The reception and use of social policy information in the High Court of Australia

Social policy information is information that may assist a judge in determining the social or economic consequences of a law. Social policy information is used by judges in developing the law. There are three jurisprudential models that, arguably, could be used to describe the reception and use of social policy information by the High Court of Australia. Under the appropriate model for describing the current law - the Legal Sources Model - social policy information is not treated as a fact in issue, and is not subject to the common law rules of evidence or to section 144 of the Evidence Act 1995 (Cth). Under the Legal Sources Model, the reception and use of social policy information is characterised as an integral part of the judicial reasoning process in determining the content of the law and remains within the sole discretion of the judge, subject to various restrictions. These restrictions arise out of the requirements of judicial process (the parties must be given an opportunity to comment on contentious social policy information) and constitutional limitations (court processes must not resemble Parliamentary Inquiries). Case studies demonstrate that social policy information is often widely used without any acknowledgement of the legal basis on which it is used, without the source of information being identified in the written judgment, and without any apparent method for evaluating the reliability of the information. The current system for the reception and use of social policy information fails to satisfy Best Practice Standards in several important respects, including the following. First, there is no legal rule that defines the circumstances in which judges should obtain, through inquiry, social policy information they reasonably need. Secondly, there is no legal rule that facilitates an evaluation of social policy information by judges. Thirdly, the source of social policy information is not always mentioned in judgments. Fourthly, the law regarding the reception and use of social policy information is not certain. Experience in relevant overseas jurisdictions - the United States, Canada and New Zealand - suggests that these problems are not unique to Australia. Various reform proposals are suggested. These are designed to overcome the deficiencies in the current system and to take advantage of useful ideas for reform which have been proposed overseas. The key proposal is that the High Court should develop a protocol to assist judges in using social policy information.

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