. He states: "That year was chosen more for the fact that it is a nice round number than for any other reason".
[12] (1980) 146 CLR 493.
[13] Ibid at 528.
[14] [1990] HCA 17; (1990) 169 CLR 594.
[15] Ibid at 607.
[16] There are many other examples of this form of citation. See Thatcher v Charles [1961] HCA 5; (1960) 104 CLR 57 at 71, per Windeyer J; Scoles v Commissioner for Government Transport [1960] HCA 29; (1960) 104 CLR 339 at 344, per Windeyer J; Esmonds Motors v The Commonwealth [1970] HCA 15; (1970) 120 CLR 463 at 476, per Menzies J; Lutheran Church of Australia v Farmers' Co-operative Executors and Trustees [1970] HCA 12; (1970) 121 CLR 628 at 654, per Windeyer J; Love v Attorney General (NSW) [1990] HCA 4; (1990) 169 CLR 307 at 322, per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ; and Kars v Kars [1996] HCA 37; (1996) 187 CLR 354 at 375, per Toohey, McHugh, Gummow and Kirby JJ.
[17] For examples where the High Court has cited secondary authorities as convenient summaries of the law in other jurisdictions, usually the United States, see Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 592, per Menzies J; Clyne v The New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 203, per Dixon CJ, McTiernan, Fullagar, Menzies and Windeyer JJ; Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 at 244, per Windeyer J; Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 at 436, per Menzies J; The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 at 493, per Windeyer J; The Nahonal Insurance Co of New Zealand v Espagne [1961] HCA 15; (1960) 105 CLR 569 at 599, per Windeyer J; R v Trade Practices Tribunal: Ex parte Tasmanian Breweries [1970] HCA 8; (1970) 123 CLR 361 at 402, per Windeyer J; Mount Isa Mines v Pusey [1970] HCA 60; (1970) 125 CLR 383 at 407, per Windeyer J; Transfield v Arlo International (1980) 144 CLR 83 at 103, per Mason J; R v O'Connor (1980) 146 CLR 64 at 107, per Mason J; Maxwell v The Queen (1996) 184 CLR 501 at 524, per Toohey J; and Breen v Williams (1996) 186 CLR 71 at 112-13 per Gaudron J, at 117 per McHugh J, at 125 per Gummow J.
[18] Amongst others, L Campbell, "Lionel Murphy and the Jurisprudence of the High Court Ten Years On" [1996] UTasLawRw 2; (1996) 15 Univ Tas LR 22 emphasises this point. She argues that one of the reasons Justice Murphy's judicial technique was not readily accepted was that he made frequent citations to case law in the United States, sometimes in preference to Australian cases.
[19] Some of the best examples are Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584 at 603; Hall v Busst [1960] HCA 84; (1960) 104 CLR 206 at 240-1; Dennis Hotels v State of Victoria [1960] HCA 10; (1960) 104 CLR 529 at 593-608; and Pacific Film Laboratories vFederal Commissioner of Taxation [1970] HCA 36; (1970) 121 CLR 154 at 166.
[20] [1970] HCA 2; (1970) 119 CLR 397.
[21] Ibid at 410-11.
[22] [1970] HCA 18; (1970) 120 CLR 417.
[23] Ibid at 425
[24] Merryman, note 1 supra at 413 (emphasis in original).
[25] See S Daniels, "Social Science and Death Penalty Cases - Reflections on Change and the Empirical Justification of Constitutional Policy" (1979) 1 Law and Policy Quarterly 336; and S Diamond and J Casper, "Empirical Evidence and the Death Penalty: Past and Future" (1994) 50 Journal of Social Issues 177.
[26] M Levine and B Howe, "The Penetration of Social Science into Legal Culture" (1985) 7 Law and Policy 173 at 173.
[27] W Douglas, "Law Reviews and Full Disclosure" (1965) 40 Washington Law Review 227 at 228-9.
[28] See Union Bank v Munster [1887] UKLawRpCh 196; (1887) 37 Ch D 51 at 54, per Kekewich J.
[29] Nicholls, note 7 supra at 430 writes: "It is said that the reason a living writer, particularly in a periodical, cannot be cited may be because of the suspicion that he has written for the express purpose of influencing the decision in a pending case. If the suggestion here is that it is improper for a disinterested and unselfish scholar to attempt to assist the court to reach what he believes is a correct interpretation of the law, one can only disagree. And if the suggestion is that one of the parties may instigate an article for the express purpose of bolstering a weak case, the answer is that it can be safely left to the judges to distinguish between the scholar and the hack".
[30] AT Denning, "Review of PH Weld A Textbook of the Law of Torts" (1947) 63 LQR 516.
[31] B Cardozo, "Introduction" to Selected Readings on the Law of Contracts From American and English Legal Periodicals (1931) p viii.
[32] C Hughes, "Forward" (1941) 50 Yale LJ 737 at 737.
[33] E Warren, "Comment on the 50th Anniversary of the Northwestern University Law Review" (1956) 51 Northwestern University Law Review 1 at 1. Other judges in the United States that have spoken favourably about law reviews are F Crane, "Law Reviews and the Co'' urts(1935) 4 Fordham Law Review 1 (Chief Judge, New York Court of Appeals); S Fuld, "Judge Looks at the Law Review" (1953) 28 New York University Law Review 915 (Associate Judge, New York Court of Appeals); and J Hoffman, "Law Reviews and the Bench" (1956) 51 Northwestern University Law Review 17 (Judge, United States District Court).
[34] Sir F Kitto, "Why We Judgments?" (1992) 66 ALT 787 at 793: "It is always possible that helpful authorities or other aids to decision have been missed in the argument through accident, laziness or inefficient research .... [The possibility that this might occur] is enough to impose an imperative obligation on the judge to do all he can to guard against it, even if that means he must plod once more his weary way through the digests and their supplements, including the lists of cases judicially considered and sometimes the law periodicals, English American Australian ...".
[35] Sir A Mason, "Future Directions in Australian Law" [1987] MonashULawRw 6; (1987) 13 Mon LR 149 at 154.
[36] Merryman (1954), note 2 supra at 647-8.
[37] Reynolds, note 2 supra at 154.
[38] H Wigmore, A Treatise on Evidence, Little, Brown and Co (3rd 4 1940) vol 1 p 243.
[39] Sir 0 Dixon, Jesting Pilate, WS Hein (2nd ed, 1997) p 156.
[40] Sir G Barwick, A Radical Tory, Federation Press (1995) pp 223-4.
[41] See Reynolds note 2 supra at 153; Archibald, note 2 supra at 33; and Merryman (1954), note 2 supra at 634-6.
[42] G Smith, "The Current Opinions of the Supreme Court of Arkansas - A Study in Craftmanship" (1947) 1 Arkansas Law Review 193 at 194.
[43] R Peters, "Introduction: A Judge's View of Appellate Advocacy" in State Bar of California Committee on Continuing Education of the Bar, California Civil Appellate Practice, (1966) pp xviii-xviv cited in Reynolds, note 2 supra at 153-4.
[44] M Kirby, "On the Writing of Judgments" (1990) 64 ALT 691 at 691.
[45] See D O'Brien, "The Seduction of the Judiciary: Social Science and Courts" (1980) 64 Judicature 9; P Sperlich, "Social Science Evidence and the Courts: Reaching Beyond the Adversary Process" (1980) 63 Judicature 280; and J Monahan and L Walker, "Social Authority: Obtaining, Evaluating and Establishing Social Science in Law" (1986) 134 University of Pennsylvania Law Review 477. For examples where judges have spoken on the use of social science evidence in courts see J McMillan, "Social Science and the District Court: The Observations of a Journeyman Trial Judge" (1975) 39 Law and Contemporary Problems 157; J Craven, "The Impact of Social Science Evidence on the Judge: A Personal Comment" (1975) 39 Law and Contemporary Problems 150; and J Wisdom, "Random Remarks on the Role of Social Sciences in the Judicial Decision Making Process in School Desegregation Cases" (1975) 39 Law and Contemporary Problems 134.
[46] Von Nessen, note 4 supra observes a similar trend over the period 1901-87.
[47] To give some indication of case load, in 1980, 184 matters were heard and 72 judgments delivered (65 reserved and 7 unreserved): High Court Annual Report 1984-85. In 1990, 261 matters were heard and 84 judgments delivered (67 reserved and 17 unreserved): High Court Annual Report 1990-91. In 1995-96, 310 matters were heard and 61 cases decided (36 civil appeals, 11 criminal appeals, 5 constitutional cases and 9 applications for order nisi). In 1996-97, 349 matters were heard and 56 cases decided (29 civil appeals, 14 criminal appeals and 13 constitutional cases): High Court Annual Report 1996-97. Annual reports for earlier years in the sample do not contain statistics on judicial case loads.
[48] This is consistent with the method adopted in Daniels, note 3 supra at 3-4.
[49] This is consistent with the two previous citation practices for Australian courts. See von Nessen, note 4 supra at 188; and Smyth, note 4 supra.
[50] Compare with von Nessen, note 4 supra at 188 who provides a similar justification.
[51] The figures for 1970 appear atypical. The reason for this could be that the membership of the court was unstable. This was the only year for which there are reported judgments of eight Justices. Sir Frank Kitto resigned from the High Court on 1 August 1970. Sir Ha ry Gibbs was appointed to the High Court on 4 August 1970. For an indication that shifting membership of the California Supreme Court in 1960 might have skewed the results of a study of that court's citations see Merryman, note 1 supra at 382-4. See also Daniels, note 3 supra at 3.
[52] Brennan, note 10 supra at 13.
[53] There are no practice directions in the High Court regarding which secondary authorities can and cannot be cited. Even casual inspection of the reported argument at the start of most cases in the Commonwealth Law Reports suggests that counsel cite a wide range of secondary authority in argument. John Doyle, Chief Justice of the Supreme Court of South Australia writes of his experience appearing as counsel before the High Court: "When cases are argued before the Court it is a common practice for materials to be handed to the Court and accepted by the Court at the hearing of the appeal. Frequent sources for such materials are Law Reform Reports, published expert reports on a topic, material culled from other academic and authoritative sources, government reports and so on": J Doyle, "Implications of Judicial Law Making" in C Saunders (ed), note 10 supra 84 at 98.
[54] D Marc, Barwick, George, Allen and Unwin (1980) p 223.
[55] G McGinley, "The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts" [1987] AdelLawRw 10; (1987) 11 Adel LR 203 at 209. Sir Garfield Barwick's own observations on his period as Chief Justice seem to confirm this explanation: see note 40 supra, p 223.
[56] Brennan, note 10 supra at 13.
[57] See Mann, note 2 supra at 45; Bernstein, note 3 supra at 78; and Daniels, note 3 supra at 12.
[58] For discussion of Justice Murphy's judgments and judicial technique see J Scutt (ed), Lionel Murphy: A Radical Judge, Macmillan (1987); Campbell, note 18 supra; and M Kirby, "Lionel Murphy and the Power of Ideas" (1993) 18 Alt LI 253.
[59] Daniels, note 3 supra at 6-7.
[60] Ibid.
[61] Smyth, note 4 supra.
[62] Merryman, note 1 supra; Daniels, note 3 supra; Newland, note 3 supra; and Smyth, Ibid.
[63] [1988] HCA 18; (1988) 165 CLR 360
[64] Ibid at 385-93
[65] J Quick and R Gaman, Annotated Constitution of the Australian Commonwealth, Angus and Robertson (1901).
[66] Sir A Mason, "Trends in Constitutional Interpretation" (1995) 18 UNSWIJ 237 at 245.
[67] Bernstein, note 3 supra.
[68] Daniels, note 3 supra.
[69] Von Nessen, note 4 supra.
[70] Bernstein note 3 supra at 67.
[71] PW Young, "Judgment Writing" (1996) 70 AIJ 513 at 514 writes that: "most Australian judges write their own judgments". Michael by has publicly stated that he writes his own judgments: see M Kirby, "What is it Really Like to be a Justice of the High Court of Australia" [1997] SydLawRw 26; (1997) 19 Syd LR 514 at 520.
[72] Merryman, note 1 supra at 413.
[73] Smyth, note 4 supra.
[74] See Merryman (1954), note 2 supra at 629-34.
[75] [1996] HCA 48; (1996) 186 CLR 140
[76] B Brugger and D Jaensch, Australian Politics: Theory and Practice, George, Allen and Unwin (1985).
[77] G Reid and M Forest, Australia's Commonwealth Parliament 1901-1988, Melbourne University Press (1989).
[78] Daniels, note 3 supra at 19; Smyth, note 4 supra.
[79] Daniels, note 3 supra at 10.
[80] See the comments of Kirby, note 71 supra at 527.
[81] Of course, the fact that the court cites a secondary source does not necessarily mean that the source influenced its thinking but citation is still a reasonable proxy for influence.
[82] Walton Stores (Interstate) Ltd vMaher (1988) 164 CLR 387 at 399-402.
[83] Note 10 supra at 13 (emphasis in original).
[84] Von Nessen, note 4 supra.
[85] Friedman et al, note 2 supra at 815.
[86] Note 35 supra at 155-63.