CITING OUTSIDE THE LAW REPORTS: CITATIONS OF SECONDARY AUTHORITIES ON THE AUSTRALIAN STATE SUPREME COURTS OVER THE TWENTIETH CENTURY

Russell Smyth, Monash University

Abstract

The purpose of this study is to examine trends in citations of secondary authorities in the six Australian State Supreme Courts based on decisions reported in the official state reports at decade intervals between 1905 and 2005. The main conclusions from the study are that citations of secondary authorities have increased over time; the State Supreme Courts cite fewer secondary authorities than the High Court; most citations of secondary authorities are to legal sources; and of the legal secondary authorities cited, the State Supreme Courts cites far fewer journal articles than legal texts. The study considers the implications of these findings for decision making on the State Supreme Courts. Citations of secondary authorities, and law review articles in particular, can serve as an indicator of the extent to which the courts take account of the policy implications of their decisions. The study concludes that although there is some evidence that the State Supreme Courts have adopted more of a policy role over the last two decades, the State Supreme Courts should be more attuned to the policy implications of their decisions, given that they are now effectively final courts of appeal in most matters with only a small number of cases reaching the High Court.