Statutory Precedents under the “Modern Approach” to Statutory Interpretation

Abstract

This article considers when Australia’s superior appellate courts should overturn or depart from previous judicial interpretations of statute law, especially in light of the modern approach to statutory interpretation. In this age of statutes, it is vital to understand the circumstances in which superior courts should — and equally, should not — do so. Yet, the issue remains largely unexplored in the academic literature. The approach to statutory precedents is said to be informed by special constitutional considerations that do not apply to those of common law, and that require courts to overturn statutory precedents that they consider to be plainly erroneous. More recently, it has been suggested that the sensitivity to context demanded by the modern approach will lead superior courts to more readily conclude that a statutory precedent is wrong. While there is some truth to both claims, there are also compelling reasons why superior courts should exercise caution when dealing with statutory precedents, and in many instances, choose to ‘stand by what has been decided’.