The United States Supreme Court can only consider Federal matters and, unlike the Australian High Court, does not have a general supervisory jurisdiction over the State Supreme Courts. This has meant that there is no single common law of the United States, but rather 50 versions of common law developed by each State Supreme Court.
This has both advantages and disadvantages. Sir Anthony Mason has said that one can find American authority for nearly any proposition of law as well as American authority of equal status to oppose it. Thus it is not surprising that the High Court, in its early years at least, did not often consider American authority on matters such as contract, torts, criminal law, and equity-areas of law falling almost exclusively within American State jurisdiction. Additionally, the foreign statutory precedents adopted by the Parliament were mostly of English origin rather than American. It is only in more recent times that American statutory regimes have been appropriated (for example, trade practices and intellectual property law). Thus there was seen to be little need to look to American cases to assist in interpreting statutory regimes.
The colonial links to England and the ideal of a single common law for the British Commonwealth were obvious reasons for the High Court not straying too far from English authority. These constraints would not have applied to the English superior courts. Yet according to Albert Kiralfy in 1948, in the previous 20 years, the English courts had cited only 109 American cases in 87 matters. While the 1930s and 1940s were part of a somewhat lean period for the Australian High Court in its use of American authority, leaving aside the constitutional law cases, the Australian use was more than double that of the English courts. One might surmise that the fact that the High Court had developed the practice of using American authority in relation to Constitutional matters (even though greatly reduced since 1920), meant that it was more prepared than the English courts to pay some regard to American authority in other areas of law. Thus, the use of comparative law to assist the court was more readily assumed by the High Court than the English superior courts. Even in 1993, Markesinis, Denning Professor of Comparative Law at the University of London, protested that the House of Lords "could make use of the developments elsewhere to a greater degree than just citing one or two miscellaneous United States cases out of context."
One of the advantages of a multiplicity of independent common law regimes is that they can offer different perspectives on contentious issues. Oliver Wendell Holmes Jr asserted that there is no absolutely correct answer to a legal question, and the interpretation of the law given by judges is always affected by the perceptions and values they bring to the matter. There are always choices for judges to make, whether they are conscious of them or not.
Having a variety of sources of legal thought can assist in seeing legal issues in a different perspective, and can provide examples of the practical application of opposing legal doctrines. Legal realism as developed by Holmes (the theory that all law is, in reality, judge-made) was more readily able to take hold in the United States, where a multiplicity of common law regimes had developed from a single source. American lawyers could see from those examples that the development of common law was not merely a process of logical deduction of conclusions from premises, but included creating new rules involving policy choices. In Australia, largely because of the influence of Sir Owen Dixon, legal realism did not have an influence until much later.
In developing the most appropriate system for its own jurisdiction, a court will benefit from observing how different rules operate in a variety of common law systems. In a more limited way, the different States and Territories in the Australian Federation have provided the opportunity for experimentation in statutory regimes and thus have been a valuable source of inspiration for statute law in the other States. If Australia had been a unitary state, would it have been a world leader in matters such as universal franchise, or in real property law? The fact that the small colony of South Australia was able to demonstrate that civilisation did not come to an end when women were given the vote, and that the Torrens title system was effective and efficient, meant that it was easier for other states and countries to adopt these ideas. Example and analogy have also been fundamental tools of legal interpretation. The wider the sources of example and analogy, the more likely it is that an interpretation appropriate to local circumstances will be found and adopted.
For a long time, the High Court was not the final arbiter of every matter in Australian law, and felt itself bound to follow English common law because of the right of appeal from a State Supreme Court and the High Court to the Privy Council. This led the Court, generally, to adopt the principle of comity with English common law. There were a few cases where the High Court purposely departed from common law principles established by the English Courts, but they were rare.
The abolition, over time, of appeals to the Privy Council has had a dramatic effect on the way in which the High Court has approached its task of interpreting and developing Australian law. It has meant that it has felt free to consider new ideas, and the American system has offered an enormous range and variety of cases as a source of inspiration.
While this paper considers the use of United States authority, in the course of data collection it was obvious that the other North American jurisdiction has been an even greater source of inspiration for the High Court. Canadian cases have, since the earliest times, been cited regularly by the High Court, but without having collected any data on the subject, the impression I get is that there has also been a marked increase in citation of Canadian cases in the past 15 years. This supports the notion of a Court seeking to assert its independence from England but still remaining firmly within the Anglo-American legal tradition. In 1988, Sir Anthony Mason gave another reason for the diminishing impact of English authority:
"The pervasive impact of European law and legal thinking on the courts of the United Kingdom will necessarily qualify and diminish the value which English case law has for us as we continue to develop the common law for Australia and to interpret our own statutes which are no longer closely modelled on the United Kingdom statutes."
The discovery by counsel appearing before the High Court of its newly asserted independence led Sir Anthony Mason, in 1984, to warn counsel not to get carried away with American precedent for inspiration. He said:
"There is an increasing tendency on the part of the High Court in common with other courts of appeal, to look to the development of the common law elsewhere. If a principle has been accepted and adopted in the United Kingdom, Canada, New Zealand and the United States, it is a matter of obvious significance to us. Unfortunately, research of this kind takes time. Moreover, our occasional references to United States authorities have excited counsel to undertake safari-style expeditions into the jungle of American case law. We need to remind counsel that we are not the Supreme Court of the United States and to remind ourselves that we are not the Supreme Court of Arkansas or Nebraska. We have a sufficiently intricate task in deciding what the law is for Australia without shouldering the gratuitous burden of deciding what is the law in the various states of America. There is simply no point in referring to United States authority unless it demonstrates universal and unqualified acceptance of a particular rule of common law or of equity or unless it offers an illuminating exposition of principle."
Nevertheless, in 1988, Sir Anthony appeared somewhat more encouraging in the use of American cases. He said:
"It is essential ... to use American authority with care and discrimination. Knowledge of the courts and judges who have been influential is important. ... "
"One needs to be able to identify the American judges who have been influential and the courts which have established reputations. ..."
"Dicta and non-binding decisions in other jurisdictions assist us in how we should resolve a given problem. They do not constrain us as a binding precedent. They leave us with a freedom of choice."
In 1987, Lockhart J of the Federal Court pointed to Australia's "diminishing links with the legal system of the United Kingdom" and our "increasing affinity with various branches of United States law" as reasons to reassess the role of precedent in Australian law, with a view to adopting a less restrictive doctrine of precedent, similar to that applied in American courts. Such an approach would also permit greater recourse to American cases as a source of legal example, because past Australian authority would carry even less weight.
In 1995, Sir Gerard Brennan spoke of the change of style that Sir Anthony Mason had brought to the High Court. He said:
"His public law judgments reveal an image of Australia as an independent nation fully equipped to take its place as a member of the international community. ...
"In areas of private law, the Mason judgments were marked by an accurate knowledge of existing authority and a refusal to be bound by a rule of law when, consistently with the judicial method, it could be recast to be more useful or more attuned to contemporary needs. His judgments on waiver and estoppel, on fiduciary relationships, unjust enrichment, negligence and company law have illuminated these fields. It is chiefly in the fields of private law that his avidity for ideas and his search for assistance from other jurisdictions can be detected. For the first time, academic writing was encouraged on cases pending in the High Court. The research capacity of the Court library was strengthened and, more importantly, utilised. In Waltons Stores, for example, within four printed pages you will find references not only to the usual sources but also to cases in Massachusetts and Malaysia, New York and New Zealand as well as a number of academic texts. ...
"Perhaps the most significant feature of his writings is not in the solutions propounded to particular problems but, rather, in his approach to the roles or precedent and policy. Sir Owen Dixon's 'strict and complete legalism', which had served the Court well in shielding it from controversy, could no longer be defended as an adequate explanation of the judicial method. ... If precedent was not automatically to be applied, policy had an overt role to play. So much was not only accepted but welcomed."
In discussing the High Court's use of American cases in non-constitutional law areas, I have restricted the examples to cases in tort law, criminal law and a "miscellaneous" case. Nevertheless, one category of importance that has been influenced by the High Court's use of American law and cases is "contract and other commercial law". While common law prevails in this area of law in Australia, in America, it is usually governed by statute or quasi-statute in the form of the uniform commercial code, state civil code, the Restatement, or a combination of these. Nevertheless, the High Court has found American cases concerning unconscionability and estoppel of increasing relevance.