04. MonULR - Ferguson.pdf (871.71 kB)
Patterns of Use: Foreign Cases in High Court Judicial Review Judgments from 1980 to 2018
journal contributionposted on 2020-01-09, 21:16 authored by Alexander Ferguson
Judicial review judgments of the High Court of Australia have made frequent use of foreign cases. Looking at 246 of those judgments since 1980 reveals that four in every ten have used a foreign case. Looking more closely, three patterns are identifiable. The first pattern is the frequent use of a foreign case without providing a reason. The second pattern is the common use of certain foreign courts, most notably from the United Kingdom. The third pattern is the increased use of foreign cases when the disposition is against the governor. Broad structures and underlying approaches in judicial review and Australian law explain these patterns. These include a High Court statement on the use of foreign cases, the openness of Australian law, the normative foundations of judicial review, the quilt of legalities and legitimising judicial review.