"Obiter dicta" —obiter meaning ‘by the way’, and a dictum being something that is said—are observations made by judges, in the course of their judgments, which are not essential to the immediate decision but may nevertheless be influential as expressions of judicial opinion. The contrast is with the ratio decidendi of a case (the ‘reason for deciding’), which refers to the proposition or propositions of law explicitly or implicitly relied upon as the basis for decision. Under the doctrine of precedent, a court must follow the ratio decidendi of an earlier decision by which it is bound, but is free to reject its obiter dicta or to treat them as merely persuasive.
Whether a statement is ratio or obiter is often itself debatable. The basic principle, as expressed by Stephen and Jacobs in Li Chia Hsing v Rankin (1978), is that ‘anything which is said … beyond what is strictly necessary for a decision on the particular facts is necessarily obiter dicta’. By contrast, in R v Cook; Ex parte C (1985), Gibbs insisted that comments in In the Marriage of Cormick (1984) were ‘a necessary part of the reasoning leading to the conclusion’, and were therefore not merely obiter.
Even if it is clearly obiter, any explicit expression of judicial opinion should be considered once the issue arises for decision. In Johnson v The Queen (1976), when the Court decided that the onus of proof of provocation as a criminal defence rested wholly on the accused, contrary dicta in Parker v The Queen, in both the High Court (1963) and the Privy Council (1964), were rejected.
Gibbs rejected them only ‘after the most anxious consideration’, observing: ‘We are not bound by an expression of opinion in the Judicial Committee which is merely obiter, although we should of course give the greatest weight to any considered dictum of the Board’. In De Jesus v The Queen (1986), the failure of the trial judge and the WA Court of Appeal to consider some obiter observations in Sutton v The Queen (1984) was for Dawson a sufficient reason to grant special leave to appeal.
A court may sometimes think it appropriate to expatiate on questions that strictly do not arise for decision. The result may be an obiter dictum of a peculiarly authoritative kind. For example, the appeal to the Privy Council in the Bank Nationalisation Case (1949) was confined to the High Court's holding on section 92 of the Constitution (see Interstate trade and commerce); and the Privy Council declined jurisdiction lest it be drawn into other issues debarred to it as inter se questions.
A court may sometimes think it appropriate to expatiate on questions that strictly do not arise for decision. The result may be an obiter dictum of a peculiarly authoritative kind. For example, the appeal to the Privy Council in the Bank Nationalisation Case (1949) was confined to the High Court's holding on section 92 of the Constitution (see Interstate trade and commerce); and the Privy Council declined jurisdiction lest it be drawn into other issues debarred to it as inter se questions.
Yet their Lordships thought it ‘right to state their views’ on the section 92 question, and did so in a massive and profoundly influential obiter dictum. Five years later, when their Lordships determined in Hughes & Vale v NSW (1954) that section 92 protected interstate road transport, the states were in turmoil. In Hughes & Vale v NSW (No 2) (1955), an initial attempt by NSW to devise a licensing and taxing system compatible with section 92 was held to be invalid.
But five judges then offered elaborate suggestions for a taxing strategy that might be permissible; and in Armstrong v Victoria (No 2) (1957), those suggestions were applied. Williams conceded that they were only obiter dicta, but thought that since ‘they were only expressed after careful consideration’ and because the states ‘were urgently in need of such guidance’, they should be accepted ‘as a correct statement of the law’. Even Kitto, who had disagreed with the earlier dicta, conceded that they were ‘considered pronoun cements’, and obediently ‘studied them with a desire to accept and apply any principle which I could see commanded the approval of a majority of the Court’.
Again, in Strickland v Rocla Concrete Pipes (1971), the High Court held that the intricate drafting of the Trade Practices Act 1965 (Cth) was unconstitutional. Yet the judgments were mainly devoted to showing that a differently drafted enactment would be valid under the corporations power (section 51(xx) of the Constitution). In a paradoxical example of overruling by obiter dictum, the contrary decision in Huddart Parker v Moorehead (1909) was rejected as no longer correct.
Again, in Strickland v Rocla Concrete Pipes (1971), the High Court held that the intricate drafting of the Trade Practices Act 1965 (Cth) was unconstitutional. Yet the judgments were mainly devoted to showing that a differently drafted enactment would be valid under the corporations power (section 51(xx) of the Constitution). In a paradoxical example of overruling by obiter dictum, the contrary decision in Huddart Parker v Moorehead (1909) was rejected as no longer correct.
More recently, in Sykes v Cleary (1992), the Court held that the successful candidate in a by-election had been disqualified by section 44(iv) of the Constitution. That meant that a fresh election would be needed, in which the candidates who had not been elected were likely to stand again. Accordingly, the Court expressed its opinion that they, too, would be disqualified by a different provision in section 44.
In such cases, the obiter pronouncements are almost advisory opinions. At the least, the Court regards itself as having a kind of incidental power once it is seised of a matter.
By contrast, in the Waanyi Case (1996), where the Court had been expected to settle the controversial issue of whether the mere grant of a pastoral lease extinguished native title, the majority declined to do so. The ruling that the Native Title Tribunal had exceeded its powers by addressing that question was not only sufficient to dispose of the case, but had left the High Court with no jurisdictional footing from which to speak. Only Kirby, in dissent, thought an obiter answer to the question appropriate.
Some Justices are especially wary of obiter pronouncements on constitutional issues, maintaining that constitutional issues should not be reached at all if a non-constitutional ground is available, and even when reached, should be explored no further than the case requires. Brennan was a strong and consistent exponent of this approach. In Actors and Announcers Equity v Fontana Films (1982), he extolled
the practice of this Court in interpreting the Constitution case by case, deciding only so much as is necessary to decide the case in hand … Hewing close to the issues raised by each case, the Court avoids the possibility of having its judgment applied to issues which were not envisaged in the arguments before it.
Such an approach reflects an awareness that the influence of obiter dicta may sometimes be profound. The obiter remarks of Fullagar in Commonwealth v Bogle (1953) were frequently relied on as helping to explain the Cigamatic Case (1962), until Henderson's Case (1997) took a different view of Cigamatic, and dismissed them as merely obiter.
In such cases, the obiter pronouncements are almost advisory opinions. At the least, the Court regards itself as having a kind of incidental power once it is seised of a matter.
By contrast, in the Waanyi Case (1996), where the Court had been expected to settle the controversial issue of whether the mere grant of a pastoral lease extinguished native title, the majority declined to do so. The ruling that the Native Title Tribunal had exceeded its powers by addressing that question was not only sufficient to dispose of the case, but had left the High Court with no jurisdictional footing from which to speak. Only Kirby, in dissent, thought an obiter answer to the question appropriate.
Some Justices are especially wary of obiter pronouncements on constitutional issues, maintaining that constitutional issues should not be reached at all if a non-constitutional ground is available, and even when reached, should be explored no further than the case requires. Brennan was a strong and consistent exponent of this approach. In Actors and Announcers Equity v Fontana Films (1982), he extolled
the practice of this Court in interpreting the Constitution case by case, deciding only so much as is necessary to decide the case in hand … Hewing close to the issues raised by each case, the Court avoids the possibility of having its judgment applied to issues which were not envisaged in the arguments before it.
Such an approach reflects an awareness that the influence of obiter dicta may sometimes be profound. The obiter remarks of Fullagar in Commonwealth v Bogle (1953) were frequently relied on as helping to explain the Cigamatic Case (1962), until Henderson's Case (1997) took a different view of Cigamatic, and dismissed them as merely obiter.
The inference drawn from Cooper v Stuart (1889) that the laws and entitlements of Aboriginal peoples had not survived European settlement was never more than obiter; yet, as Deane and Gaudron conceded in Mabo (1992), the accumulation of obiter dicta in that and other cases had acquired ‘formidable’ authority. When Isaacs excluded any effective guarantee of jury trial from section 80 of the Constitution (by saying in R v Bernasconi (1915) that ‘if a given offence is not made triable on indictment at all, then sec 80 does not apply’), and when Higgins said in R v Archdall and Roskruge (1928) that although section 80 requires a jury ‘if there be an indictment’, there is ‘nothing to compel procedure by indictment’, they were speaking obiter.
Yet, despite the formidable challenges by Dixon and Evatt in R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938), and by Deane in Kingswell v The Queen (1985), the effect of their passing comments has been treated as settled law.
Thus, the Court has been ambivalent in its attitude to obiter dicta, sometimes treating them as authoritative and sometimes dismissing them as superfluous. The ambivalence is likely to continue, and underscores the breadth of the choices open to an appellate court in developing the law of the land.
Tony Blackshield
How to cite this entry:
Tony Blackshield "Obiter dicta" The Oxford Companion to the High Court of Australia. Michael Coper, Tony Blackshield, George Williams, Oxford University Press, 2007. Oxford Reference Online. Oxford University Press. 14 October 2011
Thus, the Court has been ambivalent in its attitude to obiter dicta, sometimes treating them as authoritative and sometimes dismissing them as superfluous. The ambivalence is likely to continue, and underscores the breadth of the choices open to an appellate court in developing the law of the land.
Tony Blackshield
How to cite this entry:
Tony Blackshield "Obiter dicta" The Oxford Companion to the High Court of Australia. Michael Coper, Tony Blackshield, George Williams, Oxford University Press, 2007. Oxford Reference Online. Oxford University Press. 14 October 2011
