Can statutes die of old age? The answer seems to be ‘not in law but sometimes in practice’1. Repeal by parliament is needed to kill them off in a legal sense. A statute may fall into desuetude for practical purposes, however, where the ‘tooth of time’ deprives it of all factual application2. The law is also against the natural death of common law precedent and principle. There is US scholarship about so-called ‘zombie precedents’3 – that is, an old case or principle widely criticised but applied out of the blue in some irregular way4. Scalia J said – ‘Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad …’5 Lord Simon invoked Rip van Winkle and Sleeping Beauty6. Three points can be made – statutes do not die of old age; they live on until put to the sword by parliament; and ancient ones often enough have their say in modern affairs.
Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au 0417 605 338
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Footnotes:
1 Jolley (1933) 49 CLR 242 (277), Bennion (313), Carter (525-526).
2 Ashman [1985] 2 NZLR 224 (228), Tagaloa [1927] NZLR 883 (900).
3 Dallas What in the world is ‘zombie precedent? (19/12/2025) SCOTUSblog.
4 cf Golden Eagle [2007] HCA 15 [4], Athans (No 2) [2022] SASCA 70 [122].
5 Lamb’s (1993) 508 US 384 (398), quoted in Kagan The Essential Scalia (129).
6 McKendrick [1972] SC (HL) 25 (61), cf WB [2018] EWCA 928 [48].