The Australian High Court's Use of Foreign and International Materials In Constitutional Decisions

Elisa Arcioni, University of Sydney Faculty of Law, and Andrew McLeod, Lady Margaret Hall, University of Oxford & University of Sydney Faculty of Law, have published Cautious but Engaged -- An Empirical Study of the Australian High Court's Use of Foreign and International Materials in Constitutional Cases at 42 International Journal of Legal Information 437 (2015). Here is the abstract.

The issue of whether constitutional courts should refer to foreign law has become the subject of debate and discussion around the world. In the US in particular, a heated judicial and academic debate on the issue has spilled into a political controversy extending to the introduction of federal and State Bills to prohibit judicial citation of foreign law and to Congressional proposals for such citation to be an impeachable offence. The use of foreign law, for some, is in tension with national sovereignty: one Congressman claimed that citation amounted to a surrender of lawmaking 'to the control of foreign courts and foreign governments', and potentially represented the start of an internationalist normative debates about foreign law play at best a muted role in Australian jurisprudential and political life, and we do not directly engage with them here. Rather, we consider to what extent, and how, Australian High Court judges engage with foreign and international legal materials in constitutional cases. In this article we track the frequency of citation in constitutional cases and provide a substantive analysis of the ways in which those materials are used. We find that the citation of foreign and international materials in constitutional cases is widespread, though it is issue-dependent and varies in both quantity and kind between judges. In general, the Court shows a willingness to consider foreign approaches to constitutional questions, even when they are ultimately found not to be directly applicable in the Australian context. Unsurprisingly, the Court's use of foreign precedents leans heavily towards nations with which it shares a common law heritage. We suggest that the highly context specific nature of constitutional law remains a significant factor shaping the Court's approach, and that this creates a barrier to the direct importation of foreign materials.

Download the article from SSRN at the link.