Page 4131 - Week 13 - Thursday, 25 November 1993
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In proposed new subsection (3) reference is made to definitions of this concept of a change of the law. It does not mean legislative change but it does mean change of the law or of legal principles or a change in what is generally perceived to be the state of the law or of legal principles. I have not seen anything quite like that before, and all sorts of arguments and debate could ensue surrounding those expressions. For example, what happens where a higher court, say the Supreme Court or the Federal Court, overrules a decision of an earlier court? The question is: Has the law changed or has the higher court simply properly interpreted the existing law? Is it a change of law or is not it?
The only way you can resolve that question is to then ask lawyers what they think about the state of the law. What is the state of the law? It is no more easy to ask a lawyer after a particular case has been resolved what the state of the law might be than it is to ask them at any other time. There will always be debate about those matters. No matter how clear a court might think the state of a particular situation to be, there will be debate. The phrase "what is generally perceived to be the state of the law or of legal principles", I assume, is a reference to "generally perceived by lawyers". I do not think members of the community go around debating what the state of the law might be in a broader context.
Mr Lamont: Yes, we do.
MR HUMPHRIES: Perhaps members of the public do, I do not know; but I certainly do not think that debate would necessarily be a much better educated debate than it is among lawyers, and there is considerable debate and disagreement among lawyers.
The other concern I have is that it is not generally part of the concept of judicial consideration of issues, particularly on appeal, that courts expressly change the law. Certainly it is the common perception, particularly among lawyers, that the courts change the law. People would say, for example, that the Mabo decision of last year changed the law in Australia, but the High Court and other courts would not readily admit that they have actually changed the law. They would say, "We have merely correctly interpreted the existing law". In the case of Mabo, for example, I think the High Court would say, if asked, "No, we have not invented a new concept of native title. We have not created new law. We have simply thrown out a legal shibboleth of terra nullius, which really was an assumption made by many lawyers but was not actually a part of our law up until now". If that were the case, if the High Court were to say, "We are not changing the law; we are merely interpreting it; we are merely expounding it", it becomes a little hard to say that the law is perceived to have changed or legal principles are perceived to have changed.
Sometimes it is quite clear that the High Court in particular has expressly overruled an earlier decision. The High Court made it clear a few years ago that it was capable of changing its mind, in effect, on a particular point of law. But often it will not be relying on that concept of having changed its mind about that subject; it will be saying, "We are merely clearly stating what the principles of the law are and we are correcting a misassumption or mistake made by a lower court". In that situation, I just do not know how this law would operate. I do not know whether it could be said that the law has changed or that it has simply been properly interpreted by a higher court. That is a matter which will be resolved in our courts, I suspect, and in a not very long period.
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