In a recent issue of the Australian Law Journal Enid Campbell argued that both the length of High Court judgments and the number of multiple separate High Court judgments has increased and that this is counterproductive. This view echoes similar concerns expressed by some judges and others in the profession. This argument is based on several assumptions about the High Court that are widely held among lawyers, but which have not been subject to any detailed empirical research. Those assumptions are:

1. (a) High Court judgments have become significantly longer in recent times.

2. (b) There is an increase in the number of concurring judgments on the High Court.

3. (c) There is an increase in the number of dissenting judgments on the High Court.

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

Existing studies for the United States examine the extent to which the public is knowledgeable about US courts, arguing that knowledge of the courts is linked to public support for their role. We know little, though, about the Australian public’s awareness of the High Court of Australia. We report the results of a survey of a representative sample of the Australian adult population, administered in November 2017. We find that few Australians know the names of the Justices, the number of Justices on the Court, how the Justices are appointed or for how long they serve. Awareness of recent cases decided by the Court is mixed. We find that age and education are better predictors of awareness levels than is gender. Our findings are important because in the absence of awareness of the High Court, the potential exists for the public to see the Court as having a more overt political role than it has, which may lower esteem for the Court. The potential for this to occur is exacerbated if, and when, politicians attempt to drag the High Court into the political fray, by attributing political motives to it that it does not have.

We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.