High Court of Australia decisions binding on South Australia courts

Wayne Morgan made this Freedom of Information request to SA Attorney-General's Department

The request was successful.

From: Wayne Morgan


Dear SA Attorney-General's Department,

Can you please provide a copy of the instrument, act, enabling act or documents, along with a copy the proclamation, which removes decisions made by the High Court of Australia from being binding on all courts of South Australia?

Yours faithfully,

Wayne Morgan

Link to this

Locutus Sum left an annotation ()

I hope that my comments here are completely wrong (!) but the series of request including this one and the request about the "Removal of the Common Law from South Australia" (https://www.righttoknow.org.au/request/r... ) will appear to a user of Right to Know as very similar to the request at https://www.righttoknow.org.au/request/l... and others. They look as if the purpose is an argument with the following components:
1. I believe that the true law is X.
2. The parliament (police, ministers, lawyers, politicians) of a state (or Commonwealth) behave as if the law is Y but I know it is truly X.
3. I will ask the Attorney General for documents to prove that the law has been changed from X to Y.
4. The Attorney General's Department will refuse my request and say that they could not find the documents or that the documents do not exist.
5. I will then be able to conclude that the true law (X) is not being upheld and has been wrongly replaced by a false law (Y).

As I have said, I sincerely hope that it is not the case with this request (Please, tell me I am wrong), mostly because the argument is founded on sand. That was definitely the case with this request https://www.righttoknow.org.au/request/p... and also this one https://www.righttoknow.org.au/request/p... but maybe the purpose of this series of requests is very much different.

Link to this

Wayne Morgan left an annotation ()

My series of FOI requests are specifically being asked as a Magistrate in South Australia recently stated in public court:
The Commonwealth of Australia Constitution Act is not relevant in this court. (Contrary to Clause 5 in the preamble)
Common law has been abolished in South Australia.
This Court is not bound by rulings by the High Court of Australia.

If there is another way I could ask for evidence of this can you please advise how?

Link to this

From: AGD:Attorney-General's Department
SA Attorney-General's Department

We acknowledge receipt of your email to the Attorney-General's Department.

For a reply to be provided, all correspondence must include a return postal address.

Your email has been forwarded to a departmental officer for review.  Once your views and suggestions have been carefully considered, depending on the nature of your correspondence, you may receive a reply via Australia Post.

Please note that internet and email are not secure mediums to transfer information. If your message is sensitive, please use the postal address below.

If you wish to send invitations, meeting requests, correspondence requiring supporting attachments (such as photos or documents) or are seeking a formal response from the Department, please use the postal address below.

Postal Address
Attorney-General's Department
GPO Box 464

Thank you

show quoted sections

Link to this

Locutus Sum left an annotation ()

@Wayne Morgan: This is very interesting. I did not hear any report about the magistrate and I cannot find anything about it so I would like very much to know where the comments of this magistrate were reported. Also maybe I did not find it because I am not skilled at searching Australian newspapers.

When you read the comments that follow, please remember to repeat, "The girl is not (yet) a lawyer so she might be wrong!" However, with this uncertainty in mind, I have some observations that might be helpful.

First, because I could not find an authoritative report of the comments of this magistrate, I wondered:
(1) Was the report genuine?
(2) Was the report complete or were some of the comments maybe taken out of context.
You will see why I ask these things when you read the rest.

The common law
In my opinion, it is unplausible that the common law has been abolished in South Australia. The structure of Australian law is a common law system and there are many aspects of the law that are almost entirely "common law". For example, contracts are governed mostly by the precedents that have been established, and this is common law not statute law. If a person can still make a contract in South Australia or sue for breach of contract, this is strong evidence for my opinion.

It is, however, that some parts of the common law have been abolished in South Australia, exactly as they have in many other places. This is why I asked whether the comments of the magistrate might have been taken out of context. She might possibly have said "the common law offence of ABC has been abolished". A person can find an example of this in the Maintenance and Champerty Abolition Act (SA), No. 88 of 1993. It provides in s 3 that "The offence of maintenance (including champerty) that but for this section would be punishable by the common law is abolished." Also in s 34M of the Evidence Act 1929 (SA) it says "This section abolishes the common law relating to recent complaints in sexual cases." (www.austlii.edu.au/cgi-bin/sinodisp/au/legis/sa/consol_act/ea192980/s34m.html) So it is possible to abolish and change the common law about particular things but the legal system in Australia is essentially a common law system.

The place of the High Court
There have been several times where politicians have tried to remove the law in their state from the control of the judiciary or the Commonwealth law.

I cannot remember the name of the High Court case about problem that existed when the parliament of the state of New South Wales tried to create a court system that was beyond the reach of the state Supreme Court and the High Court. I think the case (actually the were several cases) has a name like Kirk Holdings v. Some New South Wales authority. The story in these cases was that New South Wales tried to create an occupational health and safety court that did not answer to the Supreme Court and then did not answer to the High Court. I have not explained this very well because I do not have the High Court decision with me. However, the High Court explained that the only court system that can exist in Australia is the system that is created by the Consitution and that builds on the existing court structure at the time of the Australia federation. Conclusion, it is not possible for a state parliament to create a judicial system that is beyond the reach of the High Court.

For the issue of whether decisions of one court are binding on another, there was a case appealed from the Supreme Court of Tasmania to the High Court (again, unfortunately I do not have it with me) regarding the liability of a publican for the death of a man who became very drunk and insisted on driving home. The Supreme Court of Tasmania reached a decision in the case that differed from the decision in an earlier similar case in New South Wales. When the case reached the High Court the High Court criticised very strongly the Supreme Court of Tasmania for not applying the decision from the New South Wales court to the Tasmania case. Why? Because in Australia it is not only decisions of the High Court that are binding on all lower courts. It is also the fact that the decision of one Supreme Court is binding on other Supreme Courts when they make decisions relating to exactly similar cases. The only way that this can change in Australia is when a person challenges the Supreme Court decision in the High Court and the High Court overruns the lower court decision.

A problem that is similar and interesting but not directly relevant
There are times in the Australian federation that a state parliament tries to avoid the Commonwealth law. When this happens, it is always the High Court that must settle the problem.

One recent interesting case was Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail [2015] HCA 11 (8 April 2015) (http://www.austlii.edu.au/cgi-bin/sinodi... ). The Queensland Government did not want the Queensland Rail to have to answer to the Commonwealth Fair Work Commission. The Fair Work Commission only examines corprations, so the Queensland parliament created a law that explained that the Queensland Rail was (s 6) "not a body corporate". Another part of the law said that the Queensland Rail could own property and sue, and be sued, in its own name. The High Court was asked to review this law by the union that is named in the case title because the union wanted to be able to rely on the Fair Work Commission to review job conditions. The High Court explained in the judgment that if Queensland Rail stinks like a horse, then it is a horse. If it does everything that a corporation can do and behaves like a corporation then it is not relevant what the Queenland government wanted to call it; it was a corporation of the kind that is mentioned in the Constitution and so the Commonwealth law can override the Queensland law.

My comments are already like a drunkard's staggering but I would like to make one suggestion to you for when you make an requests. My suggestion is this: It is very helpful to an agency when they can understand the context of your request. Although it is not required by law for the agency to do research for you, many times an agency will be extra helpful when they cannot give you exactly what you ask for but they can make some good suggestions. In your requests about the common law and about the High Court, it probably would be useful to the agencies if you had said exactly what you said to me in your annotation. "According to a recent newspaper/radio/social media report, a magistrate in South Australia claimed that the common law had been abolished in South Australia and that decisions of the High Court are not binding on South Australian courts. I want to understand whether this is true. I request a copy of the instrument, act ..."

But I remind you once more: the girl is not yet a lawyer and might be absolutely wrong.

I am sorry I do not have references for all the cases but AustLII is not giving me access. You can search AustLII (http://www.austlii.edu.au ) for example, for any of the cases using some words from my description. You can also search for phrases like "abolishes the common law" (using the quotation marks) and find where a state has changed the common law by statute.

Link to this

From: AGD:Attorney-General's Department
SA Attorney-General's Department

Attachment Your Right To Know Pamphlet 2016 17.pdf
66K Download View as HTML

Dear Mr Morgan


We refer to your emails received on 15 February 2017 to the South
Australian Attorney-General’s Department.


The information you are seeking relates to Commonwealth legislation,
rather than for documents unique to the Attorney-General’s Department.
Therefore, you may find publicly available information on the
[1]www.legislation.gov.au website. 


Other useful sources of reference include:


•                    Commonwealth  Attorney-General’s Department:


•                    Australasian Legal Information Institute provides
access to legislation from across Australia, case law, various libraries,
various law journals etc. at its website: [3]www.austlii.edu.au


•                    The South Australian Government Gazette from 1839 can
be accessed at its website:  [4]www.governmentgazette.sa.gov.au


Should you wish to seek information under the Freedom of Information Act
1991, please refer to the attached ‘Your Right to Know’ brochure which
describes how to use Freedom of Information in South Australia. 


We wish you the very best with your research.


Attorney-General’s Department

Phone: 8207 1771

Email: Attorney-General’[email address]



Visible links
1. http://www.legislation.gov.au/
2. http://www.ag.gov.au/
3. http://www.austlii.edu.au/
4. http://www.governmentgazette.sa.gov.au/

Link to this

Jay left an annotation ()

I think that's as good a response as could be expected given the nature of the original request as Locutus has so eloquently described

Link to this

Things to do with this request

SA Attorney-General's Department only: