Justice McHugh - A Moderately Conservative Approach to Precedent in Constitutional Law

This paper analyses McHugh J’s approach to precedent in constitutional law in order to provide an insight into his Honour’s view of the role of the judge in upholding the Constitution. There is an examination as to how his Honour balanced the two themes that Kate Guilfoyle contends permeate McHugh J’s jurisprudence, the respect for individual rights, and adherence to principle. The High Court has not developed any settled approach to overruling precedent. Instead, when a previous decision is considered to be incorrect, a judge weighs up a number of values to determine whether it is appropriate to overrule the prior case. McHugh J’s approach to precedent in constitutional case is assessed through identifying the values that were most important for his Honour when considering precedent. McHugh J’s constitutional jurisprudence contains cases where his Honour is both highly deferential to precedent and also where his Honour vehemently rejects precedent. In deferring to precedent, the theme of adhering to principle outweighed protecting individual rights for McHugh J. In particular, McHugh J sought to promote certainty in the law, which his Honour believed to promote the values of legitimacy and confidence in the Court. On close analysis McHugh J’s approach to reject precedent should not be viewed as inconsistent with the cases where his Honour deferred to precedent. Instead, once contextual factors are taken into account it can be seen that McHugh J also sought to adhere to principle. In particular, McHugh J was seeking to promote certainty as to the methods that the Court may use in interpreting the Constitution. His Honour also believed that this approach promoted the values of legitimacy and confidence in the Court through keeping constitutional interpretation within defined and, according to his Honour, authorised limits. *This paper was submitted as an ANU College of Law Honours Thesis under the supervision of Professor Fiona Wheeler and Dr Heather Roberts.