ABSTRACT
The High Court of Australia is at the apex of the Australian court system. Established in 1901 under the Constitution, the Court has both original and appellate jurisdiction to determine constitutional matters. The High Court’s decisions are binding on all lower courts in the hierarchy, both federal and state, as part of the doctrine of precedent, which is a critical feature of the common law. The Court itself, as a matter of long-established practice, ordinarily follows its previous decisions. While it is not bound to do so, it overrules its previous authority by reference to considerations that seek to prioritise stability and certainty in the law. Due to its position in the curial hierarchy, the Court is never required to apply lower court decisions although it regularly refers to the decisions of lower courts.
This chapter surveys the Court’s approach to the decisions of international courts and other apex courts in one significant area of Australian constitutional law: the law of Chapter III of the Constitution. In the absence of a federal charter of rights, Chapter III jurisprudence has been important to the development of rights protections in Australian law, including elements of substantive and procedural due process. Legal issues involving fundamental rights that, in other jurisdictions, are ordinarily litigated by reference to constitutional or legislative rights frameworks, are instead often ventilated in Chapter III cases. This chapter explores the Court’s use of international law and foreign court decisions (largely the United States and the United Kingdom) in some key Chapter III cases.
