THE IMPACT OF DISSENTING OPINIONS UPON THE
DEVELOPMENT OF AUSTRALIAN CONSTITUTIONAL LAW
Andrew Lynch
A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy
Faculty of Law University of New South Wales
March 2005 ABSTRACT
This thesis aims to assess the role played by disagreement in the High Court’s constitutional law decisions. It does so firstly by considering the theoretical arguments in favour of allowing expression of dissent and those which urge judicial restraint and observance of precedential values. The tensions between change and conformity, and also the individual and institutional aspects of adjudication, intersect when the Court divides.
The complex nature of disagreement on a multimember judicial body is further examined in the context of devising an empirical methodology for the quantification of dissent on the High Court. The thesis selects a period of a little over twenty years for detailed examination. Within that timeframe, it measures the prevalence and nature of disagreement amongst the Justices of the Court, with particular emphasis upon constitutional cases.
From these results, various streams of opinion are examined for subsequent significance. In particular, the thesis contrasts the practice of persistent dissent from the Court’s approach to an issue, with those occasions when a minority Justice yields to the demands of stare decisis. The impact of dissent upon the development of the Court’s constitutional interpretation is evaluated. Although the study finds that direct reversals in the law in favour of an earlier dissent occur very rarely, it argues that dissents may still exercise a powerful influence on the Court’s pronouncements. The contribution which minority opinions make to judicial deliberation is to inevitably alter the context of the Court’s decision. Consideration of two specific case studies illustrates that this may result in the law taking a more moderate path or may actually lead to greater efforts by a majority to strengthen the cogency of its approach. In either scenario, dissent plays a far more subtle role than suggested by the myth of a ‘Great Dissenter’ and the dramatic redemption of his or her lone opinions. To only assess the value of dissenting judgments against that standard is to fail to appreciate the true nature of their influence in many cases and their importance to the work of the High Court. ORIGINALITY STATEMENT
‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged.’
Signed ……………………………………
iii ACKNOWLEDGMENTS
I am enormously grateful to my supervisor Professor George Williams for his constant support and enthusiasm for this project. His invaluable guidance was given with immense generosity. Thanks are also due to Associate Professor Arthur Glass and Professor George Winterton who provided useful advice as members of my supervisory panel.
I would like to acknowledge with gratitude the support given to me by the Gilbert +
Tobin Centre of Public Law, UNSW and the Centre for Comparative Constitutional
Studies, University of Melbourne – both of which accommodated me as a visitor in the first half of 2004, allowing a substantial amount of writing to be done under very pleasant conditions.
I wish also to thank a number of friends and colleagues for their interest, suggestions and encouragement: Sean Brennan, Brett Bondfield, Jennifer Burn, Penny Crofts,
Peter Edmundson, Cassandra Goldie, Devika Hovell, Bryan Mercurio, Peter Radan,
Alex Steel, Cameron Stewart and Rob Watt. Additionally, I am grateful to Dan
Meagher for stimulating conversations; to Mary Keyes for her unflagging support and wisdom; and to Lawrence McNamara who has been a fellow traveller (in many senses) over the years and who has been a constant source of great advice and empathy.
Lastly, I thank my lovely wife Louise for everything – but especially on this occasion, for her patience.
iv TABLE OF CONTENTS
Abstract...... i Originality Statement...... iii Acknowledgments...... iv List of Tables ...... vii
CHAPTER ONE Introduction...... 1
CHAPTER TWO The Functions and Operation of Disagreement in a Final Court I Introduction...... 9 II Functions of Dissent ...... 11 A Deliberation, Dissent and Democracy ...... 12 B Dissent and Judicial Process ...... 32 C Dissent and the Law’s Development ...... 44 D Concurring judgments compared – the acceptable face of disagreement and change? ...... 52 III Arguments for Restraint – the Hazards of Dissent ...... 57 A Certainty and Coherence...... 58 B Individualism and the Authority of the Court...... 65 IV The Relationship between Dissent and Precedent ...... 71 A Precedent as a means of resolving disagreement in law vs. Judicial choice in courts of last resort...... 72 B Factors in favour of overruling – and the likelihood of dissent...... 77 C Sustained defiance of precedent – the practice of persistent dissent ...... 81 V Conclusion ...... 89
CHAPTER THREE Defining Dissent: A Methodology for Measuring Judicial Disagreement in the High Court of Australia I Introduction...... 93 II The Value of an Empirical Study of Dissent ...... 96 A The Benefits of an Empirical Study of Dissent ...... 96 B The Need for an Empirical Study of Dissent...... 101 III Fundamental Concepts – Preliminary Classifications ...... 105 A Forms of Disagreement – Dissent and Concurrence...... 105 B The Harvard Rules ...... 107 C Applying the Harvard Rules to the High Court of Australia – Some Necessary Modifications ...... 111 IV Connection to Notions of Majority and Minority – Dissent as a Relational Concept ...... 119 A The Degree of Concurrence...... 123 B Identification of a Majority – Orders, Reasons and Multiple Issues ...... 132 C Summary...... 162 V The Value of this Methodology ...... 162
v CHAPTER FOUR The Prevalence of Dissent on the High Court, with Emphasis upon Constitutional Law Cases: 1981-2003 I Introduction...... 167 II Some Specific Statements Concerning Methodology...... 168 A Classification...... 168 B Data Source...... 170 C What is a ‘constitutional case’? ...... 171 D Period covered – several ‘natural courts’...... 173 E The ‘control’ sample...... 176 III The Statistics...... 177 A The Institutional Perspective...... 177 B The Individual Perspective ...... 189 C Collaboration...... 213 IV Conclusion ...... 227
CHAPTER FIVE The Impact of Minority Opinions on Constitutional Law I Introduction...... 231 II Method ...... 234 III The Presence and Nature of Disagreement...... 240 IV The Pull towards Conformity...... 244 A Surrender to the Majority...... 246 B Foreclosing Opportunities for Minority Opinions ...... 255 V The Diehards – Persistent Dissent ...... 259 A Instances of Persistent Dissent...... 262 B Persistence – a tool of dynamism and conservatism...... 284 VI The Redemption of Minority Opinions...... 288 VII Conclusion – The Impact of Minority Opinions...... 296
CHAPTER SIX Case Studies: Two Different Stories of Dissent I Introduction...... 301 II Selecting a body of caselaw for analysis ...... 302 III Gauging Impact...... 305 IV The Streams of Minority Opinion...... 309 A Freedom of Political Communication...... 309 B The Right to Trial by Jury...... 369 V Conclusion ...... 415
CHAPTER SEVEN Conclusion ...... 419
List of References ...... 429 Selected Case List...... 442 List of Statutes ...... 447
APPENDIX A...... 449 APPENDIX B ...... 465
vi LIST OF TABLES
Table A – Resolution of All Matters Tallied ...... 177 Table B – Resolution of Constitutional Matters Tallied...... 179 Table C(I) - Constitutional Matters – How Resolved...... 182 Table C(II) - Constitutional Cases by Topic...... 184 Table D (I - Gibbs Court) – Actions of Individual Justices in All Matters Tallied ...190 Table D (II – Mason Court) – Actions of Individual Justices in All Matters Tallied 192 Table D (III – Brennan Court) – Actions of Individual Justices in All Matters Tallied ...... 193 Table D (IV – Gleeson Court) – Actions of Individual Justices in All Matters Tallied ...... 196 Table D (V – Total Period) – Actions of Individual Justices in All Matters Tallied.200 Table E (I - Gibbs Court) – Actions of Individual Justices in Constitutional Matters ...... 201 Table E (II – Mason Court) – Actions of Individual Justices in Constitutional Matters ...... 203 Table E (III – Brennan Court) – Actions of Individual Justices in Constitutional Matters ...... 205 Table E (IV – Gleeson Court) – Actions of Individual Justices in Constitutional Matters ...... 208 Table E(V– Total Period) – Actions of Individual Justices in Constitutional Matters ...... 211 Table F (I – Gibbs Court) Joint Judgment Matrix - Constitutional Cases...... 216 Table F (II – Mason Court) Joint Judgment Matrix - Constitutional Cases ...... 218 Table F (III – Brennan Court) Joint Judgment Matrix - Constitutional Cases ...... 221 Table F (IV – Gleeson Court) Joint Judgment Matrix - Constitutional Cases...... 223
vii CHAPTER ONE
INTRODUCTION
It is frequently claimed that dissenting opinions signpost the way for future change in
the law. This appears to sustain members of the judiciary on those occasions when
they are unable to agree with a majority of their colleagues. A faith in the likelihood
of eventual redemption of one’s dissent may even encourage a judge to persist in his
or her refusal to yield to the precedent established by the rest of the Court. The
individualism made apparent by dissent – particularly when repeatedly expressed
against the majority position – exposes the complex manner in which judicial power
is held by a multimember court. The relationships simultaneously existing between
Justices serving on a collegiate adjudicative body and between each individual
member and the Court itself, as an abstract entity through which they derive an
institutional voice, are never as clear as when disagreement occurs.
Although the existence of division on the bench is a regular occurrence, this is not often considered on its own terms, divorced from the immediate context of individual decisions. This study seeks to consider the place of judicial discord in our understanding of the High Court, but particularly in the manner in which it resolves disputes as to the meaning of the Commonwealth Constitution. The somewhat reduced significance of stare decisis in constitutional law has enabled Justices in the minority in such cases to appeal to the Constitution itself as the basis for a refusal to accept the Court’s dominant approach. To hold out for the ‘true’ or ‘correct’ meaning of a provision in the Constitution is to attempt to keep the dispute alive, until a reversal of fortune takes place at the hands of a future, perhaps differently composed,
bench. But given that the dogged expression of disagreement comes with some
legitimate reservations as to its effect upon the standing and functioning of the Court,
it is pertinent to ask to what degree persistent dissents actually assist in achieving
change in the law. Thus, the aim of this thesis is to assess the extent and impact of
minority opinions in the development of Australian constitutional law.
The thesis approaches this topic by means of the following structure. Chapter Two
explores the concept of judicial disagreement and considers the positive and negative
aspects of this as a phenomenon of multimember courts. In doing so, it discusses the
significance of dissenting judgments as an expression of deliberative decision-making
and suggests that the ability to deliver such opinions provides ballast to arguments as
to the democratic credentials of the judicial arm of government. On a more pragmatic
level, dissenting voices are able to contribute to the Court’s decision-making in two
distinct ways. First, the exchange of diverse opinions at the drafting stage and the
possibility of criticism from a vocal minority should stimulate more thorough reasoning across the Court. Second, as already mentioned, they may directly affect the law’s development by providing an alternative approach to be redeemed by a differently constituted Court in the future.
But in reflecting on the possible benefits which dissents may bring to judicial decision-making, Chapter Two is careful to address the various concerns about the challenge which manifest individualism from Justices can pose to the authority of the
Court as an institution. The dominant method through which the legal system seeks to promote conformity is the doctrine of precedent and although a final court such as the
2 High Court of Australia is not bound by its own decisions, it is clear that it will not
depart from them lightly. It is, however, slightly more prepared to do so in the field of
constitutional interpretation and this leads to a tension between fidelity to either the
constitutional text or its earlier judicial exposition. This explains why this area of law
features such notable instances of persistent dissent, through which members of the
Court repeatedly refuse to accept the authority of its own pronouncements. Seen by some commentators (including other members of the judiciary) as ‘law breaking’, the
practice of persistent dissent lays bare the importance of the individual to our appreciation of the institutional when following the work of the Court.
That theme is carried over to the more practical considerations of Chapter Three. This
part of the thesis is concerned with two interrelated tasks. Primarily, the chapter is
devoted to the design of a reliable empirical methodology which will enable the
accurate measurement of minority opinions over a substantial period of the High
Court’s recent history. This reflects the view that a study of the role and significance
of disagreement in the Court cannot be complete without also assessing its
prevalence. The second, slightly more subliminal, concern of Chapter Three is to
further explore the complexities which inhere in collegiate judicial bodies. The traditional view of a dissenting minority being produced by the Court simply splitting between two fixed alternative solutions is refuted by consideration of examples which
show that disagreement is, in many cases, rather more nuanced. The Court is often far
more fragmented than is generally understood. In extreme instances, particularly
where a numerical majority fails to concur in all the Court’s orders, this level of
dissonance highlights the complicated relationship which the individuals who
comprise the Court have with it as a body in its own right. For dissent is not produced
3 simply through a failure to agree with one’s colleagues on the bench, but also a corresponding, but not necessarily identical, failure to agree with the institutional voice of the Court itself. It is only logical that this discussion occurs in the context of formulating a reliable means by which dissent may be quantified. Through design of a methodology to that end, a more definite understanding of the nature of judicial disagreement is demanded.
The results produced through application of the statistical method proposed and tested in Chapter Three, are presented and discussed in Chapter Four. The prevalence of dissent in the High Court generally and specifically in constitutional law decisions is revealed over a 22 year period spanning from the appointment of Sir Harry Gibbs as
Chief Justice through to the departure of Justice Gaudron in early 2003. The chapter considers the patterns of decision-making by the Court as a whole and also by the individual Justices in respect of the eras of the four Chief Justices who served across this time. The overwhelming finding is that disagreement is a central feature of the way in which the High Court functions – particularly when it is engaged in the interpretation of the Commonwealth Constitution. But behind that general observation, lies a wealth of difference in the ways in which individual Justices, and indeed the Court itself at various times, experience disagreement. The relational nature of judicial dissent is made clearly apparent by movement in the institutional and individual rates of unanimous, concurring and dissenting opinions over time. The sheer amount of minority opinions produced by members of the Court compels speculation as to their ultimate value.
4 The later chapters of this work attempt to come to grips then with that central question
– what is the significance of all this disagreement to the Court’s development of
constitutional law? Chapter Five works from groups of constitutional cases identified
as part of the empirical study to search amongst them for examples of marked disagreement (not excluding, where appropriate, those expressed in minority concurring judgments) which had an importance beyond their initial expression. It arranges the findings under three categories – instances where dissent was retracted for precedential reasons; the occurrence of persistent dissent despite the pull of stare
decisis; and occasions where the Court has reversed its earlier decision in order to
redeem a dissent. The result of this survey of the cases is, amongst other things, to
gain a better appreciation of the subsequent relevance of dissenting opinions, in light
of their steady production as evidenced by the figures contained in Chapter Four.
However, there remains a sense that a deeper understanding of the contribution which
disagreement can make to the shape of the law is still to be discerned by moving beyond a search simply for the positive or negative employment of dissent in later
decisions.
In order to address that concern, and so provide a rounded picture of the subtlety with
which minority opinions can exert an influence on the Court’s interpretation, Chapter
Six focuses upon two distinct case studies, again drawn from the profiling of
constitutional decisions performed in Chapter Four. The areas examined are the
decisions dealing with the emergence of the implied freedom of political
communication and the interpretation of section 80 of the Constitution’s guarantee of
trial by jury. The role played by Justices in dissent across the course of the decisions
on these topics is extremely different but the discussion aims to demonstrate that in
5 respect of both, the law has developed in a way which would not have occurred absent any disagreement. This is so despite the Court’s decisions in either area not involving what we might normally expect in the way of a dramatic volte-face to embrace an earlier dissent.
Chapter Seven concludes this work by delivering an assessment upon the central place of division in the High Court. It seeks to draw upon the earlier parts of this thesis so as to stress the fundamental ordinariness of disagreement on a collegiate decision- making body and to call for that to be both more readily recognised and better appreciated in our approach to the Court as an institution. In doing so, a more accurate sense of the value of minority opinions may be achieved in general. In the specific area of the Court’s constitutional law decisions, it is possible to gauge the significance of oppositional voices within the Court in a number of ways. The ultimate finding is that while the Court only very rarely redeems an earlier dissent, it is a mistake to conclude that minority opinions are otherwise of little importance to the development of constitutional principle. As a contribution to the Court’s dialogue, they necessarily affect the context against which its ongoing process of interpretation takes place. The degree of influence may often be imperceptible, but even when a dissent is not viewed favourably by a subsequent Court, it is possible that it still brings much to bear on the latter’s reasoning.
To conceive of the value of minority opinions in this way is to largely reject the romanticised image of the Great Dissenter whose lone voice is ultimately accepted.
This study holds out little hope for the redemption of dissents in constitutional law, whether expressed frequently or not. That may or may not have an impact upon the
6 decision by an individual Justice to either concur with a dominant majority or persist in opposition to it, where those options present themselves. But in substitution of that idealised notion of the way in which dissent can become the law, we are able to look to the evidence that minority opinions certainly do exert influence upon the Court’s reasoning through a complex process of judicial deliberation and development. This occurs with far less acknowledgment to the Justice who held the minority viewpoint and in that sense, may be said to be less rewarding than outright vindication, but it undoubtedly happens far more regularly and probably to better effect upon the overall refinement of the law.
7 CHAPTER TWO
THE FUNCTIONS AND OPERATION OF JUDICIAL DISAGREEMENT IN A FINAL COURT
I INTRODUCTION
The occurrence of dissent is a phenomenon of judicial work which attracts direct consideration only sporadically. Individual dissenting opinions may often receive attention in cases of interest to the public, but there has been only a limited effort to reflect upon the role of dissent in legal reasoning generally - the benefits it brings and the challenges it poses. While the significance of the dissenting opinion has received various forms of tacit acknowledgment over the years – particularly in the United
States where it has long held a peculiar romantic fascination – only recently has serious regard been given to this important aspect of judge-made law.1 The purpose of this chapter is to add to this discussion – and extend it to a consideration of disagreement in the High Court of Australia. The role of dissension in the Court is an aspect of its work which has received only sparse attention over its history.
1 Although it was said in 1994 that ‘the value of dissenting opinions is now beyond question’ (Edward McGlynn Gaffney Jr, ‘Professionalism in the Practice of Law: A Symposium on Civility and Judicial Ethics in the 1990s: The Importance of Dissent and the Imperative of Judicial Civility’ (1994) 28 Valparaiso University Law Review 583, 591), other commentators do not agree and seem only to be warming to the question. In recent years, particularly significant contributions to this debate were made by John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221; Robert G Flanders Jr, ‘The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable’ (1999) 4 Roger Williams University Law Review 401; Justice Claire L’Heureux-Dubé, ‘The Dissenting Opinion: Voices of the Future?’ (2000) 38 Osgoode Hall Law Journal 495; and Rory K Little, ‘Reading Justice Brennan: Is There a “Right” to Dissent?’ (1999) 50 Hastings Law Journal 683. Additionally, Justice Brennan’s highly influential 1986 contribution (Justice William J Brennan, ‘In Defense of Dissents’ (1986) 37 Hastings Law Journal 427), was reprinted in (1999) 50 Hastings Law Journal 671.
9 It is apparent that, while a dissent may occasionally be ‘no more than an aberrant view
arising out of an individual justice’s prejudices – or …“cantankerousness”’,2 the
ability to give voice to disagreement with one’s colleagues is an important facility for three principal reasons. Firstly, it has consequences for a court’s presentation as an
arm of government to the community which it serves. Secondly, a court’s work can be
qualitatively improved through acknowledgment – and more proactively,
management – of dissension amongst its members. Lastly, dissent can exercise an
influence upon the law itself and drive it in new directions which may enable the law
to keep in step with changing community needs and standards. How the possibility of
dissent fulfils these interrelated functions will be examined in Part II. Disagreement
voiced through the delivery of individual concurring opinions can also be said to
make similar contributions to judicial work, but, as discussed at the conclusion of that
part, some reservations may arise in the context of those judgments.
While there is little to be said in favour of compulsory unanimity, there remain
significant arguments for judicial restraint in the use of dissent. Part III will address
the concern that dissent can spawn a multiplicity of conflicting voices which may
damage both a court’s ability to perform effectively and its standing in the
community. The doctrine of precedent is the prime mechanism developed within the
common law tradition in order to curb the negative consequences that can derive from
excessive individualism and disagreement in the law. In a court of last resort,
however, precedent occupies a more precarious position than in lower courts within
the hierarchy. Additionally, the existence of a written Constitution is a competing
authority to which the judiciary owe fidelity. As a result, the capacity of stare decisis
2 Alan Barth, Prophets with Honor - Great Dissents and Great Dissenters in the Supreme Court (1974) 7.
10 to produce conformity in constitutional cases is notably diminished. How precedential values fare in the constraint of minority opinion amongst the Justices of a court of last resort in constitutional matters is the subject of Part IV of this chapter.
II FUNCTIONS OF DISSENT
Broadly speaking there are three crucial functions which dissent serves. Firstly, the ability to dissent ensures that the judicial arm of government enjoys certain key features associated with a society governed in accord with democratic principles and values. It operates, and perhaps more importantly, is seen to operate in harmony with the tenets of the political settlement. Secondly, the process of adjudication may benefit from the possibility of dissenting opinions which can provide a stimulus to clearer judgment writing generally, as well as serving a clarification function in their own right by throwing majority views into sharper relief. The presence of dissenting opinions also speaks to the integrity of that process and the independence with which the judiciary is allowed to engage in it. Lastly, the law itself may be developed and advanced over time through use of dissents. In this respect, an ability to dissent enables the law to admit new ideas and adapt old doctrines and expose them to scrutiny and consideration – both inside and outside the Court. Thus dissent facilitates progression and change but in an open and less abrupt way than this might occur in the absence of any ability to deliver such opinions. The common thread to all three of these functions is dissent as dialogue.
The positive contribution of dissent in these respects will be explored more fully in this part of the chapter. It should be noted, however, that in many instances, similar functions are satisfied by the delivery of concurring judgments. Although agreeing in
11 the orders proposed by a majority of the Court, concurrences may well contain
significant differences of opinion. It would be remiss to confine a study of judicial
disagreement purely to those instances of formal dissent from the Court’s resolution of a matter. Thus, this part will conclude by considering the degree to which the functions identified are fulfilled by the seriatim practice of judgment delivery generally, rather than being exclusively the province of dissenting opinions.
A Deliberation, Dissent and Democracy
It may be argued that dissenting judgments inject a readily recognisable democratic
tone into an arm of government which is often perceived as remote and
unaccountable. This is true, of course, through the attention which dissents draw to
use of majority vote as a simple means of determining the outcome of litigation. More
substantially, however, minority opinions frequently offer evidence of the deliberative
decision-making process engaged in by the courts. In doing so, they assist in the
application of theories of deliberative democracy to the judiciary. Much American
commentary may be usefully prevailed upon in order to further explore this
suggestion.
It is well known that Chief Justice John Marshall imposed upon his colleagues the practice of delivering only a unanimous opinion in order to secure the fledgling
authority of the United States Supreme Court.3 Thomas Jefferson’s objections to this development are equally well documented:
3 John P Kelsh, ‘The Opinion Delivery Practices of the United States Supreme Court 1790-1945’ (1999) 77 Washington University Law Quarterly 137, 143-152; Meredith Kolsky, ‘Justice William Johnston and the History of Supreme Court Dissent’ (1995) 83 Georgetown Law Journal 2069; AJ Levin, ‘Mr Justice William Johnson, Creative Dissenter’ (1944) 43 Michigan Law Review 497, 520-3; Donald G Morgan, ‘Mr Justice Johnson and the Constitution’ (1944) 57
12
The Judges holding their offices for life are under two responsibilities only.
1.Impeachment. 2. Individual reputation. But this practice compleatly
withdraws them from both. For nobody knows what opinion any individual
member gave in any case, nor even that he who delivers the opinion, concurred
in it himself. Be the opinion therefore ever so impeachable, having been done in
the dark it can be proved on no one. As to the 2d [sic] guarantee, personal
reputation, it is shielded completely. The practice is certainly convenient for the
lazy, the modest & [sic] the incompetent.4
Jefferson’s appointment of William Johnson as an Associate Justice – and his subsequent stream of advice to him on breaking Marshall’s grip on the Court – ensured that the unanimous opinion as a regular practice was soon undermined.5 The
incident is notable for two reasons. Firstly, Marshall’s reform, albeit short-lived, is a
rare example of a common law court excluding the possibility of dissent. Perhaps a
more familiar one to antipodean lawyers is the Judicial Committee of the Privy
Council, which until 1966 denied any capacity to dissent and insisted upon unanimous
advice being given from the Council to Her Majesty. For most of the time the Privy
Council existed within our court hierarchy, its Australian members in particular
rankled against this constraint, largely to no avail.6 Secondly, Jefferson’s complaint
Harvard Law Review 328, 331-5; and Bernard Schwartz, A History of the Supreme Court (1993) 39. 4 Letter from Thomas Jefferson to William Johnson dated 27 October, 1822 quoted in Kolsky, above n 3, 2078; and extracted in full in Levin, above n 3, 513-515. 5 Kolsky speculates that ‘had Marshall’s practice of issuing solo opinions continued unchallenged throughout his entire tenure, this methodology might still be employed today…Justice Johnson’s independence blazed the trail for future dissenters’: above n 3, 2069-81. See also letter from Thomas Jefferson to William Johnson dated 10 June, 1823 quoted by Levin, above n 3, 518, and HL Carson quoted by Levin, 520. 6 Alder, above n 1, 236. It was Sir Garfield Barwick who finally succeeded in encouraging their Lordships to do away with this practice: David Marr, Barwick (1980) 219. For an examination
13 about the lack of transparency in the Court’s decisions goes to the role and relationships of the judicial arm within a democratic society.
This link between an ability to dissent and the democratic ideal which underpins the entire regime has been stressed by a number of commentators since. In 1948, Justice
William O. Douglas was keen to make this connection clear through use of the dramatic examples provided by recent history:
Certainty and unanimity of the law are possible both under the fascist and
communist systems. They are not only possible; they are indispensable; for
complete subservience to the political regime is a sine qua non to judicial
survival under either system. One cannot imagine the courts of Hitler engaged in
a public debate over the principles of Der Führer, with a minority of one or four
deploring or denouncing the principles themselves. One cannot imagine a judge
of a communist court dissenting against the decrees of the Kremlin…7
Rather than employing comparative illustration in his defence of dissent, America’s
Justice Brennan preferred to show the connection between dissent and democracy through arguments characterising the former as essential to the operations of the
‘marketplace of ideas’ and the ‘judicial town meeting’. Such phrases are evocative of
of the tradition of the Privy Council’s practice and comparison with that of final courts in Commonwealth countries, as well as the United States, see Edward McWhinney, ‘Judicial Concurrences and Dissents: A Comparative View of Opinion-writing in Final Appellate Tribunals’ (1953) 31 Canadian Bar Review 595. 7 Justice William O. Douglas, ‘The Dissent: A Safeguard of Democracy’ (1948) 32 Journal of American Judicature Society 104, 105. Similar sentiments were expressed by Fuld: I am positive that disagreement among judges is as true to the character of democracy, and as vital, as freedom of speech itself. The affairs of government, no less than the work of the courts, could not be conducted by democratic standards without that right of dissent. Indeed, we may remind ourselves, unanimity in the law is possible only in fascist and communist countries. Stanley H Fuld, ‘The Voices of Dissent’ (1962) 62 Columbia Law Review 923, 926.
14 a coming together of equals with contrary opinions which they wish to exchange and
debate – the process exists for ‘individuals and groups representing all viewpoints and
perspectives’.8 Alder has taken such sentiments and built them into his study of dissent as one of disagreement between incommensurable values:
…the practice of dissent helps to offset the democratic deficit in the common
law. The judges represent not a constituency of electors but one of competing
societal values. These are generated by a series of shifting and provisional
settlements made by constantly changing panels of individuals having broad
discretion, the application of which is constrained by conventional
understandings of what is legally relevant.9
Obviously, the extent to which we can appreciate the judicial arm as a manifestation
of democratic governance may be hampered by a hesitancy to equate this concept
with the familiar feature of electoral representation. But even aside from the absence
of any direct connection between the judiciary and the citizens in their society, it is difficult to accept at face value Alder’s claim that judicial officers represent
constituencies of ‘competing societal values’. Surely their adequacy in doing so may
be open to serious doubt.10 In saying this, however, I am not necessarily taking issue
8 Brennan, above n 1, 437. Unless context clearly indicates otherwise, all references to Justice Brennan in this chapter are to the judge of the United States Supreme Court not that of the High Court of Australia. 9 Alder, above n 1, 223. 10 See John Gava, ‘The Rise of the Hero Judge’ (2000) 24 University of New South Wales Law Journal 747, 754, and Justice Michael Kirby, ‘The Constitutional Centenary and the Counting of Blessings’ (1997) 2 Newcastle Law Review 1, 9. In his attempt to explain the proper role of community values in legal methodology, Braithwaite said: Where one wants diversity is in the judicial deliberation itself. First, one should aspire to a court which is itself somewhat diverse, perhaps at least in terms of sex, age, region, religion and ethnicity. Second, one should aspire to a court which is exquisitely open to the diversity of ways of thinking in the community…
15 with Alder’s main thesis that it is disagreement over values which underpins dissent.11
There may still be sharp division over values amongst the justices, whilst those values remain only narrowly representative of the community. My point here, however, is that a resort to judicial representation of values cannot sustain a democratic defence of judicial power. But, admitting the limitations of any attempt to incorporate representation into a democratic justification of judicial work need not rob the courts of such legitimacy. Rather, scrutiny should be directed towards judicial method – including the role of dissenting opinions – as a reflection of democratic ideals through particular acknowledgment of the role of deliberation in judicial reasoning.
Although many commentators have asserted that dissenting judgments inject a democratic tone to judicial work, Stack has been the first to suggest a feasible basis for this view. Stack considered the impact of dissent upon both institutional and interpretative approaches to finding a connection between the United States Supreme
Court the rule of law.12 His arguments in respect of institutional efforts to cement the
Court with the rule of law have very limited relevance in the Australian context where the High Court’s use of seriatim opinions far outstrips the occurrence of unanimity. In any event, Stack concludes that the ‘presence of a dissenting Justice demonstrates that
John Braithwaite, ‘Community Values and Australian Jurisprudence’ (1995) 17 Sydney Law Review 351, 367. Whilst the degree to which the High Court fulfils the second aspiration may be open to conjecture, it cannot be denied that its personnel are traditionally drawn from a narrow section of the community, which must surely inhibit their capacity to fulfil the function Alder has identified: see Eddy Neumann, ‘The High Court of Australia – A Collective Portrait 1903 to 1972’ (2nd ed, 1973); and Eddy Neumann, ‘Background of Justices’ in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) 48-52. 11 A point acknowledged earlier by Ben W Palmer, ‘Causes of Dissents: Judicial Self-Restraint or Abdication?’ (1948) 34 American Bar Association Journal 761, 765; and Roscoe Pound ‘Cacoethes Dissentiendi: The Heated Judicial Dissent’ (1953) 39 American Bar Association Journal 794 12 Kevin M Stack, ‘The Practice of Dissent in the Supreme Court’ (1996) 105 Yale Law Journal 2235.
16 behind the word “Court” in the “opinion of the Court” sit individual Justices’13 and this undermines the rule of law’s well-known claim that it is not the rule of men. The interpretative method discussed by Stack probably relies too heavily upon a
Dworkinian basis of legal determinacy to gain universal acceptance. But within the specific context of his study, Stack fairly recounts Dworkin’s own view that dissent is an example of his theory of the judicial process as one of ‘fit and justification’.14
However, the institutional complexities papered over by Dworkin lead Stack to be sceptical of this argument.15 He cannot escape the conclusion that in fact ‘dissents cast doubt on the determinacy of the Court’s judgments, and thus on the use of law as integrity to provide a principled connection between the Court and the rule of law’.16
This dead-end leads Stack to shift his focus to an examination of political legitimacy and it is here that he adds meaningfully to the general suggestions that dissent is reflective of democracy. The use of a decision-making process which enables dissent
13 Ibid 2240; Cf. L’Heureux-Dubé, above n 1, 503. 14 Stack, above n 12, 2244. 15 Stack’s dissatisfaction with Dworkin’s Hercules model and any light it sheds on dissension ultimately finds expression in the following passage: Indeed, even when law as integrity is examined on its own terms, the theory is inadequate to provide a justification for the practice of dissent. The inability of law as integrity to justify this institutional practice results from Dworkin’s use of an imaginary superhuman judge, Hercules, to explicate the kind of legal interpretation that law as integrity involves. Dworkin indicates that the interpretative demands of law as integrity bind judges individually, rather than binding an entire multimember court, but he develops his theory through Hercules in order to abstract away from the practical demands on actual judges, such as ‘the press of time and docket,’ as well as incentives to compromise their positions in order to gain the votes of other judges. Distance from those practical issues may be necessary to articulate an account of judicial interpretation with the richness that Dworkin provides. But the failure to return from that abstraction has crucial consequences for consideration of the institutional elements of our legal practice. With Hercules neither an actual judge nor the embodiment of an entire court, law as integrity operates outside the institutions of legal practice; it fails to attend, as Frank Michelman points out, ‘to what seems the most universal and striking institutional characteristic of the appellate bench, its plurality,’ and, accordingly, to the institutional practice of dissent. Dworkin’s theory fails as an interpretation of legal practice insofar as it disregards the enduring institutional elements of our legal system. Ibid 2245. 16 Ibid. Similarly, Shklar argued that dissent betrayed the inconsistencies of legalism: ‘The politics of judicial legislation is exposed as such only when there is conflict. As long as there is no opposition to them, decisions seem to be not choices but accepted necessities…Without consensus the appearance of neutrality evaporates’: Judith Shklar, Legalism: Law, Morals, and Political Trials (1964) 12-13.
17 demonstrates ‘the particular American commitment to a deliberative conception of democracy’.17 In a passage which mirrors the ideas of Justice Brennan and (to an extent) those advanced by Alder, but yet pinpoints how the connection to democracy is made in respect of the judicial arm, Stack explains that:
No less than Congress, the Court is a collegial body in which members of
roughly equal rank make authoritative determinations backed by coercive force
in the name of our government. With these institutional characteristics, the
Court’s lack of an electoral connection does not put it outside the commitments
of deliberative democracy. Rather, if the Court reaches its judgments through a
deliberative process, its power of judicial review will share a basis with the
power of representatives in Congress to resist the preferences of citizens – the
commitment to making social choices through a deliberative exchange among
equals.18
This passage indicates the significance, as well as the substance, of Stack’s argument.
In the wider context, dissent may be one of a number of features of the judicial arm which enable an appreciation of its democratic credentials. This may have real
17 Stack, above n 12, 2249. Despite Stack’s expression, the Supreme Court of Canada, for example, has made it very clear that it shares a similar view of democracy by saying, ‘a functioning democracy requires a continuous process of discussion…compromise, negotiation and deliberation…Inevitably, there will be dissenting voices. A democratic system of government is committed to considering those dissenting voices...’: Reference re Secession of Quebec (1998) 161 DLR (4th) 385, 417. 18 Ibid 2254. L’Heureux-Dubé also takes the view that ‘accepting dissenting opinions injects a certain measure of democracy…into the judicial decisionmaking process, since every judge has an opportunity to participate fully, even while the majority decision rules the outcome’: above n 1, 503. Levin characterises dissent as ‘a resort to the particular when the general seeks to subdue the dissenter – hence, it becomes synonymous with individuality, liberty, independence but not anarchy or insensate prejudice. Therefore, dissent is democracy’s most valuable instrument…’: above n 3, 547.
18 importance in addressing concerns about the legitimate scope of judicial review.19
For several decades, many American scholars have grappled with the problem of how to reconcile a majoritarian image of democracy with judicial review by unaccountable and unrepresentative courts.20 Although much of the following draws upon American commentary, this is far from being an issue which is confined to the United States.21
Indeed, as the High Court of Australia more openly espoused its methodology in the
1980s and delivered a number of controversial decisions, criticism of it hinged to a large degree on a perceived lack of democratic standing – and the Court’s defenders responded in turn.22
19 Though it should be noted that Stack recoils from engaging in this debate by applying the following caveat: ‘…my argument is only that deliberative process is a necessary but not sufficient condition of the Court’s consistency with democracy (even on the deliberative view) as well as of the Court’s legitimacy.’: above n 12, 2255. 20 Friedman has recently lamented the thrall in which such scholars are held by the counter- majoritarian problem: ‘There is every reason to believe the counter-majoritarian problem is a less-than-accurate way of characterizing the practice of judicial review. As numerous scholars have observed, both halves of the supposed difficulty are subject to theoretical and empirical challenge. On the one hand, there is every reason to doubt that what we think of as majoritarian politics is designed to, could, should, or does register majoritarian preferences. Thus, judicial review regularly is compared to some imaginary baseline that does not exist. On the other hand, judicial review is a long-established part of our governmental structure. It yields remarkably majoritarian results, and is a process that is different from majoritarian politics but nonetheless responsive to it. In short, whatever judicial review is about, describing its operation requires something far more nuanced than the counter-majoritarian explanation provides’: Barry Friedman, ‘The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship’ (2001) 95 Northwestern University Law Review 933, 936. See further, Barry Friedman, ‘The History Of The Countermajoritarian Difficulty, Part One: The Road To Judicial Supremacy’ (1998) 73 New York University Law Review 333. 21 The title of Robert Bork’s latest book indicates his view of the extent of the problem : Coercing Virtue – The Worldwide Rule of Judges (2002). 22 Amongst the most direct critics was Professor Greg Craven, see Greg Craven, ‘Reflections on Judicial Activism: More in Sorrow than in Anger’ (1997) 9 Upholding the Australian Constitution: Proceedings of the Ninth Conference of the Samuel Griffith Society 187, 199; Greg Craven, ‘The High Court of Australia: A Study in the Abuse of Power’ (1999) 22 University of New South Wales Law Journal 216; Greg Craven, ‘Judicial Activism in the High Court – A Response to John Toohey’ (1999) 28 Western Australia Law Review 214, 217-222; and Greg Craven, ‘Australian Constitutional Battlegrounds of the Twenty-first Century’ (1999) 20 University of Queensland Law Journal 250, 257. For examples of defence of the Court, see GL Davies, ‘The Judiciary – Maintaining the Balance’ in Paul D Finn (ed), Essays on Law and Government Volume 1 – Principles and Values (1995) 279-82; Justice John Doyle, ‘Implications of Judicial Law-Making’ in Cheryl Saunders (ed), Courts of Final Jurisdiction – The Mason Court in Australia (1996) 86; Brian Galligan, ‘The Australian High Court’s Role in Institutional Maintenance and Development’ in Charles Sampford and Kim Preston (eds), Interpreting Constitutions – Theories, Principles and Institutions (1996) 186; Justice Michael Kirby, ‘Judicial Activism’ (1997) 27 Western Australian Law Review 1, 15; and Justice Michael H McHugh, ‘The Judicial Method’ (1999) 73 Australian Law Journal 37, 43. I do not express any
19
While a few overcome this dilemma simply by attacks upon the position of the courts within the constitutional framework,23 others have managed to accommodate judicial review through embracing a view of democracy that finds its strength in deliberation.
On one view of this, judicial review of legislative action is supported largely on limited procedural grounds – as a means of ensuring that the deliberative processes required by democracy have been satisfied in the creation of the law.24 As such, the legitimate exercise of judicial power demands the employment of a minimalist methodology. Sunstein has taken the view that the adoption of a minimalist approach
(by which he means that judges decide cases as narrowly and shallowly as possible, rather than laying down broad rules and offering unnecessary dicta) ‘grants a certain latitude to other branches of government by allowing the democratic process room to adapt to future developments, to produce mutually advantageous compromises, and to add new information and perspectives to legal problems’.25 Thus the courts should
view on the opinions advanced by these authors. Rather, my point here is simply to demonstrate that the preoccupations central to the ‘counter-majoritarian problem’ are not the product of what one of my colleagues described as ‘American navel-gazing’ but are present, albeit perhaps in a less concentrated form, in Australian legal literature and criticism. Similar concerns have emerged in respect of the English legal system: see Robert Stevens, The English Judges – Their Role in the Changing Constitution (2002) 131. 23 Michael Stokes Paulsen, ‘The Most Dangerous Branch: Executive Power to Say What the Law Is’ (1994) 83 Georgetown Law Journal 217; Robert H Bork, Slouching Towards Gomorrah - Modern Liberalism and American Decline (1996) 117, though he has more recently expressed scepticism about the prospect of solving the problems of judicial review through structural realignment: Bork, above n 21, 62; and Mark Tushnet, Taking the Constitution Away From the Courts (1999) 175. 24 Cass Sunstein, ‘Interest Groups in American Public Law’ (1985) 38 Stanford Law Review 29, 58-9; Jurgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans, 1996 ed) 274-6 [trans of: Faktiaität und Geltung]; John Uhr, Deliberative Democracy in Australia – The Changing Place of Parliament (1998) 231-3. 25 Cass Sunstein, ‘The Supreme Court 1995 Term: Foreword: Leaving Things Undecided’ (1996) 110 Harvard Law Review 6, 19. Elsewhere, he expresses essentially the same idea by stating that ‘from the standpoint of deliberative democracy, however, courts should avoid foreclosing the outcomes of political deliberation if the preconditions for democratic deliberation have been met’: at 37. However, it should be noted that Sunstein admits that ‘minimalism is appropriate only in certain contexts. It is hardly a sensible approach for all officials, or even all judges, all of the time’ (at 28) and that ‘courts should provide spurs and prods when either democracy or deliberation is absent’ (at 37). For a more fulsome explanation of Sunstein’s arguments for
20 defer to the more openly deliberative mechanisms of democracy found in the other two branches of government – what Peters labels a ‘policentric’ view of determining the limits of the judicial role.26
The case for judicial minimalism relies heavily upon an assessment of the relative weakness of the courts as democratic institutions beside the features of a legislative body such as Congress, or our own Parliament.27 In fact, there is growing dissatisfaction with this picture.28 The judicial system may, it is argued, provide a more perfect form of deliberative democracy than Sunstein and others have been prepared to concede – in which case the arguments for a minimalist method start to buckle. While Rawls’ championing of the United States Supreme Court is directly focussed upon his view of it as embodying the ideal of public reason,29 rather than its
judicial minimalism see Cass Sunstein, Legal Reasoning and Political Conflict (1996) and One Case at a Time (1999). 26 Christopher J Peters, ‘Assessing the New Minimalism’ (2000) 100 Columbia Law Review 1454, 1457. 27 For a recent important example of this, see Jeremy Waldron, Law and Disagreement (1999). Waldron rejects the negative perception which defenders of judicial review have tended to adopt with respect to legislatures and the corresponding ‘naivety’ with which the workings of the judicial arm have been viewed: at 31-2 and ch 13 particularly. It is important to state that very few commentators assert that the judicial arm possesses no democratic features. Drawing on Aristotle, Uhr has said that ‘the role of the deliberative assembly is not to act as the sole or even primary site of political deliberation, which it shares with the two other political institutions of the magistracy and the judiciary…The relevant lesson here is that even under regimes of deliberative democracy it makes sense to think of modern legislatures as only one of a number of sites for political deliberation…’: Uhr, above n 24, 31. 28 For example, in Freedom’s Law Dworkin writes: In some circumstances…individual citizens may be able to exercise the moral responsibilities of citizenship better when final decisions are removed from ordinary politics and assigned to courts, whose decisions are meant to turn on principle, not on the weight of numbers or the balance of political influence…Although the political process that leads to a legislative decision may be of very high quality, it very often is not…Even when the debate is illuminating, moreover, the majoritarian process encourages compromises that may subordinate important issues of principle. Constitutional legal cases, by contrast, can and do provoke a widespread public discussion that focuses on political morality…I put the suggestion that judicial review may provide a superior kind of republican deliberation about some issues tentatively, as a possibility, because I do not believe that we have enough information for much confidence either way’. Ronald Dworkin, Freedom’s Law – The Moral Reading of the American Constitution (1996) 30- 1; Cf Waldron, ibid 285-91. 29 John Rawls, Political Liberalism (1993) 231.
21 deliberative strengths specifically,30 other commentators have recently sought to address the latter. In particular, Peters has argued that the policentric bent of minimalist advocates downplays the inherent democratic legitimacy of the adjudicative process. He finds that, even in the absence of electoral checks upon accountability, the degree of interest representation and public participation ensures that while it ‘may be differently democratic…it is inaccurate to say that adjudication is nondemocratic’.31 In order to overcome lingering reservations we may have about the lack of electoral control of the judiciary, Peters argues that the quality of deliberation in the courts surpasses that of the political realm – but while in doing so he discusses the features of the adversarial system (the interchange of reasoned arguments, not dependent upon ‘self-interest or force’, in a context far removed from the ‘glare of the public spotlight’), he does not, strangely, appear to stress the ability to accommodate dissent at the point of adjudication as providing further support for his argument.32
Ironically enough, recognition on those lines comes from a commentator who is very far from sharing in Peters’ assessment of the judicial arm. In his examination of the
‘counter-conversationalism’ of the courts (which he equates with their democratic
30 John S Dryzek, Deliberative Democracy and Beyond (2000) 15. 31 Peters, above n 26, 1486. Though again, on this point, note the comment at n 27. 32 Ibid 1496-99. That, however, he would be sympathetic to the arguments advanced by Stack, may be discerned through reading some of Peters’ more recent work about the use of participatory devices as an enhancement of the legitimacy of majority rule: Christopher J Peters, ‘Persuasion: A Model of Majoritarianism as Adjudication’ (2001) 96 Northwestern University Law Review 1, 36-7. Nevertheless, Peters is able to arrive at ‘a picture of the American judiciary - with the Supreme Court at its apex - as more than just the handmaiden of deliberative democracy. The Court is an active and crucial participant in the process of deliberative democracy. It is just as deliberative in its own way as the political branches, and often it is more deliberative, especially with respect to individual rights. And it is significantly democratic, too, although not majoritarian. The Court thus can be understood as a coequal institution of deliberative democracy, with the emphasis on the deliberative component.’: above n 26, 1514. He then proceeds to discuss the implications of this view for Sunstein’s call for judicial minimalism – agreeing ultimately with procedural minimalism but rejecting it substantively.
22 responsiveness) vis-à-vis the political branches of government,33 Bennett concludes
that it is the former’s limited conversational abilities which underpin ‘the persistent
sense of democratic “difficulty”’34 many commentators have with the judicial arm.
However, he identifies dissenting opinions, along with the use of amicus curiae, as
the features of courts which come closest to redeeming this disability:
…the robust contemporary tradition of dissenting and concurring opinions is an
important conversational phenomenon. A mix of opinions may provide
conversational satisfactions to a spectrum of those affected, less broadly
appealing, but nonetheless akin to the variegated talk in the political realm.35
In seeing dissent as a vehicle for wider ongoing community discussion, Bennett has made a notable concession to the view that the work of the courts may be suitably deliberative. This point certainly accords with the arguments and impressions offered by Peters, Dworkin and Rawls – indeed they would seem readier to invest it with much more significance than Bennett does in the context of his argument overall. But
while this is important, seeing dissents only in this light seems to have taken us away
from the inherently democratic character of dissenting opinions which we considered
at the outset in the words of Justices Brennan and Douglas. Certainly, minority
33 Robert W Bennett, ‘Counter-Conversationalism and the Sense of Difficulty’ (2001) 95 Northwestern University Law Review 845. 34 Ibid 853. Friedman is dismissive of this conclusion – and indeed much of the framework upon which the inquiry is held in the first place: Friedman, above n 19, 945-950. 35 Bennett, above n 33, 885-6. Bennett essentially reiterates these arguments in respect of persistent dissent and concludes that the ‘conversational function served by repetition of dissent may in this way provide quite a plausible explanation not only of why repetition of dissent has flourished, but of why any “lawlessness” involved seems largely to escape criticism, or indeed much in the way of notice.’: at 888. The significance of multiple opinions to the ‘external deliberation’ of the United States Supreme Court with other political actors and the public at large has been contrasted against the lack of anything similar in respect of European constitutional courts: John Ferejohn and Pasquale Pasquino, ‘Constitutional Adjudication: Lessons from Europe’ (2004) 82 Texas Law Review 1671, 1692-1700.
23 judgments may be fodder for consumption in public debate following a high profile case – and in this way the Court contributes to wide and popular deliberation, but does the ability of its members to dissent render the Court itself an appropriately democratic institution? Or to ask the question another way, how does the possibility of dissent assist in establishing the legitimacy of the Court’s decisions in the public eye absent any direct representation of their interests?
Pettit suggests that a capacity for dissent confers significant democratic credentials upon a body with restricted membership.36 This clearly can operate in two senses – to
provide internal and external legitimacy. Certainly a democratic decision-making
process should have the effect of satisfying the members of the group that the result
has been properly reached, even when some individuals think it is substantively
wrong or just undesirable. But, with some elaboration of Pettit’s conditions, it might
be submitted that internal deliberative decision-making also serves to shore up
external legitimacy.
In describing the ideal of deliberative democracy, Pettit identifies four constraints
requiring satisfaction:
• The inclusive constraint – all members should be equally entitled to vote on
how to resolve certain collective issues, or bundles of issues, with something
less than a unanimous vote being sufficient to determine the outcome.
36 Philip Pettit, ‘Deliberative Democracy and the Case for Depoliticising Government’ (2001) 24 University of New South Wales Law Journal 724. At 725, Pettit says: Democracy is a decision-making process whereby individuals gain a part to play in the operation of a collective body. Democracy gives the members of an electorate a part to play in the polity, but it also gives individuals a collective role in other, more restrictive contexts; for example, politicians in a party, parliament or cabinet, shareholders or directors in a commercial company, judges in a collegiate court…
24 • The judgmental constraint – before voting, members should deliberate on the
basis of presumptively common concerns about which resolution is to be
preferred.
• The dialogical constraint – members should conduct this deliberation in open
and unforced dialogue with one another, whether in a centralised forum or in
various decentralised contexts.37
• The group-rationality constraint – people should take steps to ensure that
where their voting would lead to inconsistent or otherwise irrational policies,
this is remedied and group rationality is ensured; if no remedy is feasible, as
with a large-scale electorate, then group decisions should not extend to policy
matters.38
To what extent does the facility for judicial dissent ensure that the courts meet this ideal? Clearly, the inclusive constraint is satisfied in respect of most common law courts and certainly those which have been central so far to this discussion, the United
States Supreme Court and the High Court of Australia.39 Waldron has stressed the inevitability of majority rule in judicial decision-making in his attempt to reconcile deliberation and voting within a theory of democracy. Importantly for present purposes, he asserts that ‘the difference, when an issue is shifted from legislature to court or from referendum to court, is a difference of constituency, not a difference of decision method’.40 The idea that the result favoured by a majority could be defeated by a requirement of unanimity or trumped by appeal to some additional factor (such
37 Ibid 725. 38 Ibid 728. 39 In respect of the latter, I am setting to one side the means of resolving deadlock through the use of a casting vote by the Chief Justice as it is certainly an exception rather than the rule. 40 Jeremy Waldron, ‘Deliberation, Disagreement, and Voting’ in Harold Hongju Koh and Ronald C Slye (eds) Deliberative Democracy and Human Rights (1999) 210, 215.
25 as the justice of the case or the dictates of the Constitution) would necessarily lock the
court in a circular pattern of disagreement.41 The great attraction of majority vote is its ability to bring finality to the process of deliberation, for if deliberative democracy is to be effective, then it must lead to a result. It is crucial for the integrity of that mechanism, that equality of voting exists among the Court’s members.
The second and third constraints are much harder to gauge due to the relatively high degree of secrecy which surrounds the process of adjudication. This may be starkly demonstrated through consideration of Amar’s assessment of a recent term of the
United States Supreme Court against these criteria:
The deliberative virtues of Supreme Court doctrine are less clear…The current
Justices, for example, hold quick oral arguments and spend little time discussing
each case in conference. Then they vote. Surprisingly meager meaningful
dialogue occurs thereafter. A tentative Court opinion will circulate and often win
a majority within days, before a dissent has even had a chance to circulate. The
dissent may be far more powerfully reasoned, but no matter. The votes are
already in. Rarely does a Justice change his or her vote after conference.42
Amar ascribes virtually no significance at all to the dissenting function – even as an
indication of deliberation having occurred, let alone as a contribution to an ongoing
deliberative process over several cases. His rejection of the latter is predicated by the
41 Ibid 221. 42 Akhil Reed Amar, ‘The Supreme Court, 1999 Term, Foreword: The Document and the Doctrine’ (2000) 114 Harvard Law Review 26, 40. See also the comparative analysis of Ferejohn and Pasquino, above n 35, 1692-97 (but this is arguably an example of comparing two incompatible models since the lack of any facility to issue an individual opinion in most European constitutional courts ensures that a deliberative – indeed collaborative – process must be followed.
26 combination of tactical and cultural adherence to precedent and the difficulties caused by the unpredictability of changes in the Court’s composition. With respect, Amar’s dismissal of any substantial deliberation seems a trifle hasty. Whilst more is known about the conferencing procedures of the United States Supreme Court than those of the High Court of Australia,43 the former is not so transparent that Amar can actually offer any real support for his assertions.44 If anything, there is a wealth of evidence which suggests that judges, at least on that particular court, have changed their views on numerous occasions in response to the opinions of their colleagues.45 This has also been evident to some degree in High Court cases in recent years.46 But even to require this is to set the bar too high. Deliberation does not require, nor is it exclusively evidenced by, consensus – the dissenting and concurring judgments may very well still indicate that deliberation has occurred even though it did not lead to a change of
43 See especially Del Dickson (ed), The Supreme Court in Conference (1940-1985) – The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001). 44 He merely builds upon those offered by Dorf in his earlier examination of Socratic deliberation on the Supreme Court. This in turn presents problems for while Dorf is sceptical about how much deliberation occurs, at the same time he admits that ideas are exchanged by a variety of means, including circulation of draft dissents: Michael C Dorf, ‘The Supreme Court Term 1997, Foreword: The Limits of Socratic Deliberation’ (1998) 112 Harvard Law Review 4, 40. It seems that Dorf (but not necessarily Amar whose assertion is completely unqualified) expects deliberation to take a particular form - essentially, face to face, Socratic style. I am not convinced that absent that, it is possible to deduce that the written work of the judges amounts to very little deliberation. 45 In addition to much anecdotal support for this contention, there are the significant volumes produced by Schwartz which demonstrate this admirably: see Bernard Schwartz, The Unpublished Opinions of the Warren Court (1985); Bernard Schwartz, The Unpublished Opinions of the Burger Court (1990); Bernard Schwartz, The Unpublished Opinions of the Rehnquist Court (1996); and Bernard Schwartz, Decision (1996), 55. An illuminating empirical study of the Washington Supreme Court based on surveys of clerks also tends to confirm that circulation of drafts plays a dominant role in the formation of consensus over a number of other factors: Charles H Sheldon, ‘The Incidence and Structure of Dissensus on a State Supreme Court’ in Cornell W Clayton and Howard Gillman (eds), Supreme Court Decision-Making – New Institutionalist Approaches (1999) 125-8. Justice Jackson of the United States Supreme Court freely admitted that while ‘the time devoted at conference to argued cases is inadequate for detailed deliberation…not infrequently…the persuasiveness of an opinion or dissent, will lead to a change of a vote or even to a change of result’: Justice Robert H Jackson, ‘The Supreme Court as a Unit of Government’ in Alan F Westin (ed), The Supreme Court: Views from Inside (1961) 25. 46 See the section on ‘Certainty and Coherence’ in Part III of this chapter. The evidence is confined mainly to that provided by the Justices themselves in the course of their opinions. Certainly, it is difficult to imagine books such as those by Dickson, above n 43, and Schwartz, above n 45, emerging in respect of the High Court of Australia, if only for practical problems of finding the material: see Graeme Powell ‘Private papers’ in Blackshield et al, above n 10, 558-9.
27 mind.47 The mere fact that judgments make reference to each other (which seems to
occur with healthy frequency) is adequate evidence of the deliberation spurred on by
separate opinion writing. The delivery of joint opinions also indicates that
communication and collaboration is taking place. In the absence of any
incontrovertible proof pointing to the opposite conclusion, it would seem best that we
accept the claims made by Courts that they do employ processes designed to encourage deliberation amongst their members, in addition to the high likelihood of this also occurring informally.48 The Justices’ opinions do, of course, have a life
beyond their immediate preoccupation with the litigation giving rise to them, and may
be seen as contributions to a broader, ongoing debate amongst the Court over legal
principle and method.49 While there is clearly a stark contrast to the public debates of the legislature, the various indicators of the Court’s deliberation – both within, and beyond, the context of any one case – may be said to satisfactorily meet the judgmental and dialogical constraints.
However, some further comment on the dialogical constraint is warranted if we are to employ Pettit’s model so as to argue that judicial deliberation assists in legitimating the Court’s decisions to its external audience. Essentially, this constraint is satisfied if open discussion occurs amongst the members of the Court, without any further
47 As Waldron points out, ‘The fact is that disagreements among the justices survive their best efforts at deliberation…The idea that we should think of deliberation as a way of smoothing over our differences to prepare the path to consensus is a terrible distortion: that is the trade of facilitators, mediators, and therapists and it has nothing in common with politics where values and principles are sometimes robustly at stake’: Waldron, above n 40, 219. See also, Uhr, above n 24, 94. 48 And, as Kornhauser and Sager have argued, once acknowledged, it cannot be assumed that those deliberative processes have no effect upon the judges who engage in them: Lewis A Kornhauser and Lawrence G Sager, ‘Unpacking the Court’ (1986) Yale Law Journal 82, 101. 49 In which case, the majority’s ‘decision records, so to speak, the interim result of a discursive opinion-forming process’ only: Habermas, above n 24, 179-180. In a similar vein, see Blackshield, below n 108; Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99, 107; and Stack, above n 12, 2256-7.
28 requirement that they then continue that process through the publication of individual
judgments. But that obviously would not suffice to support the wider argument here
that the delivery of dissenting opinions goes to the democratic standing of the Court
within the polity. It is a necessary part of that proposition that such opinions are
actually made manifest as judgments. Uhr has stressed the importance of publication
of judicial reasons, with special mention of dissenting opinions, as offsetting the
secrecy of the High Court’s internal deliberations prior to judgment.50 This is about more than simply verifying that deliberation has taken place. It also points to the quality of that process. Mathen has stated that dissents ‘help to assure those who are expected to abide by the decision, that the process was indeed principled’.51 In line
with Jefferson’s views quoted at the start of this section, the possibility of dissenting
opinions ensures that judicial power is in fact - and is seen to be - exercised with an
appropriate focus upon the law, rather than being simply a smokescreen for decisions
based upon morality, economics or public policy.52 Thus the internal deliberation, of which dissents offer both immediate evidence and contributions in the longer term, enhances the legitimacy of the decisions reached by the Court. Subject to what follows, the presence of the hallmarks of democratic decision-making in the exercise of judicial power connects the institution to the ideals of the polity and strengthens its standing within it.
The fourth constraint of ‘group-rationality’ was added by Pettit after considering a number of theoretical examples leading him to conclude that if a group ‘is to be true
50 Uhr, above n 24, 95-6. 51 Carissima Mathen, ‘Dissent and Judicial Authority in Charter Cases’ (2003) 52 University of New Brunswick Law Journal 321, 331.See also Stack, above n 12, 2256-57. 52 Of course, this is not to say that those considerations can ever be excluded entirely from the judicial process, even when each judge authors his or her own opinion. My point is simply that the illegitimate use of judicial power is likely to be made more manifest in the presence of other judgments which can serve to highlight that.
29 to the spirit of deliberative democracy, then it cannot be ruled robotically by majority,
issue-by-issue voting. If the group was to give complete control to such majority voting, then, regardless of the rationality of its individual members, it would be likely to support collectively irrational policies’.53 This constraint has a direct relevance to
the problems caused by multi-issue litigation and shifting majorities. The lack of any
mechanism to avoid inconsistencies arising through the aggregation of judicial votes
indicates a flaw in the deliberative process as employed by Australian courts.54 As
Pettit says, ‘the decisions that the group takes should be ones that can be deliberately
defended. Not only should they issue from reasoning, they should themselves satisfy
the demands of reason…’.55
What verdict then may we form of the High Court as a democratic institution on the
basis of its quality of deliberation as evinced through its accommodation of dissent?
Discounting the possibility of non-compliance with Pettit’s judgmental and dialogical
constraints as an occasional matter of practice, the most serious failing lies in the
difficulty of reconciling the destructiveness which dissenting and concurring opinions
may wreck upon institutional coherency with the demand for deliberation to produce group-rationality. The frequent inability of judgment delivery in seriatim to conform
to this fourth constraint clearly inhibits the capacity of courts employing that method
53 Pettit, above n 36, 727. This forms one of the supports for the argument which Pettit goes on to develop - that the popular will of the majority needs to be checked by the ability of depoliticised bodies to make decisions on matters of common interest. 54 As will be argued in the following chapter, it is important to note here that these problems of incoherency are ones to which a practice of in seriatim judgment delivery is especially prone. Thus, the United States Supreme Court, for example, which has traditionally employed a different method of judgment delivery may well satisfy the group-rationality constraint since it largely avoids these difficulties. However, the advent of ‘“doubleheaders or twins”: two cases in which there were two opinions announcing different (and somewhat contradictory) parts of the Court’s ruling for two different majorities in each case’ in 1990 means that Court is no longer completely immune from group irrationality: David M O’Brien, ‘Institutional Norms and Supreme Court Opinions: On Reconsidering the Rise of Individual Opinions’ in Clayton and Gillman, above n 45, 111. 55 Pettit, above n 36, 728.
30 to attain the ideal of deliberative democracy as a matter of practice. However, we
should not lose sight of the fact that it is the dissenting opinion which enables
compliance with the first three of Pettit’s constraints. To the extent that courts even approach the requisite level of deliberation to secure their democratic credentials under this model, it is the long tradition of dissent which gets them there. It is in this context that I would submit the remarks of earlier commentators asserting a link between judicial dissent and the democratic standing of the courts should be taken.
Pettit acknowledged that ‘deliberative democrats differ on which forums should be democratised in the deliberative way’,56 and doubtless there is much room for debate
as to whether a court of last resort is amongst those institutions which may properly
be so characterised. Certainly, there is ample evidence of deliberation in such bodies,
but, ultimately, whether this provides sufficient democratic legitimacy absent an
element of representation is clearly beyond the scope of this inquiry. For present
purposes it is enough to stress the role of dissenting judgments in even enabling such
a question to be asked at all in respect of the courts. If we accept all that is argued by
Peters and others of the participatory link between the courts and the public, an
acknowledgment of the institutional deliberative value of dissenting opinions to
which Stack has referred (and to which arguments such as those of Amar pose no
serious challenge), must surely enhance the claim to democratic legitimacy of the
judicial arm. Whether this is to such an extent that it secures that legitimacy to the
point of assuaging the concerns of those perplexed by the counter-majoritarian
difficulty and advocating judicial minimalism need not be determined here.57 It is
56 Ibid 725. 57 In leaving the field at this point, I am conscious of emulating Stack’s prudence: above n 19. But what of those many courts which are not allowed a dissenting facility? In discussing the ‘increasing tendency to publish dissents’ in numerous European courts, but particularly
31 enough for these purposes to recognise the contribution that a capacity for dissent can make towards that end and, conversely, the additional objections to which judicial review would be exposed if it were exercised by a court governed by compulsory unanimity.
B Dissent and Judicial Process
Dissenting serves three notable functions of benefit to the judicial process. Firstly, it enables members of the judiciary to be individually free in expressing their views.
Secondly, there is much to suggest that the presence of dissent has a positive impact upon the manner in which the majority opinions are drafted so that they are both more
Germany, Alder states that ‘debates about dissent have tracked the emergence of democracy’: above n 1, 237. In saying this, I would suggest that Alder is not necessarily doubting the staunchness of democracy to be found in numerous civil law jurisdictions which possess a traditional aversion to judicial dissent. Rather, while acknowledging that the possibility of judicial dissent reflects and reinforces the value of freedom of speech and the democratic nature of a political settlement, its absence does not, of itself, stand as an indelible stain upon those polities of which it is not a feature. It does, however, pose an obvious impediment to the applicability of those justifications of judicial review which rely upon the democratic, deliberative qualities of courts to other adjudicative bodies where dissent is forbidden or discouraged. The final courts of civil law countries to one side, the position of international courts such as the Judicial Committee of the Privy Council and the European Court of Justice should be recognised as being subject to rather different considerations. There are political sensitivities at stake in such multi-nation tribunals. As Alder says, ‘arguments against dissent have been raised most strongly in settings where confidence in the political settlement or in the judicial process has been relatively low or uncertain’: at 244. In addition to this reason, must surely be added that international courts are less obviously connected to any one particular political outlook, but are designed to fulfil overarching purposes. The capacity of such courts to dissent may well depend in part upon what those purposes are. The absence of opportunity to dissent in the Privy Council until 1966 demonstrates this point. Prior to that time the Privy Council was a powerful tool for control of the varied components of the British Empire. By 1966, the hierarchical days of Empire were over and had been superseded by the more co- operative notion of the Commonwealth. The rationale for quelling dissent had faded to be replaced by political reasons for acknowledging it. This situation may be compared with the purposes surrounding the establishment of the International Court of Justice. Hussain asserts that one of the primary reasons for allowing dissent in this body was that: If universality of international law is the main objective, then it is necessary that the main forms of civilisation and major legal systems other than the Anglo-Saxon and the Continental do not lose their voice in the majority opinion, especially on important aspects of international law. Ijaz Hussain, Dissenting and Separate Opinions at the World Court (1984) 3; see also Alder, above n 1, 234. By way of another example, consider the contrast in forbidding dissent in the Court of Justice of the European Communities and allowing it in respect of the European Court of Human Rights: see Henry G Schermers, ‘Separate Opinions’ in WE Haak, GJM Corstens & MI Veldt (eds), Martens Dissenting – The separate opinions of a European Human Rights Judge (2000) 2-4. The different goals of uniformity and universality go some way towards understanding the acceptability of dissent in these international courts.
32 precise in what is laid down and more comprehensive in what they address. Lastly,
hearing an opposing view can very often provide clarification of the majority position
for those attempting to understand what it signifies. These aspects of how dissent
affects the process of judging and opinion writing are the focus of this section of the
chapter.
The independence which dissenting affords the judicial arm is not so much
institutional in the sense that it cossets it from the demands of the legislature or executive. Rather, dissent enables judges to fulfil their role without the pressure of
having to submit themselves to a process designed to produce an artificial unanimity.
In short, it ensures their independence from their colleagues.58 Some of the most
revealing comments on the deficiencies of enforced unanimity were those collected
by Alan Patterson in his interviews with members of the House of Lords in the early
1980s.59 Their Lordships raised two converse objections to a process which demanded
the production of a single judgment to which all those presiding put their names,
based on their experience in the Privy Council.
58 It is interesting that one of the arguments raised against dissenting opinions in the Permanent Court at the Hague was that they would not free the judges from the pressure to be seen to cast their vote for their own home country in the way that enforced unanimity would: Hussain, above n 57, 19. The considerations governing the procedures in international courts are frequently quite different from those at play in respect of national courts. So far as we are concerned with the High Court of Australia, this particular argument seems of next to no application because judges are not appointed to it on a representative basis. However, this point is of much more force in respect of, for example, the Supreme Court of Canada which does indeed aim at some degree of regional representation: see Bora Laskin, ‘The Supreme Court of Canada: A Final Court of and for Canadians’ (1951) 29 Canadian Bar Review 1038, 1041-2. 59 Alan Patterson, The Law Lords (1982) 98-99.
33 The first criticism of institutionalised unanimity, was that a weak ‘compromise judgment’ would result from a need to reflect the lowest common denominator of consensus.60 Canada’s Justice L’Heureux-Dubé has echoed this by saying:
In fact, in my view, one creates a false dichotomy by equating unanimous
opinions with clarity and authority, while associating dissenting opinions with
incoherence. Where there is profound disagreement among judges, the law itself
is the greatest beneficiary of dissenting opinions: instead of sacrificing lucidity to
an overriding need to accommodate diverging views, judges may focus their
efforts on the logical and persuasive justification of their own understanding of
the law, whether it be a minority or majority of one.61
Fear of the compromised nature of any judgment reached through a requirement of unanimity is consistent with Sunstein’s explanation of depolarization of opinion when a group is made up of equally opposed subgroups – and especially where ‘persuasive arguments [exist] in both directions’.62
60 Lord Pearce quoted in Patterson, ibid 99. 61 L’Heureux-Dubé, above n 1, 514. Most commentary is in this vein and for a generally sceptical perspective on the benefits of dissent to the quality of judgments one has to turn to the Netherlands : Theo ten Kate, ‘Dissenting Opinion. A Brief Background Sketch’ in WE Haak et al, above n 57, 14-5. 62 Cass R Sunstein, Why Societies Need Dissent (2003) 134. The converse of this (and one of the central arguments which Sunstein gives in favour of permitting dissent) is that a group comprised of individuals of roughly sympathetic outlook ‘ends up taking a more extreme position than its median member took before deliberation began’ (at 112).This phenomenon of group polarization in the context of the judiciary means that ‘ideology is amplified when judges are sitting with like-minded others’ (at 114 and Chapter 8 generally). The happiest solution then to these problems would appear to be to curb polarization through use of an appointment process which ensures a sufficient level of diversity (see Sunstein at 187-90 and for a recent Australian discussion, Rachel Davis and George Williams, ‘Reform of the Judicial Appointments Process: Gender and the Bench of the High Court of Australia’ (2003) 27 Melbourne University Law Review 819, especially 844-7) whilst avoiding the bland results of depolarization by enabling differences to be aired through dissenting opinions.
34 The second objection to such an approach was that, if the judgment was not an insipid settlement between diverse points of view, then it was just as likely to be the result of one Justice’s work rather than that of the entire bench.63 It will be recalled that this second point was Jefferson’s great fear for the practice which Marshall attempted to establish in the United States Supreme Court – an opinion, ‘having been done in the dark it can be proved on no one’.64
Both these complaints against a denial of dissent readily appear valid. It is not at all inconceivable that unanimity may be impossible to achieve in practice.65 In the absence of real consensus, the first scenario must surely be the only way in which a unanimous opinion can result. But while the court is spared the potential of immediate loss of public confidence ensuing from a divided bench, it is ironically weakened in its ability to decisively state and develop the law of the jurisdiction. Over time, the public’s faith in the court is likely to diminish anyway due to the lack of transparency in how its decisions are reached.66 On the other hand, where a base level of agreement does exist it may be all too tempting for one Justice to take the reins of writing the opinion and thus exercise undue individual influence on the shape of the law.
These concerns might, at least in respect of the High Court of Australia, even form the basis of constitutional support for the right to deliver a dissenting opinion. Legislative
63 Patterson, above n 59, 99. 64 Above n 4. 65 ‘Disagreement on the law or its proper application nowadays is almost universally admitted to be inevitable some of the time’: Justice Ruth Bader Ginsburg, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133, 136; see also Sheldon, above n 45, 116-7. 66 ‘…what must ultimately sustain the court in public confidence is the character and independence of the judges…and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity could be secured through its sacrifice’: Charles E Hughes, The Supreme Court of the United States (1928) 68. See also Fuld, above n 7, 927.
35 attempts to inhibit judicial dissent, while rare, are not totally unheard of.67 Were the
Commonwealth Parliament to attempt something similar, there are general indications within the Court’s recent Chapter III jurisprudence that to do so may amount to an unconstitutional interference with the exercise of judicial power. The ability to dissent relieves their Honours of the pressure to conform to views they do not actually hold and protects their individual capacity to honour the oath taken upon appointment.68
While it is outside the scope of this thesis to explore the specific constitutional arguments in detail, the suggestion has been considered fully elsewhere69 and has attracted general support. For example, Sir Anthony Mason has been very definite that, in his view, imposition of ‘a regime of joint judgments on judges who hold conflicting views’ would amount to a compromise of judicial integrity.70 In a similar vein, Justice L’Heureux-Dubé declared that a denial of individual judicial expression
‘creates a situation entirely antithetical to the Canadian conception of the role of the impartial and open-minded judge’.71
67 Towards the end of the 19th century, the Canadian House of Commons debated legislation prohibiting judicial dissent: L’Heureux-Dubé, above n 1, 499; ZoBell reported in 1959 that ‘at least two [American] states have experimented with statutory control of the publication of minority judicial opinions’: KM ZoBell, ‘Division of Opinion in the Supreme Court: A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186, 209. Additionally, consider the operation of Crimes Act 1961 (NZ), s 398(1). 68 High Court of Australia Act 1979 (Cth), Sch. For some thoughts from a member of the High Court about the significance of the judicial oath see John Toohey, ‘“Without Fear or favour, Affection or Ill-Will”: The Role of Courts in the Community’ (1999) 28 Western Australian Law Review 1. 69 I have considered this question more fully in Andrew Lynch, ‘Is judicial dissent constitutionally protected?’ (2004) 4 Macquarie Law Journal 81. See also Little, above n 1 for discussion of the different considerations under the Constitution of the United States. 70 Sir Anthony Mason, ‘The Centenary of the High Court of Australia’ (2003) 5 Constitutional Law and Policy Review 41, 43. See also Cheryl Saunders, ‘Judicial Independence in its Political and Constitutional Context’ (Speech delivered at the Australian Judicial Conference Symposium, 2 November 1996) 14; and Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336, 387 (Murphy J). 71 L’Heureux-Dubé, above n 1, 513. The results of interviews conducted with 101 Canadian appellate judges would seem to indicate her Honour’s colleagues agree with her: Ian Greene, et al, Final Appeal – Decision-making in Canadian Courts of Appeal (1998) 183.
36 Maintaining a high level of individual independence might be perceived as placing a strain on the collegiality of the court – and thus harmful to its overall operations.
Justice Brennan admitted that, ‘very real tensions sometimes emerge when one confronts a colleague with a dissent. After all, collegiality is important; unanimity does have value; feelings must be respected’.72 But arguments have been advanced by others that admitting the different viewpoints within a court provides a safety valve for the much greater strains which would otherwise develop. Despite the occasional snideness which is to be found amongst separate judgments delivered in a case, less animosity is said to accrue from majoritarianism than from enforced unanimity.73
Flanders warns against using dissents ‘as some type of crude barometer to measure the lack of collegiality on an appellate court’.74 The extent to which the judicial process is affected by sour personal relations75 between Justices can only marginally be attributed to an ability to dissent.76 A dissenting judgment is merely the public manifestation of an existing disagreement. Disharmony is not avoided by a ban on
72 Brennan, above n 1, 429; see also Marvin Schick, Learned Hand’s Court (1970) 109. On the dysfunction caused by rampant individualism on the High Court during the early years of Chief Justice Latham’s tenure see Clem Lloyd, ‘Not Peace but a Sword! – The High Court Under JG Latham” (1987) 11 Adelaide Law Review 175, 178-87. As Greene et al concluded after their interviews with members of the Canadian judiciary, dissent per se is not as problematical for collegiality as unnecessary dissent: Greene et al, above n 71, 208. Though, of course, this is merely to return to the problem of differing perceptions of that necessity on the facts of the case. Though, the tone of the dissent can certainly matter: A judge, however, must also keep in mind that the act of writing a dissent can have unintended consequences, particularly if the dissent consists of unnecessarily harsh language. Collegiality is an important characteristic necessary for an effective appellate court. Mutual respect and admiration, camaraderie, and good feelings toward fellow judges can only enhance and strengthen the deliberation process. On the other hand, harsh words uttered in a dissent may be disruptive and counterproductive… Hon. Leroy R Hassell, ‘Appellate Dissent: A Worthwhile Endeavour or an Exercise in Futility?’ (2004) Howard Law Journal 383, 387. 73 Alder, above n 1, 240; L’Heureux-Dubé, above n 1, 513. 74 Flanders, above n 1, 403. 75 See Amelia Simpson and Troy Simpson, ‘Personal Relations’ in Blackshield et al, above n 10, 528-31. 76 Sir Anthony Mason has expressed the view that, in his experience, tensions on the High Court were most pronounced over disagreements as to the use of precedent in matters of constitutional interpretation and this was often evidenced in ‘strongly expressed judgments’ often dissenting in nature: ‘Personal relations: a personal reflection’ in Blackshield et al, above n 10, 531-3. But as asserted in the text at this point, the ability to dissent is incidental, rather than central, to an actual disagreement as to the value of any particular precedent. The relationship between precedent and dissent will be considered in Part IV of this chapter.
37 expressing dissent – if anything that simply raises the stakes and increases the pressure within the Court.
As well as assisting to free the judicial process from constraints upon its independence, the capacity to dissent also results in clear benefits to the method of opinion writing. To some extent these two overlap as was seen earlier when considering the effect of enforced unanimity upon Privy Council judgments. But while the stultifying impact upon the quality of judgments caused by a lack of judicial independence has been addressed, the very positive consequences of allowing dissent now requires attention. In simple terms, a dissent offers a competing viewpoint and competition is conducive to greater efficiency, or rather in this context, better quality.77 The perils of defective decision-making into which ‘groupthink’ can lead an insular and largely homogenous body are avoided by the encouragement of different views.78 The laziness and lack of accountability which Jefferson feared in the United
States Supreme Court are threatened when the cloak of unanimity is cast aside. This is not to say that allegations along those lines will not be levelled against judges when delivery of seriatim opinions is the norm (no matter how unfairly).79 But, at least for
77 As Lauterpacht said, dissent ‘is a powerful stimulus to the maximum effort of which a tribunal is capable’: Sir Hersch Lauterpacht, The Development of International Law by the International Court (1958) 66-7. See also Alder, above n 1, 240; Brennan, above n1, 435; Evan H Caminker, ‘Sincere and Strategic Voting Norms on Multimember Courts’ (1999) 97 Michigan Law Review 2297, 2310; Fuld, above n 7, 927; Hussain, above n 57, 3; Lewis A Kornhauser and Lawrence G Sager, ‘The One and the Many: Adjudication in Collegial Courts’ (1993) California Law Review 1, 9; L’Heureux-Dubé, above n 1, 515; Karl Llewellyn, The Case Law System in America (Michael Ansaldi trans, 1989 ed) 59 [trans of: Präjudizienrecht und Rechtsprechung in Amerika]; R Dean Moorhead, ‘Concurring and Dissenting Opinions’ (1952) 38 American Bar Association Journal 821, 823; Justice Antonin Scalia, ‘The Dissenting Opinion’ (1994) Journal of Supreme Court History 33, 41; and Edward C Voss, ‘Dissent: Sign of a Healthy Court’ (1992) 24 Arizona State Law Journal 643, 655-7. In many respects the ensuing discussion deals with issues addressed earlier in the chapter concerned with the quality of deliberation in the judicial process. 78 Sunstein, above n 62, 140-44. Note his recognition of the detractors of Irving Janis’ theory of ‘groupthink’. 79 Justice Starke dubbed Justices Evatt and McTiernan ‘the parrots’ on account of his perception that they always followed the lead of Justice Dixon: Lloyd, above n 72, 181. In his turn, Justice
38 those outside the inner sanctum, the dynamics between their Honours will be easier to
gauge for these features.80
If the majority of judges in consensus are faced not with assembling an enforced tepid
agreement with their colleagues, but instead with a challenge to their position by a published dissenting opinion, then it is clear that the processes of the court are dramatically altered. The focus is not upon writing a judgment to which everyone can offer baseline approval, but rather producing an opinion which withstands the criticisms made of it, expressly or by implication, by a dissent. As Flanders points out,
‘because the reasoning of the majority and any dissents will inevitably be compared and judgments will be rendered concerning which is the better reasoned or the best solution to the problem posed by the case, the filing of a dissent also means that the intellectual stakes of the case, as well as its potential media interest, have also increased for all concerned’.81 In such circumstances, the authors of all opinions will be striving to make theirs the most irrefutably compelling.82
Thinking of dissents as providing a competitive grist to the judgment writing process
is one side of the matter. Different judgments do not just react to each other – at the
Dixon took the view that Justices Williams and Webb were ‘passengers’: Simpson and Simpson, above n 75, 530. 80 However, the revelation that Chief Justice Dixon actually wrote the opinions of some of his colleagues (even when in disagreement from his judgment) proves that sometimes, some people will get away with anything: Philip Ayres, Owen Dixon (2003) 73. 81 Flanders, above n 1, 403. See also Hassell, above n 72, 388. Kadzielski and Kunda, agree with this but state that while ‘this may be one of the effects of a dissent it can hardly be considered a motive for dissenting. A judge is not going to dissent in order to strengthen the authority of a decision with which he disagrees’: Mark A Kadzielski and Robert C Kunda, ‘The Unmaking of Judicial Consensus in the 1930’s: An Historical Analysis’ (1983) 15 University of West Los Angeles Law Review 43, 55. 82 Such is the effectiveness of dissenting judgments as a means of exposing weaknesses in majority opinions, the Attorney-General has cited them as one factor justifying his disinclination to defend the judiciary from external attack.: ‘It is very difficult to see what defending the Court would mean when some of its most articulate critics are amongst its members’: Daryl Williams, ‘The Role of the Attorney-General’ (Speech delivered at University of Melbourne, 27 September 2002).
39 immediate stage of writing, they can interact with each other. The drafting of dissents
for circulation amongst the Court creates a dialogue which can lead to the
incorporation of some of the ideas of a dissentient in the opinion of the majority.83
Interestingly, Patterson suggests that once this process is completed, and there is no
further influence to be exerted by the draft dissent upon the majority, its author may
withdraw it.84 Certainly, this would seem to depend upon how strongly the individual
Justice feels about the correctness of his or her view, and how important they perceive the issue to be. But the suggestion is not so terribly surprising when one takes into
account the arguments in favour of the exercise of judicial self-restraint, canvassed in
Part III of this chapter. The extent to which this occurs in the High Court of Australia
must largely be a matter of speculation though, as will be seen, there have been instances where a dissenting view is published and then recanted from to provide concurrence – a curious example of judicial restraint.85
It has to be admitted that the value of dissent at this stage is largely dependent upon what institutional processes, if any, exist for the Court in question to manage its work.
In the United States Supreme Court, the practice of delivering an opinion ‘for the
Court’ necessitates early identification of a Justice’s stance on the problem at hand.
The formal conferencing procedure adopted by that body also provides a forum in which this information will be declared.86 But in a Court delivering judgments in
83 Chief Justice Rehnquist has written that ‘not only those who agree with a position that is ably expounded benefit from the exposition; so do those who end up disagreeing with the position. By this process of elucidation through criticism and disagreement, the first draft of a prevailing opinion may be refined and revised by the input of others to make a better product than any solo writing would have been’: Chief Justice William H Rehnquist, ‘Foreword’ in E Joshua Rosenkranz and Bernard Schwartz (eds), Reason and Passion – Justice Brennan’s Enduring Influence (1997) 11. Cf. Amar, above n 42. 84 Patterson, above n 59, 100-1. 85 See Part III of this chapter. 86 Indeed, the present Chief Justice of that Court views this as the ‘true purpose’ of the practice: Chief Justice William H Rehnquist, The Supreme Court – How It Was, How It Is (1987) 294-5.
40 seriatim and without any institutionalised process of communication, the idea that
dissents have an impact upon opinion writing risks being of limited application. In
such courts, the Justices are not engaged in drafting majority and minority opinions as
part of a dialogue – they are simply writing their own opinion and dispatching it into
the ether without much thought for its ultimate status.87 Dissent is a relational concept
and no judgment is inherently dissenting in the English tradition.88 However, it should
be recognised that the eventual status of a judgment can become apparent earlier or
later depending upon the procedures followed by the Justices of the court. If it comes
too late to make a difference to judgment drafting then this particular function of dissent is not exploited.
The conferencing procedures of courts other than the United States Supreme Court
may be less established or at least less appreciated by observers, but they do exist in
some form. Patterson’s examination of the House of Lords twenty years ago was quite
meticulous in detailing the extent of formal and informal interaction between the Law
Lords,89 and similar information has been made available in respect of the Supreme
Court of Canada.90 The High Court has had a chequered history in this respect.91 In
1997, Justice Kirby expressed regret that the High Court did not ‘have anything like’
the system of conferencing and case assignment employed in the United States
87 Justice Stephen is attributed as saying, ‘It’s not a matter of great zeal and enthusiasm that my view should prevail…If it doesn’t happen to be the majority view, so be it’: quoted in Michael Coper, Encounters with the Australian Constitution (1987) 152. 88 In this vein, an American commentator went so far as to suggest: “The dissent” was unnecessary in English courts, in which opinions were presented seriatim. Each law lord would orally express his individual opinion. There was no need to “dissent” because each jurist, in turn, expressed his own opinion in the case. Any disagreement was manifest; it did not need to be called a “dissent”. Voss, above n 77, 644-5. 89 Patterson, above n 59, 89-98. 90 Greene et al, above n 71, ch 6. 91 Troy Simpson, ‘Conferences’ in Blackshield et al, above n 10, 130-33.
41 Supreme Court.92 Soon after, ‘upon the initiative of Chief Justice Gleeson, a new series of regular meetings of the Justices…commenced’,93 although Justice Kirby has recently stressed there is further room for improvement.94
Justice Callinan has confirmed that the conferencing techniques introduced by the
Chief Justice have been maintained.95 Similar efforts to achieve this in the past met with less success. Chief Justice Barwick’s attempt to institute formal conferences collapsed in the face of opposition from his individualistic colleagues. But although the Court’s disunity during this period has been highlighted and analysed by commentators,96 at least its members were still communicating, if not actively seeking to build upon consensus, with each other.97 However, the personal animosity infecting the Latham Court meant that for substantial periods of time, not even this was occurring. Here is a good example of a court so dysfunctional that the use of dissent as a means of improving the quality of written judgments was lost. Justice Starke
‘refused to have any consultation with Evatt J, to exchange reasons for judgments and
92 Justice Michael Kirby, ‘What is it Really Like to be a Justice of the High Court of Australia?’ (1997) 19 Sydney Law Review 514, 517. 93 See High Court of Australia, Annual Report 1998-99, 5-6. The Report states: In the past, there has always been informal discussion on such matters. The new series of meetings has formalized the arrangements to a greater extent and provide the occasion for the review of current thinking of the Justices concerning the cases reserved for decision…The discussions will not always secure agreement between the Justices and this is not their purpose. Even where important differences exist, discussion can help to clarify and refine opinions and reasoning. 94 In particular, his Honour would like to see a procedure of opinion assignment adopted: Justice Michael Kirby, ‘Judicial Dissent’ (Speech delivered at James Cook University, 26 February 2005), 3. 95 The Court engages in both ‘a short conference after an appeal has been heard’ and a subsequent ‘more formal judgments meeting’ : Justice Ian DF Callinan, ‘Law and Literature’ (2001) 21 Australian Bar Review 265, 266. 96 See Marr, above n 6, 233; and GPJ McGinley, ‘The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts’ (1987) 11 Adelaide Law Review 203, 207-209; and Michael Sexton, Uncertain Justice - Inside Australia’s Legal System (2000) 15. 97 As Marr reports, ‘Consultation between the judges at this stage of the proceedings [drafting] depended on friendship, speciality and geography…Each decision went to Barwick. The Chief Justice’s staff photocopied the judgments, entered them in the schedule of judgments in hand, and circulated a copy to each of the judges sitting on the case’: Marr, above n 6, 222.
42 draft judgments with him, or even to supply him with final judgments’.98 Starke’s
uncooperative behaviour was not always exclusively applied in respect of Justice
Evatt. Perhaps not unreasonably, Evatt J applied reciprocal sanctions against Starke.
But the Latham court must be seen as an extreme example – where not even informal
opportunities to liaise were utilised.99 On the whole, it seems reasonable to presume
that some basic level of discussion takes place in a collegiate decision-making body,
and, as considered in the preceding section, the circulation of draft opinions may well
be the dominant form of that deliberative exchange.100
The concept of a dialogue between judgments takes us to the final service which
dissents may fulfil to the enhancement of the Court’s work. Although we have posited
that the knowledge that some Justices are intending to dissent should ideally stimulate
greater care and attention in the drafting of opinions, even so, the reasoning of the
majority camp may be difficult to grasp. This may be for a variety of reasons, but two
readily spring to mind – the majority opinion is poorly constructed and justified, or
the majority view is a composite of different opinions whose combined effect is to cloud the clarity of what it is they are establishing. In either situation, a better appreciation of the import of the majority view may be achieved after considering a dissent – making it clear what the majority does not stand for by providing a useful level of contrast.101 In his exhortations to Justice Johnson, Jefferson was keen to
highlight the benefits of seriatim opinions beyond their democratic function and in
98 Lloyd, above n 72, 182. 99 ‘The refusal by a Justice to contribute to the deliberations of his colleagues was an extraordinary and exceptional step…With this exception, friction between members of the Court does not appear to have significantly affected the Court’s work’: Mason, above n 76, 532. 100 See discussion at nn 47-50. 101 Matthew P Bergman, ‘Dissent in the Judicial Process: Discord in Service of Harmony’ (1991) 68 Denver University Law Review 79, 85-6. See also Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (1986) vol 1, 1-2; Cf. Jackson, above n 45, 27.
43 praising the method of the English judiciary was quick to note ‘the light which their
separate arguments threw on the subject, and the instruction communicated by their several modes of reasoning…’.102 By contrast, the lone voice of unanimity can often
simply provoke further questions which, in the absence of an illuminating dissent,
require clarification in later decisions.103
C Dissent and the Law’s Development
Having considered the political significance of dissent and its potential to contribute
to the process of judgment writing, the final broad function to be addressed is that which looks to the future – how does dissent assist in the development of legal principle? In answering this question, one cannot avoid quoting America’s Chief
Justice Hughes, whose distinctive lyricism has never quite been surpassed by any subsequent commentators and which has been echoed by the High Court of Australia:
A dissent in a court of last resort is an appeal to the brooding spirit of the law, to
the intelligence of a future day, when a later decision may possibly correct the
error into which the dissenting judge believes the court to have been betrayed.104
102 Letter from Thomas Jefferson to William Johnson dated 27 October, 1822 quoted in Levin, above n 3, 513. 103 A good example of this in the High Court of Australia was the unanimous decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 which sought to resolve much uncertainty in respect of the constitutionally implied freedom of speech by subsuming or explaining ‘the various formulations offered by different members of the Court in earlier judgments. However, for that very reason, there may be room for disagreement as to precisely how the Lange test is to be applied’: Tony Blackshield and George Williams, Australian Constitutional Law & Theory – Commentary & Materials (3rd ed, 2002) 1192. See also discussion of this case in Chapter Six. 104 Hughes, above n 66. In Federation Insurance Limited v. Wasson And Others (1987) 163 CLR 303, 314, Mason CJ, Wilson, Dawson & Toohey JJ said that a ‘dissenting judge will often see his or her judgment as an appeal to the brooding spirit of the law, waiting for judges in future cases to discover its wisdom’.
44 Its ubiquity aside, Hughes’ portrayal of dissent remains gripping for the romanticism with which it imbues American discussions of dissent. It is in this vein that the notion of dissent as prophesy has taken hold.105 It seems rather odd that the idea of a dissenting judge as a ‘prophet with honour’ should gain currency in the legal culture which provided fertile ground for the realism, critical legal studies and jurimetrics movements to grow. But the danger of adopting this sobriquet is that it obscures the very dynamic role which dissent can play in achieving change in the law. Lively’s description of dissents may be short on soaring expression but displays a keener awareness of their function when he says, ‘dissents facilitate the law’s development while providing a linkage that establishes a source of continuity’.106 To describe dissents as ‘foreshadowing’107 or ‘prescient’108 speaks more to a judge being ahead of his or her time than talk of prophesy which tends to overly mystify the judicial process and adopt a degree of fatalism towards movement in the law.109 In any case,
105 He may not have been the initiator of the catchphrase ‘prophet with honour’ but Alan Barth can fairly take credit for its widespread use in American legal circles, see Barth, above n 2. Two earlier instances employing prophecy as a descriptor can be cited. Jackson stated that the dissenter ‘may be the prophet whose heresy of today becomes the dogma of tomorrow’: Percival E Jackson, Dissent in the Supreme Court – A Chronology (1969) 3. Felix Frankfurter said that Holmes’ dissents ‘record prophesy and shape history’: Felix Frankfurter, ‘Mr Justice Holmes and the Constitution – A Review of his Twenty-Five Years on the Supreme Court’ (1927) 41 Harvard Law Review 121, 162. 106 Donald E Lively, Foreshadows of the Law – Supreme Court Dissents and Constitutional Development (1992) xi. 107 Ibid. 108 Michael Coper and George Williams (eds), Justice Lionel Murphy – Influential or Merely Prescient (1997). 109 Primus has criticised the prophetic-heroic conception of dissent for these qualities, but particularly in its retrospective colouring of the career of Justice Oliver Wendall Holmes, saying that it is a misreading which ‘helped establish him as a kind of legal hero that his own theory of the law would not have permitted to exist’: Richard A Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243, 288; see also Bernard Schwartz, A Book of Legal Lists – The Best and Worst in American Law (1997) 106. Additionally, it is curious to see some commentators marry the prophetic and active roles of dissent in respect of change in the law. This is done in the quote from Frankfurter, above n 105. More recently Justice L’Heureux-Dubé has said that ‘dissenting opinions are not only prophetic, but they are also an invitation for dialogue about the law’s development in these areas.’: above n 1, 508. These quotes reveal the difficulty in using prophesy to describe something which may actually be trying to achieve change – unless one is content with the notion of a self-fulfilling prophecy.
45 these labels may only be applied with the benefit of hindsight after such time as the dissent has itself been a factor in stimulating legal change.
The concept of dialogue is again useful in exploring the way in which dissent promotes evolution of the law, though in this context the discourse occurs over time and may involve parties external to the Court.110 The ‘brooding spirit of the law’ is to be found in the minds of commentators, legislatures and later manifestations of the
Court. It is clear, for the various reasons considered in the previous section, that evaluating the Court’s work is made easier in cases where there are dissenting opinions. Obviously commentators, academic or otherwise, do not directly develop the law, but they can certainly seek to influence it. This occurs not infrequently through championship of a dissent. Parliamentary reaction to a decision which it regards as unsatisfactory may have two uses for a dissenting view given voice in that case. Firstly, a division in the bench may be said to provide a degree of political justification for legislative interference with the Court’s settlement of the law.
Secondly, dissenting opinions may provide Parliament with material that guides the form of its response to the decision reached by the court.111 There is even the
110 Blackshield states that ‘patterns of High Court growth and change involve complex interaction among all seven members of the Court: and while some of this interaction involves informal discussion or exchange of draft judgments, its main channel is the public dialogue conducted in the published judgments themselves’: AR Blackshield et al, The Judgments of Justice Lionel Murphy (1986) xviii. 111 For discussion of an early example of this, see George Stewart Brown, ‘A Dissenting Opinion of Mr Justice Story Enacted as Law Within Thirty-Six Days’ (1940) 26 Virginia Law Review 759. This phenomenon – that of a ‘dialogue’ between the two arms of government has recently drawn a good deal of commentary in Canada: see generally Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001). For example, the dissenting view of Justice L’Heureux-Dubé in R v O’Connor [1995] 4 SCR 411 was subsequently enshrined in the Canadian Criminal Code through legislative amendment and then approved by the Court in the case of R v Mills [1999] 3 SCR 668. But in rejecting the dialogue model of the relationship between the judiciary and legislature stimulated by the Charter of Rights and Freedoms, Manfredi and Kelly say of these cases that ‘the response by the Parliament of Canada can only be considered as legislative compliance that borders on Charter ventriloquism’: Christopher P Manfredi and James B Kelly, ‘Dialogue, Deference and Restraint: Judicial Independence and Trial Procedures’ (2001) 64 Saskatchewan Law Review 323, 345. While the suggestion of these
46 remarkable instance of an Executive response in accordance with the dissenting opinion delivered in a case which it actually won!112
But it is perhaps to future sittings of the Court that dissent has most relevance in shaping the law – certainly this must be true in respect of constitutional law. The consolation for the judge whose views have not triumphed on the day is the hope that they may be revived and vindicated somewhere down the line. This seems the most likely thing which Chief Justice Evans had in mind when he spoke of ‘the brooding spirit of the law’. Again though, we find that Thomas Jefferson appreciated this aspect of dissent well before others came to it:
It sometimes happened too that when there were three opinions against one, the
reasoning of the one was so much the most cogent as to become afterwards the
law of the land.113
The ability of dissent to foster change in the law has been identified almost universally,114 though, as shall be seen in the following Part, some commentators
authors that the equality underlying the dialogue between the courts and parliament is impaired may have some credence, this episode should not lose its broader significance for the purposes of this chapter – the potential impact of dissents outside the court so as to assist change. However, clearly this potential is particularly limited in the area of constitutional law. An Australian example of dialogue between the High Court and Parliament where dissenting opinions seem to have been influential would be the legislative amendments made to the Telecommunications (Interception) Act 1979 (Cth) in the wake of the 3:2 split in Hilton v Wells (1985) 157 CLR 57 over the validity of judges issuing warrants for telephone tapping. The amendments appeared to be passed with the aim of addressing the concerns of the dissenters in that case, Mason CJ and Deane J. By the time the issue rose again for consideration in Grollo v Palmer (1995) 184 CLR 348, Mason CJ had retired but Deane J was seemingly satisfied with the change in the law. 112 Gregory S Fisher, ‘The Greatest Dissent? A Brief Essay on Language, Law, Rule, and Reason’ (2003) Fall The Judge’s Journal 24. The dissent in question was that of Justice Kozinski in United States v Ramirez-Lopez 315 F.3d 1143 (2003). Despite the defendant’s conviction being affirmed by a majority of the court, the effect of Kozinski J’s dissent was that the government dropped the charges, released Ramirez-Lopez and returned him to his country of origin. 113 Above n 5.
47 place different emphasis upon any negative side-effects which may accrue as a result of the practice. It is surprising, therefore, to find a lone voice of doubt on this score.
Kadzielski and Kunda in their examination of ballooning dissent rates in several
American courts during the 1930’s make the following statement:
Some decisions are overruled a short time after they emerge; occasionally a
court will reverse itself on rehearing. Whether any of these is the result of a
dissenter’s convincing his colleagues that they are wrong through his dissent is
doubtful. That a dissent would be written for such an unlikely event seems even
more unlikely…Conservative judges as well as liberal ones realize that a
decision can be overruled. The liberal judges as well as conservative ones
realize that it is unlikely to happen unless greatly changed conditions or wisdom
emerge. Both groups cast dissenting votes. It does not seem that either group
uses dissents in order to promote changes in the law.115
114 Alder, above n 1, 241; Bader Ginsburg, above n 65, 143-5; Bergman, above n 100, 82-5; Brennan, above n 1, 430-1; Toni J Ellington, ‘Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero’ (1998) 20 Hawaii Law Review 797; Flanders above n 1, 410-4; Fuld, above n 8, 928; Gaffney, above n 1; Habermas, above n 24, 179; Hussain, above n 57, 7 and 24; Ken Kimura, ‘A Legitimacy Model for the Interpretation of Plurality Decisions’ (1992) 77 Cornell Law Review 1593; Kirby, above n 22, 17; Anita S Krishnakumar, ‘On the Evolution of the Canonical Dissent’ (2000) 52 Rutgers Law Review 781; Jacob M Lashly and Paul B Rava, ‘The Supreme Court Dissents’ (1943) 28 Washington University Law Quarterly 191; L’Heureux-Dube, above n 1, 504-9; Little, above n 1, 687; Mimi Liu, ‘A “Prophet with Honour”: An Examination of the Gender Equality Jurisprudence of Madam Justice Claire L’Heureux-Dube of the Supreme Court of Canada’ (2000) 25 Queen’s Law Journal 417; Llewellyn, above n 77, 19, 56-7; Lord Steyn quoted in Michael Kirby, ‘Law at Century’s End’ (2001) 1 Macquarie Law Journal 1, 12; Primus, above n 109; Henry G Schermers, ‘Separate Opinions’ in WE Haak et al, above n 57, 2 and 5; Thomas F Shea, ‘The Great Dissenters: Parallel Currents in Holmes and Scalia’ (1997) 67 Mississippi Law Journal 397; Sheldon, above n 45, 116; Sunstein, above n 62, 71; and Voss, above n 77, 657-9. For a more general appreciation of the importance of allowing dissent in society so that future generations may learn from either its wisdom or error, see John Stuart Mill, On Liberty and Other Essays (first published 1859, 1998 ed), 21. 115 Kadzielski and Kunda, above n 81, 53-55.
48 This is a fairly startling claim and the authors seek to justify it by means of two arguments in respect of several examples – the best known being that of the dissenting judgment of Justice Harlan in Plessy v Ferguson.116 Kadzielski and Kunda argue firstly that the tone of a dissent rarely looks forward, but instead is defeatist:
He [Justice Harlan] was definitely accepting the finality of the decision with
which he disagreed under the circumstances of the times. The dissent could
hardly have been intended to persuade the Court to change its mind in the
immediate future; if change was to be forthcoming, there would be no need to
atone.117
This seems an odd observation to make, denying as it does, that in all opinion writing there are a number of functions being fulfilled. While resolution of the matter before the court is the paramount task, it is understandable, especially in courts of last resort, that judgments are assembled with an eye on the future. Regret for the immediate result need not obliterate the hope, albeit unexpressed, that subsequent like cases will meet with a different reception.118
116 163 US 537 (1896). This case involved a challenge to one of the so-called ‘Jim Crow’ laws of the South – a Louisiana statute which required railway companies to provide ‘equal but separate accommodations’ for white and coloured passengers. A majority of the United States Supreme Court found that the segregationist law was consistent with the Fourteenth Amendment. Laws of this ilk eventually met their end at the hands of a unanimous Supreme Court decision delivered almost 60 years later – Brown v Board of Education 347 US 483 (1954). 117 Kadzielski and Kunda, above n 81, 56. Contrast this with Bergman’s description of Harlan J’s dissent as ‘an eloquent appeal to future generations’: Bergman, above n 100, 83. 118 For a rare instance where this is expressly admitted, see Justice Kirby’s statement that: ‘…if a time comes when they look back on this era, there will no doubt be some of my decisions which will be appealing to a different and future time.’: Interview with the Australian Broadcasting Corporation on 16 November 2003, available at
49
The second argument used to support this contention goes even more to the question of a developmental function of dissent. Essentially, Kadzielski and Kunda take the view that courts, when overruling majority decisions, seldom seem to place reliance upon dissents in order to do so. In respect of Plessy they say:
Although the precise holding about segregation on railroad cars to which Justice
Harlan objected has since been overruled, the language of what is probably the
most famous dissenting opinion ever written has not become accepted law.119
While it is certainly true that the Supreme Court in Brown v Board of Education did not make reference to Harlan’s opinion, one should be careful in dismissing its impact. The persuasive pull of particular judgments (and for that matter, external commentary) may be an extraordinarily subtle force. Barth’s appreciation of the often abstruse influence of dissents is demonstrated by his view of the same material:
It can hardly be said that the vision and fire of Harlan’s dissenting opinion
turned the Court round, as though in 1954 that dissent was suddenly read with
understanding for the first time. Yet it can hardly be said, either, that his vision
and fire were altogether without effect upon succeeding judges. Every time
members of the Supreme Court were called upon to decide a case entailing
racial segregation, they were obliged to reread the fatuous words of Justice
of these cases’ possesses a more resigned, rather than aspirational, tone, which sits better with Kadzielski and Kunda’s view. 119 Kadzielski and Kunda, above n 81, 56.
50 Brown and to be reminded by Justice Harlan’s stinging refutation that the
decision was juridically – and ethically – wrong.120
Attempts to verify or quantify the impact of dissenting opinions upon subsequent development of the law should be wary of the overly simple analysis which
Kadzielski and Kunda have applied in their consideration of Harlan J’s judgment in
Plessy.121 While formal recognition and vindication of an earlier dissent by a court will clearly demonstrate the point, that alone will not present the extent to which such judgments exert an effect. For a pertinent local example, Justice Kirby has expressed the view that several innovative approaches employed by Justice Murphy during his
11 years on the High Court of Australia have gained greater acceptance, albeit without due acknowledgement, in the years since his death.122 Only by a substantive examination of the developing jurisprudence of a court can an accurate assessment of the impact of the past be reached.123
120 Barth, above n 2, 52-3. 121 The reader may be asking, so what significance do Kadzielski and Kunda ascribe to Harlan’s dissent? The answer, at 57, is: Justice Harlan was right in doing what is often said it is nearly impossible to do, that is, writing history as the events occur rather than writing from a perspective of time. This is the primary motivation for such a dissent: it can forever stand as a monument to what the dissenting judge felt at the time to be right, which may be illuminated later by the light of history, or which at least can stand as a symbol to some greater power of right and wrong than the law of the land. Kadzielski and Kunda, it would seem, are strongly advocating a prophetic role for the dissenting judgment, but unlike those authors cited above at n 109, they do not see this function as combined with a capacity to actively contribute to change, certainly not within the court itself. As is clear from that earlier footnote, I am sceptical of something being simultaneously characterised as prophetic and dynamic. But, unlike Kadzielski and Kunda I see the ‘dissent as prophesy’ paradigm unhelpful and dispensable (see text accompanying nn 105-109) and prefer to focus on the influence, however subtle, which a dissent may continue to exert. 122 Justice Michael Kirby, ‘Lionel Murphy and the Power of Ideas’ (1993) 18 Alternative Law Journal 253, 254. The degree of subsequent influence of Murphy’s judgments is the central inquiry in Coper and Williams, above n 108. 123 Blackshield stressed (in the context of Justice Murphy’s impact), that ‘even to assess his contribution, we would need to trace it through patterns of accommodation and rejection extending over a series of cases, and indeed over decades to come’: Blackshield et al, above n 110.
51 Before concluding this section, it should be made clear that the message of a dissenter to his or her court need not necessarily advocate progression of the law. Dissent can just as effectively be used to contain the impact of new principles. As Lord Radcliffe told Patterson, dissent ‘does enable you to try to limit what you regard as an unsatisfactory line by some reasoned and carefully worked out contribution of your own’.124 The idea of dissent as a conservative influence on a progressive court is not how we tend to think of dissenters though it may be far more the norm.125 Once again, a propensity to talk of prophets and ‘Great Dissenters’ can lead to a blinkered view of the pervasive and diverse nature of dissent in practice.126
D Concurring judgments compared – the acceptable face of disagreement and
change?
Having considered the various ends which are served by a capacity for judicial disagreement to manifest itself through the delivery of dissenting opinions, it is relevant to consider the position of concurring judgments – to what extent do they
124 Patterson, above n 59, 101. 125 See, for example, the discussion in Chapter Six of the impact of minority opinions in the freedom of speech cases of the 1990s. 126 The best example I have found of this is Wald’s assertion that: The typical tone of a dissent is troubled, outraged, sorrowful, puzzled. It is most apt to turn away from the technicalities of the majority holding and play to higher levels of aspirations and values that it sees desecrated by the majority’s insistence on a relentless imposition of precedent regardless of the consequences…The strategy of personalization in dissent is to separate the dissenter from the cold, impersonal, authoritarian judges of the majority, who impliedly do not take the human condition into account when they mercilessly impose “the law”. Patricia M Wald, ‘The Rhetoric of Results and the Results of Rhetoric: Judicial Writings’ (1995) 62 University of Chicago Law Review 1371, 1412-3. Even allowing for the numerous differences between the United States Supreme Court and the High Court of Australia, not the least among them being matters of judicial style, it is dangerous to generalise about the dissents of any court in the manner Wald has adopted here. Although examples of the type of judgment she describes undoubtedly do exist (Australian classics of the genre include the opinions of Justice Evatt in Waverley City Council v Chester (1939) 62 CLR 1 (as to which, see Bruce Kercher, An Unruly Child – A History of Law in Australia (1995) 170) and more recently, Justice Kirby in Re Wakim (1999) 198 CLR 511), it would indeed be surprising if they were the norm. Wald’s error is that her conception of dissent denies its primarily relational, rather than substantive, nature.
52 also share these functions? Do they manage to achieve much the same thing but with
less threat to stability?
Firstly, we must be aware that the American tendency to lump concurrences and
dissents together under the banner of ‘separate judgments’ reflects the practice traditionally employed by the United States Supreme Court of a majority opinion being delivered ‘for the Court’ from which the remaining Justices may distance themselves by varying degrees.127 Concurring judgments delivered in the High Court
of Australia are not strictly ‘separate’ from anything. In the absence of an opinion ‘for
the Court’, all those in the majority are in concurrence simply with each other.
Obviously in many cases, one or two judges of the majority may deliver fuller
opinions with which others merely indicate agreement, enabling identification of the
‘leading’ judgments, but it need not be this way. It has certainly not been uncommon
for all seven members of the Court to deliver their own individual opinion in full. In
this context it is, to an extent, quite meaningless to regard concurrences and dissents
as being of the same ilk – judgments which together stand ‘separate’ from a clearly
identified and concerted majority. Rather the collection of concurrences amounts to a majority and it is the dissents alone which are on the outer.
Even so, it is clear that the ability, for which the seriatim practice provides, of each judge to deliver his or her opinion individually, serves many of the beneficial functions identified in respect of dissents. ‘Writing separately’ may mean quite different things in the practice of the High Court and the United States Supreme
127 See Bader Ginsburg, above n 65; and Flanders, above n 1. Wald’s claim that ‘most judges dissent more than concur’ (Ibid 1413) reflects how very different the notion of concurrence is due to the United States Supreme Court’s practice of delivering a core majority opinion.
53 Court, and is traditionally much rarer in the latter forum, but the essentially
individualistic nature of the act itself remains.
Justice Bader Ginsburg’s examination of separate judgments remains the most lucid
examination of the similarities underlying concurrences and dissents by reason of
their capacity to promote individual expression. For this reason, concurring judgments
fulfil a democratic function in accord with what has already been outlined above.
Although concurring opinions express support with the court’s resolution of the ultimate issues in a case, they are just as potent as outright dissent as an indicator of the deliberation of that body. So far as the judicial strain of deliberative democracy is
sustained by freedom of expression, it should not be forgotten that even within a
concurrence a level of disagreement is still being given voice.128
As contributions to a judicial dialogue, concurrences might perhaps play a part in
promoting more thorough opinion writing in the manner of dissenting opinions. But this comes with costs not attendant upon outright dissents. A number of separate opinions offering different routes to reach the same result tends to cast scepticism on the strength of legal reasoning. Concurrences suggest that legal analysis might not be the means by which a conclusion is reached, but instead a supple tool for the justification of a result already determined by other factors.129
Pragmatically, concurrences are seen as unhelpful in their contribution to the clarity
of judicial work. Whereas a dissent may be said to provide a useful contrast to the
majority judgments, a majority result which is assembled through concurrences can be
128 This is true even if the disagreement extends only to matters of written expression. 129 Llewellyn, above n 77, 55.
54 contradictory and confusing – a shade of grey which clouds the meaning of the decision. While an ability to agree with the orders of the Court but for reasons distinct from those adopted by others on the bench, is undoubtedly valuable, the suspicion has been voiced that separate concurring judgments have often been delivered when consensus building would have been both possible and appropriate.130
A profusion of concurring opinions without significant difference between them serves less purpose than a clear statement of dissent and is more harmful to the coherency of the law that the Court lays down. As a coda to his consideration of the
High Court’s most recent duty of care case a few years ago, Martin Davies lamented that the Court was ‘so deeply divided on matters relating to the law of torts that it is presently giving little authoritative guidance to lower courts or practising lawyers’.131
Davies’s objection was not to the existence of formal dissent, admitting that complete unanimity was hardly to be expected as the norm.132 Rather it was those cases where the reader was required to extract ‘common elements in multiple concurring
130 Coper, above n 87, 151; and Geoffrey Sawer, Australian Federalism in the Courts (1967) 50-1. This complaint was raised by the present Attorney-General at the swearing in of Chief Justice Gleeson: Bernard Lane, ‘Gleeson calls for reorder in the court’, The Weekend Australian (Sydney), 23-24 May 1998, 4. Perhaps the most impolite criticism along these lines comes from the Canadian McWhinney when he writes: …it may be less a matter of one single opinion versus multiple opinions than of the nature and content of the opinions when actually written. The five dreary, repetitive, Gothic, opinions written by the judges of the High Court of Australia in the Bank Nationalisation case gain, it is suggested, little by comparison with the Privy Council’s single opinion in the same case. McWhinney, above n 6, 623. 131 Martin Davies, ‘Common law liability of statutory authorities: Crimmins v Stevedoring Industry Finance Committee’ (2000) 8 Torts Law Journal 133, 149. Indeed, in assessing the impact of the Crimmins case on the state of the law , Davies concluded (at 151): The report of Crimmins occupies 90 pages in the Australian Law Reports, stretching over 370 numbered paragraphs and 355 footnotes. Despite the concerted intellectual efforts of all seven judges of the High Court (not to mention five QCs and two juniors), all that was effectively achieved was a disposition of Crimmins’s widow’s appeal, which was allowed. 132 Ibid 146.
55 judgments so as to construct an argument for a majority’ which gave rise to vagueness and generalisation.133
It seems that this is a concern in other jurisdictions beyond our own134 and may indicate inadequate conferencing processes adopted by the court,135 difficult personal relations amongst its members136 and also (ironically) the impact of improvements in staffing and technology.137
So far as developmental functions are concerned, there is no reason to presume that obiter dicta expressed in concurring opinions has less potential in this respect than dissents. Indeed, the converse is true. Beyond their contribution to the ratio of the decision, the precedential value of statements found in the concurring opinions of the majority is likely to be more persuasive than those contained in dissents.138 The use of
133 Ibid 148. Davies was so dissatisfied with this state of affairs that he conducted a brief empirical study of the methods by which the High Court of Australia resolved disputes relative to the House of Lords and the United States Supreme Court. He concluded that the High Court produced ‘significantly more’ decisions with multiple concurring judgments, none with majority support, than either of the other institutions. 134 In respect of the difficulties caused by concurrence in the Supreme Court of Canada, see Laskin, above n 58, 1047-8. Almost fifty years later, L’Heureux-Dubé expressed similar concerns about concurrences but reported that the ‘phenomenon is increasingly rare’: above n 1, 514; see also Greene et al, above n 69, 78. Bader Ginsburg has also stated that in the United States Supreme Court ‘more unsettling than the high incidence of dissent is the proliferation of separate opinions with no single opinion commanding a clear majority’: above n 65, 148. 135 Laskin, above n 58; and Sawer, above n 130, 49-50. There is some degree of overlap between this topic and assessments of the effectiveness of the leadership qualities of the presiding Chief Justice: see Sue Davis, ‘The Chief Justice and Judicial Decision-Making: The Institutional Basis for Leadership on the Supreme Court’ in Clayton and Gillman, above n 45, ch 6; and O’Brien, above n 54, 97-99 and 109-11. 136 Lloyd, above n 72; Marr, above n 6, 83-4; Mason, above n 76; and Simpson and Simpson, above n 75. To gain a sense as to how problems of collegiality have affected the United States Supreme Court, see Edward P Lazarus, Closed Chambers (1998); Melvin I Urofsky, Division and Discord – The Supreme Court under Stone and Vinson, 1941-1953 (1997); and Bob Woodward and Scott Armstrong, The Brethren (first published 1979, 1981). 137 Bader Ginsburg cites the ‘multiplication of law clerks’ and ‘more efficient means to retrieve and process words’ as reducing the need for judges to work as co-operatively with their colleagues as in the past: above n 65, 148-9; see also O’Brien, above n 54, 103 and 110; and Schwartz, Decision (1996), 54. 138 MacAdam and Pyke say that ‘it is an entirely proper part of the judicial process for authoritative propositions of law to be extracted out of a combination of majority and minority judgments as long as such propositions are not in conflict with the majority ratio and/or the result in the case’:
56 opinions expressed in concurring judgments is undoubtedly the way in which much subtle and incremental change occurs in the law. We would expect the frequency with which dissent assists the development of legal principle to be less – however, the actual extent of change which a dissent may assist to bring about is likely to be much more pronounced.
In considering the relationship between concurrences and dissents, it can be observed that they share a number of features in common. They both fulfil democratic and developmental functions, though admittedly concurrences do so in a less noticeable fashion than dissents. This is not just a result of their status as representing a fundamental degree of consensus, but must also be attributable to their implicit place within the practice of delivering opinions in seriatim. Unlike their position in
America, concurring judgments are simply the usual method by which judges in the
English tradition express agreement with each other, despite occasional instances of welcome unanimity. Unfortunately, this strong sense of individualism over institutionalism presents problems of clarity which can obscure what is actually decided. It is ironic that, in this sense, the formal expression of judicial disagreement in a dissent can be said to be less harmful to the certainty of the law.
III ARGUMENTS FOR RESTRAINT – THE HAZARDS OF DISSENT
The previous section considered three broad functions which an ability to dissent may be said to serve. While there are unquestionably benefits to the occurrence of dissent,
Alistair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) 210. While it is apparent that this qualification does not restrict use of dissents, it does indicate that concurring opinions are probably going to be more obviously helpful – unless, of course, one is advocating the overruling of the earlier decision. During a recent hearing, members of the High Court recently affirmed the irrelevancy of dissenting opinions in identifying the ratio decidendi of a case: Transcript of Proceedings, Shaw v MIMA (High Court of Australia, McHugh and Kirby JJ, 17 June 2003).
57 this is obviously not the whole picture and despite the foregoing, it is far from the case that dissents are routinely well received.139 Aside from the substance of any
particular dissenting opinion, the practice itself may, in certain circumstances, evoke
ambiguous feelings. For while we can identify benefits which accrue from dissenting,
these can be difficult to reconcile with law’s preference for order, clarity and
conformity. The purpose of this part of the chapter is to examine the arguments for
judicial restraint in dissenting.
A Certainty and Coherence
Although Justice Kirby has described the judiciary as ‘the last empire of
governmental individualism’,140 there are numerous examples of Australian judges
refraining from an insistence upon their personal views so as to enable the court to
settle a question of importance with sufficient clarity. Perhaps the most infamous of
these are the opinions delivered by Justices Gibbs and Stephen in Queensland v
Commonwealth (The Second Territory Senators Case),141 in which their Honours
resisted the temptation to maintain their views from two years earlier142 and thus form
a majority with a persistent Chief Justice Barwick and the newly arrived Justice
Aickin to invalidate the representation of the Territories in the Commonwealth
Parliament. Instead, both Gibbs and Stephen JJ followed the majority verdict from which they had earlier dissented, making it very clear that, although they were still of
the view that it was incorrect, they saw more value in avoiding an overruling within
such a short space of time made possible only through a change in the composition of
139 Michael Coper, ‘The Path of the Law’ (2002) 76 Australian Law Journal 716, 719. 140 Kirby, above n 22, 16. 141 (1977) 139 CLR 585. 142 WA v Commonwealth (First Territory Senators case) (1975) 134 CLR 201.
58 the Court.143 Perhaps Justice Stewart of the United States Supreme Court best expressed the source of such reluctance when he said:
A basic change in the law upon a ground no firmer than a change in our
membership invites the popular misconception that this institution is little
different from the two political branches of the Government. No misconception
could do more lasting injury to this Court and to the system of law which it is our
abiding mission to serve.144
On the high importance of consistency, Gibbs J famously had this to say:
No Justice is entitled to ignore the decisions and reasoning of his predecessors,
and to arrive at his own judgment as though the pages of the law reports were
blank, or as though the authority of a decision did not survive beyond the rising
of the Court.145
For both Justices, the duty to follow the earlier decision was determined by a number of factors but avoidance of the confusion and disappointed expectations of the peoples of the Territories caused by a reversal was of great significance.146 In dissent, Chief
Justice Barwick and Justice Aickin made it clear that, to their minds, such a
143 Justice Aickin had been appointed to replace Justice McTiernan, a member of the majority in the original case. Coper suggests this as a significant factor in explaining Justices Gibbs and Stephen’s conduct: Coper, above n 87, 153. 144 Mitchell v WT Grant Co 416 US 600, 636 (1974). Justice Stewart’s discomfort at exploiting a change in the composition of the Court to gain ascendancy for views he had expressed previously in dissent is well documented throughout Woodward and Armstrong’s The Brethren, most memorably in a scene recounting an exchange between Justices Stewart and White at conference in which the latter described Stewart’s stance as ‘kind of a chickenshit position’: Woodward and Armstrong, above n 136, 483. For an earlier American statement along the lines of Justice Potter’s comments in Mitchell, see the dissenting judgment of Justice White in Pollock v Farmers Loan & Trust Co 157 US 429, 651 (1895). 145 (1977) 139 CLR 585, 599. This sentiment was recently echoed by Justice Gummow in SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51, 75: ‘The state of the law of the Constitution at any given time is to be perceived by study of both the constitutional text and of the Commonwealth Law Reports’. 146 Ibid 600 (Gibbs J) and 603-4 (Stephen J).
59 consideration held little sway against a judge’s individual conviction of being right.147
Apparently their view was, to paraphrase Kelman, that if dissent is an appeal to the
intelligence of a future day, the dissenter should not falter because that day arrives
sooner than anyone expected.148
The example of the Second Territory Senators Case is an interesting one as it displays remarkable self-sacrifice by Justices Gibbs and Stephen. L’Heureux-Dubé has said
that ‘even the most ardent defender of dissenting opinions will be compelled to admit
that in most cases, it is the majority opinion which blazes the law’s trail’.149 The truth
of this is demonstrated well by this case, where two justices with a clear ability to
claim ascendancy for a previous dissenting view which they still believed to be
correct instead bowed to the authority of the earlier decision. In some circumstances
(or, at least, with some judges) the value of institutional consistency is far from a
hollow ideal but has real power in curbing instability in the law.
Of course, it is less dramatic when a potential dissenter recants from views which
stand next to no chance of attracting majority support. Nevertheless, such occasions
are significant evidence of the importance of conformity in judicial method. A classic
example is provided by the judgment of Justice Dawson in Richardson v Forestry
Commission150 wherein his Honour repeated his objections to the expansive
interpretation of the external affairs power arrived at by the majority in
147 Ibid 594 (Barwick CJ) 630-31 (Aickin J). Indeed, somewhat remarkably, Aickin J, ‘formed the view that this is not a case where it can be said that the previous decision has been “acted upon”…notwithstanding that elections have been held and persons so elected have sat in each House and acted as members thereof’. 148 Maurice Kelman, ‘The Forked Path of Dissent’ (1985) 6 The Supreme Court Review 227, 284 (n 222). 149 L’Heureux-Dubé, above n 1, 498. 150 (1988) 164 CLR 261.
60 Commonwealth v Tasmania (The Tasmanian Dams Case).151 Having done so, his
Honour proceeded to explain why he would, despite retaining those views, accept the
authority of the earlier decision from now on:
Precedent must, however, have a part to play, even in the interpretation of a
constitution. Considerations of practicality make it necessary that the law should,
as far as possible, take a consistent course. The constant re-examination of
concluded questions is incompatible with that aim.152
Similar motivations are present in instances where members of the Court explicitly
tailor their judgment so as to make a clear majority view possible. This is different
from the cases just considered as it involves no reference to an earlier dissent, but
rather the prevention of a dissenting opinion even coming into existence. Two clear
examples may be offered. First, Justice Deane’s winding back of the more extreme
parts of his approach to the consequences of the implied freedom of political speech
in Theophanous v Herald & Weekly Times153 so that he could form a majority on the
facts with Chief Justice Mason and Justices Toohey and Gaudron.154 Similarly, Justice
Kirby, after setting down his ideal approach to questions of dishonesty in instructing the jury in a trial for conspiracy to defraud, abandoned it in order that a useful
151 (1983) 158 CLR 1. 152 (1988) 164 CLR 261, 321-2. Justice Dawson went on to adopt a similar approach in subsequent cases: Queensland v Commonwealth (Tropical Rainforests Case) (1989) 167 CLR 232, 247 and Victoria v The Commonwealth (The Industrial Relations Case) (1996) 187 CLR 416, 565-572. 153 (1994) 182 CLR 104. 154 Ibid 187-8. Deane J published this as an addendum to his formal judgment, saying, inter alia: …majority support for the operation of the implication in a case such as the present exists for, but is limited to, that attributed to it by Mason CJ, Toohey and Gaudron JJ. In these circumstances, the appropriate course for me to follow is to lend my support for the answers which their Honours give to the questions reserved by the stated case. The effect of this compromise upon the precedential value of Theophanous was made clear by comments of the Court in Lange v ABC (1997) 189 CLR 520, 554-6.
61 majority be formed in Peters v R.155 The other four judges in that case were evenly
divided over the matter. Kirby J acknowledged that no immediate value would be
gained from his deciding the matter in accordance with his own preferred view – and
(presumably) that any prospective impact was unlikely. Thus, he decided to use his
vote pragmatically and effectively aborted a potential dissent:
As this Court is evenly divided on the applicable legal test, as there is a clear
majority for dismissing the appeal which my opinion cannot affect and as it is
essential that the Court should provide clear instruction to those who have the
responsibility of conducting criminal trials, whilst preferring my own opinions I
withdraw them. For the purposes of procuring a holding on the issues argued in
this appeal, I concur in the opinions expressed by Toohey and Gaudron JJ on the
point of difference between them and McHugh J and Gummow J.156
All the judgments discussed in this section demonstrate an aversion to the costs
incurred by disagreement. The dissenting judge may often be seen as ‘adding to the confusion of [the law], for he turns the spotlight away from the issues in the case and keeps it focused upon himself; he tells the world that the law is indefinite [or bad], except as expounded by him’.157 But clearly, complete personal satisfaction with the result in a case is often sacrificed to the higher ideal of legal certainty – as Justice
Brandeis famously declared, ‘It is usually more important that a rule of law be settled,
155 (1997) 192 CLR 493. 156 Ibid 555-6. There are, of course, other examples of this kind of strategic voting – the comments of Murphy J in Uebergang v. Australian Wheat Board (1980) 145 CLR 266, 309 (‘…while adhering to my own view of section 92, I would, as an alternative, support that which seems to be the nearest to mine in order to obtain or increase the vote for that view and to reject a more extreme alternative.’) spring to mind. Just what influences a judge to transparency of this level when others must presumably resolve such choices before writing their judgment and see little point in extrapolating upon them is difficult to discern. 157 Hirt quoted in Fuld, above n 7, 926.
62 than that it be settled right’.158 However, that statement invites more rigorous scrutiny given the developments in legal theory since the early decades of the 20th century. In a legal milieu where it has now long been conjectured that there is no such thing which may simply be identified as the ‘right’ answer,159 conscious decisions by an individual judge to strengthen an acceptable and justifiable alternative view so as to achieve institutional coherency should not seem terribly surprising.160 Some of the examples given above are more illustrative of this point than others. The judgments of Justices
Gibbs and Dawson, on the one hand, are not so clearly in this vein since they forcefully maintain the correctness of their own approach, despite supporting the contrary view on precedential grounds. Thus, these opinions perhaps more perfectly reflect the aphorism of Justice Brandeis. But on the other hand, Justices Deane and
Kirby make it clear that, whilst they have one solution in mind, they concede the merits of another. Interestingly, Justice Stephen, writing at a time when it was much rarer to see such express admissions of the indeterminacy of the law emanating from the Australian bench, seems to adopt a similar approach in Queensland v
Commonwealth, when he says of the earlier decision which he is now following:
158 Di Santo v Pennsylvania 273 US 34, 42 (1927). It should, however, be acknowledged that in the same paragraph Brandeis J went on to suggest that ‘in the search for truth through the slow process of inclusion and exclusion, involving trial and error, it behooves [sic] us to reject, as guides, the decisions upon such questions which prove to have been mistaken’. 159 See Alder, above n 1; Michael Coper, Freedom of Interstate Trade under the Australian Constitution (1983) 289; and Pound, above at n 11. Even a Dworkinian analysis concedes room for disagreement between justices about final answers, though this does not rob them of being ‘right’ in the sense with which he uses that term: Ronald Dworkin, Law’s Empire (1986) 263-4. 160 As Coper has said, ‘As the prospect of discovering a single right answer…recedes, so does the case gather force for choosing one answer from among the alternatives and sticking to it’: Coper, above n 159, 291. While the occurrence of strategic voting to improve the Court’s collective decision appears to attract little comment in Australia, the same is not true in the United States where the propriety of such behaviour is seen as involving a questionable level of arbitrariness: see Caminker, above n 75, and John M Rogers, ‘“Issue Voting” by Multimember Appellate Courts: A Response to Some Radical Proposals’ (1996) Vanderbilt Law Review 997.
63 The case was very much one upon which different minds might reach different
conclusions, no one view being inherently entitled to any pre-eminence as
conforming better than others to principle or to precedent.161
However, one must be cautious of taking this analysis too far. From the tenor of my observations above, the idea that law is regarded as more indeterminate and that the process of adjudication is more supple than previous generations admitted, would seem to lead naturally to a greater incidence of subsuming individual opinion to the benefits of institutional consensus. But if anything, dissent seems just as prevalent now than in past eras, if not more so.162 This is undoubtedly due to a range of diverse factors,163 but it seems reasonable to suggest that one of them is, in fact, the dismantling of the formalist, declaratory tradition itself. So, whilst the acknowledgment that a number of alternative solutions are legally and logically possible may be seen, at least in some cases, to provide a sound justification for judges to abandon their own view in order to support that which is advocated by their
161 (1977) 139 CLR 585, 603. For an even earlier example, consider the words of Dixon J in Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237, 243-4 when refusing to depart from ‘a recent and well considered decision upon what is evidently a highly disputable question’. Indeed, Hassell states, ‘most appellate judges would agree that every case in which a judge disagrees with the majority does not necessarily warrant the issuance of a dissenting opinion’: Hassell, above n 72, 388. 162 See generally, Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255. The truth of this assumption in the context of the High Court’s constitutional law decisions will be subject to direct analysis in Chapter Four. 163 Almost all of these are touched upon over the course of this chapter and to catalogue them all here would prove cumbersome. As succinct a list of factors (no fewer than 26) giving rise to dissent as it is possible to compile is found in Ben W Palmer, ‘Present Dissents: Causes of the Justices’ Disagreements’ (1949) 35 American Bar Association Journal 189. But the most original and comprehensive attempt to explain the sociological factors stimulating the growth of dissenting opinions in American courts from the 1930s is found within the study of Kadzielski and Kunda, above n 81. In the specific context of the High Court of Australia, Smyth has tested numerous factors – personal and institutional – as explaining dissent rates: Russell Smyth, ‘Explaining Historical Dissent rates in the High Court of Australia’ (2003) 41 Commonwealth & Comparative Politics 83; Russell Smyth, ‘What Explains Variations in Dissent Rates?: Time Series Evidence from the High Court’ (2004) 26 Sydney Law Review 221.
64 colleagues, it appears that admitting the scope of choice has only made consensus less likely overall.164
Coherency definitely exercises a strong pull upon judicial officers and this idea will be further examined below in the specific context of the rules of precedent. The benefits of consistency and certainty in the law are so obvious as to not require lengthy extrapolation. Yet the fact that greater recognition of the fluid and malleable state of the law has not resulted in higher rates of agreement, but instead the converse, must say something about the process – and indeed its participants.
B Individualism and the Authority of the Court
It is appropriate at this juncture to consider some of the more severe criticism reserved for dissenters. While the last section was concerned with the destabilising effect which dissent may have upon the state of the law, an additional dimension is the damage which a lack of consensus may inflict upon the court itself. Or, to cite the words of Justice Learned Hand, dissent ‘cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends’.165
164 O’Brien, writing of the United States Supreme Court, puts it thus: In sum, agreement on an institutional opinion for the Court’s decisions was once deemed central to the Court’s prestige and legitimacy, and to preserving the myth that law is not merely a reflection of politics. The forces of American Legal Realism and liberal legalism brought to the Court by the New Deal justices transformed that norm into one of individual expression. O’Brien, above n 54, 111. The maintenance of individual expression over subsequent decades he ascribes to judicial socialisation : at 105. Palmer pithily echoes this with ‘reason for dissent #20’: ‘Relativism, skepticism, cynicism, distrust of reason and of logic, despair of attempts to arrive at objective standards of value, denial of absolute truths’: above n 163, 190. Interviews with appellate judges in Canada suggests that the provision of ‘several competing “correct” answers’ avoids the ‘intellectual dishonesty’ of maintaining the view that there is simply ‘one right answer’: Greene et al, above n 71, 16. 165 Learned Hand quoted in R Perry Sentell Jr, ‘Dissenting Opinions: In the Georgia Supreme Court’ (2002) 36 Georgia Law Review 539, 544. See also Schermers, above n 57, 1: ‘A divided oracle could not have the authority that is crucial to indisputable interpretation’ cf. Llewellyn, above n 77, 59.
65 This remains an elusive concept to observe in practice despite both its natural extension from the desire to maintain coherency and consistency in the law and the degree to which it has been discussed by commentators in the past. This is possibly because it is not actually the dissenting itself which is frowned upon, but rather the broader individualism of which it is perhaps just the most obvious symptom. The following comment from Patapan seems to make this clearer:
[T]he very possibility of many judgments, of minority and majority views,
entertains the promise of dissent and thereby legitimates the possibility of
overruling. That the Court may reject its previous decision, albeit rarely and
reluctantly, presents the awkward possibility of many Courts, even a right and a
wrong Court, a better or worse Court, a Court that is more or less legitimate.166
Under either Learned Hand’s or Patapan’s formulation, it seems a strangely neutral
objection – by which I mean that the relative merits of the majority and minority
views do not seem to matter. The very existence of the division is resented as an
irritation and as a challenge to the security of the majority. Any orthodoxy of method, let alone developmental potential, which the dissent may possess, is dismissed. The inadequacy of such an approach is compounded by the simple truth that the days of actually being able to achieve such a high level of unanimity would seem to be long gone – if they were not already when Learned Hand wrote in 1958.167 As Easterbrook
pointed out when suggesting that various criticisms of the United States Supreme
Court lacked validity:
166 Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) 185. 167 Just one year after Learned Hand’s speech, ZoBell considered that ‘even if a jural reincarnation of the Great Chief Justice [Marshall] were to preside, the idea of imposing judicial silence upon his Associates by external means – whether by positive law or by the fiat of the Chief Justice – would be intolerable to today’s lawyers and judges’: ZoBell, above n 67, 209-10.
66
Divided decisions stem in large measure from circumstances beyond the Court’s
control, and they go hand in hand with the attempts at reasoned explanation that
most of the Court’s critics endorse. There will be, at any given time, some
optimal amount of division…168
Nevertheless, the perceived connection between dissenting opinions and harmful
individualism on behalf of members of the judiciary remains strong. In his evaluation
of the High Court under Chief Justices Mason and Brennan, Patapan warns of the
danger of law students being seduced by the easy appeal of a judicial method which is
prepared to displace law in order to achieve what is perceived as just.169 The source of
this activist influence is identified (somewhat surprisingly) as the ‘example and
ambitions of the ‘Great Dissenter’ on the Bench’.170 This comment reflects Learned
Hand’s automatic disdain for dissent rather than a more principled denunciation of the
employment of an unacceptable methodology leading to poor judging per se –
something which, by way of contrast, Gava attacks with no discrimination as to
whether the opinion is dissenting or otherwise.171 It is clear then, that Gava’s ‘hero- judges’ need not be dissenters – just as clear as Chief Justice Gleeson’s insistence
that, conversely, dissenters are not heroes.172
168 Frank H Easterbrook, ‘Ways of Criticizing the Court’ (1982) 95 Harvard Law Review 803, 811; see also Coper, above n 159, 294. For this reason, Justice Kirby asserts that the ‘demand by observers for unanimity amongst judges is often infantile’: above n 94, 1. 169 Patapan, above n 166, 192. 170 Ibid. I have identified elsewhere the incongruity of this assertion from Patapan given his criticism of some of the majority judgments from the High Court across this period: see Andrew Lynch, ‘The High Court – Legitimacy and Change’ (2001) 29 Federal Law Review 295, 313. 171 Gava, above n 10. 172 ‘Only someone given to mock heroics, or lacking a sense of the ridiculous, could characterise differences of judicial opinion in terms of bravery’: Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (Speech delivered to Australian Bar Association Conference, New York, 2 July, 2000) 7. Of course there is nothing preventing the two overlapping (even if only in the dissenter’s own mind), hence Gleeson CJ’s deflationary remarks, but the link is far from
67
Of course, even having said all the above, there are a few cases where a split bench clearly did not reflect well on the authority of both the decision reached and the institution concerned.173 The most dramatic example which comes to mind is the
United States Supreme Court’s 5:4 split in the case of Bush v Gore.174 That the case had such momentous consequences and involved the court in what could only be seen as an abject failure of the democratic process, presents it as one where an aura of
‘monolithic solidarity’ might have been more desirable than not.175 An Australian example on a par with that case is harder to produce, though arguably the controversy that greeted the result in Wik Peoples v Queensland176 was enhanced in no small way by it being a knife-edge decision.
However, as comforting as unanimity might be in such cases, there is no denying that it remains a false comfort. Learned Hand’s desire is, fundamentally, a largely unattainable one:
The High Court is not a monolithic institution. It is at any time a group of seven
justices who are obliged to hear and determine, according to their individual
incontrovertible – or even necessary. It may, however, be understood as an extension to the legal world of the perception of dissent as heroic across the history of humankind, though Sunstein reminds us that in that wider context there is a not insignificant ‘dishonour roll of dissenters’ as well: Sunstein, above n 62 6-7. 173 Even Llewellyn, who thought separate opinions probably elevated the esteem in which the judiciary were held, was prepared to concede a possible exception for cases in which a sharply divided panel strikes down a statute as unconstitutional: above n 77 59-60. 174 531 US 98 (2000). Of which Justice Stevens said, ‘One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent’: at 128-9. 175 Certainly, this conclusion is affirmed when one considers the strength unanimity lent decisions like those of Brown v Board of Education 347 US 483 (1954); Cooper v Aaron 358 US 1 (1958); and United States v Nixon 418 US 683 (1974). Caminker, above n 77, 2321-2, considers what motivates the members of a court to form ‘supermajority coalitions’. 176 (1996) 187 CLR 1.
68 judgment, particular cases. The justices may have conflicting views on the role of
the Court as well as on the principles of law which should govern the case in
hand. It would therefore be a serious mistake to assume that, in deciding a case,
the Court as an institution embarks upon any general policy with a view to
achieving a particular goal, political or otherwise, external to the disposition of
that case.177
From this statement of Sir Anthony Mason’s, it seems that any solidarity which may be achieved is to be seen as a purely accidental convergence of views and indeed, we might well be suspicious of unanimity – especially in high-profile, controversial cases. As Evans argued, dissents ‘must be, to the thoughtful reader, as well as to the litigants, proof conclusive that the questions presented were thoroughly and seriously considered and this conviction should go far to develop respect’.178 If unanimity is to be seen as largely serendipitous, then incidents of dissent, while they may often be regretted, would seem impervious to admonishments of the sort offered by Learned
Hand and others in the same vein.
A final word needs to be added, however, in respect of the phenomenon of persistent dissent. This shall be more fully considered in the next part of this chapter, but the particularly strategic characteristic of this practice means that it can be seen to amount to a deliberate challenge to the authority of the court and thus attract the severest reproach. Chief Justice Taft of the Supreme Court took the view that judges who
177 Sir Anthony Mason, ‘Foreword’ in Patapan, n 166, viii-ix. 178 Evan A Evans, ‘The Dissenting Opinion – Its Use and Abuse’ (1938) 3 Missouri Law Review 120, 129. See also Scalia, above n 77, 35.
69 refused to conform were ‘constitutional lawbreakers’.179 Evans recited the view that
dissenters actually encouraged lawlessness among the populace.180 Writing on
Justices Deane and Gaudron’s repeated dissents in some High Court cases in the early
1990s, Justice Keith Mason similarly reflected:
No one expects a judge to give assent to that which he or she believes to be
wrong. But is there not a duty on an individual judge to follow “the law” as
declared by the court? Surely it is not overstating it to say, with Thurgood
Marshall J that “obviously, respect for the rule of law must start with those who
are responsible for pronouncing the law”? Why is a dissenting judge who
declines to follow the majority view declared in an earlier case any different to
the journalist who out of conscience defies the law in refusing to reveal a
source?181
The maintenance of a view in repeated defiance of the Court’s earlier holdings clearly
overlays the general issue of dissent with a sharper degree of complexity. The hostile
interaction between the delivery of such opinions and the pervasive influence of precedent may be seen, in those circumstances, to invest calls for restraint and solidarity with a greater claim for judicial obedience. However, as shall be seen, the problem of persistent dissent raises the spectre of other duties beside mere fealty to the status quo. It is at this juncture that dissent presents itself at its most challenging to judicial method and the values inherent in the law.
179 See Voss, above n 77, 650. Cf Kelman, above n 148, 255: ‘A dissenting justice who exercises that prerogative can be accused of stubbornness, lack of collegiality, or undue pride of opinion, but none of that makes him a “constitutional lawbreaker’. 180 Evans, above n 178, 125. See also Learned Hand, The Bill of Rights (1958) 72. 181 Justice Keith Mason, ‘The Rule of Law’ in Finn, above n 22, 138.
70
IV THE RELATIONSHIP BETWEEN DISSENT AND PRECEDENT
In the main, dissenting judgments are not so diametrically opposed to the concept of
stare decisis as observers may be tempted to assume.182 This is due to the largely
neutral nature of what is classed as a minority opinion. The point has been made
earlier that dissent is a relational concept rather than one of substance or form.183 As
such, it is entirely possible for a dissenting view to be in staunch defence of the authority of past precedents and the principle at large.184 Such incidents lend support
to the assessment that precedent is itself, ironically, one of the more profound sources
of disagreement amongst judges.185
Nevertheless, it is important to discuss the doctrine of precedent in any examination
of dissent for two reasons in particular. Firstly, the presence of dissent in a decision
may constitute a handicap to its authoritative value and render it vulnerable to
subsequent overruling. Secondly, and to return to the problem identified at the close
of the preceding section, the practice of persistently rejecting the view of a majority of
the court does actually imbue the ability to dissent with a character which renders it
an instrument of hostility to the values of stare decisis. Before considering both these
intersections between dissent and precedent, some word is needed on the applicability
of the latter concept generally in courts of last resort.
182 For instance, in the first of his topical series of articles on the United States Supreme Court of the day, Palmer opened with a very overt link between the two, saying: ‘The prestige of the Court is threatened, if it has not already been seriously impaired, by recent divisions of opinion within the Court and its reversal of precedents that had come to be regarded as enduring landmarks of the law’: Ben W Palmer, ‘Dissents and Overrulings: A Study of Developments in the Supreme Court’ (1948) 34 American Bar Association Journal 554. 183 Above nn 88 and 124. 184 For two examples, see the judgments of the minorities in Trident General Insurance v McNeice Bros (1988) 165 CLR 107, 129-31 (Brennan J); Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346, 448 (Kirby J). 185 Mason, above n 76, 532. See also, Ben W Palmer, ‘Dissension in the Court: Stare Decisis or “Flexible Logic”?’ (1948) 34 American Bar Association Journal 887.
71
A Precedent as a means of resolving disagreement in law vs. Judicial choice in
courts of last resort
While the constraining influence of precedent is central to its origins and purpose, the development of the modern doctrine depended very much on its use within a clearly structured hierarchy of courts.186 Consequently, the rigidity normally associated with the ‘rules’ of precedent did not actually take hold until towards the end of the 19th century. It was at this time, with a clearly tiered court system, and in the context of other changes to the profession,187 the House of Lords laid down restrictions upon its ability to depart from even its own decisions.188 Though this practice was subsequently abandoned by the mid-20th century, it demonstrates the earnestness with which precedent was treated by those courts most influential upon the Australian legal system at the time of federation.
While, as a consequence, the High Court of Australia developed a corresponding deference to the decisions of English courts in respect of the common law, it never
186 William Holdsworth, A History of English Law – Vol. XII (1938) 146; and Theodore FT Plucknett, A Concise History of the Common Law (5th ed, 1956) 350. Sunstein has argued that the whole hierarchical system simply formalises the role which informational cascades play in decision-making – in determining an appeal, a court is influenced by the signals given by those lower courts who have considered the matter: Sunstein, above n 62, 59-65. I think there are difficulties with the example chosen here by Sunstein – most obviously that such is clearly not the case when an appeal is allowed. But I do think the cascade effect of precedent handed down the hierarchy is an undeniable function of the doctrine and I voice no disagreement with Sunstein’s thesis that ‘judges are not lemmings, but they certainly follow one another’: 55. A significant part of this must also be the regard in which certain members of the judiciary are held by their successors as to which see Russell Smyth, ‘Who gets cited? An Empirical Study of Judicial Prestige in the High Court’ (2000) 21 University of Queensland Law Journal 7. 187 Chief amongst these were an improvement in the reliability of court reporting and also the enhanced respectability of the House of Lords as a judicial body after the exclusion of its lay members from participating in legal decisions: see Plucknett, above n 186; Holdsworth, above n 186, 146-58; and Patrick Parkinson, Tradition and Change in Australian Law (2nd ed, 2000) 70- 1. 188 London Tramways Co Ltd v London City Council [1898] AC 375. The Court of Appeal took this step in respect of its own decisions much later in Young v Bristol Aeroplane Company Ltd [1944] KB 717. That decision stills determines practice in that court: Davis v Johnson [1979] AC 264.
72 followed the practice of considering itself bound by its own decisions.189 This was particularly so in respect of matters of constitutional interpretation, as made clear by the well-known statement of Justice Isaacs in Australian Agricultural Co v Federated
Engine-Drivers and Firemen’s Association of Australasia:190
The oath of a Justice of this Court is “to do right to all manner of people
according to law.” Our sworn loyalty is to the law itself, and to the organic law
of the Constitution first of all. If, then, we find the law to be plainly in conflict
with what we or any of our predecessors erroneously thought it to be, we have,
as I conceive, no right to choose between giving effect to the law, and
maintaining an incorrect interpretation. It is not, in my opinion, better that the
Court should be persistently wrong than that it should be ultimately right.
Whatever else may be said with respect to the reconsideration of former
decisions - and it is unnecessary here to consider the principles upon which the
Court should act in particular cases - so much at least emerges as is undoubtedly
beyond challenge, that where a former decision is clearly wrong, and there are
no circumstances countervailing the primary duty of giving effect to the law as
the Court finds it, the real opinion of the Court should be expressed. In my
opinion, where the prior decision is manifestly wrong, then, irrespective of
consequences, it is the paramount and sworn duty of this Court to declare the
law truly.
This should not be taken to mean that the High Court has played fast and loose with its past decisions. On the contrary, the connection between the institution and the
189 Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576, 582; and Lange v ABC (1997) 189 CLR 520, 554. 190 (1913) 17 CLR 261, 278-9.
73 English legal system was sufficiently tangible for much of the 20th century as to result in a sharing by the former of the latter’s core values, even if it chose not to take the ultimate step of enshrining them in a formal rule. Thus, the High Court operated in a milieu where precedent was accorded great respect – not least because in many matters it regarded itself bound by the decisions of other courts – yet simultaneously it
had uninhibited freedom to control the development of its own jurisprudence,
particularly with respect to constitutional matters. Of course, now that the High Court
of Australia is at the absolute apex of our legal system, it defers to the decisions of no
other court and is left entirely to its own devices in weighing competing authorities
(but something of a desire for the old (quasi-)constraints may be seen in the self-
imposed restriction upon reconsideration of an earlier decision unless leave to
challenge it has been granted by a majority).191
Additionally, the nature of the cases which make their way to final courts presents its
own problems for the adherents of a strict application of the doctrine of precedent.
They tend to be ‘hard cases’ to which no pre-existing authority is readily applicable.
In such instances the scope of judicial choice is substantially increased in the process
of trying to reason a solution by means of analogy.192 That these choices are far from
simple – hinging as they often do upon extrinsic values – only further explains why
191 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311. Two members of the Court have rejected this limitation entirely (Justices Deane and Kirby in, respectively, Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311, 316; and Brownlee v R (2001) 207 CLR 278, 314-5 – their Honours’ objections are considered in Chapter Five). Additionally, Jackson has pointed out that arguments challenging past authorities have occasionally been heard without leave to do so having been granted as a preliminary step: David F Jackson, ‘The Law making Role of the High Court’ (1994) 11 Australian Bar Review 197, 208. Of course, even acceptance of this practice does not forbid the overruling of an earlier precedent in the way that the principle of stare decisis demands. 192 Coper, above n 159; Easterbrook, above n 168, 805-7; McHugh, above n 22, 44-48; Julius Stone, Precedent and Law (1985) ch 5.
74 the Justices are likely to divide over the best approach.193 Even when a relevant precedent does exist, these factors may lend truth to that aphorism ‘hard cases make bad law’ – and the judges deciding in the present may find irreconcilable the values which are evident in the Court’s previous work.
The point of this is to emphasise that the doctrine of precedent has been accorded a chequered application in the High Court and is weakened in the context of final courts generally. The perceived result may be that the doctrine only exists as a constraint to be ignored or complied with at the discretion of the individual judge – in short, next to no constraint at all.194 But while this has been a significant criticism levelled by the
Realists and CLS movements, the fact remains that some cases, decried as unpalatable or even wrong, are nevertheless followed.195 And this is the surest indicator that precedent does matter.196 While it is perhaps tempting to swallow a chaos theory of
193 Alder, above n 1; Ben W Palmer, ‘Background for Dissensions: Pragmatism and Its Effects on the Law’ (1948) 34 American Bar Association Journal 1092; O’Brien, above n 54; Roscoe Pound, ‘The Theory of Judicial Decision’ (1923) 36 Harvard Law Review 641, 654; Pound, above n 11. With the arrival of the Human Rights Act 1998 (UK), the role of values has been decisively accommodated into the mainstream of the English legal tradition with Lord Browne- Wilkinson saying: The features of current judicial reasoning are therefore as follows: First, the actual decision is based on moral, not legal factors. Second, these moral reasons are not normally articulated in the judgment. Third, the morality applied in any given case is the morality of the individual judge. Nicolas Browne-Wilkinson, ‘The Impact of Judicial Reasoning’ in Basil S Markesinis (ed), The Impact of the Human Rights Bill on English Law (1998) 21. It is precisely statements of this sort which fuel opponents of enhanced judicial review under a Bill of Rights: see Waldron, above n 27, 180-7 especially. 194 For examples of such an attitude, see Charles J Cooper, ‘Precedent and Principle in Constitutional Adjudication’ (1988) 73 Cornell Law Review 401, 408-9; Patrick Higginbotham, ‘The Conflict between Text and Precedent in Constitutional Adjudication’ (1988) 73 Cornell Law Review 411; and Stephen Reinhardt, ‘The Conflict between Text and Precedent in Constitutional Adjudication’ (1988) 73 Cornell Law Review 434. 195 The examples considered in Part III of this chapter are strong illustrations of the pull which precedent will exert upon even the most reluctant of justices. 196 As Bennett has said, ‘if stare decisis means anything interesting at all, it must mean that a precedent has a claim on our obedience even though we disagree with its substance’: Robert W Bennett, ‘A dissent on dissent’ (1991) 74 Judicature 255, 256; see also Harold J Spaeth and Jeffrey A Segal, Majority Rule or Minority Will – Adherence to Precedent on the US Supreme Court (1999) 3. So far as evaluating judicial performance through precedent, Goldsworthy asserts: ‘It is what judges do in [a] minority of cases, when the law dictates a result which they believe is unjust or contrary to the public interest, which most clearly indicates whether or not
75 legal method, Bennett’s reasons for insisting upon the importance of precedent seem to have direct relevance for the High Court:
There is evidence that precedent does matter a great deal, even in the United
States Supreme Court. First, a number of the justices say it does. Second, anyone
who has ever argued before the Supreme Court knows that an enormous amount
of time and energy is devoted to dealing with precedent, to relying on it,
distinguishing it, urging its overruling. That behaviour is quite irrational if in fact
precedent does not matter at all…From the earliest days of legal education,
precedent becomes something like a vocabulary of the law, providing a
framework in which discourse is made possible. That vocabulary does not answer
the question posed, but it is both a tool for doing so and a decided influence on
the shape of the answers given.197
So, we are left with courts of last resort which have scope for choice in adjudication
but yet which deal routinely in the ‘vocabulary’ of previous authority. The safest conclusion does indeed seem to be that rather than being hidebound by precedent or rampantly creative, these courts tread a middle road. But the advantage of an extreme position is that it enables definition. In discarding its absolutist stance towards precedent in 1966, the House of Lords proclaimed its intention to ‘depart from a previous decision when it appears right to do so’.198 As subsequent experience was to show, the simplicity of that language is only matched by the supreme confidence that
they are extreme legal realists’: Jeffrey Goldsworthy, ‘Commentary’ in Coper & Williams, above n 108, 260. 197 Bennett, above n 196, 257. Stone would agree with Bennett on the use of precedent as a ‘vocabulary’ through which judicial choice is made: Stone, above n 192, 83. 198 [1966] 3 All ER 77.
76 it might actually mean anything in substance.199 Their Lordships should have known from an examination of other final courts, such as those of Australia and the United
States, that to declare a flexible approach to precedent is one thing. Knowing how to strike the balance is quite another.200
B Factors in favour of overruling – and the likelihood of dissent
Those scrutinising the decisions of courts of last resort would be hard pressed to discern any clearly consistent approach to departing from past authority.201 This is despite the efforts of members of these courts from time to time to articulate guidelines governing the overruling of past decisions. The High Court of Australia has indicated a greater preparedness to overrule in constitutional matters:
…the Court will re-examine a decision if it involves a question of ‘vital
constitutional importance’ and is ‘manifestly wrong’. Errors in constitutional
interpretation are not remediable by the legislature, and the Court’s approach to
constitutional matters is not necessarily the same as in matters concerning the
common law or statutes.202
199 Julius Stone, ‘The Lords at the Crossroads – When to “Depart” and How!’ (1972) 46 Australian Law Journal 483. See also Julius Stone, ‘1966 and All That! Loosing the Chains of Precedent’ (1969) 69 Columbia Law Review 1162. 200 As Easterbrook said, ‘There we have it – a grand balancing test, with neither a maximand nor weights to produce a decision when the criteria conflict, as they always do’: Frank H Easterbrook, ‘Stability and Reliability in Judicial Decisions’ (1988) 73 Cornell Law Review 422, 422. 201 Henry Paul Monaghan, ‘Stare Decisis and Constitutional Adjudication’ (1988) 88 Columbia Law Review 723, 753. 202 Lange v ABC (1997) 189 CLR 520, 554 (the Court). This is not to suggest that the Court excludes the possibility of departing from precedent in non-constitutional matters (see John v Commissioner of Taxation (1989) 166 CLR 417, 438-40), but rather the possibility of legislative intervention makes it less inclined to do so. In its willingness to overrule past decisions, similar significance is attached by the United States Supreme Court to the limited ability to amend the constitutional document: Burnet v Coronado Oil & Gas Co 285 US 393, 407-8 (1932) (Brandeis J); Thomas v Washington Gas Light Co 448 US 261, 272-3 (1980) (Stevens J).
77 But as Chief Justice Mason wrote:
The perennial problem is, of course, to arrive at the conviction that the old
decision is wrong. Many legal questions are so finely balanced that the balance
in favour of one answer rather than another is marginal.203
Given this difficulty, judges have tended to require the consideration of other factors in addition to just a belief that the previous decision is incorrect. This is evident even in Justice Isaacs’ insistence that the decision be ‘manifestly’ wrong204 – though this qualification clearly adds very little.205 In what is essentially a two stage process, substantive wrongness is simply a precondition for overruling, which is in turn determined by a number of factors or tests which illuminate the precedential
‘propriety of maintaining a prior decision’ or not so.206 These precedential criteria include, but are by no means limited to, the age of the decision, its place within a
203 Sir Anthony Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93, 111; see also text accompanying n 161. 204 See quote accompanying n 190. On this point, Harris has effectively called Isaac J’s bluff by asking: ‘Why should not ‘mere’ wrongness be enough to warrant departing from an earlier decision?…If there is such a knowable entity as the organic law of the constitution, should not loyalty to it be overriding every time? If there is no such entity, is ‘loyalty’ talk plain moonshine?’: JW Harris, ‘Overruling Constitutional Interpretations’ in Sampford & Preston, above n 22, 232. 205 Queensland v Commonwealth (1977) 139 CLR 585, 621 (Aickin J). See also Monaghan, above n 201, 762 : ‘Whether a precedent is seen as clearly wrong is often a function of the judge’s self- confidence more than of any objective fact’. Note, however, Nelson’s reinvigoration of this debate by arguing that a precedent should be overruled when it can be shown to be ‘demonstrably erroneous’, by which he means not just that today’s court would have reached a different result, ‘but also that the prior court went beyond the range of indeterminacy created by the relevant source of law’: Caleb Nelson, ‘Stare Decisis and Demonstrably Erroneous Precedents’ (2001) 87 Virginia Law Review 1, 8. 206 Larry Alexander, ‘Constrained by Precedent’ (1989) 63 Southern California Law Review 1, 59; Gian Boeddu and Richard Haigh, ‘Terms of Convenience: Explaining Constitutional Overrulings by the High Court’ (2003) Federal Law Review 167, 187 and 192; and Bryan Horrigan, ‘Towards a Jurisprudence of High Court Overruling’ (1992) 66 Australian Law Journal 199, 209.
78 stream of authority, differences of opinion within its majority, and the degree to which the decision has been relied upon by the community.207
Dissent is relevant in two distinct and rather contradictory ways to this topic. First, given the range of factors which may determine the weight to be accorded to stare decisis, the fact that an earlier decision was reached over protestations from a minority of the court might assist to weaken maintenance of it as an authority.208
Admittedly, however, judicial pronouncements have tended to focus upon a lack of common reasons within the majority209 or a split amongst a bench not fully constituted,210 rather than the presence of dissent per se. The reason for this would be the danger of simple disagreement leading to a subsequent overruling due only to a change in the composition of the Bench which tilted the balance towards the minority
– something which judges are usually adamant should not be a factor inducing change in the law.211 The United States Supreme Court has not been quite as careful in
207 Horrigan identifies ten broad categories of precedential criteria which he groups under three general headings: (i) the nature of the decision in question; (ii) the nature of the subject-matter; and (iii) the consequences of overruling: above n 206, 211-16. Boeddu and Haigh have recently considered the effects of individual rights, governmental reliance and public inconvenience and perception in the overruling of constitutional cases: Boeddu and Haigh, above n 206, 171-86. See also RC Springall, ‘Stare Decisis as Applied by the High Court to its Previous Decisions’ (1978) 9 Federal Law Review 483; and Leslie Zines, The High Court and the Constitution (4th ed, 1997) 433-44. For a list of factors derived from consideration of English, as well as Australian, cases, see Lyndel V Prott, ‘When Will a Superior Court Overrule Its Own Decision?’ (1978) 52 Australian Law Journal 304, 314-5. 208 See the comments of Latham CJ in Cain v Malone (1942) 66 CLR 10, 15; Gibbs J in Cullen v Trappnell (1980) 146 CLR 1, 10; Mason, above n 202, 101; and Patapan, above n 166, 185. 209 Re Tyler; Ex parte Foley (1994) 181 CLR 18, 35 (Gaudron J) cf. 37-8 (McHugh J); Re Minister for Immigration and Multicultural Affairs; ex parte Te (2002) 212 CLR 162, 170 (Gleeson CJ); 186 (McHugh J); 200 (Gummow J); 220 (Hayne J). 210 Baker v Campbell (1983) 153 CLR 52, 103 (Brennan J). Though not even this was enough in Perpetual Executors and Trustees Association of Australia Ltd v FCT (1949) 77 CLR 493, 496 (the Court). The even split in the six-member bench presiding in Gould v Brown (1998) 193 CLR 346 caused debate over its precedential value very shortly thereafter in Re Wakim; Ex parte McNally (1999) 198 CLR 511 with that divide being best observed by comparing the comments of Justices Gummow and Hayne (at 570-2) with those of Justice Kirby in lone dissent (at 598). 211 The King v The Commonwealth Court of Conciliation and Arbitration and the President Thereof and The Australian Tramway Employees Association, Ex Parte The Brisbane Tramways Company Limited, Ex Parte The Municipal Tramways Trust Adelaide [No. 1] (The Tramways Case) (1914) 18 CLR 54, 69 (Barton J); and Queensland v Commonwealth (1977) 139 CLR 585,
79 resisting the temptation to use the presence of dissent as an Achilles heel, leading
Voss to conclude of that body that ‘dissents are not only a blaring difference of opinion by a justice, but are now a speeding vehicle for reconsideration of precedent’.212 From the foregoing Australian authorities, such an assessment is not readily applicable to the dissenting opinions of the High Court. Indeed, dissents may be of as little importance in undermining a precedent, as unanimity is in protecting one.213
This ambiguity about the relevance of dissent as a factor in overruling reflects the frustrating fluidity of all the precedential considerations generally.214 Dixon CJ’s statement that the ‘Court has adopted no very definite rule as to the circumstances in which it will reconsider an earlier decision’215 is as true today as it was over fifty years ago.216 And it is in this regard that we come to the second important way in which this topic relates to dissent. The inherently unstable application of stare decisis in a final court manifests the differing emphasis which judges ascribe to the incommensurable values of consistency, certainty, flexibility and change.217 Thus,
600 (Gibbs J). See also Lord Wilberforce’s clarification of the Practice Statement of 1966 in this respect at Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345, 1349. Cf. Queensland v Commonwealth (1977) 139 CLR 585, 594 (Barwick CJ); and Transcripts of Proceedings, Levy v Victoria (High Court of Australia, Dawson J, 6 August 1996). The tension between this ideal and the reality that new members of a Court will legitimately bring a new perspective to bear on the law is perhaps best captured in a succinct paragraph of Justice Kirby’s opinion in Re Wakim; Ex parte McNally (1999) 198 CLR 511, 597-8. 212 Voss, above n 77, 660. Voss cites Payne v Tennessee 501 US 808, 829 (1991) (Rehnquist CJ). 213 Note, by way of example, the willingness of three members of the majority in Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 to dispatch Teori Tau v Commonwealth (1969) 119 CLR 564 to the annals of history. 214 Indeed in light of this, Keyzer postulates that ‘changes in the composition of the bench may well be the most reliable indicator that constitutional change is likely’: Patrick Keyzer, ‘When is an issue of ‘vital constitutional importance’? Principles which guide the reconsideration of constitutional decisions in the High Court of Australia’ (1999) 2 Constitutional Law and Policy Review 13, 18. 215 Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, 243-4. 216 See Telstra Corporation Ltd v Treloar (2000) 102 FCR 595, 602 (Branson and Finkelstein JJ). 217 Cooper, n 194, 404; Easterbrook, above n 200, 423; Mason, above n 203, 111; Zines, above n 207, 443-4.
80 questions of precedent go straight to the heart of the core area of judicial choice and
sharp divisions among the judges are only to be expected, as each necessarily pursues
an individual balancing of those values.218
C Sustained defiance of precedent – the practice of persistent dissent
Nowhere is the discord over values so blatant as in the refusal by a minority of judges
to adhere to a precedent arrived at or maintained by their brethren. The practice of
persistent dissent evinces a clear favouring of the values of change and reform, in
addition to a stubborn belief that the dissenter’s view is the correct one, over those of
predictability and stability. Justice Isaacs’ declaration that ‘sworn loyalty’ to the law
demands that it be given effect despite ‘conflict with what we or any of our
predecessors erroneously thought it to be’ makes plain the way in which he ranks the
values under discussion.219 His continued dissent over the legitimacy of the implied reserved state powers and intergovernmental immunities doctrines demonstrated the consequences of this conviction – a court repeatedly fractured over the same issue, and arguably, a weakened strain of authority vulnerable to overthrow under changed conditions.220
Despite the earlier comments about room for judicial choice, it appears that there are some issues where Justices are convinced that ‘the question on analysis is capable of
218 Alder’s analysis of the causes of dissent lying in the clash of incommensurable values is directly relevant to this point: Alder, above n 1, 227-33. Horrigan’s stance would seem to be that this is not good enough and that there should be devised a ‘measure for commensurating these competing demands of flexibility and certainty’ (at 214) in order to settle ‘determinate guidelines for High Court overruling and other precedential issues’ (at 216): Horrigan, above n 206. Boeddu and Haigh suggest that ‘while no exact guidelines can be formulated, it behoves the Court to be direct and avoid reasoning by the use of easy, but unhelpful, terminology’: above n 206, 194. 219 Above n 190. 220 See generally, John Goldring, ‘The Path to Engineers’ in Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997) 1-45; and Zelman Cowen, Isaac Isaacs (1993) 153-62.
81 but one answer’.221 In addition to the example of Justices Isaacs and Higgins in the
cases leading to Engineers,222 consider again the judgments of Chief Justice Barwick
and Justice Aickin in the Second Territory Senators Case.223 Another prominent pattern of persistent dissent was set by Justices Deane and Gaudron in the early
1990s.224 Focusing upon the legal values of the individual judges themselves would
seem to be just as important as identifying the substantive issues which may give rise
to a refusal to follow past authority. A belief that the present law is not as it ought to
be is one thing and easy enough to come across – what drives the persistent dissenters,
and differentiates them from their colleagues, is the refusal to be swayed by any of the
precedential criteria as a basis for upholding that law.225 Between the ‘organic law’
and the precedents there can be no contest – the individual’s sense of duty as a judge
outstrips any gains from institutional consistency. This disparity in judicial outlook is
understandably a source of frustration to those following the court’s work:
What makes it difficult, and very unsatisfactory, is that not all of our appellate
judges play by the same rules. With the current High Court, it is often
impossible to predict whether individual justices will accept the ruling of the
majority in an earlier case as representing the law unless and until it is
reconsidered by the High Court itself.226
221 Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1, 14 (Mason J). 222 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. 223 Above n 147. 224 These Justices advanced a view of s 118 of the Commonwealth Constitution in the case of Breavington v Godleman (1988) 169 CLR 41 which they maintained in the face of contrary majority opinion in McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, Stevens v Head (1993) 176 CLR 433, and Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463. Deane and Gaudron JJ showed similar persistence in another line of cases concerned with the jurisdiction of military tribunals: Re Tracy; Ex parte Ryan (1989) 166 CLR 518, Re Nolan; Ex parte Young (1991) 172 CLR 460, and Re Tyler; Ex parte Foley (1994) 181 CLR 18 (in the latter case, cf. McHugh J). These decisions are discussed in Chapter Five. 225 See Zines, above n 207, 444. 226 Mason , above n 181, 137.
82
An array of different approaches in this regard is made possible by the lack of any strong principle – not just as to the criteria for overruling past decisions – but governing the true relationship which is to exist between the twin authorities of constitutional text and precedent.227 Waldron has highlighted the circularity of the
persistent dissenter’s appeal to some higher principle (in constitutional matters, it is
generally what is required by the constitutional text – as interpreted, of course, by the
dissenter) in order to resist stare decisis. The basis which the dissenter gives for
refusing the law as stated by the rest of the Court is actually possessed of no special or higher status, but is necessarily going to be the very faultline over which the Court has failed to find consensus in the first place.228 On one view then, we could say that such reasoning is worthless in justifying defiance of precedent since it provides no real response to the majority at all other than to entrench an approach which they have already rejected on its merits.
However, the Court’s emphasis upon the difficulty for any other actor to remedy a constitutional error as a consideration supporting a greater willingness to depart from earlier decisions,229 has provided rhetoric to which persistent dissenters can usefully
appeal. Habermas has said that in such circumstances ‘the outnumbered minority give
their consent to the empowerment of the majority only with the proviso that they
227 Easterbrook says, ‘Text and precedent are an old pair. So old it should frighten us that we do not have a theory of their interaction’: above n 200, 422. 228 ‘Justice, rights, and the Constitution cannot trump the majority position, then, because justice, rights, and the Constitution, and their bearing on the case at hand, are exactly the things that the majority and the minority disagree about’: Waldron, above n 40, 221. 229 Above n 202.
83 themselves retain the opportunity in the future of winning over the majority with
better arguments and thus of revising the previous decision’.230
One way to break the circuit which gives rise to this attitude might be to reconsider the strength of the assumption that the difficulty of constitutional amendment justifies weaker regard for past precedent – which seems to offer some excuse, if not perhaps actually account for, the practice of sustained dissent. Thus, it could be argued that the constraints implicit in the adoption of a rigid constitutional text and the exercise of judicial review by the superior court would actually be more logically complemented by a stringent approach to constitutional precedent.
If the text itself is designed to remain basically stable, why should that fact support a case for shifting judicial interpretations of it? Heightened judicial discretion in whether constitutional cases need to be followed at the expense of some new approach, seems discordant with the rigorous conditions laid down for legislative amendment.231 Indeed, it may be said to work against the integrity of the formal amendment process and explain the lack of public engagement with a written
Constitution perceived to be under the control of the judiciary.232 Then there is the
matter of the authority recognised by judicial review to state the law with finality.
Alexander points out that since Marbury v Madison,233 constitutional systems employing judicial review have done so consciously accepting ‘the risk of making an incorrect judicial interpretation final in exchange for the benefit of settling disputes
230 Habermas, above n 24, 179. 231 Making this point in a more general sense, see Craven, ‘Judicial Activism in the High Court – A Response to John Toohey’ (1999), above n 22, 218. 232 Easterbrook, above n 200, 430-1. 233 5 US 137 (1803).
84 over constitutional meaning’.234 By extension, why should not the Court’s decision constrain also itself at some later time?
In suggesting that the position which the High Court has taken with respect to the weakness of precedent in the constitutional context might require rethinking in order to discourage persistent dissent, care should be made not to overstate the level of restraint being urged. Change remains both desirable and inevitable. It is not suggested that the Court’s decisions be unquestionably binding upon itself. There is little in the history of the judicial institutions of this country to support such an approach.235 Rather, the subject of attack is simply the Court’s repeated assertions that constitutional cases are more vulnerable to overruling than other precedents and that this is justified by the practical difficulty of the legislature responding to a decision which it dislikes through amendment of the text. This traditional approach seems to unnecessarily set the Constitution and earlier caselaw interpreting it into competition with each other. While some level of tension between the two is probably unavoidable, it is possible to argue that constitutional coherence supports the present
Court at least according previous cases all the authority due to decisions in other areas of the law.
Of course, giving an equal weight to stare decisis in constitutional cases as in other decisions, cannot be expected to staunch a stream of persistent dissent. Precedent is generally recognised as supremely malleable in the hands of different judges – inevitably we return to the different ordering of judicial priorities and values. If, for example, one’s view is that the doctrine’s ‘avowed office is to shelter error from
234 Alexander, above n 206, 57. 235 See Nguyen v Nguyen (1990) 169 CLR 245, 268-70 (Dawson, Toohey and McHugh JJ); and Telstra Corporation Ltd v Treloar (2000) 102 FCR 595, 602 (Branson and Finkelstein JJ).
85 correction’,236 then a willingness to disregard earlier authority to pursue what is
perceived to be the ‘correct’ interpretation is only to be expected.
The persistent dissenter is motivated by two concerns. First, is their inability to join an opinion which they find unacceptable. Examples abound of course, but the most
striking to my mind as demonstrating absolute rejection (and indeed repulsion) of a majority view are the repeated dissents of Justices Brennan and Marshall of the
United States Supreme Court against the constitutionality of the death penalty.237 The
second incentive to maintain their opinion in minority is more purposive:
By acting on the basis of his own counterdoctrine, the dissident may imagine
that he is preventing the official position from settling into a marmoreal
hardness that will defy future displacement.238
Through repeated assertion of his of her views, the dissenting judge indicates more
than a hopefulness that their position will ‘appeal to the intelligence of a future
day’.239 Instead this is a deliberate strategy to ensure that the majority view is not
further entrenched by unanimity and that the door remains open for an about face in
the law at some later juncture. In this way, persistent dissent would seem particularly
driven by the considerations of development in the law which were canvassed in Part
II. Bennett, however, argues that those advantages are capitalised upon by the initial
filing of a dissent, and that in most cases subsequent protestations add very little. At
236 Cooper, above n 194, 404. 237 Michael Mello, ‘Adhering to Our Views: Brennan and Marshall and the Relentless Dissent to Death as a Punishment’ (1995) 22 Florida State University Law Review 591; Michael Mello, Against the Death Penalty – The Relentless Dissents of Justices Brennan and Marshall (1996). 238 Kelman, above n 148, 254. 239 Hughes, above n 66.
86 the same time, he argues that they inflict damage upon the courts and the law itself through consequent instability and unpredictability.240
Kelman, on the other hand, takes the following position:
The idea of keeping the issue alive is perfectly legitimate. Whatever its actual
effectiveness, it is not an act of institutional treachery on the part of the
dissenter. There is no ethical imperative that confines a dissenter to a single,
not-to-be-repeated statement of disagreement.241
What is striking in both these conflicting assessments is that neither Bennett nor
Kelman can actually say as a matter of fact what the impact of persistent dissent has been upon the jurisprudence of the United States Supreme Court. In fact, both authors seem to think the impression left by repetition is minimal.242 Bennett’s position is therefore easier to appreciate than Kelman’s, the latter waiving aside the institutional costs, while simultaneously admitting that the profits of the practice may be slim. But the fact that a minority of the United States Supreme Court has recently reaffirmed the
‘need for continued dissent’ from majority rulings in that court on issues of state
240 Bennett, above n 196, 260. 241 Kelman, above n 148, 254. Kelman has argued that the dissenting judge faces not two, but in fact, three options in subsequent cases. The choice is not so stark as to be between acceptance of the unpalatable precedent or its continued rejection through repeated dissent. Instead, the judge may temporarily acquiesce in the authority of the earlier decision ‘counting on time and tide to bring about a reconsideration of the precedent, reserv[ing] the right to join, indeed to rally, his colleagues, to an express reversal when the moment is opportune’: at 259. But there are several problems with the existence of a general path of ‘temporary acquiescence’ open to past dissenters. First, is the problem of identification of opinions conforming to this model. Second, the theoretical difficulty with the ‘third way’ is its ambivalent relationship with respect to precedent. Much more so than persistent dissent, temporary acquiescence would demonstrate a particularly cynical stance towards the values of stare decisis. 242 Ibid 255.
87 immunity from federal law,243 indicates that, at least from a judicial perspective, there is real value to be gained from taking such a course. Sunstein warns, ‘if members of the minority vacillate or fail to hold their position with clarity and confidence, they are less likely to be effective’.244 But these assertions would seem to warrant a proper
assessment of the consequences of persistent dissent in order to conduct a well-
rounded debate on these issues.
The experience of the High Court of Australia also invites greater scrutiny of this
phenomenon. To return to an example given above, it is interesting to speculate
whether the Court in the Engineers Case would have rejected the implied federal
doctrines had there not been a string of dissents from Justices Isaacs and Higgins
drawing attention to their inadequacies. Even accepting the influence of other
factors,245 the instability of the area which was achieved by the dissents of those two
Justices arguably assisted the Knox court in its resolve to reject the doctrines. More
generally, a persistent pattern of disagreement in other areas of the law (say, the
interpretation of sections 90 and 92 of the Commonwealth Constitution, to take two
troublesome examples) has prevented the locking in of any majority view for a
substantial period of time. The willingness of judges to adopt a line of persistent
dissent in recent times,246 indicates the perception that there must be some force in the
practice. Why some judges more than others are drawn to employ it, and whether it has led to development of the law as a consequence is the basis of discussion in
Chapters Five and Six.
243 Federal Maritime Commission v South Carolina State Ports Authority 535 US 743, 788 (2002) (Breyer J, with Justice Stevens, Justice Souter, and Justice Ginsburg, dissenting). 244 Sunstein, above n 62, 31-2. 245 Beyond the inherent weaknesses of the doctrines themselves, are the considerations raised by Justice Windeyer in Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353, 395-7. 246 Above, n 224 and n 243.
88
V CONCLUSION
The tradition of individual expression found in Australian courts has been an unquestioned and largely unexamined part of our inheritance from the English legal system. Wherever the common law took root, so too has the ability of judges to give independent voice. Even in the United States Supreme Court, despite Chief Justice
Marshall’s efforts, Justice Johnson kept alive the ability to dissent and increasingly, the ‘middle way’247 of judgment delivery resembles the seriatim practice.
The High Court of Australia has, on the whole, had few qualms about enjoying this
mode of opinion delivery. Indeed, for much of its first hundred years, one suspects
more than a little indifference from the Court as to the replication of effort which
manifold concurring judgments involved. This has been, as discussed, the source of a
deal of criticism in recent decades and while the Court assures us it is aware of the
problem and takes steps to alleviate it, its varying success in doing so may be
observed through consideration of the empirical results presented in Chapter Four.248
As part of this individualism, dissents have generally attracted little attention. When
they have, it has most often been in respect of particular Justices. But even then, the
dissenting itself is in many ways seen simply as a by-product of the novel judicial
approach being employed. The substance of disagreement has tended to obscure
examination of the act of disagreement itself. But, to reiterate, any attempt to
understand dissent on its own terms requires acknowledgment of its chiefly relational,
247 Bader Ginsburg, above n 65, 134. 248 See also Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years’ (2003) 26 University of New South Wales Law Journal 32.
89 rather than substantive, nature. And it is a disinclination to separate the two which
explains, one suspects, the absence of an Australian study simply of dissent itself.
In attempting to fill this gap, this chapter has necessarily drawn on comparative
materials fairly extensively. With the content of disagreement to one side, the role, functions and liabilities of dissent are germane to discussions of judicial method
generally. The American literature has trod much of this ground already, albeit in the much more politically charged atmosphere of the Supreme Court. To extend those principles and propositions to the High Court has simultaneously demonstrated their universality whilst also shedding light on a little appreciated, yet powerful, feature of
the Court’s work.
Dissent in Australia’s highest court presents largely the same advantages and activates
the same concerns as it does elsewhere. To recap those arguments, disagreement through individual expression arguably offers significant assistance in the legitimating
of judicial review through its demonstrated commitment to principles of deliberative
democracy; it provides a competitive grist to the production of judgments resulting in
better reasoned opinions and even, in some cases, the securing of consensus; and
importantly, it allows room for innovation so that the law can change and develop in a transparent and coherent way. Of course, there is a fine line between that last function and a profusion of individual opinions weakening both the state of the law and the authority of the court which declares it. It is for these reasons, that instances of judges holding back from their preferred view of a matter are not so difficult to find. For all the benefits of allowing disagreement to be aired by individuals, there remains a sense of harm that may be done to the institution as a consequence. This is especially so in
90 the case of a strain of persistent dissent over a particular issue – a phenomenon from which the High Court has not been immune. As was seen, the values of stare decisis are often to be found at the heart of a divided court. Although the doctrine of precedent aims to ensure consistency and stability in the law, its correct application in any given case cannot help but be a locus of disagreement – particularly so in a final court.
Certainly, it should be apparent from preceding sections of this chapter that dissent and minority concurring judgments are a central feature of multimember Australian law courts. To that extent, delivery of some ultimate verdict in favour or against the filing of separate judgments is futile. A capacity for individual expression is bound to be employed. While there is sense behind calls for less needless concurrences, minority judgments will continue to be filed regardless of any more generalised pleas for restraint. The frequency of such will vary depending, despite all pronouncements to the contrary, on the composition of the bench more than any other factor. For one can only expect a regularly unified institutional voice when the individuals of which the Court is comprised share a very similar outlook – not just on the many problems they face, but also as to the values inherent in questions of precedent and change.
Apart from that seeming an unlikely trick to pull off given the vagaries of the appointment process, it is not hard to imagine that such smug self-assurance across the Court might be a less than desirable thing. Dissent occurs over matters of substance, but in doing so it conveys a sense of the differences which exist between the legitimate methods of the Justices themselves. It affirms that a useful degree of
91 diversity is contained within the institution – which is often glossed over by
stereotyping of its members.249
It is human nature that generally opposition to the voicing of dissension would seem
only to be stirred when the commentator believes the minority’s view of a case is
wrong – were the positions reversed, she or he would just as likely be gladdened that the flaws of the majority are so effectively exposed by the dissentient at the same time. That is probably the key to a true appreciation of individual judgments voicing disagreement – they may cancel the ‘monolithic solidarity’ of the Court but in doing so they allow engagement by a wider audience with its decisions. The myths of infallibility and omnipotence are worth sacrificing in order to show that the capacity for deliberation in the wider community is matched by that found within the Court.
249 This is not to say that I find the present Court diverse enough, but simply that dissent indicates at least the presence of different perspectives despite the Court’s homogeneity. See further on this, Coper, above n 159, 293; and Sunstein, above n 62, 136-7.
92 CHAPTER THREE
DEFINING DISSENT: A METHODOLOGY FOR MEASURING JUDICIAL DISAGREEMENT IN THE HIGH COURT OF AUSTRALIA
I INTRODUCTION
The purpose of this chapter is threefold. Firstly, it argues the case for an empirical study of dissent in the High Court of Australia and explains why that is of value to the specific aims of this project. Secondly, it develops a clear and conceptually accurate methodology for the measurement of judicial disagreement on the Court. In doing so, it draws on comparable empirical studies, most notably that employed by the Harvard
Law Review in respect of the United States Supreme Court. That methodology requires adaptation in order to better respond to the judgment delivery practices of the
High Court. The limitations which inhere in any purely quantitative study such as this are explicitly stated. Lastly, in devising and demonstrating this framework for data collection, attention is necessarily turned to the core definitional features of judicial dissent. Through consideration of a number of case studies, the primarily relational nature of dissent as a feature of multimember courts will be made crisply apparent.
This third aspect to the chapter is the theme which underlies its more pragmatic discussion of the best approach to the statistical quantification of dissent.
Dissent may be seen to be relational in two particular senses. Firstly, and to build on much of what was said in the preceding chapter, a dissent is not made by one judge alone but rather may be more properly viewed as the outcome of a dialogue with his or her colleagues on the bench. This may seem obvious but the point acquires real force upon reflection of the occasional difficulty in clearly identifying solid majorities in final courts. Concurring opinions are, of course, other voices within the Court’s conversation and may contain quite marked minority viewpoints. As such, it is appropriate to consider them in this study also. But, as will be further explored, the two forms of judicial disagreement are not simply equivocal. The second relational aspect of dissent derives not simply from the interaction between the judges themselves but rather the more linear connection between an individual Justice and
‘the Court’ as an institution. Dissenting judgments are so classified through use of the court’s final orders as the ultimate yardstick of consensus. This relationship can be the far more elusive to appreciate given that the institutional position is necessarily derived from the synthesis of the various opinions of the Court’s members.
Occasionally, this produces results that, through their incoherence, draw attention to the individuals behind the Court’s institutional authority. The tension between these two players – the separate Justices and the institution they represent in combination – is crucial to understanding not just why minority opinions are heard, but also why some Justices choose to persist in voicing dissent.
In Part II of this chapter, the benefits of devising an empirical methodology for collecting statistics on dissent will be explained. It is submitted that this exercise is a valuable one beyond its obvious purpose of producing a tool to be employed by empiricists, and presents opportunities for the conceptual reappraisal of much that is taken for granted by legal scholars when they discuss judicial opinions. Additionally, the importance of this step to the present inquiry will be made clear.
In Part III it will be argued that deceptively simple understandings of ‘dissent’,
‘concurrence’, ‘majority’ and ‘minority’ can frequently pose theoretical and practical
94 challenges to those attempting either to statistically measure, or just generally appreciate, the extent of disagreement in the High Court. In designing a methodology which will best overcome these problems in an empirical study, whilst also ensuring consistency of application and the possibility of replication, the scheme employed by the Harvard Law Review for its annual statistics on the latest term of the United States
Supreme Court will be adopted as a starting point. The use of this source may be surprising to some, but as shall be seen, despite distinct differences between the judicial method of that court and the High Court of Australia, there remains a central point of commonality between the American understanding of dissent and that which prevails in this country. Also, it makes sense to consider a functioning classification system which has provided an acceptable empirical method for several decades. Of course, differences in the practices of the United States Supreme Court and the High
Court of Australia are noted, to the extent that they are relevant in their effect upon the applicability of the Harvard Law Review scheme to the latter’s decisions. The
Harvard rules are then suitably modified to enable accurate quantification of dissent in this jurisdiction.
The responsiveness of the methodology proposed is then considered in respect of a series of test cases in Part IV. There are two purposes to this exercise. Firstly it uses concrete examples to bear out many of the problems of complexity discussed up to this point. Secondly, it demonstrates how the method of classification adapted from the Harvard scheme will work in practice. Not all of the results which are produced may appear immediately logical or acceptable. The case studies highlight the inevitable limitations which must attach to any attempt to measure dissent in the High
Court. Many of these result from the relational nature of judicial disagreement and the
95 difficulty of classifying opinions due to a greater fluidity between majorities and minorities than is usually acknowledged.
Despite the occasional challenge to our conventional appreciation of judicial opinions presented by the methodology devised here, it will be argued in Part V’s conclusion to this chapter that it is the best means of ensuring reliable and valid statistics on dissent.
The fact that the methodology involves a degree of artificiality and that the results it produces will require some qualification does not mean that it is flawed – rather it illustrates the inevitable restrictions of empirical work generally as a means to understand facets of human experience. It is submitted that the useful outcomes from a statistical study of the High Court’s decision-making outweigh the unavoidable reservations about the employment of an empirical approach. On a general level, any attempt to understand dissension within the High Court of Australia which is not informed by data indicating the prevalence of dissent amongst its members and across its history suffers from an obvious deficiency. Specifically in the context of this thesis, it is impossible to assess the impact of disagreement upon the development of constitutional law without knowing which areas of that body of law have occupied the
Court’s attention and regularly produced division amongst the bench.
II THE VALUE OF AN EMPIRICAL STUDY OF DISSENT
A The Benefits of an Empirical Study of Dissent
Before embarking upon design and testing of a methodology to compile accurate statistics on dissenting opinions in the High Court – let alone applying it to produce results – it is worthwhile to be explicit about the merits of what is being proposed.
96 Essentially, this chapter is premised upon a belief that an empirical study of the phenomenon of dissent is valuable for two reasons.
Firstly, it has an intrinsic value as a tool to assist our understanding of the High Court as a collegiate judicial decision-making body. As distinct from the reasoning contained in the Court’s opinions – quite often elusive and subject to competing interpretations by commentators – statistics appear to provide certainty, at least in answering questions of a particular nature: How many cases have been decided over a period? On which areas of law? What is the level of agreement across the bench on various issues? What is the propensity of the members of the bench to unanimity? Is there any regular pattern of voting amongst the Justices of the Court on certain issues?
Which Justices dissent more frequently than others?
The importance of discovering such information lies in how it may assist us in appreciating the way in which the work of the Court is performed and the complexity of the legal controversies which face it. This feeds in to more familiar scholarship about the Court and the legal reasoning of its members. For example, an awareness of the number of cases decided over a period may well be relevant to those examining the efficiency of the institution’s procedures or the adequacy of its resources. A breakdown of those cases by topic may illuminate which areas of the law are in a state of relative instability or change at any given time. This information would certainly be supplemented by indications as to which issues tend to fragment the bench, and the degree of such disagreement. Strong evidence of regular voting blocs or alignments may point to the security of any particular view from being overthrown in the foreseeable future. And lastly, statistics on dissent may well attest to a marked
97 difference in methodology or ideology amongst the Justices which is ripe for scrutiny and comment by outsiders.
It is, of course, possible to discuss all of these sorts of matters without any reliance upon statistical research and, on the whole, I would agree that Australian legal scholarship has not suffered unduly for the absence. So keenly is the Court observed that I suspect we appreciate intuitively much of what is to be confirmed empirically.
That is not to say, however, that basic data about the High Court and its judges would not further enhance or support many of the arguments and hypotheses which are regularly aired in academic journals. In many instances, it would. Also, there remains, not just reassuring validation of our existing opinions and perceptions, but the potential for new avenues of research to be illuminated by statistical information.
The contribution which statistical approaches to judicial work may make in these ways is confirmed by the importance ascribed to it in other jurisdictions. The Harvard
Law Review’s employment of statistical analysis of the United States Supreme Court is the world’s oldest such study. Unbroken since the 1949 volume’s review of the
Supreme Court’s 1948 term, the idea of an annual empirical snapshot of the Court actually had its origins in an earlier series of articles by then Professor Felix
Frankfurter in co-authorship with various others.1 While that tradition is clearly a long
1 Felix Frankfurter and James M Landis, ‘The Business of the Supreme Court at October Term, 1928’ (1929) 43 Harvard Law Review 33; ‘The Business of the Supreme Court at October Term, 1929’ (1930) 44 Harvard Law Review 1; ‘The Business of the Supreme Court at October Term, 1930’ (1931) 45 Harvard Law Review 271; ‘The Business of the Supreme Court at October Term, 1931’ (1932) 46 Harvard Law Review 226; Felix Frankfurter and Henry M Hart Jr, ‘The Business of the Supreme Court at October Term, 1932’ (1933) 47 Harvard Law Review 245; ‘The Business of the Supreme Court at October Term, 1933’ (1934) 48 Harvard Law Review 238; ‘The Business of the Supreme Court at October Term, 1934’ (1935) 49 Harvard Law Review 68; and Felix Frankfurter and Adrian S Fisher, ‘The Business of the Supreme Court at October Terms, 1935 and 1936’ (1938) 51 Harvard Law Review 577. The Frankfurter articles broke off when their chief author was appointed to the subject of his study (Frankfurter was
98 and honourable one, much newer studies for much younger constitutional courts demonstrate a commitment to such an approach.2 The Supreme Court of Canada itself provides the public with a basic statistical breakdown of its decision-making.3 The traditional lacunae of any statistical information about the High Court of Australia is remarkable when one considers the earnestness with which such information is compiled (and the ease with which it may be accessed) in respect of these other final courts.
Secondly, even for those with no interest in basic empirical analysis of judicial work, the demands involved in determining a methodology have a value beyond the eventual gathering of data. Specifically, the avoidance of lax application of terminology and a keener awareness of the boundaries of traditional concepts of dissent and concurrence assists in stimulating a deeper appreciation of the nature, forms and range of disagreement on the bench. The complexity of the cases before the
High Court means that in many instances a simplistic approach will inhibit our understanding of dissension and its role within the judicial method generally.
appointed to the United States Supreme Court on 30 January 1939) and continuation of the series would have been, presumably, slightly unseemly. The series was concluded by his earlier co- author: Henry M Hart Jr, ‘The Business of the Supreme Court at October Terms, 1937 and 1938’ (1940) 53 Harvard Law Review 579. 2 See, for example, the annual analysis of the South African Constitutional Court since its inception: Jonathan Klaaren, ‘Constitutional Court Statistics for the 1995 Term’ (1996) 12 South African Journal of Human Rights 39; Jonathan Klaaren, ‘Constitutional Court Statistics for the 1996 Term’ (1997) 13 South African Journal of Human Rights 208; Lynn Taylor and Jonathan Klaaren, ‘Constitutional Court Statistics for the 1997 Term’ (1998) 14 South African Journal of Human Rights 277; Jonathan Klaaren et al, ‘Constitutional Court Statistics for the 1998 Term’ (1999) 15 South African Journal of Human Rights 256, read with (1999) 15 South African Journal of Human Rights 446; Allen Leuta et al, ‘Constitutional Court Statistics for the 1999 Term’ (2000) 16 South African Journal of Human Rights 364; Steven Budlender et al, ‘Constitutional Court Statistics for the 2000 Term’ (2001) 17 South African Journal of Human Rights 277; Shaun Teichner et al, ‘Constitutional Court Statistics For the 2001 Term’ (2002) 18 South African Journal of Human Rights 463; Jonathan Klaaren et al, ‘Constitutional Court Statistics for the 2002 Term’ (2003) 19 South African Journal of Human Rights 506; Jonathan Klaaren et al, ‘Constitutional Court Statistics for the 2003 Term’ (2004) 20 South African Journal of Human Rights 491. 3 Statistics 1993-2003
99 Consideration of how one is to treat these cases in a statistical study invites reflection upon the basic tools and labels our legal system employs to convey a lack of judicial consensus. So, while the results of an empirical study may not arouse much enthusiasm amongst the sizeable portion of legal scholars who maintain an aversion to such things, I would suggest that the process of determining how to go about gathering such data – with its inevitable questions as to definition and classification – presents opportunities for debate about common legal phenomena of general relevance. It is a means of rendering more readily apparent those conceptual complexities which are often masked by an unthinking approach to the characterisation of judicial opinions.
Lastly, having made a case for the advantages of statistical studies, it is appropriate to acknowledge the limitations which inhere in such work and the need for it to exist in relation to, and be supported by, more qualitative analysis. For this reason, I would endorse the advice of the Harvard Law Review editors when they cautioned the wary that their tables ‘are not an end in themselves but are intended to present a foundation for more detailed consideration’.4 Because the compilation of statistics requires the consistent application of a reasonably rigid methodology it is inevitable that the figures produced may, by themselves, present an overly simplistic picture.5 It certainly will not be the whole picture. There are a number of useful counters to this.
One is to design a justifiable methodology which is well suited to the material under
4 ‘The Supreme Court, 1948 Term’ (1949) 63 Harvard Law Review 119, 119. 5 As Blackshield has said, ‘like any intellectual method, quantitative analysis involves great simplifications, as one seeks to reduce a disorderly mass of empirical data to conceptual manageability’ : AR Blackshield, ‘X/Y/Z/N Scales: The High Court of Australia, 1972-1976’ in Roman Tomasic (ed), Understanding Lawyers – Perspectives on the Legal Profession in Australia (1978) 134.
100 examination.6 Another is then to be explicit about those instances where distorting effects are inevitably produced by application of the methodology to particular sorts of cases. Additionally, as will become apparent, accumulating even the very basic statistical information of interest here poses occasional problems of complexity requiring the exercise of discretion. The choices made by the researcher should be flagged so that others may be aware of the degree of subjectivity which has been employed in the study’s completion. In these ways, the inevitable shortcomings of any one particular approach and the results produced are made apparent. This does not diminish the usefulness of such research – rather, such transparency ensures that reliance upon its results is well informed and reinforces that quantitative studies should not stand alone but be used in conjunction with complementary scholarship of a more discursive character.7
B The Need for an Empirical Study of Dissent
Traditionally, the amount of empirical work performed in Australia has been fairly limited.8 Certainly the use of statistical analysis as an aid to understanding judicial work has not been a prominent part of the culture of the legal academy and profession.9 This is surprising when one considers the importance attributed to
6 This is something of a balancing act. Again, Blackshield admitted: ‘we need a set of categories simple enough to be usable, but complex enough to illuminate the intricacies and inconsistencies of the human mind’ : ibid. Admittedly, this was in the context of his much more sophisticated scalogram project but the essential tension which he highlights would seem a universal trade-off in any research aiming to quantify an aspect of human existence. 7 See Taylor and Klaaren, above n 2, 277. 8 But for significant early examples, see AR Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964-1969’ (1972) 3 Lawasia 1; Blackshield, above n 5; also Glendon Schubert, ‘Political Ideology on the High Court’ (1968) 3 Politics 21; and Glendon Schubert, ‘Judicial Attitudes and Policy-Making in the Dixon Court’ (1969) 7 Osgoode Hall Law Journal 1. 9 However, in recent years there has been much more activity on this front, chiefly by Russell Smyth: Russell Smyth, ‘Academic writing and the courts : a quantitative study of the influence of legal and non-legal periodicals in the High Court’ (1998) 17 University of Tasmania Law Review 164; Russell Smyth, ‘ “Some are More Equal than Others” – An Empirical Investigation Into the Voting Behaviour of the Mason Court’ (1999) 6 Canberra Law Review 193; Russell Smyth, ‘Other than ‘accepted sources of law’? A quantitative study of secondary source citations
101 judicial statistics in overseas jurisdictions commonly looked to by Australian courts.10
The lack, until recently, of any Australian work directly concerned with dissent,11 may
in the High Court’ (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, ‘What do judges cite? An empirical study of the ‘Authority of Authority’ in the Supreme Court of Victoria’ (1999) 25 Monash University Law Review 29; Russell Smyth, ‘What do intermediate appellate courts cite? A quantitative study of the citation practice of Australian state supreme courts’ (1999) 21 Adelaide Law Review 51; Russell Smyth, ‘Law or economics? An empirical investigation into the influence of economics on Australian courts’ (2000) 28 Australian Business Law Review 5; Russell Smyth, ‘Who gets cited? An empirical study of judicial prestige in the High Court’ (2000) 21University of Queensland Law Journal 7; Russell Smyth, ‘The authority of secondary authority: a quantitative study of secondary source citations in the Federal Court’ (2001) 9 Griffith Law Review 25; Russell Smyth, ‘Judicial prestige : a citation analysis of Federal Court judges’ (2001) 6 Deakin Law Review 120; Russell Smyth, ‘Citation of judicial and academic authority in the Supreme Court of Western Australia’ (2001) 30 University of Western Australia Law Review 1; Russell Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’ (2001) 47 Australian Journal of Politics and History 330; Russell Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935-50’ (2002) 26 Melbourne University Law Review 88; Russell Smyth, ‘Historical Consensual Norms in the High Court’ (2002) 37 Australian Journal of Political Science 255; Russell Smyth, ‘Explaining Historical Dissent rates in the High Court of Australia’ (2003) 41 Commonwealth & Comparative Politics 83; Russell Smyth, ‘What Explains Variations in Dissent Rates?: Time Series Evidence from the High Court’ (2004) 26 Sydney Law Review 221; and Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255. See also Richard Haigh, “It is Trite and Ancient Law’: The High Court and the Use of the Obvious’ (2000) 28 Federal Law Review 87; Patrick Keyzer, ‘The Americanness of the Australian Constitution: The Influence of American Constitutional Jurisprudence on Australian Constitutional Jurisprudence: 1988 to 1994’ (2000) 19 Australasian Journal of American Studies 25; Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years’ (2003) 26 University of New South Wales Law Journal 32; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2003 Statistics’ (2004) 27 University of New South Wales Law Journal 88 and Paul E von Nessen, ‘The Use of American Precedents by the High Court of Australia, 1901-1987’ (1992) 14 Adelaide Law Review 181. 10 With respect to the United States Supreme Court, and in addition to the annual statistics in the Harvard Law Review, see, just by way of a recent cross-section: Paul H Edelman and Jim Chen, ‘The Most Dangerous Justice: The Supreme Court at the Bar of Mathematics’ (1997) 70 Southern California Law Review 63; Youngsik Lim, ‘An Empirical Analysis of Supreme Court Justices’ Decision making’ (2000) Journal of Legal Studies 721; and Harold J Spaeth & Jeffrey A Segal, Majority Rule or Minority Will – Adherence to Precedent on the US Supreme Court (1999). Analysis of the Supreme Court of Canada has (in a parallel of Smyth’s domination in respect of the High Court) been largely the work of one political scientist: Peter McCormick, ‘Birds of a Feather: Alliances and Influences on the lamer Court 1990-1997’ (1998) 36 Osgoode Hall Law Journal 339; Peter McCormick, ‘Follow the Leader: Judicial Power and Judicial Leadership on the Laskin Court, 1973-1984’ (1998) 24 Queen’s Law Journal 237; Peter McCormick, ‘The Most Dangerous Justice: Measuring Judicial Power on the Lamer Court 1991- 1997’ (1999) 22 Dalhousie Law Journal 93; Peter McCormick, ‘Second Thoughts: Supreme Court Citation of Dissents & Separate Concurrences, 1949-1999’ (2002) 81 Canadian Bar Review 369; and Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99. 11 However, implicit measurement of dissent does underlie the most well known of Australian jurimetric studies. Blackshield’s use of scalograms to illuminate ‘those elements in judicial decision-making which are subjective, nonrational, and stubbornly value-charged’ requires ‘as an irreducible minimum requirement, [that] there must be some regular pattern of institutional dissent’: Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964-1969’, above n 8, 5-6. In constructing his scalograms, Blackshield analyses cases, separating positive votes from
102 very well be attributable to uncertainty as to the methodology which should be employed in order to produce the most reliable results. Although statistics were occasionally quoted in respect of a few justices,12 it is clear that for the High Court as a whole this question was largely left to impression and anecdote. For those few figures which appeared there was only a very limited attempt to explain the methodology by which they were ascertained.13 The concern exists not so much with the figures themselves (which are largely confirmed by a rough attempt at calculation), but with questions as to how certain types of cases were handled by the researcher in arriving at them. How the empirical researcher resolves the numerous choices she or he faces in tallying dissent must have some impact upon the results reached. If we are to seriously examine dissent, then some kind of empirical survey of its prevalence across the High Court’s history would seem a necessary part of any such study. But it is crucial that the compilation of statistics on dissent occurs by
negative ones in respect of particular values. In doing so, he acknowledges that classification as one or the other does not determine status as dissenting: at 15. Blackshield necessarily tallies dissenting votes made in the period he is studying but as this is a means to a different end it is perhaps unsurprising there is no explicit discussion of how he engaged in this preliminary step and the choices he made in response to the scenarios under discussion in the remainder of this chapter. In footnotes 9-12 of the article under discussion, Blackshield gives statistics for the percentage of cases across eras in the High Court’s history which feature ‘divisions of opinion’ or ‘split decisions’ – it is not entirely clear whether this means simply non-unanimity or disagreement as to final outcome ie. the essential difference between concurrence and dissent which will be discussed in Part III here. 12 Until the Groves and Smyth study published in 2004 (above n 9, see text accompanying n 17), the author was aware of statistics proclaimed in respect of only four High Court justices. Blackshield calculated the rate of Justice Murphy’s dissenting as 137 times in 632 cases (21.6%): see AR Blackshield, David Brown, Michael Coper and Richard Krever (eds), The Judgments of Justice Lionel Murphy (1986) xvii-xix. In respect of Justice Dawson, Saunders performed a ‘quick and inevitably rough count of reported constitutional decisions between 1982 and 1997 which came to a little over one hundred. In half of these the Court, including Dawson J, was in broad agreement. In another thirty or so, Dawson J was with the majority. He was in dissent in only about twenty constitutional cases over a period of fifteen years…’: Cheryl Saunders, ‘Oration: Sir Daryl Dawson’ (1998) 20 Adelaide Law Review 1, 3. More recently Justice Kirby gave statistical support for his own notable propensity to dissent (32% of opinions), at which time he also cited Justice McHugh for comparative value (15%) : Justice Michael Kirby, ‘Law at Century’s End’ (2000) 1 Macquarie Law Journal 1, 13. 13 In respect of Justice Murphy’s rate of dissent, Blackshield provided related statistics gained from his tallying of Murphy’s judgments, but it has to be conceded that there is only a brief indication as to how he resolved difficult choices in the classification of some of Justice Murphy’s opinions (in light of the considerations raised in this chapter). The High Court administration has provided Justice Kirby with his most recent statistics but this information is not made publicly available outside the Court and a request for it by this author was denied.
103 means of a transparent and defensible methodology which is sufficiently explained so as to enable replication by others.14 This should also ensure accuracy and consensus in the citation of such statistics.15
The methodology devised in this chapter aims to settle some of the ambiguities surrounding our understanding of dissent so as to assist such research to take place. Its publication some years previously16 has had just that effect and a general study has since been published concerning the patterns of judgment delivery in the High Court from 1903-2001.17 The authors of that work purport to adopt the definitional constraints of the methodology discussed here,18 though as will be argued at relevant points in Part IV, I do not think they have followed that through to the necessary degree. Even aside from concerns in that regard, their study is a general one and does not isolate constitutional cases for special attention. Given that the significance of minority opinions delivered in such matters is the focus of this thesis, it remains essential to conduct a fresh statistical survey of the High Court’s work in order to produce that original data.
14 ‘Good empirical work adheres to the replication standard: another researcher should be able to understand, evaluate, build on, and reproduce the research without any additional information from the author. This rule does not actually require anyone to replicate the results of an article or book; it only requires that researchers provide information – in the article or book or in some other publicly available or accessible form – sufficient to replicate the results in principle.’: Lee Epstein and Gary King, ‘The Rules of Inference’ (2002) 69 University of Chicago Law Review 1, 38-45. 15 As an example, Justice Kirby has made reference to the Justice Murphy figures on earlier occasions where he more accurately described the latter’s dissent rate as ‘nearly 22%’ (Justice Michael Kirby, ‘Lionel Murphy and the Power of Ideas’ (1993) 16 Alternative Law Journal 253) but his most recent reference states that, ‘[o]f the approximately 600 opinions which [Murphy] wrote whilst a Justice of the Court, 137 were in dissent. This constitutes 23% of the total.’: Kirby, above n 12, 13 cf. Blackshield, above n 12 claiming a dissent rate for Murphy J of 21.6%. 16 Andrew Lynch, ‘Dissent : Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia’ (2002) 24 Sydney Law Review 470. 17 Groves and Smyth, above n 9. 18 Ibid 257; and Smyth (2004), above n 9, 230.
104 Lastly, while indications of the prevalence of dissent in the High Court is an important part of understanding that phenomenon generally, a key outcome of the empirical work for the purposes of this study will be the grouping of constitutional cases by topic and identification of those in which dissent has occurred. The results will, in this respect, provide the necessary basis upon which later chapters of this thesis perform a search for streams of dissent and redemption of minority opinions by later Courts in their interpretation of the Commonwealth Constitution. It is not possible to comprehensively conduct that inquiry without having catalogued the decisions from the relevant period in this way beforehand.
III FUNDAMENTAL CONCEPTS – PRELIMINARY CLASSIFICATIONS
A Forms of Disagreement – Dissent and Concurrence
Given the multiplicity of legal issues that arise in litigation before superior courts, it is rare to find complete accord between judges. There are two forms which judicial disagreement may take – dissent or concurrence. Of these, the concurring judgment is in theory the less pronounced, signifying as it does a concurrence in the orders given by a majority of the bench but for reasons not necessarily shared by any judge but the author of the judgment. Thus the disagreement is to the means by which the orders are arrived at, but not as to the orders themselves. However, a dissenting judgment is one delivered by a Justice who opposes the orders (and by implication, one may presume, the reasoning) favoured by a majority of the Court. A contrary conclusion as to the resolution of the matter distinguishes dissent from mere concurrence.19
19 See John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221, 240; Michael Coper, ‘Concurring judgments’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 129-130; Ijaz Hussain, Dissenting and Separate Opinions at the World Court (1984) 8; Donald E Lively, Foreshadows of the Law: Supreme Court Dissents and Constitutional Development (1992) xx; Andrew Lynch, ‘Dissenting Judgments’ in Tony
105
Simple enough as that seems, there is a real tendency in much of the Australian literature concerned with judicial work to use these terms indiscriminately. In particular, any difference of opinion is often labelled as dissenting, and the strict sense of that classification can be lost. The authors of headnotes seem more culpable in this regard than others – and their influence is strong upon the legal community, particularly students. One often hears it said that a member of the judiciary has
‘dissented on that issue’ – while that is perhaps suitably precise, it gives no indication that the judge may have concurred in the orders made by the court as an institution.
An example of this all too frequent occurrence is found in the headnote preceding the report of Bellino v Australian Broadcasting Corporation20 which describes Justice
Gaudron as dissenting in respect of her opinion on two aspects of the case. The fact that Justice Gaudron concurs entirely in the orders made by Justices Dawson,
McHugh and Gummow – leaving Chief Justice Brennan as the only truly dissenting judge is obscured. The lack of rigour with which the term ‘dissenting’ is used in case
Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 216-8; Peter McCormick (1999), above n 10, 102-3. A possible question mark over this definition arises from a statement by Justice Claire L’Heureux-Dubé in her paper, ‘The Dissenting Opinion: Voices of the Future?’ (2000) 38 Osgoode Hall Law Journal 495. In note 2, L’Heureux-Dubé says, a ‘dissent may relate either to the result arrived at by the majority in applying the law, or to the principles of law on which that result is based’. Whilst this seems to suggest that disagreement as to reasoning divorced from outcome amounts to a dissent, it is clear from subsequent passages that L’Heureux-Dubé is not proposing a redefinition of dissent which encompasses what other commentators identify as concurrence. Rather, she is simply suggesting that the disagreement as to result may arise from matters of application of accepted rules as well as the content of fundamental principles. In either case, it is submitted, there must be disagreement on the result in order for the judgment to qualify as a dissent. Instances in L’Heureux-Dubé’s paper which indicate that this statement is not to be seen as a rejection by her of the traditional distinction between concurring and dissenting judgments include notes 2, 28, 32 and 63. It is interesting, in fact, that unlike all other commentators, L’Heureux-Dubé gives no real attention to defining concurrence and explaining its relationship to dissent. 20 (1996) 185 CLR 183.
106 report series and student texts accounts for much of the cloudy thinking in this area and the imprecision in demarcating concurring from dissenting judgments.21
B The Harvard Rules
Although such rigid application of these terms is rarely insisted upon in an Australian context, consideration of the practices of the United States Supreme Court demonstrates how judicial opinions are subjected to much clearer classification in that jurisdiction. While Australia has followed the seriatim tradition of most English
Courts,22 the United States Supreme Court has opted for what Justice Bader Ginsburg has called the ‘middle way’:
[There are] three patterns of appellate judgments by collegial courts: seriatim
opinions by each member of the bench, which is the British tradition; a single
anonymous judgment with no dissent made public, which is the civil law
prototype; and the middle way familiar in the United States – generally an
21 Some of my colleagues have expressed reservations about the degree to which this traditional distinction should be insisted upon in the Australian context, suggesting that these definitions are not applicable. There are three responses to this: (i) how else is dissent to be distinguished from concurrence?; (ii) I am unaware of any commentary – Australian, American or English – which does not adopt outcomes as the basis upon which this distinction is drawn; and (iii) it is clear that the distinction is not just logical and undisputed, but that it is one to which significance is attached by the High Court itself. In Federation Insurance Ltd v Wasson (1987) 163 CLR 303, 314, Mason CJ, Wilson, Dawson and Toohey JJ stated that ‘it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment…[though] That is not to say, however, that a dissenting judgment may not deserve respectful consideration’; see also, Transcript of Proceedings, Shaw v MIMA (High Court of Australia, McHugh and Kirby JJ, 17 June 2003). Clearly, the status of a judgment as dissenting may be seen to hold consequences for its future use. As such, it is not surprising to find that it is a distinction appreciated by – and insisted upon – by present members of the High Court: see Justice Kirby’s recent emphasis upon the difference between concurrence and dissent in the context of confusion surrounding his judgment in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 : Kirby, above n 12, 13. 22 On the practice of the English courts, see particularly Alder, above n 19, 233-7. The notable exception was the Judicial Committee of the Privy Council which adopted a strict practice of delivering only unanimous opinions in its role as adviser to the sovereign. This also had advantages in preventing tensions within the Empire: see Alder, above n 19, 235-6. A somewhat dated, yet nevertheless ambitiously comprehensive, attempt to describe the opinion delivery practices of many of the world’s courts is found in Kurt H Nadelmann, ‘The Judicial Dissent: Publication v. Secrecy’ (1959) 8 American Journal of Comparative Law 415.
107 opinion for the court, from which individual judges sometimes disassociate
themselves in varying degrees.23
The delivery of an opinion ‘for the Court’ means that identification of concurring and dissenting judgments is a much simpler task. The process of assigning a judge the responsibility to write for his or her colleagues fosters consensus rather than individualism and actively seeks to build a majority. Occasionally, this may not occur and the Justices will fracture to such an extent that there is no clear majority behind any one opinion speaking for the Court – instead the orders will be determined through use of what is known as ‘plurality opinion’.24 But in the United States
Supreme Court, the ideal remains an opinion which is delivered ‘for the Court’ by a
23 Justice Ruth Bader Ginsburg, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133, 134. The historical development by the Supreme Court of this ‘middle way’ is described at length in one of the clearest statements on the institutional and individual management of American judicial disagreement: see John P Kelsh, ‘The Opinion Delivery Practices of the United States Supreme Court 1790-1945’ (1999) 77 Washington University Law Quarterly 137. 24 ‘A plurality decision is a case without an Opinion of the Court: A majority of the Court’s members agree on the result, …but there is no majority agreement on the reason for that result. The Justices write several concurring opinions, explaining their differing views. If one of these opinions receives more votes than the others, it is designated the plurality opinion’: Mark A Thurmon, ‘When the Court Divides: Reconsidering the Precedential value of Supreme Court Plurality Decisions’ (1992) 42 Duke Law Journal 419, 419. The same concept applies in the Supreme Court of Canada: L’Heureux-Dubé, above n 19, 496. The term ‘plurality’ is not generally used to describe this situation occurring within the seriatim tradition as it does not represent a departure from any usual practice of a single opinion being produced ‘for the Court’ by a clear majority. There is clear dissatisfaction with plurality decisions in these jurisdictions and debate over their precedential worth: John F Davis and William L Reynolds, ‘Juridical Cripples: Plurality Opinions in the Supreme Court’ [1974] Duke Law Journal 59; Ken Kimura, ‘A Legitimacy Model for the Interpretation of Plurality Decisions’ (1992) 77 Cornell Law Review 1593; Igor Kirman, ‘Standing Apart to be a Part: The Precedential Value of Supreme Court Concurring Opinions’ (1995) 95 Columbia Law Review 2083; Lewis A Kornhauser and Lawrence G Sager, ‘Unpacking the Court’ (1986) Yale Law Journal 82; Alan M Thurmon, ‘When the Court Divides: Reconsidering the Precedential value of Supreme Court Plurality Decisions’ (1992) 42 Duke Law Journal 419. Rogers advises that, while less than ideal, such cases are not without a ratio although this must be gleaned through reading the plurality opinion and separate concurrences in conjunction: John M Rogers, ‘“Issue Voting” by Multimember Appellate Courts: A Response to Some Radical Proposals’ (1996) Vanderbilt Law Review 997, 1007. This is a process not at all unfamiliar to those of us in jurisdictions where judgments are regularly delivered by individual authors. These attempts to understand what to make of an institution which speaks with multiple voices which has been necessitated by the Supreme Court’s increased tendency to depart from its ‘middle way’ in recent years are somewhat bemusing to those of us working in a jurisdiction which requires this kind of composite interpretation in order to analyse much of our caselaw.
108 majority of judges, leaving only two clear options remaining to a Justice who does not agree with the opinion penned by his or her colleague. He or she may write a separate, concurring opinion or a dissent. The use of the word ‘separate’ – not a label applied in any formal sense in courts operating in the seriatim tradition where the majority view often may have to be assembled by the reader25 – says a lot about this method. Quite literally, a concurrence or dissent is ‘separate’ because it represents a breaking away – what Bader Ginsburg called a disassociation by varying degrees – from the central judgment which represents the views of a majority of judges.
The practice of an opinion written by a member of the Supreme Court and given ‘for the Court’ may be contrasted with the giving of judgments per curiam – a judgment given ‘by the Court’ without identification of individual author26 – a method which was relatively popular before the advent of Chief Justice Marshall in 1801.27 Even where there are no separate judgments, it is not the norm for the opinion of the United
States Supreme Court to be delivered per curiam instead of having one judge write the opinion for the court.28 However, the practice of per curiam opinions has been maintained by the Supreme Court – indeed it has accelerated somewhat in recent years.29 In courts which follow the seriatim tradition, including the High Court of
Australia, the per curiam opinion is the regular method by which a unanimous bench delivers its judgment.
25 Though see Michael Coper, ‘Joint judgments and separate judgments’ in Blackshield et al, above n 19, 367-369. 26 William M Wiecek, ‘Per Curiam’ in Kermit L Hall (ed), The Oxford Companion to the Supreme Court of the United States (1992) 631. 27 Kelsh, above n 23, 140. 28 A famous example is the case of Brown v Board of Education 347 US 483 (1954) where the opinion of the Supreme Court was written and delivered by Chief Justice Warren on behalf of all Justices of the Court. Conversely, it should be noted that a per curiam opinion in the Supreme Court need not be unanimous but can be used in respect of an opinion of the Court so as not to reveal authorship. In such instances, the presence of concurring and dissenting judgments does not alter the majority opinion’s status as being ‘by the Court’: see Wiecek, above n 26. 29 Kelsh, above n 23, 161.
109
The statistics compiled annually on the United States Supreme Court by the editors of the Harvard Law Review illustrate the relative ease with which judgments are categorised once a majority opinion written ‘for the Court’ by one Justice has been delivered. In particular, the Harvard Law Review pursues a methodology based upon these propositions:
(a) A concurrence or dissent is recorded as a written opinion whenever a reason,
however brief, is given.
(b) A Justice is considered to have dissented when he or she voted to dispose of
the case in any manner different from that of the majority of the Court. Thus
for example, votes to reverse in a decision affirming by an equally divided
Court are not counted as dissenting votes.
(c) Plurality opinions that announce the judgment of the Court are counted as
opinions of the Court.
(d) Opinions concurring in part and dissenting in part are counted as dissents.30
As shall be seen in the next section, these rules may not be as simply applied to the
High Court of Australia’s seriatim practices. Even so, it is argued that the strictness with which definitions of concurrence and dissent are insisted upon in the United
States context (note particularly (b) and (d)) means that the Harvard rules are an appropriate point of departure in designing a possible framework for performing similar empirical work in the Australian jurisdiction. Despite the differences between
30 This method of tallying is set forth in each presentation of statistics in the Harvard Law Review since 1949. For those wanting a direct quote, see (for example) (1988) 102 Harvard Law Review 143, 350. The reference in this chapter to these criteria as rules (a), (b), (c) and (d) is my terminology not that of the Harvard Law Review.
110 the seriatim practice and the American ‘middle way’, the two systems share a common view of what renders a judgment dissenting – disagreement as to orders, not simply an individual expression of reasons.31 That the Americans can collect statistical information consistently with the conceptual definition of dissent should at least prompt Australian researchers to attempt the same – and if the difficulties in translating and adapting the methodology to local circumstances prove to be insurmountable then we should be able to explain why this is so.
C Applying the Harvard Rules to the High Court of Australia – Some
Necessary Modifications
As stated above, reflection on what, for ease of reference, I shall call the ‘Harvard rules’ is fruitful in considering measurement of dissent in other jurisdictions. In addition to the fact that those rules have formed the basis of an ongoing exercise in data collection for over 50 years, they are premised upon a conceptual understanding which is applicable to our own approach to judgments. Obviously though, in light of some of the comments already made, there are differences in the practices adopted by the United States Supreme Court and the High Court of Australia which may impact upon the usefulness of the Harvard rules in respect of the latter institution. Thus, the adaptability and workability of the rules in the Australian context requires elaboration before proceeding further.
Firstly, in respect of rule (a), it is interesting to note the threshold which a judgment must meet in order to qualify for tallying as a concurrence or dissent. It is not the
31 By way of comparison, while this formal distinction holds in the Supreme Court of Canada, the increasing rarity of concurrences in that Court has resulted in the conflation of dissents and concurrences as simply ‘separate opinions’ in the leading empirical studies of that institution: see text accompanying nn 68-69.
111 delivery of a separate opinion per se – but only when, in doing so, the Justice attaches reasons.32 Thus, seemingly, a mere statement of agreement without anything more will not be registered as a concurrence.33 Presumably it is seen as best to simply regard such a statement from a Justice as warranting his or her inclusion in the majority. Indeed, in empirical work concerned with the identification of coalition voting blocs this is exactly how such judgments are treated – as if the judge in question was in fact one of the authors of a joint judgment with which he or she is in such complete agreement.34 However, while this is a perfectly acceptable fiction in that context, it should not be taken too far and unless it is necessary or useful to the type of study being undertaken, may not need to be employed at all. Coper has recently said, ‘Sometimes (and particularly in ex tempore judgments) a concurring judgment is as brief as ‘I agree’. This kind of concurring judgment is no different in substance from being a party to a joint judgment, although care must be taken to leave no doubt about what it is with which the Justice agrees’.35 Matters of substance duly
32 This rule is more fully explained at (1968) 82 Harvard Law Review 63, 302: ‘…whenever a Justice notes separately the manner in which he would have disposed of the case and gives a reason, however brief, for such disposition, he is credited with having written a concurring or dissenting opinion, as well as having cast a concurring or dissenting vote’. 33 The status of a bald statement of agreement may seem a problem of limited interest to us given the rarity with which concurrence is expressed with such brevity by members of the modern High Court. But this was a reasonably frequent occurrence in the Court’s first few decades of operation. In several cases from the early years of the Court, Justices Barton and O’Connor offer a statement of concurrence without adding anything further (see, for example, Murray v Collector of Customs (1903) 1 CLR 25; Mountney v Smith (1903) 1 CLR 146). Additionally, there are cases wherein Justices Barton and O’Connor join with Chief Justice Griffith so that one statement of reasons is given by the Court, clearly constituting a unanimous judgment. In respect of these decisions, it is interesting to note that the opinion, rather than being reported as being delivered per curiam, is often prefaced with the words: ‘the judgment of the Court was delivered by Griffith CJ’ (see, for example, Hannah v Dalgarno (1903) 1 CLR 1; D’emden v Pedder (1903) 1 CLR 91. Despite appearances, this probably owes little to an attempt by the original High Court to adopt the American ‘middle way’ and much more simply to the practice at the time of reading the judgments aloud as a means of delivering them. 34 See Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’, above n 9, 333; Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935-50’, above n 9, 101; and Mirko Bagaric and James McConvill, ‘Illusions of disunity: dispelling perceptions of division in High Court decision making’ (2004) 78 Law Institute Journal 36, 38. 35 Coper, above n 19, 130.
112 acknowledged, it is clear that as a matter of procedure what has been delivered is still best regarded as a separate, concurring judgment.36
Consideration of these types of concurrences encourages a correlative reflection upon what we require of unanimity as a concept. May the label ‘unanimous’ only be properly applied in respect of a single judgment delivered by all members of the court, or does a total agreement in substance, albeit expressed through separate judgments, amount to the same thing? Certainly, the latter is a unanimous decision despite the absence of a unanimous judgment. For the purposes of this study, and in accord with the stance taken on concurrences in the preceding paragraph, it is proposed to adopt a strict meaning of unanimity so that it is only recorded when all sitting Justices deliver the one written opinion. While the agreement may amount to essentially the same thing, there is a subtle, yet very real, significance when the judges speak as one through a joint judgment.37
36 The Harvard Law Review has this to say in respect of the methodology used to compile statistics on unanimity for the United States Supreme Court: ‘A decision is considered unanimous only when all Justices hearing the case voted to concur in the Court’s opinion as well as its judgment. When one or more Justices concurred in the result but not in the opinion, the case is not considered unanimous’: (1988) 102 Harvard Law Review 143, 352 (notes accompanying Table I(C)). Obviously, on the Harvard understanding of what constitutes concurrence under rule (a), separate statements of agreement with a lead judgment (of the ‘I agree’ variety) do not deny the existence of technical, as well as practical, unanimity. While there would seem to be little objection to adoption of a similar approach in Australia, and in respect of studies such as Smyth’s (above n 34) it seems necessary, in other contexts it would seem valuable to recognise such concurrences for what they are – a separate opinion rather than participation in a joint judgment (see also the ensuing discussion concerning unanimity in this regard). A slightly flippant example is Easterbrook’s search for the most insignificant United States Supreme Court Justice ever, wherein he includes in his tallies of the number of written opinions by each judge the delivery of ‘two-word opinions’, eg: ‘I concur’: Frank H Easterbrook, ‘The Most Insignificant Justice: Further Evidence’ (1983) 50 University of Chicago Law Review 481, 498. 37 American cases which may be said to demonstrate this point are referred to in Chapter Two, n 172. See also in this regard, Warren CJ’s efforts to prevent evenly highly favourable concurrences to the majority view on the United States Supreme Court: Bernard Schwartz, Decision (1996), 109-10. The High Court’s decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 was not just surprising because all the Justices agreed but because they chose to do so through a single opinion as ‘the Court’. As to the considerations which may motivate formation of a ‘supermajority coalition’ see Evan H Caminker, ‘Sincere and Strategic Voting Norms on Multimember Courts’ (1999) 97 Michigan Law Review 2297, 2321-2.
113
Turning to rule (b), it can be seen that it assumes the existence of a clearly identifiable majority of the Court which has stated a particular resolution of the dispute before it.
This reflects just how integral the concept of majority is to our understanding of dissent. Of course, this only occasionally poses practical problems when examining the United States Supreme Court due to use of the American ‘middle way’ as the predominant method of judgment delivery. However, identification of a majority can be a less certain exercise in respect of a court which issues opinions in seriatim. Not only does the Court as an institution not have a judgment written for it – but there is the increased likelihood that there may not even be a majority of Justices in favour of one result.
So while the phrase ‘majority of the Court’ seems simple enough – it does in fact open up the possibility of much confusion. The example accompanying rule (b) demonstrates one aspect of this: in a court which is evenly split with respect to the orders to be made, then, regardless of what process or rule is adopted to settle the resolution of the matter, the absence of an actual majority in favour of the orders finally given prevents the votes against them from being classed as dissenting. But more common than a tied bench, are cases where there is a multiplicity of voices – not simply in the giving of diverse reasons for an agreed upon result, but rather as to the result itself. In such instances, identifying the orders favoured by a fixed majority of the Court is impossible.38
38 ‘Where there are only two possible outcomes, simple majority rule emerges as uniquely decisive; it alone always identifies a single, correct outcome. But when we allow more than two possible outcomes, this property of majority rule disappears’: Kornhauser and Sager, above n 24, 99. See also, Frank H Easterbrook, ‘Ways of Criticizing the Court’ (1982) 95 Harvard Law Review 803, 815-17.
114 The Harvard rules, in cases which produce no clear majority but a profusion of differing judgments, adopt the fiction that the plurality opinion is that which is delivered ‘for the Court’.39 Thus the Justice who wrote the opinion can be included in any tallying of authorship of majority opinions by means of rule (c) of the Harvard scheme, despite the lack of numerical support. No such device is available in the
Australian context due to the general use of the seriatim practice. What the Americans call ‘plurality decisions’ are in fact all too common in the High Court of Australia.
The lack of a unified majority is an accepted incidence of our judicial method. No one opinion can be accorded a special status as embodying the Court’s result. Rather, the final orders may often reflect varying points of consensus amongst the judgments, but not necessarily the orders totally favoured by any one Justice, let alone by a majority of the bench. However, this does not mean that such decisions should be discounted from any attempt at empirical research – indeed the sheer preponderance of such decisions means that any Australian study which left them unconsidered would be seriously deficient.
It would be a mistake to use the absence of an easily identifiable majority as a censure on the finding of a dissent – in such cases, the Court as an institution still states a result, albeit reached by composite.40 Instead, to enable the noting of dissent without the assistance of a majority opinion ‘for the Court’ as a counterpoint, dissension in judicial bodies giving seriatim opinions should be classified as disagreement with the orders issued by the Court. This represents a subtle, but powerful, adaptation of the
39 It should be made clear that the United States Supreme Court itself does not give plurality opinions this status, they are simply ‘an opinion of the Court’: Davis and Reynolds, above n 24, 61 (n 7). 40 As Chief Justice Mason said upon retirement, ‘each Justice of the Court is only a contributor to the decision-making processes of the Court as an institution, for it is the Court that decides the cases and declares the law’: (1995) 183 CLR v, vi.
115 Harvard rules’ requirement that dissent be disposal of a case ‘in any manner different from that of the majority of the Court’. Acknowledging the trend towards individualism that is integral to the seriatim tradition, dissent is more usefully identified in our system as simply a resolution of the case which is in any manner different from the final orders issued by the Court. Indeed, this is demanded by our standard definition of dissent which places more emphasis upon the relationship between a dissenting judgment and the orders made by the court as an institution than the differences of opinion across the presiding judicial officers. It is the former which is determinative of the judgment’s status, even though the latter is integral in its own turn in the creation of the institutional position.41
It should be noted that, even whilst making this modification, an exception can still be argued for those cases resolved through application of a procedural rule or practice.
Although in such instances, judgments may still be compared against the final orders issued by the institution, the complete lack of a relational dimension between the
Justices themselves in the determination of those orders argues against tallying as dissents those opinions which are at odds with the result of the case. This accords with the High Court’s own preferred method of dealing with ‘the difficulty of identifying what principle is established by a decision of an equally divided Court’.42 While the
Court is concerned with the authoritative weight to be ascribed to the opinions in
41 Ibid. In their discourse on the varying nature of collective enterprise, Kornhauser and Sager illuminate this relationship when they say that interaction and exchange ‘are crucial to collegial enterprises, and the product of a collegial enterprise often belongs to that enterprise in a uniquely collective way…As in a team enterprise, collegial enterprise involves a shift in the agency of performance from the individual to the group’: Lewis A Kornhauser and Lawrence G Sager, ‘The One and the Many: Adjudication in Collegial Courts’ (1993) California Law Review 1, 5. 42 Re Wakim; Ex parte McNally (1999) 198 Commonwealth Law Reports 511, 571 (Gummow and Hayne JJ). See also Tasmania v Victoria (1935) 52 CLR 157, 173 (Rich J), 184-5 (Dixon J); Western Australia v Hammersley Iron Pty Ltd (No 2) (1969) 120 CLR 74, 82-3 (Kitto J), 85 (Menzies J); Federal Commissioner of Taxation v St Helens Farm Pty Ltd (1980) 146 CLR 336, 348 (Barwick CJ), 364-5 (Stephen J), 430-2 (Aickin J), 445 (Wilson J).
116 those cases, it is significant that it acknowledges that the result is of no help in determining precedential value given the artificiality with which it is procured. As
Justices Gummow and Hayne said in Re Wakim, ‘the expedient prescribed by s.23 of the Judiciary Act enables a decision to be given in the particular case but the application of that provision does not give to the opinion of those members of the
Court who favoured that disposition of the matter any special status’.43 For this reason, cases where the final orders of the Court are derived through application of a procedural rule, as opposed to having been constructed through the points of agreement amongst the Justices, should not be included for the purposes of calculating rates of dissent.
As already indicated, rule (c) of the Harvard scheme is inappropriate to the practices of the High Court of Australia, which does not formally recognise a class of plurality opinion. While one often hears a judgment described as ‘leading’, there is no need to ascribe a particular status to such a judgment even if it does represent the views of the greatest number of sitting Justices, albeit not a clear majority of the Court. However, given the comments made in respect of rule (b) above, it may be desirable to rewrite
(c) in order to clarify what will not constitute dissent in the absence of a majority.
Rule (c) could be recast as: opinions that concur in the orders of the Court, even if not belonging to any actual majority, are not dissenting.
Rule (d) when applied in a seriatim context also increases the possibility of registering more dissenting judgments in a case than at first glance may seem accurate – or even
43 Ibid. Cf Kirby J, 598.
117 feasible.44 But whilst it has the potential to multiply the presence of serious disagreement in the form of dissent, there seems to be little argument against the adoption of such an approach. In fact, rule (d) is merely the logical consequence of rule (b) – the low threshold in the latter rule of finding dissent in a decision ‘in any manner different’ from that of the Court would seem to render rule (d) unnecessary as even a whiff of dissension from the final orders will be enough to taint the whole opinion. This is also entirely consistent with the strict definitional stance I have taken earlier in this Part of the chapter. As it serves merely as duplication, rule (d) may simply be abandoned.
To conclude, while there is sufficient conceptual commonality between the United
States and Australian legal systems for the Harvard rules to provide a logical and helpful starting point for analysis of the High Court of Australia, some modification of those rules is clearly appropriate. In light of the preceding discussion, the method for an Australian empirical study may be stated as comprising the following rules:
(a) A separate statement of opinion as to how a case should be resolved is
recorded as a separate judgment (concurring or dissenting) regardless of
whether reasons are given or not;
(b) A Justice is considered to have dissented when he or she voted to dispose of
the case in any manner different from the final orders issued by the Court. This
rule will not apply in cases where the final orders are determined by
application of a procedural rule (for example, resolution of deadlock between
an even number of Justices through use of the Chief Justice’s casting vote).
44 This impact is not exclusive to the seriatim practice – it also has this potential in respect of that percentage of United States Supreme Court cases which are resolved by plurality opinions.
118 The latter type of case should be discounted from any study attempting to
quantify dissent.
(c) Opinions that concur in the orders of the Court, even if not belonging to any
actual majority, are not dissenting.
These revised rules aim to promote greater precision and clarity – chiefly through distancing dissent from the deceptively simple concepts of majority and minority which can prove elusive in respect of a multimember court employing the seriatim method. It is apparent from the comments made so far that while the definition of dissent appears straightforward, it can, through application of the rules discussed above, still encounter unexpected problems in practice caused by the complexities inherent in collegiate decision-making in a court of last resort. It is time to consider these difficulties in much greater detail.
IV CONNECTION TO NOTIONS OF MAJORITY AND MINORITY – DISSENT AS A
RELATIONAL CONCEPT
Dissent is a relational concept. A judgment is not naturally dissenting – it is only through its position within the context of the court’s decision as a whole that its status is derived. I have said earlier that this relativity can be found in two senses. One of those, which has just been highlighted in the context of the definitional emphasis of dissent is between an individual judgment and the Court as an institution which delivers final orders. These orders are reached through the composite of the various individual judgments which are delivered by the Court’s members. The connections and disparities between these judgments is the second sense by which it may be said
119 that one judgment’s status is determined by where it stands in relation to something external to it.
Of course, this is not to deny that in many instances, judges know they are in a minority and write the judgment couched in terms which indicate awareness that their views have not held the day.45 But otherwise, there is little difference in form between a dissenting and concurring opinion. Justice Brennan of the United States Supreme
Court said that ‘where significant and deeply held disagreement exists, members of the Court have a responsibility to articulate it. This is why when I dissent, I always say why I am doing so. Simply to say, ‘I dissent’, will not do’.46 Whilst this would seem to cast more onerous obligations upon the dissenting, rather than concurring, judge, in reality concurrence seems to produce just as much reflection and self- justification as dissent.47 In any case, no firm observations can be made as to the length of a judgment and its function as concurring or dissenting, so idiosyncratic is judicial style. Many of today’s concurring judgments match each other in breadth of scope and number of pages, rather than building upon the points of agreement between them.48 Conversely, Justice Murphy’s many dissents demonstrate his
45 See, for example, the closing sentiments of Justice Barton in Duncan v State of Queensland (1916) 22 CLR 556, recently quoted by Justice Kirby to conclude his dissent in Re Wakim; Ex parte McNally (1999) 198 CLR 511. Barth suggests that, ‘Freed from the constraints entailed in trying to express the sense of a majority, [dissents] embody, at times, passages of great force, eloquence, and ardor.’: Alan Barth, Prophets with Honor – Great Dissents and Great Dissenters in the Supreme Court (1974) xii. In this vein, Justice Brennan of the United States Supreme Court talked of ‘dissents that soar with passion and ring with rhetoric…that, at their best, straddle the worlds of literature and law.’: Justice WJ Brennan, ‘In Defense of Dissents’ (1986) 37 Hastings Law Journal 427, 431. The Chief Justice of Australia has recently poured cold water on this kind of sentiment by saying that ‘[o]nly someone given to mock heroics, or lacking a sense of the ridiculous, could characterise differences of judicial opinion in terms of bravery’: Chief Justice Murray Gleeson, The Boyer Lectures – The Rule of Law and the Constitution (2000) 136. 46 Brennan, above n 45, 435. 47 It was not always so. Mention has already been made of the fact that the early years of the High Court of Australia were marked by high levels of agreement which very often saw Justices Barton and O’Connor concur with Chief Justice Griffith with only the briefest of judgments. 48 This tendency has been long lamented: see the discussion in Chapter Two, Part II.
120 characteristic economy of expression. The point is simply that one might expect more voluminous statements of opinion from those judges choosing to reach a contrary result than from those who are adding their voices to the majority. In this regard,
Justice Kirby certainly does not disappoint.
To recognise dissent as a relational concept, is to establish that the study of it cannot rest upon the form of individual judgments nor the views and characteristics of their authors.49 It is to acknowledge that a ‘Great Dissenter’ is not self-made. Rather, it is shifting majority and minority voting blocs, seemingly intrinsic to collegiate decision- making, which decide these reputations.50 It is for this reason that, despite the complexities noted in the last part of this chapter about the use of such terms, it must be recognised that concepts of ‘majority’ and ‘minority’ are intimately bound up with any attempt to understand dissent – both its nature and prevalence.
The relational nature of dissent is particularly easy to appreciate upon consideration of the reversal of fortune which some judges have experienced over the course of their tenure. The career of Bora Laskin on the Supreme Court of Canada provides a suitably dramatic example. The most junior Justice on the Court at the time of his elevation to the Chief Justiceship by President Trudeau, Laskin regularly dissented against a strong conservative majority on his own court until subsequent appointments
49 This point is made in a slightly different context by Primus when he attempts to explain why some dissents are influential upon later courts: Richard A Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243, 264-70. 50 Studies on judicial voting coalitions are an invaluable form of analysis to assist our understanding in this regard. For recent work on voting coalitions in the High Court see Smyth, ‘“Some are More Equal than Others” – An Empirical Investigation Into the Voting Behaviour of the Mason Court’, above n 9; Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’, above n 9; Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935-50’, above n 9.
121 swung the balance of power in his favour.51 In the High Court of Australia, the two longest serving Chief Justices suffered a less palatable fate – both Griffith and
Barwick dominated their brethren in the early years of their tenure but as their influence slipped towards the end (admittedly much more towards the end in the case of Griffith rather than Barwick) they found themselves more regularly in the minority.
Of course, the swing between majority and minority acceptance of ideas can take longer than the course of a judicial career. A judge who regularly delivers a minority opinion on a particular question may no longer be serving by the time his or her views start to attract majority approval.
Implicit in these observations is the idea that majorities and minorities are made on shifting ground. As considered in Chapter Two, the majority position in a final court is vulnerable to a variety of factors which may alter the balance over time. In this sense, the divide between majority and minority opinion, whilst determinative of the outcome of a particular dispute, acquires less significance in retrospect.52 If anything, a preponderance of concurring judgments exacerbates this feature as it suggests an unstable majority achieved by composite. This is not to suggest that the status of a judgment is irrelevant to its future use or disuse, but rather is merely to acknowledge the fluidity central to any consideration of the topic of dissent. But the slippery nature of disagreement is not just apparent over a series of cases. Within one decision, it is clear that consensus may rise and fall across various issues. The intricate and sophisticated forms which disagreement may assume in any one matter presents a
51 McCormick pinpoints 1979 as the pivotal year, but says that ‘on purely statistical indicators it is unclear whether it was the appointment of Justice Chouinard or Justice Lamer that turned the critical corner’: McCormick (2004), above n 10, 122; see also, L’Heureux-Dubé, above n 19, 505. 52 See particularly Chapter Two, quote accompanying n 228, wherein Habermas suggests that the majority result is always merely the interim position.
122 strong challenge to any attempt to classify judicial opinions by means of a rigid methodology.
A The Degree of Concurrence
The first observation that must be made is that while concurring judgments are, in theory, a less marked form of disagreement than dissenting opinions, in some circumstances this may not be the case. There may be more common ground between some of the majority judges and those in dissent, than exists amongst the concurrences which constitute the majority on the result.53 Even in cases where no dissenting opinions are filed, it must be appreciated that there are often notable divisions amongst the concurring judgments.54 Thus, the definitional framework upon which our methodology rests might be subject to criticism as being entirely outcome focused and ignoring the substance of disagreement which may exist between those
Justices concurring in the result of the Court. In so far as ascertaining the role of contrary views in the development of legal principle, the actual result in the case where those views were espoused would seem of limited relevance to their subsequent adoption by a later court which is attracted by the reasoning itself. In which case, there must be something to be said for discarding the classifications of ‘dissenting’
53 A good example of this is found in the criminal law case of Royall v The Queen (1990) 172 CLR 378 wherein Justices Toohey and Gaudron dissent by indicating that they would have allowed the appeal dismissed by the other members of the Court. However, their judgment shares significant points of agreement with some members of the majority – Chief Justice Mason and Justices Deane and Dawson – about the unsuitability of foreseeability as a test for causation in self-preservation cases. These views are pointedly not shared by the remaining members of the majority – Justices Brennan and McHugh, who favour the use of reasonable foreseeability in this context. 54 Two examples of this spring to mind. The first is the decision of the Court in Jaensch v Coffey (1984) 156 CLR 41 where Justice Deane, with the support of Chief Justice Gibbs, launched his proximity requirement for establishing a duty of care. This met with immediate resistance from Justice Brennan, though his Honour concurred in the result. Of course, Brennan J’s rejection of proximity was sustained over many subsequent cases but it stems from Jaensch v Coffey – a fact which may be lost through an attempt to gauge disagreement looking only through the eyepiece of dissent. The second case is Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 where the Court agreed that s 299(1)(d)(ii) of the Industrial Relations Act 1988 (Cth) was invalid but divided over the existence of the implied freedom of political communication.
123 and ‘concurring’ and simply focusing upon opinions which originate from a minority of the court before gaining wider acceptance by a majority. If one is trying to understand the long-term influence of particular judgments which have challenged majority reasoning, does a strict insistence upon the conceptual divide between concurrence and dissent risk failing to illuminate the true nature and extent of disagreement on the Court?
To the compiler of statistical information on rates of dissent, any such study necessarily carries with it this not insignificant limitation.55 To the researcher engaged in a more discursive analysis, the inflexibility of the core concepts may be suspended when confronted with ‘a dissent in substance and concurrence in form’.56 In his account of the significance of minority opinions in the development of American constitutional law, Donald E Lively makes it very clear that he will not be constrained by the traditional fixed categories of judicial disagreement when he says:
Two opinions discussed in subsequent chapters, Chief Justice Taney’s in Prigg
v Pennsylvania and Justice Brandeis’ in Whitney v California, are styled as
concurring opinions. Because the views they expressed were so profoundly
divergent from the Court’s, however, it is their dissenting spirit that is most
notable. Whether responding to the Court’s judgment or reasoning, a dissenting
opinion establishes an alternative model of logic or understanding for future
reference.57
55 While recently quoting statistics on dissent, Justice Kirby was keen to apply the caveat that such figures can be ‘misleading’: Kirby, n 12, 13. See also text accompanying nn 4-7. 56 Lively, above n 19, xx-xxi. 57 Ibid xxi. Lively is not alone in feeling justified to include a concurring judgment in a study which purports to be concerned with dissents. In the introduction to his book, Barth, above n 45, xii, admits that among the dissenting opinions is ‘one brilliant and immensely influential
124
Lively’s willingness to forsake the rigid definitional differences between concurrence and dissent is not unattractive. As will be seen across the remainder of this chapter, severe limitations – not to mention considerable confusion – can accrue from an insistence that only a judge disagreeing with the court’s final orders is in dissent. And, as already noted, a study confined to only those judgments which meet the technical definition of dissent, runs the danger of ignoring hugely significant opinions advanced by a small, albeit concurring, minority of the court.
However, there are a number of concerns which arise in respect of such an approach which prohibit its employment in empirical studies of judicial dissent and also require caution in more qualitative examinations of the topic.58 First, while an insistence upon the standard definitions of dissent and concurrence can lead to a failure to portray the reality of disagreement within the Court, their abandonment leaves nothing to fall back on but the subjective assessment of any one individual researcher. In many cases
(and in respect of Lively’s American study, the two referred to in the passage cited above are good examples), the identification of pronounced disagreement from the majority in a concurring opinion is a fairly straightforward exercise and one upon which there should be a high degree of consensus. But it is not hard to imagine that in just as many, if not more, cases, there could well be vigorous debate as to the extent of disagreement represented by a concurring judgment. While this difficulty would apply to all studies of disagreement, an attempt at a comprehensive empirical study of
concurring opinion by Justice Louis D. Brandeis, which is, in content, more a dissent than a concurrence…’. 58 As I have said, Lively’s approach is not unattractive and in subsequent chapters (Five and Six), the examination of minority opinions will occasionally include those expressed in concurring judgments in order to give an accurate picture. Nevertheless, an awareness of the dangers discussed here is important.
125 dissent (which, to be clear, it should be stated Lively’s is not) would be particularly weakened by such an approach as no two researchers could be sure of producing the same set of statistics from precisely the same material.59 So while a study of dissent which focuses upon only those opinions which meet its technical definition carries certain limitations, it must be more certain than one which involves the researcher divining for a ‘dissenting spirit’.
The second objection to a relaxed attitude to classification of disagreement is probably best put in the context of authors other than Lively. A distinction may be drawn between his approach to the definitional boundaries and that of others working in the area. Both Lively and Barth60 begin from the standard meaning of ‘dissent’ and then acknowledge breaking that in a few instances so as to include consideration of particular concurring judgments. Some other studies simply seek to set aside the definitions generally. For example, Flanders,61 Scalia62 and Stack63 all include concurring opinions within their use of the word ‘dissent’ for the purposes of their commentary.64 Whilst this catches all forms of discord and acknowledges that many of the comments in respect of dissent are just as applicable to concurring judgments, it does so at the cost of overlooking significant instances where a justice in disagreement with his or her brethren quite deliberately exercises self-restraint to
59 Quite simply, it would fail the replication standard vital to the integrity of such work: see Epstein and King, above n 14. 60 Above n 45. 61 Robert G Flanders Jr, ‘The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable’ (1999) 4 Roger Williams University Law Review 401. 62 Justice Antonin Scalia, ‘The Dissenting Opinion’ (1994) Journal of Supreme Court History 33. 63 Kevin M Stack, ‘The Practice of Dissent in the Supreme Court’ (1996) 105 Yale Law Journal 2235. 64 It should be noted in respect of all these authors, that they do not argue the distinction between concurring and dissenting judgments is fallacious. They do not attack the binary classification of separate judgments supported by the commentators cited above at n 19, but simply choose to group concurring and dissenting together for the purposes of considering separate opinions and judicial disagreement.
126 deliver a concurring opinion or conversely where a justice persists in the delivery of dissent on an issue recurring before the court. Once the division between concurrence and dissent is made fluid, the importance of these judicial choices becomes less notable. A good example of what is meant here is the concurring judgment of Justice
Dawson in Richardson v Forestry Commission65 which reiterates all his objections to the majority’s interpretation of the external affairs power under the Commonwealth
Constitution which had appeared in his dissent in Commonwealth v Tasmania (The
Tasmanian Dams Case).66 The vigour with which Justice Dawson still held those views by the time of Richardson cannot be denied, but it is his decision to close the door on his own narrow reading of s.51(xxix) and concur with the majority which makes his judgment so interesting. A study which searches for ‘dissenting spirit’ at the expense of technical classification of judgments may miss these important nuances of when the line traditionally separating forms of judicial disagreement is crossed – in either direction.
Finally, and most crucially, it is patently clear that a general discarding of the line separating dissent from concurrence is untenable in a jurisdiction where seriatim opinions are delivered. In Australia, the concurring judgment does not occupy some specific status relative to a judgment which is published as the ‘opinion of the Court’.
A glance at the annual statistics compiled on the United States Supreme Court indicates the ease with which American commentators can categorise and quantify concurrences and dissents – and combine the figures if so desired.67 Similarly, the
65 (1988) 164 CLR 261. 66 (1983) 158 CLR 1. 67 As an example see the statistics for the 1969 term: (1970) 84 Harvard Law Review, 251 (Table III(A)). All authors cited above, nn 61-3, are writing with respect to that Court.
127 rarity of individual concurrences in the Supreme Court of Canada68 must lie behind
McCormick’s decision, in his empirical study of decision-making by that institution, to approach the matter in the following way:
The differences expressed through separate concurrences can be just as
significant in their implications…as the differences that take the form of dissent;
because both are examples of judicial disagreement about the appropriate
outcome and rationale, the two are appropriately conflated into a single
category…no breakdown between the two categories will be provided.69
This is quite unimaginable in respect of a study of the High Court of Australia. As already discussed in Part III, concurrence, in our context, lacks the quality of being a
‘separate’ opinion – it is not formally separate from anything. Judgments delivered by a court in seriatim lack the ability to be classified according to an obvious relationship to the central opinion delivered ‘for the Court’. The only means of determining a status for judicial opinions in our tradition is whether they dissent from the final orders of the Court. The inclusion of concurrences in our understanding of a dissenting judgment would have the effect of rendering almost all judgments delivered in the High Court’s history as dissenting!
Given his prominence in this area, it is worth explaining why the strict definitional stance maintained here appears to differ from the methodology adopted by Russell
68 Ian Greene et al, Final Appeal – Decision-making in Canadian Courts of Appeal (1998) 78; L’Heureux-Dubé, above n 19, 514. 69 McCormick (2004), above n 10, 104.
128 Smyth in some of his work.70 In identifying voting coalitions on the High Court,
Smyth looks only to instances of ‘explicit agreement’ through joint judgments. He sets aside opinions outside the coalitions – not just dissenting judgments, but also concurrences on the basis that ‘the reasons are more important than the outcome’.71
Agreement in the result reached by the coalition does not count when expressed in a different judgment. A concurrence may as well be a dissent for these purposes. Smyth cites as support for his approach the Harvard Law Review’s explanatory notes to its statistics on voting alignments on the United States Supreme Court:
Two Justices are considered to have agreed whenever they joined the same
opinion, as indicated by either the reporter or the explicit statement of a Justice
in the body of his or her own opinion. The table does not treat two Justices as
having agreed if they did not join the same opinion, even if they agreed in the
result of the case and wrote separate opinions revealing very little philosophical
disagreement.72
This passage indicates very clearly the context of the ‘reasons are more important than the outcome’ approach. In compiling statistics on voting coalitions, one should not enter the risky realm of subjectively assessing concurrences for levels of agreement, but instead note only those instances where agreement is so ‘explicit’ as to be
70 I shall discuss other aspects of Smyth’s work which diverge from the methodology proposed here later in this chapter. 71 Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’, above n 9, 333; and Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935-50’ above n 9, 99. Smyth expands upon this: If a Justice dissents from the outcome of the case it is clear that he or she is not part of the successful coalition that decided the case. However, it might be less obvious that a Justice who writes a separate judgment agreeing with the outcome, but not the reasons, of the other Justices should be treated the same. But this follows once it is accepted that the reasons are more important than the outcome. 72 (1996) 110 Harvard Law Review 135, 369 (notes accompanying Table I(B)).
129 ascertainable with objectivity and certainty ie. complete uniformity of reasons through joint authorship of an opinion. It is not the case that dissents and individual concurrences are much of a muchness in gauging disagreement, but rather the latter are relegated to the position of the former for the purpose of studies aiming to uncover only clear evidence of unassailable consensus.
While obviously appropriate and necessary in the context in which Smyth is working, this is not a method which is transferable to a study aiming to discern levels of dissent
– essentially explicit disagreement. Just as considering separate concurrences risks muddying the observable instances of judicial coalitions, treating concurrences as dissents on the basis of the level of disagreement found within their reasons would similarly involve the researcher in a subjective exercise. Even acknowledging the value of Smyth’s exposure of voting coalitions on the High Court using this method which disregards separate concurrences, an inevitable limitation of his work is that there is undeniably more agreement than his figures reveal – it is just simply not
‘explicit’ enough.73 Likewise, I have admitted that disagreement on the Court may be much more pronounced than rates of dissenting judgments alone will indicate. The nature of both exercises is such that in order to be precise and objective they carry with them this limitation. So despite initial impressions, the treatment of concurrences proposed here is not at odds with Smyth’s reported methodology in his numerous studies of judicial coalitions, but on the contrary is motivated by very similar concerns. Indeed, this is made apparent by the Harvard Law Review’s employment of
73 Smyth himself effectively acknowledges this point in the context of his most recent such study when he says, ‘in the majority of cases during the period in which Latham was Chief Justice, all of the Justices delivered separate judgments; therefore this study focuses on a by-product of High Court practice’: ‘Explaining Voting Patterns on the Latham High Court 1935-50’ above n 9, 108.
130 both these approaches with respect to concurring judgments depending upon whether it is seeking to produce data on voting alignments or dissent rates.
Smyth’s more recent work confirms this. Smyth has moved away from examining voting coalitions to attempts to measure judicial dissent and test various hypotheses for its occurrence.74 In a direct endorsement of the methodology advocated above, he says:
A judgment was classified as dissenting if the Justice disagreed with the result
proposed by the majority expressed in the orders of the Court. In adopting this
approach we use the term ‘dissenting’ in a manner consistent with the recent
literature on measuring (dis)agreement on the High Court, particularly the
methodology suggested by Andrew Lynch.75
The weight of concurrence is one of several difficulties presented to those who are attempting some study of dissent – whether empirically based or not. The temptation to be flexible with the definitional constraints is understandable to anyone who has tried to track disagreement in courts of last resort. The problems identified in the next section – many of which, to a large extent, the United States Supreme Court has managed to insulate itself from, and thus American commentators have not had to confront – will further demonstrate the constraints which result from the strict conceptual meanings of dissent and concurrence in practice.
74 Smyth, ‘Historical Consensual Norms in the High Court’, above n 9; Smyth (2003), above n 9; Smyth (2004), above n 9; Groves and Smyth, above n 9. 75 Smyth (2004), above n 9, 230; Groves and Smyth, above n 9, 256.
131 B Identification of a Majority – Orders, Reasons and Multiple Issues
The problem of the odd concurrence which has a ‘dissenting spirit’ pales beside the very frequent difficulty of identifying who has dissented and who has not. To simply state that a dissent is a judgment which disagrees with the court’s order, in addition to the reasons given for reaching it, denies the real complexity caused by the permutations possible among a bench of seven Justices when asked to consider more than one issue. The comments made earlier about the shifting nature of majority and minority opinion are particularly pertinent to this discussion. It also overlooks that even in response to one question, there are multiple and not necessarily consistent answers which may be given and which are not indicative of simple disagreement.
This touches upon, but extends, the observations made in respect of the degree to which a judge concurs. An examination of caselaw will illuminate these concerns.
1 Shifting Majorities – The Problem of Many Dissenters
The decision of Dennis Hotels Pty Ltd v Victoria76 is a well-known and effective example of the havoc which a shifting majority can play upon an attempt to link identification of dissenters to a simple notion of ‘minority’. That case concerned the question of whether sections 19(1)(a) and (1)(b) of the Licensing Act 1958 (Vic) were invalid as imposing excise duty in contravention of section 90 of the Commonwealth
Constitution, which renders the ability to raise such taxes an exclusive power of the federal parliament. Sub-section (a) calculated the fee for purchase of a victualler’s license by reference to purchases of liquor in a twelve month period preceding the time covered by the new license (a ‘back-dated’ license fee). Sub-section (b) provided that the fee for a temporary license was one pound per day plus six percent of the
76 (1960) 104 CLR 529.
132 purchase price paid for any liquor during the period of the temporary license. Thus, the calculations under sub-section (b) made no use of the ‘back-dating’ method. The
Court was divided as to the validity of the two licenses.
Chief Justice Dixon with Justices McTiernan and Windeyer found that both subsections attempted to raise an excise and thus were in breach of the constitutional constraint found in section 90 of the Constitution. On the other hand, Justices
Fullagar, Kitto and Taylor saw nothing impermissible in either method of calculation and adjudged both provisions to be valid. The seventh vote was held by Justice
Menzies who was of the view that the temporary license was an excise (thus he formed a majority with Chief Justice Dixon with Justices McTiernan and Windeyer in ruling section 19(1)(b) invalid), but he felt that the back-dating calculation used in section 19(1)(a) saved those fees from being characterised as an excise (thus he formed a majority with Justices Fullagar, Kitto and Taylor in ruling section 19(1)(a) to be valid). The result of the case was that subsection (1)(a) was valid whilst (1)(b) was not but only one member of the Court was of this opinion. The only judge to concur in the order made by the court was Justice Menzies, whose deciding vote alone had determined it. Does this mean that the other six members of the bench were in dissent? Certainly, it cannot be said that they concurred in the order made by the
Court – they each, in respect of one of the sub-sections, submitted a contrary opinion as to the result. Under the traditional understanding of dissent – disagreement as to the orders made by the court, not just the reasoning used to get there – what we have is six dissenters. This tends to challenge our normal equation between dissenting opinions and the ‘minority’. But because the latter concept (along with, obviously, that of the ‘majority’) does not stay constant within the scope of a single case it is
133 possible for a majority of judges to be identified as dissenting from the final result delivered by the Court as an institution.77
2 Shifting Majorities – The Problem of Institutional Coherence across Multiple
Issues
Two factors in the Australian system render the kind of result witnessed in Dennis
Hotels a fairly familiar occurrence. The first is our practice of giving seriatim opinions which negatively impacts upon consensus building in the Court. In the history of their Supreme Courts, the United States and Canada have moved away from this tendency to individualistic expression which can foster greater fragmentation of the Court than is warranted given the extent of consensus which may actually exist.78
This comment is not confined to dissenting judgments but applies perhaps even more forcibly in the context of concurring opinions. L’Heureux-Dubé has succinctly
77 Even applying the unaltered Harvard rules to the result in Dennis Hotels does not displace the characterisation which I have given it here. Those rules were stated in text accompanying n 30. Rule (b), it will be recalled, states that ‘A Justice is considered to have dissented when he or she voted to dispose of the case in any manner different from the majority of the Court’. Rule (d) stated that ‘Opinions concurring in part and dissenting in part are counted as dissents’. The combined effect of these rules is clearly to confirm my finding that the six judgments of Chief Justice Dixon, Justices McTiernan, Windeyer, Fullagar, Kitto and Taylor all should be counted as dissents for the purpose of compiling statistics. It can hardly be suggested that there is any solid majority in Dennis Hotels. Rather, it is what the Americans describe as a ‘plurality decision’. But applying rule (c) (‘Plurality opinions that announce the judgment of the Court are counted as opinions of the Court’), the judgment of Justice Menzies would seem to be the only opinion eligible to be identified as that ‘of the Court’. The partial agreement with it voiced by the other six members of the bench cannot avoid activating rule (d) and the same result is reached. This is frequently overlooked in most studies of dissent, though an exception is that of Mark A Kadzielski and Robert C Kunda, ‘The Unmaking of Judicial Consensus in the 1930’s: An Historical Analysis’ (1983) 15 University of West Los Angeles Law Review 43. In support of the approach which I am advocating here, the authors say at 47: There is normally on a seven man court the possibility of zero, one, two, or three dissents from the decision of the court. In some cases, however, where more than one issue is involved in a case, less than four judges agree with the entire disposition of the case, even though each of the several subpoints is supported by a majority of the court. In cases like this more than three dissenting votes are included in the totals. Although this may be somewhat unrealistic, the totals do reflect the number of judges who, over the course of the year, deviated from the actual legal decisions which were produced by the courts considered as units. 78 Though, as noted earlier, plurality has been on the rise in the United States since 1941: Kelsh, above n 23, 174-181.
134 explained that the dangers of a multiplicity of opinion is to produce ‘no majority reasons per se’.79
Secondly, the problems caused by a tendency towards the giving of individual opinions rather than an ‘opinion of the Court’, are exacerbated in a climate where the
Court is not called upon to answer a simple question but numerous complex and interrelated ones.80 Increasingly this has been the High Court’s lot. By the standard of recent times, the division with respect to the two licence schemes in Dennis Hotels was simply an unfortunate occurrence – these days the Court is regularly presented with so much more scope for disagreement rather than consensus. This was a trend identified fairly early on by Justice Murphy who lamented its capacity to be destructive of useful majority consensus. In his last case, that of Miller v TCN
Channel Nine Pty Ltd,81 the High Court was asked to consider whether section 6 of the Wireless Telegraphy Act 1905 (Cth), which prohibited the unauthorised establishment, erection, maintenance or use of a transmission station, was in any way inconsistent with two constitutional guarantees. The first guarantee argued by the defendant was that expressed in section 92 of the Commonwealth Constitution, while the second was a far more uncertain constitutionally implied freedom of communication. Although Justice Murphy concurred in the Court’s finding that
79 L’Heureux-Dubé, above n 19, 496 (n 2). 80 In respect of the US Supreme Court, Bader Ginsburg has said that ‘the near disappearance of easy cases – became evident in the 1940s, as the dissent rate moved to over sixty percent. Hard cases do not inevitably make bad law, but too often they produce multiple opinions.’: above n 23, 148. Alder, above n 19, 227-233, has undertaken work on the basis of disagreement in these hard cases arising in final courts of appeal by attempting to identify the faultlines over which such disagreements occur. In respect of the House of Lords, he identifies four kinds of ‘incommensurable disagreement’: (1) Disagreement about substantive ethical or political values; (2) Disagreement about judicial function, particularly the distinction between formal and substantive reasoning; (3) The search for a priori principles versus a process focused on consequences; and (4) Differences of emphasis or predictions of consequences or inferences from fact. 81 (1986) 161 CLR 556.
135 section 92 did not excuse the defendant’s non-compliance with section 6 of the relevant Act by the establishment, erection and maintenance of a telegraph tower without authorisation, he was in a minority with Justice Brennan in holding that the entire section was unaffected by the express constitutional guarantee. As to the question of freedom of speech, it is notorious that at this time Justice Murphy was a lone voice in favour of an implication on these lines.82 Justice Murphy appreciated that the way the Court handled a multiplicity of issues could lead to confusion about the basis for its result and his views are worth quoting at length:
Seeking the opinion of the Court by a stated case presenting separate questions
causes a difficulty. For example, a majority of justices may answer No to each
question, yet a majority may be of opinion either s. 92 or an implied guarantee
prevents the application of the sections to the defendant. The problem of
framing the questions so that there is no possibility of a distorted result was
agitated in the preliminary proceedings in Uebergang v. Australian Wheat
Board.83
An example of where the adoption of separate questions would have distorted
the ultimate result is Queensland v. The Commonwealth.84 There, a majority was
in favour of the view that if a previous decision was wrong it should not be
followed and a different majority was in favour of the view that the previous
decision was wrong. Had these questions been asked separately, and the logical
result of those answers been treated as decisive, the previous decision would
82 See discussion of the path of minority opinion on this topic in Chapter Six. 83 (1980) 145 CLR 266 (see Transcript of Proceedings 20 August 1979, pp 15, 21-23; 6 February 1980, pp.23-26). 84 (1977) 139 CLR 585 (The Second Territory Senators Case).
136 have been overturned even though a majority of the Court was in favour of
adhering to the previous decision.
A civil or criminal appeal also provides a useful illustration of this point. If an
appeal is made on two or more grounds, ordinarily the reasons of each justice
are for or against allowance or dismissal of the appeal. If each ground of appeal
was decided as a separate question, the appellant may not have a majority on
either ground but a majority of the Court, for disparate reasons, may consider
that the appeal should be allowed. As I understand it, the practice has been to
refuse to poll the Court on separate issues. The Court bases its order on the
whole of the issues. Here the real question is whether the defendant is entitled to
protection either under s.92 or under an implied guarantee.85
Carrying his concern into effect, at the conclusion of his judgment, Justice Murphy declined to give an answer to the first question (challenging the relevant provisions of the Wireless Telegraphy Act using section 92) even though he clearly stated in his judgment that he was of the view that section 92 was inapplicable. His clear preference was for the defendant’s matter to be stated as one question combining the possible bases of support, to which he indicated he would provide a positive answer.86
These concerns have only been enlarged by the growing complexity of the Court’s work. A good example of the distortion against which Justice Murphy warned in
85 (1986) 161 CLR 556, 580. 86 It is more than a little ironic therefore to find Justice Murphy reported in the headnote to the case as concurring in respect of s.92. While his opinion is largely reflected in the Court’s orders on that issue (though as noted only he and Brennan J excluded s.92 entirely from having any effect upon all provisions of the Act under challenge) his judgment makes it very clear that he declines to respond to the section 92 question. In effect he waives his vote on that issue and cannot be said to be part of a majority providing a negative answer to that question.
137 Miller is found in Environmental Protection Authority v Caltex Refining Co Pty Ltd.87
In that case, the issue was essentially whether the privilege against self-incrimination applied to corporate persons, yet the High Court was faced with a series of related questions which had worked their way up from the New South Wales Land and
Environment Court via that state’s Court of Criminal Appeal.88 A majority of the
Court comprising Chief Justice Mason and Justices Brennan, Toohey and McHugh found that corporations could not avail themselves of the privilege against self- incrimination and so gave a ‘No’ answer to this primary question. However, Justice
Brennan departed from these other members of the Court in the responses he gave to some of the further questions asked. In particular, while Chief Justice Mason and
Justices Toohey and McHugh simply answered ‘No’ to the seventh question,
(‘Whether the privilege against self-incrimination extends to the respondent [Caltex] in respect of the said notice to produce?’), Justice Brennan responded, ‘No, but the privilege against self-exposure to a penalty extends to Caltex’.89 The effect of this was to create a different majority in which Justice Brennan was joined by Justices Deane,
Dawson and Gaudron who were prepared to extend a privilege to Caltex in respect of the same notice to produce. But as these last three judges had dissented on the first question they based their answer to question seven on the application of the privilege against self-incrimination. Thus, the final answers of the Court were confusingly inconsistent. In answering question one, the Court denied corporations recourse to the privilege against self-incrimination, but the stated answer to question seven was that
Caltex was ‘entitled to either the privilege against self-incrimination or the privilege against self-exposure to a penalty’ in respect of the notice to produce.90
87 (1993) 178 CLR 477. 88 Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118. 89 (1993) 178 CLR 477, 523. 90 Ibid 560.
138
EPA v Caltex gives a solid demonstration of the perils of multimember courts – to which courts of final resort are particularly prone given their larger number of sitting members91 and also their quite different position in respect of principles of precedent and the nature of disputed matters that reach them. The multiplicity of issues and questions for the Court’s determination in final orders, combined with the variety of judicial personalties staffing the Court may well lead to a situation where the answers reached by the Court as an institution are logically inconsistent with each other.
A slightly different example (and a more popularly cited one) of institutional incoherence is found in the case of Hepples v Federal Commissioner of Taxation.92
Unlike in EPA v Caltex, the final orders in Hepples did not themselves betray the confusion which lay behind them. That case concerned the referral by the
Administrative Appeals Tribunal of the question whether a particular sum of money was properly included in the assessable income of Hepples. The Federal Court had given a positive answer to this question, but the High Court found that in answering the referral two discrete questions about the applicability of two provisions arose. On neither the application of s.160M(6) or s.160M(7) of the Income Tax Assessment Act
1936 (Cth) as individual provisions was there a majority of judges prepared to find the sum to be assessable, yet there did exist an overall majority of the Court which found that the income was assessable upon application of one or the other of those subsections. The parties then made submissions as to the form of the orders
(essentially, was the relevant income of Hepples to be assessed or not?) and the Court delivered a further written unanimous judgment in which it stated that the question
91 See Thurmon, above n 24, 426-7. 92 (1992) 173 CLR 492.
139 asked of it by the AAT was ‘ill-posed’ and ‘contains not a single discrete question of law but (at least) two questions of law’. It warned against ‘the aggregation of what are minority opinions on the two questions of law involved to make a majority opinion as to assessability’.93 As a result, Hepples’ income was not assessed.
The High Court’s decision in Hepples is an example of the very thing which Murphy J was protesting in Miller, though the unanimous Court insisted on the distinction between determinations of issues of law and decisions on the rights and liabilities of litigants. Despite the impression one might reasonably have that these would be heavily interrelated, the Court insisted that ‘an order on appeal must declare the majority opinion as to the issue of law, irrespective of any conclusion as to the ultimate rights of the parties to which the reasons of the respective judgments would lead’.94 This ‘tension between the dual functions of the highest court in any hierarchy’, 95 accounts for the different results which are produced depending upon the way in which the questions are approached.
The problem of institutional coherence is probably more extreme and worrying than the other situations considered thus far. Whereas the shifting majority in Dennis
Hotels presents the difficulty of an abundance of dissent, the orders of the Court as a
93 Ibid 552. 94 Ibid 551. As MacAdam and Pyke point out, the consequences of this view ‘appear to be that if the same issues in that case had come before the High Court by way of appeal from the final judgment, Hepples would have lost.’: Alistair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (1998) 212. 95 Coper elaborates: On the one hand, the role of the Court is to settle disputes between parties. From this perspective, the question must be whether the plaintiff or appellant wins or loses. On the other hand, it is also the function of the Court to state authoritatively the law for Australia. From this perspective, it is understandable that the Court is asked to pronounce upon abstract questions of law. But particularly when procedures are used such as demurrer, case stated, or questions reserved, the way in which those abstract questions are constructed (or deconstructed) can have a profound effect on how the ultimate question – who wins? – is answered. Michael Coper, ‘Outcomes, effect of procedure on’ in Blackshield et al, above n 19, 515; see also Hussain, above n 19, 269 (n 23).
140 whole are clear enough. Likewise, cases where a majority is formed through numerous votes, albeit for a variety of different reasons, may provide no obvious consensus of opinion for future guidance, but at least they do not see the Court’s many internal voices effectively prevent it from resolving the dispute coherently. This latter level of complexity is not very amenable to the rules devised in Part III to measure dissent. An application of those rules to the earlier example of EPA v Caltex demonstrates the effect. The clash of answers given by the Court in that case to questions one and seven means that, just as in Dennis Hotels, the judgments of Chief
Justice Mason and Justices Toohey and McHugh must join those of Justices Deane,
Dawson and Gaudron as being not entirely in concurrence with the final orders.
The phenomenon of institutional incoherence is one which, oddly, has received very little attention – particularly in jurisdictions where the seriatim style of judgment delivery enhances the potential for it to occur. Ironically, it has been American scholars who have most directly grappled with the complexity of multimember courts
– most recently after two Supreme Court cases in which different members of the bench accepted the majority’s view on a subissue in order to reach a result which they would otherwise have disagreed with.96 This led to a debate over the merits of judicial decision-making being ‘case-by-case’ (or ‘outcome voting’; the norm in both the
United States and Australia) versus ‘issue voting’ (by which is meant that the Justices proceed sequentially through the issues thrown up by the facts, adopting the majority vote on each one as the institutional position against which the succeeding issues are
96 The two decisions (and the Justices in question) were Pennsylvania v Union Gas 491 US 1 (1989) (White J); and Arizona v Fulminate 499 US 279 (1991) (Kennedy J). The issue had received sporadic attention on earlier occasions: see Davis and Reynolds, above n 24, 83 especially; and Comment, ‘Supreme Court No-Clear Majority Decisions: a Study in Stare Decisis’ (1956) 24 University of Chicago Law Review 99.
141 framed).97 Of course, the question only arises when one considers the operation of multimember courts where disagreement will shift across numerous questions contained within the one matter. Most theories of adjudication have ignored this phenomenon and worked only with a model of solitary judging.98 The stark evidence from the Supreme Court that through synthesis of disparate opinions on a variety of issues it could arrive at orders which no clear majority of Justices endorsed in full, or worse, that it could produce a result which was internally inconsistent, drew direct attention to the plurality behind the Court’s single institutional façade. One suspects that our long familiarity with the seriatim tradition explains why occurrences of judicial incoherence here do not stimulate a similar degree of reflection, yet the discussion which ensued in the United States is of interest and relevance to the practice of the High Court of Australia and our other multimember courts.
The immediate response to the newly-perceived problem of curial incoherence across issues were arguments for the adoption of ‘issue voting’. Others were more flexible and, after arguing that incoherence or unfairness could arise through either an issue vote or a holistic approach depending on the case and the degree to which doctrine was evolving or settled, suggested that a multimember court should conduct a
‘metavote’ as to how the matter was to be resolved.99 Apart from the complaints that results produced by the outcome voting were ‘path dependant’100 and were unworkable as precedent for lower courts and litigants, the absence of any ‘systematic
97 David Post and Steven C Salop, ‘Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels’ (1992) Georgetown Law Journal 743. The name of this article incorporates reference to the decision of National Mutual Insurance Co v Tidewater Transfer Co 337 US 582 (1949) which is a case with parallels to the High Court’s decision in Hepples. 98 Kornhauser and Sager, above n 24, 82; Stack, above n 63; and Jeremy Waldron, ‘Deliberation, Disagreement, and Voting’ in Harold Hongju Koh and Ronald C Slye (eds) Deliberative Democracy and Human Rights (1999) 210, 216. 99 Kornhauser and Sager, above n 41, 57. 100 Essentially the point made by Macadam and Pyke, above n 94; and Coper, above n 95.
142 account of the collective nature of appellate adjudication’ which might assist courts and judges in the avoidance of incoherence between reasons and results was simply an
‘embarrassment’.101 In a convincing reply, Rogers has argued both that outcome voting presents less regular danger than other authors have perceived and also that issue voting is rife with uncertainties and arbitrariness of its own.102
A thorough consideration of the merits of issue voting as a remedy for these undoubted problems is beyond the scope of the immediate purposes of this project. It is enough simply to realise that the possibility of institutional incoherence arising from the fusion of individual Justices’ votes has been identified elsewhere as a feature of final courts. In his seminal piece, Easterbrook applied public choice theory to demonstrate that, without altering the essential institutional features of a multimember court, ‘criticism of the Court, as an institution, for rendering inconsistent decisions is untenable’.103 Inconsistency of result is an unavoidable danger for a collegiate body run in line with the conditions operating in courts.104 While it is apparent from the earlier examples that I would agree with that assessment, and with the proposition that unthinking criticism of a court on that score is unhelpful, this is irrelevant for present purposes. In order to accurately account for the opinions of individual Justices, we need simply be aware that the occurrence of decisions in which a majority shifts
101 Kornhauser and Sager, above n 41, 12. 102 Rogers, above n 24. 103 Easterbrook, above n 38, 831. 104 The four conditions which, if satisfied, must defeat the certainty of producing logical consistency (or ‘transitivity’) are, under Arrow’s Theorem: (1) Unanimity ie. if all people entitled to a say in the decision prefer one option to another, that option prevails; (2) Nondictatorship ie. equality of voting power; (3) Range ie. choices are not curtailed by an external institution and there must be at least three admissible choices (this requirement is the most cumbersome to apply to courts for, as Easterbrook admits, some legal disputes are resolved through choice between only two options. But he concludes that many disputes feature three or more choices and, so far as we are concerned with final courts of last resort, I think that assumption may be legitimately made in this context); and (4) Independence of Irrelevant Alternatives ie. the choice between options is to be made free of extraneous considerations: ibid, 823-29.
143 across a number of issues so as to produce a result from which many on the Court dissent has not gone altogether unnoticed.
However, it is surprising to find that there appears to have been a fear amongst many empirical researchers to acknowledge this state of affairs. Hence, it has been necessary to consider the calls for issue voting made in response to those relatively unusual instances where ‘judgment and reason are immediately and inexorably pulled apart’,105 if only so as to indicate the degree of the problem of incoherence. Although theories of adjudication have only sporadically considered the complexities with which collegiate decision-making is imbued, there has been sufficient discussion so as to render absurd any pretence in empirical studies that the division amongst Justices will always be straightforward and that the totality of the Court’s orders will always be favoured by a numerical majority of its members.
3 To what extent must a judge agree with the final orders so as to concur with a
majority of the court?
The problems of classification in relation to the cases discussed above invite further consideration on a question which may assist in making sense of those difficulties – to what extent must a judge agree with the final orders so as to concur with a majority of the court? After considering a case like EPA v Caltex, where the Justices of the Court are presented with so many opportunities to diverge, it must be asked just how strictly we require compliance with the totality of the final orders for a judgment to be accurately described as concurring, rather than being classified as dissenting.106 Is
105 Kornhauser and Sager, above n 41, 25. 106 Again, consider the strictness with which concurring judgments are assessed in respect of the United States Supreme Court: see text accompanying n 30.
144 some further refinement of the issues in a case possible and desirable, or would such a course present new dangers?
(a) Strict application of the definitional constraints – a further example
The judgments reported for Philip Morris Inc v Adam P Brown Male Fashions Pty
Ltd107 provide a useful means of discussing this concern. Upon turning to the case report, the reader discovers that the Court was simultaneously concerned with the resolution of a second matter – this being United States Surgical Corporation v
Hospital Products International Pty Ltd.108 In both cases, a determination was required as to the extent to which the Federal Court, when hearing matters concerned with breaches of the Trade Practices Act, had jurisdiction in respect of additional claims arising under either (a) other Commonwealth legislation, namely the Copyright
Act; or (b) common law and equitable rules. With respect to the Philip Morris matter, the plaintiffs had sought further relief in the Federal Court based only upon a claim of passing off arising from the same facts supporting their action under the provisions of the Trade Practices Act. Despite a variety of reasons given across the Court, there was a clear majority of Chief Justice Barwick and Justices Gibbs, Stephen, Mason and
Murphy in favour of allowing the Federal Court jurisdiction over the passing off claim, with Justices Aickin and Wilson dissenting from this finding.
It is in respect of the orders made for the USSC v Hospital Products that the degrees by which members of the Court concur in the orders presents cause for puzzlement.
The extent to which Justices Aickin and Wilson disagree with the Court’s orders is
107 (1981) 148 CLR 457. 108 This particular piece of litigation between these parties is concerned with questions relating to the jurisdiction of the Federal Court. It should not be confused with the subsequent decision made in respect of those parties involving breach of contract and fiduciary duty: see (1984) 156 CLR 41.
145 significantly reduced in this matter. They concur entirely in respect of the Court’s result that the Federal Court has jurisdiction over claims arising under the Trade
Practices Act and any associated claim for copyright infringement under the
Copyright Act 1968 (Cth). But while the Court’s orders said that the material before it did not enable it ‘to decide whether the Federal Court of Australia has jurisdiction to entertain the proceedings in so far as they involve a claim for an injunction to restrain the respondents from passing off’ and that the Federal Court should determine this for itself, Justices Aickin and Wilson seemingly deny the possibility of this additional jurisdiction existing. Does the provision of a definite answer to a question the Court refrains from determining render dissenting a judgment which otherwise concurs in respect of the decisions which the Court does make?
Before leaping to answer that question, it should be noted that Chief Justice Barwick and Justice Murphy behave in the same way, though they go in the other direction.
These two justices also provide a definite answer to the passing off matter – though they respond positively to the Federal Court having the jurisdiction. As such, they also do not share in the final order that there is not enough evidence before the Court and the matter should be determined by the lower Court. It is clear that if Justices Aickin and Wilson are seen as dissenting due to their willingness to address the passing off question in USSC v Hospital Products, then so should Chief Justice Barwick and
Justice Murphy for precisely the same reason. This is in spite of the fact that all seven members of the High Court are agreed on the issue of the jurisdiction arising under the federal legislation and there is no overall majority agreement on the passing off question. Again, the necessary rigidity of the modified Harvard rules will produce a result which is not readily apparent from a more substantive analysis of the case.
146
(b) An alternative approach?
Since my earlier highlighting of the difficulties which beset any attempt to apply a classification system to phenomena as frequently complicated and untidy as the written opinions of a multimember judicial decision-making body,109 Smyth has acknowledged the existence of shifting majorities and the difficulty which they cause the researcher in determining the existence of dissent.110 However, Smyth has rejected my preferred methodology of simply applying rule (b) above as a means of determining the status of opinions in a case, including those where the bench is divided in different ways across several issues. Instead, he favours greater use of discretion on the part of the researcher as a response to this phenomenon:
Where there are multiple issues in the case, one approach would be to record a
dissent if Justice X dissented on any issue, but this tends to exaggerate the level
of dissent if Justice X agreed in the orders for the other issues in the case.
Therefore, in such cases we decided on which was the most important issue or
issues before the Court and recorded whether Justice X dissented on this issue or
issues.111
I am sympathetic to any attempt to deal sensibly with cases in which the majority within the Court mutates across several issues. But for a number of reasons, I would maintain that a strict application of the definitional understanding of ‘dissent’ to the totality of a judicial opinion is a preferable method of classifying judgments than
109 Lynch, above n 16, 492-504. 110 Smyth (2004), above n 9, 230; see also Groves and Smyth, above n 9, 257. 111 Smyth, above n 9, 232. In the collaborative piece by Groves and Smyth, this passage appears but is varied by use of the phrase ‘we made a judgment call’ in the final sentence: ibid.
147 adoption of an approach which is selective amongst the multiple issues addressed in those opinions.
A definite attraction of what Smyth is advocating is that it would appear to limit the possibility of a case being tallied as containing more dissenting opinions than concurrences – an unusual, but probably the most controversial, outcome of a strict application of rule (b).112 Various points of disagreement could be simply excluded from consideration under Smyth’s approach, thus keeping the core consensus on the
Court unsullied by divisions amongst it on other questions. However, even this method does not guarantee an avoidance of a majority of dissenting opinions. That is so for two reasons. Firstly, it remains eminently feasible that the seven members of the Court will come up with more than two answers to ‘the most important’ problem and that the final orders will necessarily be divined through the matrix of responses given to other questions. Secondly, even when the complexity is not so pronounced and the Court is simply working between polar opposites, the researcher may still be unable to avoid a majority of dissents. To take the classic example of Dennis Hotels
Pty Ltd v Victoria,113 it would seem artificial in the extreme for the researcher to prioritise the validity of one of the legislative provisions under challenge in that decision over the other in order to identify a clear majority of four judges as favouring the Court’s resolution of that matter.
This goes toward my main objection to the approach which Smyth is advocating.
While there are often questions of primary and secondary importance in the resolution of a legal problem, to discard the latter and focus solely on the former in order to
112 Lynch, above n 16, 492-3. 113 (1960) 104 CLR 529. See the earlier discussion in text accompanying nn 76-7; and also, Michael Coper, ‘Dennis Hotels v Victoria’ in Blackshield et al, above n 19, 204-6.
148 identify dissent is to do several things. Firstly, it is to ignore the accepted fundamental meaning of that term as it applies to judicial opinions. A dissenting judgment is one where the author proposes resolution of the matter in a manner contrary to the orders issued by the Court for whatever reason.114 Although Groves and Smyth have purported to embrace use of the term ‘dissenting’ so as to be consistent with this classic understanding,115 it is clear that classifying opinions by reference only to an
‘important issue or issues’ in isolation from the rest of the judgment significantly undermines the purity of the concept of ‘dissent’ as a label traditionally arrived at through disparity between the orders favoured by the individual judge and those of the
Court. It is for this reason that both the methodology employed by the Harvard Law
Review in presenting statistics on the United States Supreme Court116 and the modified version of those rules as applied by myself to the High Court of Australia117 insist that ‘a Justice is considered to have dissented when he or she voted to dispose of the case in any manner different from the final orders’.118 To focus only on some issues in a case and not all in classifying judgments is inconsistent both with the true concept of dissent and those other empirical studies which have sought to accurately reflect that.
Secondly, the discretion which Smyth’s approach admits is, to my mind, a step too far. It is one thing for the researcher to make choices when confronted with complex
114 Above n 21 and text accompanying nn 57-64. 115 Groves and Smyth, above n 9, 256. 116 See, for example, (1988) 102 Harvard Law Review 143, 350. 117 See Lynch, above n 9; and Lynch and Williams, above n 9. 118 Like all strict rules though, there must be some exception. Certainly a mild divergence of expression or discrepancy over costs (when calculation is not the central issue in the appeal) are appropriately regarded as trivial differences when all else is equal. Even so, the decision to disregard these dissimilar aspects of a judgment should be noted so the reader can make his or her own assessment. The discretion to sensibly ignore small disagreements of this sort when they arise is quite different from Smyth’s proposal here for selective characterisation of cases generally.
149 material requiring reduction to statistical form in a simple tabular presentation.119 One should not be squeamish about making decisions presented by necessity. But so that the impact of the researcher’s subjective assessments is minimised, care must be taken not to confuse convenience with necessity. The great benefit of approaching the classification of dissent in accordance with its traditional definition is that the scope for individual choice is kept small so that the methodology is transparent to a degree replicable by others. Admittedly the cost is, as I have readily acknowledged120 and
Smyth has pointed out,121 that one risks magnifying the true extent of disagreement in the Court. But, I would maintain that this is a price worth paying in order to ensure the consistency, objectivity and conceptual accuracy which should underpin any empirical study.122 At the same time, one is able to address any limitation of the methodology which flows as a consequence by being explicit about it to the audience and also admitting that the quantitative results cannot alone hope to reflect the degrees of disagreement which really exist amongst the members of the Court and only a more substantive examination of the judicial opinions will provide the sought after nuance.
That seems a preferable approach when compared with a methodology by which the researcher makes a ‘judgment call’123 as to which issues – and thus which disagreements – are to be reflected in the tallying of opinions as dissenting or not. At least with a methodology applying a strict classification of ‘dissent’ we know that the figures will be slightly inflated in their representation of formal disagreement. The chief trouble with an approach based upon a selective reading of the cases is that we are unable to say how the distortion occurs since it is not the result of application of a
119 See Blackshield, above n 5, 134. 120 Lynch, above n 16, 483; and Lynch, above n 9, 41. 121 Smyth, above n 9, 232; Groves and Smyth, above n 9, 257. 122 See Epstein and King above n 14, generally. 123 Groves and Smyth, above n 9, 257.
150 consistent standard but the subjective discretion of the researcher. In attempting to produce more accurate results through such an approach, the researcher arguably weakens the overall study through reducing the role of objective standard criteria. The absence of any information as to which cases involved the making of the ‘judgment call’ – let alone what the call was in respect of any individual decision so treated means the problem of subjectivity is compounded by a lack of transparency.
Lest it be thought otherwise, in making this criticism of the method employed by
Groves and Smyth, I do not mean to suggest that the multitude of statistics they have produced for the High Court and its judges124 is not valuable. Obviously, those pertaining to length of judgments and the frequency of joint opinions are derived in such a way that they are immune from this particular problem. That is original and highly illuminating research. So far as those which deal with the percentage of opinions classified as concurring or dissenting are concerned, the figures produced – and more crucially – their relativity to each other remain a sound indication of trends in High Court decision-making. The authors’ observations as to the factors which may have been responsible for producing such variation across the Court are undoubtedly constructive and this work owes them a particular debt in that regard.
However, methodological differences matter – if only to explain why the figures which result from use of this methodology and which are presented in Chapter Four are not the same as those which Groves and Smyth have produced. This explanation has been rendered particularly necessary in light of Groves and Smyth’s assertion that
124 Groves and Smyth, above n 9.
151 they have adopted and utilised the methodology which I have laid down.125 It is apparent that that is not quite the case and so, in addition to differences due to different data sets (and in respect of previous studies,126 report series), there is a distinction as to the basic classification of when a judgment is dissenting which inevitably results in these figures being similar, but not the same, as those published by those other authors.
4 Multiple Matters Reported Together – How Many Judgments?; How Many
Dissents?
It should be evident to the reader, after its consideration in the preceding section, that the case report of Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd has numerous features which have already been described in this chapter. There is great division among the concurring judgments as to the reasons why the Federal Court has jurisdiction. There is the striking effect of a final result on the issues reached through composite which reflects only a minority of judgments such as was demonstrated in
Dennis Hotels and EPA v Caltex. There is even the confusion of the headnote which seemingly views Justice Wilson’s dissent as a concurrence. One additional feature is present – whilst the determination of multiple issues has already been discussed, this case prompts us to consider one more hazard in attempts to pin down dissent – the simultaneous hearing of a number of matters and their resolution by one set of judgments.
125 Groves and Smyth, above n 9, 276 (fn 100). 126 Lynch, above n 9.
152 As with the asking of many questions for determination, the tendency for a multiplicity of matters to be decided together has grown over the High Court’s history. So far as constitutional cases are concerned, this is not so terribly surprising given the common interest which all states would have in the resolution of disputes governing the terms of the federal relationship with the Commonwealth. But it is not unheard of for matters with completely distinct facts and parties to be heard and reported simultaneously in many other fields such as criminal law, torts and taxation.
These cases pose a particular dilemma to any researcher attempting to compile statistics on dissent.
On one hand, tallying case reports on the number of separate matters they contain may be said to enhance accuracy. By way of an example, let us return to the guiding influence of the Harvard rules. In the statistics for the 1961 Supreme Court term, it was noted that Justice Douglas wrote a dissenting opinion in McGowan v Maryland127 which also applied to three other cases (in the reports of these cases, the reader is cross-referenced to Douglas J’s opinion in McGowan). For the purpose of counting the dissents of Douglas J, his one written opinion in McGowan was thus tallied as four dissents.128 An even clearer demonstration of how the multiple cases/one opinion problem is handled is found in the statistics for the 1969 term where the following note explained how tallying was affected:
Mr Justice Harlan and Mr Justice Stewart each wrote one opinion in which they
concurred in the Court’s result in Williams v Florida, 399 US 78 (1970) and
dissented from the Court’s judgment in Baldwin v New York, 399 US 66 (1970).
127 366 US 420 (1961). 128 (1961) 75 Harvard Law Review 40, 88 (Table IV(A)).
153 Mr Justice Brennan, joined by Mr Justice Douglas and Mr Justice Marshall,
wrote one opinion concurring in the Court’s result in Brady v United States, 397
US 742 (1970) and dissenting from the Court’s judgment in Parker v North
Carolina, 397 US 790 (1970). Although they presented their views regarding
each case in a single opinion, Justices Harlan, Stewart, and Brennan were each
credited with a concurring and dissenting opinion.129
The last example emphasises the great attraction of multiple tallying in allowing disagreement amongst the bench to be isolated to the specific matter in which it arises, rather than having it obscure the weight of consensus which exists in those other matters considered simultaneously. As a judgment which both concurs and dissents in part will be treated simply as dissenting (the consequence of rule (b)), separation of matters is an important means by which that rule is prevented from having an unnecessarily wide effect. Certainly it seems erroneous to allow it to lead to tallying of an opinion which entirely agreed in the Court’s orders in one matter as dissenting because of what was said about a different matter being heard at the same time. The different divisions on the bench in the two matters contained within the Philip Morris case report are a useful local example. Single tallying produces simply four dissenters, despite Chief Justice Barwick and Justice Murphy being in agreement with the Court in the first matter. Separate treatment of the two matters would enable that fact to be made clear.
On the other hand, and despite the Harvard method, an argument can be made out that multiple tallying should be dispensed with where it is not absolutely necessary to
129 (1970) 84 Harvard Law Review 1, 251.
154 convey the true extent of consensus and disagreement amongst the bench. Such cases are those where there is so little difference between the two or more separate matters in the report that the Court draws little distinction on the basis of their separate facts, and even parties. It may be that the facts are essentially the same in each matter (the criminal trials of co-accused are the best example) or that, while the facts are not in total unison, the matters essentially revolve around the same legal question (the obvious example being where a number of States or quite disparate parties challenge the validity of the same Commonwealth law). An unthinking approach to multiple tallying can produce more distortion than it seeks to avoid.
As to when it is appropriate to tally multiple matters dealt with in the one set of opinions singly or severally, there is, perhaps, some guidance to be found in those cases which discuss the accrued jurisdiction of the Federal Court. This was, of course, a question at the heart of the judgments in Philip Morris discussed above.130 In that case, Mason J said that a court exercising federal jurisdiction would have the ability to determine any non-federal claim in addition to a federal one where the two claims ‘so depend on common transactions and facts that they arise out of a common substratum of facts’.131 The context is clearly very different, but the central aim is arguably not – that is, when are matters best seen as distinct or merely parts of the one whole? The presence of a ‘common substratum of facts’ may provide the means for making that conclusion.
Just what a ‘common substratum of facts’ requires was the subject of majority exposition in Fencott v Muller:
130 See the preceding section of this part of the chapter. 131 (1981) 148 CLR 457, 512.
155
What is and what is not part of the one controversy depends on what the parties
have done, the relationships between or among them and the laws which attach
rights or liabilities to their conduct and relationships…But in the end, it is a
matter of impression and of practical judgment whether a non-federal claim and
a federal claim joined in a proceeding are within the scope of one controversy
and thus within the ambit of a matter.132
More recently, Justices Gummow and Hayne have sought to rein in the discretion apparent in those closing words, while otherwise agreeing generally with the Fencott approach:
The references to “impression” and “practical judgment” cannot be understood,
however, as stating a test that is to be applied…the question is not at large. What
is a single controversy “depends on what the parties have done, the relationships
between or among them and the laws which attach rights or liabilities to their
conduct and relationships”. There is but a single matter if different claims arise
out of “common transactions and facts” or “a common substratum of facts”,
notwithstanding that the facts upon which the claims depend “do not wholly
coincide”. So, too, there is but one matter where different claims are so related
that the determination of one is essential to the determination of the other, as, for
example, in the case of third party proceedings or where there are alternative
132 (1983) 152 CLR 570, 608 (Mason, Murphy, Brennan and Deane JJ).
156 claims for the same damage and the determination of one will either render the
other otiose or necessitate its determination.133
Despite their Honours’ attempts to confine the question as to when sufficient commonality exists, it is apparent from the passage that it very much will remain one of ‘impression and practical judgment’ – indeed in the same case Callinan J made no bones about adopting that as the ultimate test to reach a contrary result on the facts.134
Of what assistance are these statements to the statistician’s problem of when to acknowledge the multiple matters which may exist within a single case report and when to gloss them over? Traditionally, the accrued federal jurisdiction cases were concerned with claims made in the one proceeding by the same litigant. Even so, there are things which we may draw out of the opinions in that context so as to apply to the present. Central of these would be that the commonality of a number of matters will be evidenced by a closeness amongst the parties, their actions and the laws governing their situation. In the absence of commonality in all these respects, then clearly one would lean toward multiple tallying of the matters within that case report. However, if the connections between the matters are strong then single tallying will commend itself. In short, the defining feature which should prompt single tallying is that the one answer without more will ‘do’ for all matters. The chief indicator that this is the case will be that the judgments themselves make little or no distinction between the matters being dealt with simultaneously. But if the opinions clearly demarcate between the separate matters and – even more tellingly – the judges draw different opinions from each other in respect of some of those matters yet concur in others, these factors go
133 Re Wakim; Ex parte McNally (1999) 198 Commonwealth Law Reports 511, 588 (Gummow and Hayne JJ). 134 Ibid 627 (Callinan J).
157 toward showing that despite any strong similarities otherwise evident and their simultaneous handling by the court, the matters are distinct and should be recognised as such statistically. But ultimately, to apply the majority’s words in Fencott to this context, the matter must be one involving a degree of impression and practical judgement.
The High Court’s decision in Re Australian Education Union; Ex parte the State of
Victoria135 is a good example of the issues under discussion. That decision actually deals with no fewer than 15 matters involving various unions and the Victorian government. The latter was challenging the jurisdictional ability of the
Commonwealth’s Industrial Relations Commission to make a binding award upon it setting certain stipulations as to the qualifications, length of employment, and conditions of termination of its employees. A joint judgment of Chief Justice Mason and Justices Brennan, Deane, Toohey, Gaudron and McHugh found in Victoria’s favour through an application of the Melbourne Corporation principle.136 Justice
Dawson wrote a separate judgment which disagreed with the views of the majority in significant respects – notably as to whether the disputes extended beyond the confines of the State so as to activate the Commission’s power as constrained by s.51(xxxv) of the Commonwealth Constitution. As to the final orders, in 14 of the 15 matters,
Justice Dawson dissented. In the fifteenth matter – Re Australian Federal Police
Force Association; Ex parte State of Victoria (M30 of 1994) he concurred in the
Court’s order that the order nisi be discharged. How are we to treat this report?
135 (1995) 184 CLR 188. 136 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31.
158 There are essentially two options. The first is that the one set of reasons given by the
Court and the inter-relatedness of the matters justifies them all being lumped together as one case in which Justice Dawson dissents. That may seem reasonable, but two further considerations should be noted. Firstly, although the matters are dealt with by the Court simultaneously, they are still recognised as distinct in the layout of both the case report and the opinions delivered by the judges themselves. The fact that Justice
Dawson can agree in the result on one indicates that the matters are at least severable to some degree and their resolution is not completely linked to each another.
Secondly, turning the situation on its head, what if Justice Dawson had concurred in
14 orders and dissented in just the one? Would we still be as quick to regard his judgment as a single incident of dissent and overlook the high level of agreement reached in respect of the other matters? This last point revisits the discussion held in the preceding section and is the consequence of the requirement under rule (b) of the methodology that anything less than total concurrence will be viewed as a dissent.
The alternative option is to regard the case as dealing with 15 separate matters and treat it as such for statistical purposes. In many ways this is supported by the manner in which the litigation is reported. This is truer to the nature of the matters and enables us to record that in respect of M30 of 1994, Justice Dawson does not in fact dissent.
But there is a high price to be paid for this accuracy. In order to bring out Justice
Dawson’s concurrence we would be required to note his dissent in the other 14 matters. And while this is also accurate, it seems just as artificial to do so as to pretend that the matter was singular. For there is common ground between the matters and his
Honour’s dissent in 14 of them stems from his disagreement with the majority on only a few points (certainly not as many as 14) as expressed in one set of written reasons.
159 Thus we risk grossly exaggerating the representation of Justice Dawson in any ranking of dissent rates.
There seems no easy solution to this particular dilemma. Though the Harvard approach suggests multiple tallying (with the inflationary effect that this produces being offset by clearly bringing anomalies to the attention of readers), that does not seem quite compelling enough. Use of multiple tallying must not lose a proper sense of proportion. In many decisions, the existence of a ‘common factual substratum’ will be so obvious as to preclude multiple tallying of the matters within a report. A good example is those cases where the States line up against the Commonwealth to settle constitutional questions. For instance, the situation in Philip Morris Inc v Adam P
Brown Male Fashions Pty Ltd and Re Australian Education Union may be contrasted with that found in NSW v Commonwealth (The Incorporation Case)137 which concerned three separate actions brought by the states of New South Wales, Western
Australia and South Australia in respect of the validity of various provisions of the
Commonwealth’s Corporations Act 1989. In the former two cases, while there was enough commonality to justify a number of matters being handled simultaneously by the Court, different features of each did creep in so as to produce different results. The one answer did not, after all, simply ‘do’ for all litigation to which the judgments were addressed. But this is indeed so in respect of the Incorporation Case and others of its ilk. It would be a clear exaggeration to count Justice Deane’s dissent three times when it really is one judgment which applies identically to the three matters all raising the very same question of law. In such circumstances, recognition of the essential commonality of the matters through single tallying is clearly the appropriate course.
137 (1990) 169 CLR 482.
160
The report of Re Australian Education Union; Ex parte the State of Victoria is not, as noted, so clear cut. But given that two constitutional questions – the interpretation of s.51 (xxxv) and the federal immunity recognised as the Melbourne Corporation doctrine – are the crucial deciding factors, it would be remiss to ignore the obvious exaggeration and distortion which full multiple tallying of the decision as 15 separate matters would produce. This must weigh heavily against doing so and the case should be tallied as one. Thus, despite Dawson J’s concurrence in M30, the application of rule (b) will mean that his Honour is simply tallied as being in dissent. The matter is ultimately one of degree.138
In all, one would expect that most cases comprised of a number of matters will be tallied only once due to the common factual substratum between those matters which led to their being heard together in the first place. However, cases where distinctions between the matters are evident should not simply be lumped together for the sake of convenience. These are, as a matter of fact, separate decisions and each one will make a different contribution to the statistics overall. The approach of the Harvard Law
Review is instructive in this regard and demonstrates that equation of every case with just one matter is too simplistic. Given the strictness with which rule (b) must be applied, an unwillingness to break apart the matters within a report so as to enable isolation of any disagreement to its specific context, must be likely to increase the
138 The question of how to treat this case for the purposes of an empirical study has presented no small challenge. In the abstract, I was earlier of the view that the advice from the Harvard rules resolved the balance in favour of multiple tallying, despite the number of matters involved: Lynch, above n 16, 500-02. However, practical experience in use of the methodology (Lynch, above n 9, but especially in respect of the results produced in Chapter Four) has convinced me that multiple tallying of the decision is (a) untenable given the distortion it introduces to the statistics, which no amount of written qualification can overcome; and (b) unjustified given the degree of commonality amongst those 15 matters in the report.
161 proportion of dissents tallied for the case if treated as a single unit (maybe to the point that rule (c) is invoked – more dissents than not). The benefit of multiple tallying is that it enables a higher level of precision and thus the possibility of containing disagreement within its true borders. The obvious drawback however, as compared to a straightforward ‘one case-one tally’ approach, is the degree of uncertainty as to when it is appropriate to exercise a discretion to multiple tally. While general guiding considerations such as those above can be stated clearly enough, there are cases where those are not clearly determinative. Similarly, the reader should be able to see which cases have been treated in this way so as to make their own judgment as to the impact on the results overall. Thus, the crucial responsibility of the researcher is to flag for users of the material exactly where and how discretion has been exercised.
C Summary
This Part has discussed the ambiguity and choices that confront the researcher aiming to identify dissent. It has done so by discussing caselaw which demonstrates the relational interaction at the core of collegiate decision-making. The shifting of majority and minority opinion within the context of one decision presents a palpable challenge to our normal understanding of dissent. It does not, however, deprive that concept of useful meaning. Rather, it simply requires a more thoughtful and careful application of that terminology in complicated circumstances, such as those considered here.
V THE VALUE OF THIS METHODOLOGY
This chapter has sought to demonstrate the issues which arise upon a correct application of the terms ‘dissent’ and ‘concurrence’ when classifying judicial
162 opinions. Whilst this exercise need not pose difficulties in some – perhaps a majority of – cases, clearly the potential exists for confusion to occur reasonably frequently.
This stems chiefly from our tendency to link dissent to fixed concepts of majority and minority voting, rather than acknowledging the fluidity which exists within the decision-making process. This degree of flux may arise due to a number of diverse factors but the two that have been particularly highlighted are the complexity of the issues which the Court must decide, which provide ample scope for a diversity of disagreement, and the ‘individualistic spirit’ of our judges,139 to which the tradition of seriatim opinions gives rise.
Throughout this chapter, consideration of these matters has been linked to the development of a transparent methodology which aims to provide certainty and accuracy for the researcher interested in the extent of judicial disagreement. The abandonment of the definitional distinction between concurring and dissenting judgments may perhaps be justifiable in respect of general discussions about separate opinion writing in the United States, but it cannot be supported in the measurement of discord in the High Court of Australia.140 This is not to say that disagreement found within concurring opinions should be ruthlessly set aside from any substantive discussion, as will be clear in later chapters, but it certainly cannot be a feature of any empirical research which hopes to quantify dissent in that institution.141
139 Gleeson, above n 45 at 89. 140 The fact that these definitional distinctions are preserved in the statistical analysis of the United States Supreme Court featured in the Harvard Law Review is not in itself justification for a similar approach to be adopted here, but the reasons which inform that American methodology are just as relevant – in fact, much more so – in this jurisdiction. 141 As noted above at n 58, the later chapters of this work will necessarily include consideration of some judgments of that nature which are significant in appreciating how minority views may be promoted in the Court.
163 It may be that, in light of the problems outlined in this chapter, the reader is in fact persuaded that an empirical attempt to study dissent is misguided – or at least, that the method for doing so proposed here is defective. In response to a general conclusion that any empirical study will inevitably suffer from defects which render the exercise not worth pursuing, one can only repeat that a study of the sort proposed here will clearly help to fill a vacuum in respect of our present appreciation of dissent in the
High Court. It is very clear that any empirical study must reveal in detail how the material under review was handled and the factors which supported the choices made by the researcher. Only then can the statistics be compiled in a way which is frank in exposing their inescapable restrictions when considered in isolation. This does not prevent such a study from being inherently valuable, as well as acting as a useful basis for further observations about dissent including, the practice of persistent dissent and its impact, if any, upon changes in the law, and the role of voting blocs and judicial leadership across the Court’s history. Reliable, albeit qualified, statistical information has an important role in exploring these areas of inquiry. That such data may be more difficult to collect and collate than we may have anticipated should not justify the abandonment of any effort to do so at all.
As to specific dissatisfaction with the methodology devised in this Chapter, while it must be acknowledged that, to some extent, the rigid application of definitional distinctions preserves the correct meaning of dissent at the cost of impeding attempts to gauge the full substance and range of disagreement on the Court, it must also be admitted that it ensures objectivity and certainty. Ultimately, these attributes have an unassailable value in the face of competing approaches to the measurement of judicial dissent which rely too heavily on the individual discretion of the researcher. Not only
164 is the method advanced here conceptually accurate, but in being an adaptation from the longstanding statistical approach to the United States Supreme Court, it possesses a particularly strong antecedent. Any shortcomings of this method are at least explicit and may be compensated for by supplementary analysis aiming at a better understanding of disagreement in general. In the context of this particular study, the discussions in Chapters Five and Six aim to present a more nuanced picture of disagreement in the constitutional cases of the High Court than the figures in Chapter
Four can alone provide.
165 CHAPTER FOUR
THE PREVALENCE OF DISSENT ON THE HIGH COURT, WITH EMPHASIS UPON CONSTITUTIONAL LAW CASES: 1981-2003
I INTRODUCTION
The purpose of this chapter is to report empirical findings on the prevalence of dissent
at both an institutional and individual level, having applied the methodology which was detailed in the preceding chapter to a recent timeframe in the High Court’s
history. The statistics presented and discussed here span from 1981 to 2003 and
commence with the appointment of Sir Harry Gibbs to the position of Chief Justice
and conclude with the retirement of Justice Mary Gaudron from the Court. Thus, the eras of four Chief Justices are included – the entirety of Chief Justices Gibbs, Mason and Brennan’s tenure and roughly the first five years of the Gleeson Court. This was viewed as a suitably lengthy period for study, as it comprises roughly a fifth of the
Court’s history and was a time over which significant changes in constitutional
methodology took place.
The statistics presented reflect both the Court’s total reported work and its constitutional law caseload over the same period. The inclusion of the former provides an essential backdrop against which the figures given for constitutional matters must be understood. In light of this work’s focus upon constitutional disagreement, some additional tables dealing specifically with cases of that nature aim to identify the areas which have attracted repeated attention and the extent to which they have fractured opinion on the Court. That information is crucial in framing the discussion in following chapters which attempts to gauge the impact of dissent in those cases upon subsequent development of the Court’s interpretation of the
Constitution.
II SOME SPECIFIC STATEMENTS CONCERNING METHODOLOGY
A Classification
The discussion in Chapter Three aimed to clarify several core issues which face an empirical researcher of the High Court of Australia. Of these, the most significant was surely the difficulties which may arise in seeking to categorise individual judgments as either ‘concurring’ or ‘dissenting’. Through modification of the system employed by the Harvard Law Review, this problem was resolved in favour of a strict classification system which sought to limit reliance upon unstable majorities through use of the final orders of the court as a reference point. To repeat, the three rules developed are:
(a) A separate statement of opinion as to how a case should be resolved is
recorded as a separate judgment (concurring or dissenting) regardless of
whether reasons are given or not (therefore, only those cases where all
Justices co-authored a single opinion are classified as decided by a
unanimous judgment);
(b) A Justice is considered to have dissented when he or she voted to dispose
of the case in any manner different from the final orders issued by the
Court. This rule will not apply in cases where the final orders are
determined by application of a procedural rule (for example, resolution of
deadlock between an even number of Justices through use of the Chief
168 Justice’s casting vote). The latter type of case should be discounted from
any study attempting to quantify dissent;
(c) Opinions that concur in the orders of the Court, even if not belonging to
any actual majority, are not dissenting.
The remainder of Chapter Three considered the challenges which multiple issues and also multiple matters in the one case report can present to those engaged in a simple tally of the Court’s work, particularly with respect to rule (b) above. It was suggested that a rigid application of the rules will deal with the former difficulty in most instances, while cases comprised of a number of matters may be tallied singly or
severally depending upon the degree to which they were differentiated in the
judgments of the Court. The exercise of the researcher’s discretion in this regard
should be properly noted so as to enable the reader to appreciate where and on what basis subjective choices have been made which affect the figures produced.
In 1968, the editors of the Harvard Law Review provided greater detail as to how the
annual Supreme Court statistics which that journal provides were compiled because:
…it was felt, the nature of the errors likely to be committed in constructing the
tables should be indicated so that the reader might assess for himself the
accuracy and value of the information conveyed.1
The editors’ use of the word ‘errors’ is inapt for what they are describing is really only those inevitable decisions about which different researchers may have legitimate
1 ‘The Supreme Court, 1967 Term’ (1968) 82 Harvard Law Review 63, 101.
169 disagreement. Nevertheless, the aim of greater transparency in respect of those
choices is a worthwhile one. To that end, a detailed Appendix accompanying this
chapter, which explains a variety of the more challenging tallying decisions made in
respect of the compilation of the following statistics, is found at the end of this work.
B Data Source
The statistics were gathered using cases reported in volumes 148 to 216 (Part 2) of the
Commonwealth Law Reports. Excluded were any decisions heard before the
retirement of Chief Justice Barwick and his replacement by Chief Justice Gibbs2 and
any heard after the departure of Justice Mary Gaudron from the Gleeson Court in
February 2003.3
The use of the High Court’s authorised report series is consistent with the conduct of
empirical research by others.4 Despite the fact that the CLRs do not contain each and
every case decided by the Court, they do contain a more than adequate representation
of the total and they certainly contain every constitutional law decision. The former
consideration ensures a perfectly acceptable sample size for study and the latter
ensures the appropriateness of the report series for this project with its special focus
upon constitutional cases.
2 Three such matters – two being constitutional in character – were included in the reports found in volume 148. Additionally, several cases outside the timeframe of this study were reported in volume 180 which was a special release by the Law Book Company of cases whose subsequent importance had not been predicted by the editors at the time they were first decided. 3 The last case to be included in the study is Chief Executive Officer of Customs Pty Ltd v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, heard on 11 December 2002 before Gaudron J’s departure. Her Honour did not sit on the bench for that decision, in which judgment was handed down on 5 September 2003. 4 See almost all the studies cited at nn 8-9 in Chapter Three.
170 For tallying purposes, any report where written reasons were recorded in the CLRs –
including those involving an application for special leave – contributed to the
statistics. Excluded from the study were reports of single or, more rarely, two judge decisions of the High Court. Thus any reported opinion from a bench comprised of
three or more members is included in this study.
C What is a ‘constitutional case’?
In identifying ‘constitutional cases’ as a group within the total sample, the essential
definition adopted is:
that subset of cases decided by the High Court in the application of legal
principle identified by the Court as being derived from the Australian
Constitution. That definition is framed deliberately to take in a wider category of
cases than those simply involving matters within the constitutional description
of ‘a matter arising under this Constitution or involving its interpretation’.5
Additionally, this study has widened the net so as to include those matters which involved questions of purely state constitutional law of which there were but twelve out of the total of 234.6 Of course, many more cases involved consideration of a
combination of Commonwealth and State powers and responsibilities, the many
matters arising with respect to section 109 of the Constitution being just the most
obvious example.
5 Stephen Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ (2002) 25 University of New South Wales Law Journal 194, 195. 6 Justice Kenny, in assessing the 2002 term of the High Court, made it clear that her use of the phrase ‘constitutional cases’ included those involving the Constitution of an Australian State: Justice Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ (2003) 26 University of New South Wales Law Journal 210, 210.
171
The classification of a case’s topic is made fairly generously using the presence of constitutional descriptors or provisions in the catchwords accompanying the judgments. However, a few additional cases in which constitutional issues were discussed, even if by only some of the bench, were so classified despite the lack of any indication in the accompanying catchwords of those constitutional aspects.7
While this was admittedly a rare occurrence, it ensured that the quirks of particular editorial decisions did not result in exclusion of a relevant case.8
Obviously, the degree to which constitutional questions were central to the resolution of all these cases varied, but wherever constitutional principle arose and, with a few exceptions, was identified by the report editors, then regardless of the dominance of other legal questions, the case was included in the core group under analysis.9 This is to admit some flexibility to the words employed by Gageler (which I am confident he would not take issue with) in that it recognises that on occasion, only some members of the Court may choose to apply constitutional principles in reaching a result. Such a case may still quite properly be included in a study of constitutional law.10 The
7 See Appendix A for identification of the few decisions so affected. 8 For example, the case of Wong v The Queen is reported at (2001) 207 CLR 584 as simply a criminal law matter, despite the submission of constitutional arguments which received attention in the opinions of some of the Court’s members. By contrast, in the report at (2001) 185 ALR 233, the catchwords clearly indicate the constitutional aspects of the case. While those arguments were not decisive of the outcome, that can often be said of cases which are readily described as constitutional in character. The differing levels of importance of constitutional issues in cases and the effect of this upon inclusion in this study is discussed in the following paragraph of the above text. 9 See, for example, Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, which is included because of Callinan J’s comments regarding the constitutionally implied freedom of political communication which had been raised by the appellant but which did not form the basis for any judge’s resolution of the case. As explained in the Appendix, even when a majority of the Court chose to avoid a constitutional issue, the case will still be tallied as such if (a) the parties have raised one; and (b) especially when at least one Justice discusses it. 10 A good example, and one to which we shall return in Chapter Five, is the case of McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 in which a majority of the Court certainly did not
172 employment of this more inclusive ‘less stringent criteria…to characterise a case as
“constitutional”’11 avoids the drawing of further – and finer – distinctions between
constitutional cases of varying weight and importance. As such, it has the advantage
of being objective, transparent and replicable by other scholars.
D Period covered – several ‘natural courts’
As stated at the commencement of this chapter, the study spans from 1981 to early
2003 and thus includes the Gibbs, Mason and Brennan Courts with approximately the first five years of the Gleeson era bringing the timeframe to a close.
Empirical studies tend to look at courts which have remained stable for the period
being examined – what is known as a ‘natural court’. This is a court ‘where the same
Justices interact for the whole research period’12 and so the researcher is able to
isolate those justices as a single decision-making unit. This is usually most important
in studies attempting to identify regular voting blocs or coalitions amongst those
judges. While the closing off of a period in the High Court’s life has, to some extent,
been a consideration here, it was decided not to break the empirical study down into
strictly identified ‘natural courts’. There were several reasons for this.
Firstly, it was not necessary for the purposes of the fairly straightforward information
which is being presented and discussed. It was felt that the prevalence of dissent on
decide the matter ‘in the application of legal principle identified by the Court as being derived from the Australian Constitution’ (Gageler, above n 5). 11 Justice Ronald Sackville, ‘The High Court on Constitutional Law: The 2003 Term: The Inaccessible Constitution’, (2004) 27 University of New South Wales Law Journal 66, 83. 12 See AR Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964-1969’ (1972) 3 Lawasia 1, 11; Youngsik Lim, ‘An Empirical Analysis of Supreme Court Justices’ Decision Making’ (2000) 29 Journal of Legal Studies 721, 724; and Russell Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’ (2001) 47 Australian Journal of Politics and History 330, 334.
173 the Court could be adequately conveyed through the combination of a holistic study with use of definite eras fixed by reference to the incumbent of the office of Chief
Justice. In doing so, no special influence is automatically inferred on the part of the respective Chief Justices over their courts. For some time now, Australian scholars have tended to mark off eras in the Court’s life through the handover of the Court’s centre chair. While this is obviously artificial in some senses, it remains a simple, convenient and widely accepted approach to analysis of the Court.13 Indeed, the
Justices themselves talk in terms of eras of the Court identified by Chief Justice.14 So, below are presented statistics not just from the entirety of the timeframe but also from the respective eras of those Chief Justices who fall within it. These eras have been strictly separated by use of the appointment date of each new Chief Justice as the cut- off point. Thus reports of all matters heard prior to the new Chief Justice’s reign - even when the outgoing incumbent did not sit and judgment was delivered after his departure – are still tallied as belonging to the earlier era.15 This was so even when the successor to the Chief Justiceship was designated as Acting Chief Justice prior to the
13 The best evidence of this are the various entries in this vein in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001), though note the existence of titles such as Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996). Additionally, it should be noted that equivalent empirical studies in other jurisdictions may adopt incumbency of the office of Chief Justice as the means of isolating a particular court: see Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99. 14 For example, see Justice Michael McHugh, ‘The Constitutional Jurisprudence of the High Court 1989-2004’ (Speech delivered as the University of Sydney’s Inaugural Sir Anthony Mason Lecture in Constitutional Law, Banco Court, Sydney, 26 November 2004); and Justice Kirby quoted in text accompanying n 40. 15 So, for example, Waterford v Commonwealth (1987) 163 CLR 54, despite being handed down on 24 June 1987 when Mason’s Chief Justiceship had begun, is a Gibbs Court decision. It was heard by a bench comprised of Mason, Wilson, Brennan, Deane & Dawson JJ on 30 October 1986 when Gibbs was still Chief Justice.
174 handover.16 This same rule was applied in respect of Justice Gaudron’s departure in
order to clearly delineate the first era of the Gleeson Court.17
Secondly, and most importantly, the ultimate purpose of compiling these tables was to chart the Court’s treatment of particular constitutional areas and examine them for streams of dissent which had a subsequent impact. In achieving that aim, there was little point to be gained by excessive compartmentalisation of the Court. Rather, a sense of continuity and reach was more appropriate.
Lastly, an insistence upon breaking the statistics up according to ‘natural courts’ risked rendering them, to some extent, unworkable. The dominance of the concept in
American literature has been assured by the very sedentary way in which the membership of the United States Supreme Court changes. There has been no new appointment to that court for 10 years now. The very different conditions prevailing in the High Court of Australia (there have been six new appointments to the Court in the last 10 years), lead to real doubt as to whether the concept of a ‘natural court’ may be usefully applied here. The introduction of compulsory retirement at 70 years of age means that ‘natural courts’ are far more short-lived than they once were in Australia.18
The Brennan era is the best example of this, seeing as it does, fairly regular departures
and arrivals in court personnel. While strictly accurate to consider each change as
seeing the birth of a different Court, the very short duration of each natural Court (as
16 See, for example, Commissioner of Taxation v The Myer Emporium Limited (1987) 163 CLR 199. 17 So, for example, Fox v Percy (2003) 214 CLR 118 which was heard in September 2002 and handed down in April 2003 and on which Justice Gaudron did not sit, is included as a case heard by the first Gleeson Court for the purposes of this study. 18 It is a curious fact that since the introduction of the mandatory retirement age, only Chief Justices Gibbs, Mason and Brennan have actually stayed on the Court right up to the point at which they were constitutionally required to vacate it. All other departures, including, obviously, those due to death in office, have pre-empted attainment of that age.
175 comprised with the same seven individuals) which existed between 1995 and 1998 would be far too little a time to be viewed as statistically viable. On the other hand, while it is slightly unwieldy to consider the Brennan era as a whole given the changes in the bench’s composition, it remains possible to convey the information of interest here and also a sense of the Court’s performance overall – as well as its transitory nature which in many ways was its defining characteristic.19
E The ‘control’ sample
All High Court of Australia matters reported in the CLRs across this period were tallied in order to provide some broader context against which to examine the Court’s constitutional work. One of the advantages of considering the control sample is that it is certainly a larger pool of cases from which to draw conclusions. There is much of interest in looking for similar trends across the total sample and the constitutional subset. The presence of similarities may provide corroboration of a particular theory about the Court’s decision-making in general. Alternatively, a disparity might support suggestions that constitutional cases are treated differently in some way or that the
Justices interact with each other differently in those matters.
19 See David F Jackson, ‘The Brennan Court’ in Blackshield et al, above n 13, 68-70.
176 III THE STATISTICS
A The Institutional Perspective
Table A – Resolution of All Matters Tallied
Unanimous By Majority over TOTAL concurrence dissent
Gibbs Court 74 (20.05%) 145 (39.30%) 150 (40.65%) 369 (100%)
Mason Court 111 (25.93%) 132 (30.84%) 185 (43.22%) 428 (100%)
Brennan Court 16 (10.88%) 59 (40.14%) 72 (48.98%) 147 (100%)
Gleeson Court 30 (11.76%) 97 (38.04%) 128 (50.20%) 255 (100%)
High Court 231 (19.27%) 433 (36.11%) 535 (44.62%) 1199 (100%) 1981-2003
Even this most general of all the tables invites some preliminary observations about the ways in which disagreement has been experienced in the High Court of Australia over the last 22 years. Adopting the Gibbs Court as the benchmark, we can make interesting comparisons with the later eras.
The statistics provided for the Mason Court indicate more a change in style than anything else. Disagreement in the form of matters decided over a dissenting vote is still significant – in fact it has increased slightly from the level of the Gibbs Court.
But then so has the percentage of matters decided through unanimous opinion. What the Mason figures suggest is not that individualism was diminished on that bench but that it tended to be employed only in the service of very real disagreement. Note the
177 significant drop in cases decided simply through delivery of concurring judgments.
Where there was agreement across the Court, the Justices of the Mason era were more
inclined to write jointly than those who had comprised the bench under Gibbs CJ.
This is not at all to say that this group agreed with each other more than its
predecessor. The increase in dissent illustrates that was not so. But the efforts of the
Chief Justice to avoid unhelpful individualism through largely similar concurrences seemed to meet with some degree of success.20
Other dramatic changes occurred under the stewardship of Chief Justice Brennan.
Dissent continued to climb so as to be present in almost every second case. What is
also interesting, but not especially surprising, is that unanimity dropped right away to
a mere 10.8%. Even when all members of the Court agreed as to the outcome of the
case, they were much less likely to write jointly than had been so in similar
circumstances during the Mason era. While exceptions can obviously be found (the
decision in Lange v Australian Broadcasting Commission21 being by far the most
famous), these statistics would seem to indicate that the Justices who served in the
Brennan era (10 in all) were generally denied by the rapid staff turnovers an
opportunity to develop a culture conducive to enhanced co-operation.
While that may be understandable, the results for the succeeding Gleeson Court
suggest that explanation alone cannot suffice for a low rate of unanimous judgments.
20 Sir Anthony Mason has said : My own view has been that the Court should deliver joint or majority judgments, if they can be achieved. While I was Chief Justice, we made a more concerted effort to achieve that result, particularly by inviting one of our number to write an initial judgment or draft. That practice had some success but the degree of success was less than we had hoped. Sir Anthony Mason, ‘The Centenary of the High Court of Australia’ (2003) 5 Constitutional Law and Policy Review 41, 42. 21 (1997) 189 CLR 520.
178 The stability of the first five years of the Gleeson era had little impact in redressing the fall of unanimity witnessed under Chief Justice Brennan. When one holds the
Brennan and Gleeson Courts up against the Gibbs Court, we see a comparable percentage of cases decided through separate concurring judgments, with the indications being that unanimity has fallen away into increased explicit disagreement through dissenting opinions. As shall be seen from the figures with respect to individual justices below, the arrival of Justice Kirby on the bench in 1996 goes a long way to explaining the higher prevalence of dissent from this point forward. But it is too simplistic to see his Honour as the sole impediment to total consensus. As will be evident from subsequent tables, other Justices of the Gleeson Court can also be determinedly individualistic when the occasion arises.
Table B – Resolution of Constitutional Matters Tallied
Unanimous By Majority over TOTAL concurrence dissent
Gibbs Court 19 (24.68%) 24 (31.17%) 34 (44.16%) 77 (100%)
Mason Court 18 (23.38%) 17 (22.10%) 42 (54.55%) 77 (100%)
Brennan Court 1 (4.00%) 11 (44.00%) 13 (52.00%) 25 (100%)
Gleeson Court 4 (7.27%) 22 (40.40%) 29 (52.73%) 55 (100%)
High Court 42 (17.95%) 74 (31.62%) 118 (50.43%) 234 (100%) 1981-2003
Table B presents the percentage of constitutional matters decided unanimously, by
concurrence or majority over dissent for the same periods. It is striking that in respect of each of the eras, except the most recent, dissent in constitutional matters is notably
179 higher than it was generally. Sir Anthony Mason has stated that the ‘role of the Court in constitutional interpretation is one of two issues [the other being judicial law- making] ‘that have generated strongly expressed conflicts of opinion’ amongst its members.22 The weakened operation of precedent upon constitutional law is an
important factor in this.23 As discussed in Chapter Two, while stare decisis aims to
protect the legal values of consistency and the rule of law, it has less significance in
the face of authoritative constitutional text. This appears to produce a corresponding diminution of judicial conformity and cohesiveness. That higher rates of disagreement occur in this context is hardly astonishing.
If there is a simple uniformity in the greater incidence of dissent across the board in constitutional cases, then the impact relative to rates of unanimity requires closer attention. Given what has just been said about disagreement being more pronounced in these matters, one would expect less unanimity than was the case overall. But this is not the situation with respect to the Gibbs Court which actually was more inclined to issue one opinion in these matters than it was generally. When its members agreed, they were still more likely to do so through separate concurring judgments, but by a much lesser margin than in Table A. The Mason Court presents a different picture. It issued less unanimous constitutional opinions, as a percentage, than either its predecessor or relative to its own unanimous determination of matters overall. Even so, its rate of unanimity in these cases just exceeds the percentage of cases decided through concurrence without dissent. This is the only occasion across the entire study in which the level of cases decided through concurrence alone – the source of so
22 Anthony Mason, ‘Personal Relations: A Personal Reflection’ in Blackshield et al, above n 13, 532. 23 This has been axiomatic for much of the High Court’s life: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 554. See the discussion of the operation of precedent in a final constitutional court in Chapter Two, Part IV.
180 much dissatisfaction and complaint24 – was less than both cases decided unanimously
and those containing dissent. Admittedly, the figures for cases settled by unanimity or
by concurrences could not be much closer without being identical, but it is still a
remarkable feature of this table. The Mason Court seemed to be proficient at
achieving the clarity of unanimity when its members shared a core level of agreement,
even though they otherwise spent a lot of time disagreeing with each other through
formal dissent. That Court’s dissent rate in constitutional decisions is the highest tabulated. It would seem fair to conclude that the Court was not one where
individualism for individualism’s sake drove the judicial process.
The decline in unanimity which was noted with respect to the Brennan and Gleeson
courts’ handling of matters overall is even more pronounced in the constitutional
context. This is presumably due to a combination of the limited constraint of precedent in this area and the general features of those particular courts which
inhibited unanimity. It seems very difficult for production of a single joint judgment
from the Court in a constitutional matter to weather all those factors which conspire
against it. Though again, the Brennan Court’s co-operation in respect of Lange v
Australian Broadcasting Corporation25 demonstrates that unanimity is still possible
even when the matter is not a relatively straightforward one.26 Further factors which
account for the low unanimity in constitutional cases over these eras will be
considered in the next section dealing with individual opinion delivery.
24 Recall the discussion in Chapter Two, Part II. 25 (1997) 189 CLR 520. 26 The unlikelihood of this case being the Brennan Court’s sole unanimous constitutional decision is acknowledged in Nicholas Aroney, ‘The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science? (1998) University of New South Wales Law Journal 645, 653-4; Geoff J Lindell, ‘Expansion or Contraction? Some Reflections About the Recent Judicial Developments on Representative Democracy’ (1998) 20 Adelaide Law Review 111, 137; and Andrew Lynch, ‘Unanimity in a Time of Uncertainty: The High Court Settles Its Differences in Lange v Australian Broadcasting Corporation” (1997) 6 Griffith Law Review 211, 211.
181 Table C(I) - Constitutional Matters – How Resolved27
Size of bench Number of How Resolved Frequency cases Unanimous 20 (8.55%)
By concurrence 47 (20.09%) 7 150 6:1 22 (9.40%) (64.10%) 5:2 23 (9.83%) 4:3 36 (15.38%) 1:628 1 (0.43%) 3:429 1 (0.43%)
Unanimous 7 (2.99%)
By concurrence 16 (6.84%) 6 47 5:1 14 (5.98%) (20.09%) 4:2 10 (4.27%)
Unanimous 14 (5.98%)
By concurrence 10 (4.27%) 5 34 4:1 2 (0.85%) (14.53%) 3:2 8 (3.42%)
Unanimous 0 (0%) 4 2 By concurrence 1 (0.43%)
(0.85%) 3:1 1 (0.43%)
Unanimous 1 (0.43%)
3 1 By concurrence 0 (0%)
(0.43%) 2:1 0 (0%)
27 All percentages in this table are given as of the total number of constitutional cases across the study (234). 28 See the reference to (161/556) in the ‘Clarification of particular tallying decisions’ in Appendix A. 29 See the reference to (175/1) in the ‘Clarification of particular tallying decisions’ in Appendix A.
182 Table C(I) presents a more detailed picture as to the occurrence of constitutional dissent across the total 22 year study period. Unsurprisingly, the bulk of the constitutional cases were heard by a bench comprising all serving Justices, though the number of 6-member and 5-member benches is not insignificant. Interestingly, there is little consistency of pattern to show that dissent has traditionally been a lone exercise. Indeed, 4:3 split decisions were markedly more prevalent than those in the
7-member court which were 6:1. The relativity between those matters with just one vote separating the majority from the minority and those where the majority is more secure is not significantly altered upon consideration of those occasions when the bench was comprised of fewer members. So while judicial culture has often tended to the image of a solitary Great Dissenter,30 the reality is just as likely to be a court fractured down the middle.
30 This title is most commonly associated with Justice Oliver Wendell Holmes of the United States Supreme Court, though there is room for debate. In support of Holmes as America’s ‘Great Dissenter’, see Alan Barth, Prophets with Honor (1974) 6 and Percival E Jackson, Dissent in the Supreme Court (1969) 3, though the irony of this, given Holmes’ jurisprudential method, is well observed in Richard A Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243, 287-8. Even in commentary which seeks to apply the label to other US justices, it is clear that Holmes is the benchmark, if not the solitary wearer of the title. See, for example, Toni J Ellington, ‘Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero’ (1998) 20 Hawaii Law Review 797, 818 (involving comparison to the second Justice Harlan – and then extending that to Justice Bader Ginsburg at 821-5); Thomas F Shea, ‘The Great Dissenters: Parallel Currents in Holmes and Scalia’ (1997) 67 Mississippi Law Journal 397, 398 (involving comparison, obviously, to Justice Scalia); and Karl M ZoBell, ‘Division of Opinion in the Supreme Court : A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186, 202 (involving comparison to the first Justice Harlan). The title has entered Australian parlance, most pointedly in recent times in Haig Patapan, Judging Democracy – The New Politics of the High Court of Australia (2000) 192.
183 Table C(II) - Constitutional Cases by Topic
Constitutional Number of Case References (volume/page) Provision/Topic Cases in which Normal text indicates unanimous judgment 31 Italics indicate case decided by concurring opinions Discussed Bold indicates case decided with dissent s.7 1 186/140 s.24 2 186/140, 186/302 s.41 1 152/254 s.44 2 176/77, 199/462 s.47 1 199/462 s.48 1 169/195 s.51(i) 3 152/477, 202/133, 202/535 s.51(ii) 10 158/622, 158/678, 163/329, 176/480, 176/555, 179/155, 186/630, 187/579, 202/133, 215/185 s.51(v) 2 177/106, 184/348 s.51(vi) 4 166/518, 172/460, 172/501, 181/18 s.51(x) 1 179/270 s.51(xii) 1 187/579 s.51(xiii) 1 170/276 s.51(xviii) 3 176/480, 181/134, 202/479 s.51(xix) 6 151/101, 165/178, 176/1, 182/272, 207/391, 212/162 s.51(xx) 9 150/169, 150/282, 152/570, 158/1, 166/79, 169/482, 170/276, 183/323, 187/416 s.51(xxi) 9 149/227, 150/615, 151/491, 156/170, 156/228, 156/249, 161/376, 161/438, 181/583 s.51(xxii) 5 149/227, 150/615, 151/491, 163/278, 181/583 s.51(xxiiiA) 2 162/271, 179/226 s.51(xxvi) 3 153/168, 158/1, 195/337 s.51(xxix) 12 153/168, 158/1, 159/351, 164/261, 166/79, 167/232, 172/501, 181/183, 187/416, 187/640, 190/513, 202/535 s.51(xxxi) 18 152/477, 155/193, 158/1, 158/622, 159/636, 176/480, 177/106, 179/155, 179/226, 179/270, 179/297, 181/134, 187/416, 190/513, 191/471, 194/1, 202/133, 204/493 s.51(xxxv) 16 153/297, 153/376, 153/402, 154/1, 158/535, 159/192, 159/636, 160/430, 161/88, 171/232, 176/154, 177/1, 184/188, 187/416, 192/1, 203/346 s.51(xxxviii) 1 168/340 s.51(xxxix) 6 152/179, 158/1, 158/535, 163/329, 166/79, 177/1 s.52 4 181/548, 186/630, 190/410, 200/322 s.53 1 210/333
31 If one was to add all the figures given in respect of the number of cases for each topic, the total would well exceed that of 234 matters given in Table B. This is due to the multiple classification of those matters containing discussion of more than a single issue.
184 s.54 1 176/555 s.55 7 165/462, 173/450, 176/480, 179/226, 202/133, 210/333, 215/185 s.61/Executive 2 166/79, 179/155 Power s.64 1 207/391 s.71 8 152/179, 154/261, 166/518, 172/84, 172/460, 173/167, 200/322, 202/629 s.72 4 166/518, 172/460, 173/167, 200/322 s.73 7 167/259, 171/232, 173/194, 203/1, 206/161, 209/165, 211/1 s.74 1 159/461 s.75 14 154/207, 154/261, 159/22, 160/315, 161/254, 161/543, 163/117, 184/620, 189/253, 196/354, 197/510, 204/82, 211/287, 211/476 s.76 14 151/575, 152/25, 154/261, 160/315, 161/543, 181/404, 184/620, 191/119, 196/553, 197/510, 200/322, 200/591, 202/629, 209/372 s.77 12 150/49, 152/25, 154/261, 161/543, 172/84, 174/455, 184/620, 196/553, 197/510, 200/591, 202/629, 211/287 s.79 1 172/84 s.80 10 159/264, 160/171, 177/541, 181/18, 199/1, 199/40, 200/386, 203/248, 207/278, 209/1 s.81 2 169/195, 176/555 s.83 2 169/195, 176/555 s.90 10 151/599, 154/311, 155/368, 167/399, 167/503, 168/314, 177/248, 178/561, 178/634, 189/465 s.92 12 153/650, 157/605, 161/60, 161/556, 165/360, 165/411, 169/436, 171/182, 177/1, 177/106, 182/272, 199/160 s.106 1 186/140 s.109 36 151/302, 152/25, 152/211, 152/632, 153/280, 154/632, 158/447, 158/535, 159/70, 160/330, 161/47, 161/217, 162/317, 162/574, 166/1, 166/186, 168/289, 169/41, 169/172, 169/307, 170/218, 174/379, 175/453, 179/388, 181/583, 183/373, 184/620, 190/410, 191/119, 196/392, 197/61, 199/160, 201/213, 201/351, 202/629, 204/158 s.114 5 162/74, 174/219, 174/235, 178/145, 210/51 s.116 1 190/1 s.117 3 168/461, 179/463, 207/391 s.118 7 169/41, 169/172, 174/1, 176/433, 179/463, 181/583, 203/503 Federal 36 154/261, 157/57, 158/596, 161/88, 163/140, Jurisdiction/Cha 166/518, 172/84, 172/460, 172/501, 173/167, pter III 174/455, 176/1, 181/18, 181/404, 181/583, 183/245, 183/323, 184/348, 189/1, 189/51, 190/1,
185 190/311, 193/173, 195/547, 197/83, 197/510, 198/511, 199/462, 204/158, 204/559, 207/584, 209/246, 209/372, 210/333, 211/119, 211/287 Freedom of 1 163/54 Information Governor- 1 157/91 General’s powers Co-operative 5 158/535, 158/596, 163/117, 168/340, 198/511 Schemes Cross-vesting of 2 150/49, 198/511 power Implied Freedom 12 161/556, 177/1, 177/106, 182/104, 182/211, of 182/272, 186/302, 186/352, 189/520, 189/579, Communication 208/199, 212/1 Implied Freedom 1 190/1 of Movement Privative Clause 1 211/476 Right of citizen 1 201/226 to resist expulsion Reciprocity of 1 155/186 extradition laws Relationship of 5 151/575, 155/72, 155/102, 155/107, 159/461 Australian Courts to Privy Council Commonwealth- 9 159/192, 161/254, 161/639, 163/329, 184/188, State 187/416, 190/410, 191/471, 215/185 Intergovernment al Relations Reception of 1 175/1 Common Law/Sovereignty State Parliament 6 166/1, 166/186, 168/340, 189/51, 189/253, (powers of) 195/424 Territories – 11 161/1, 166/79, 169/172, 177/106, 177/248, s.122 181/548, 190/1, 190/513, 196/553, 198/511, 200/322 State Constitutional Matters - Acquisition of 1 205/399 property - Amendment 2 149/79, 207/344 - Courts 2 211/1, 211/119 - Crown 1 198/334 immunity - 2 160/548, 211/1 extraterritoriality
186 of laws - Freedom of 1 160/145 Information - Freedom of 1 186/352 Political Communication - State 2 148/1, 149/107 boundaries
This table indicates the full panorama of constitutional matters which are the source of data for this study. In doing so, it gives us a better sense of the topics which occupied the High Court’s attention over this period and the handling of which was exposed in Tables B and C(I). Many of the entries concern issues which have rarely been revisited, while others have clearly dominated in importance. Of course, one matter may raise a number of constitutional issues and those that do so appear under more than one category in the table. This errs on the side of generous classification.
As it is not possible in the confines of the table to indicate the relative weight amongst issues within a case, the reader should be wary of using the above classifications to assume that any particular issue was the basis for the Court’s disagreement in a case.
The table merely indicates what topics were considered in a matter and how that was resolved – it does not connect the two.
The use of italics and bold text indicate different forms of disagreement which has prevented a unanimous judgment (normal text). The matters in italics are those in which the Justices agreed on the result through the delivery of a number of concurring opinions. Those matters in bold indicate that the bench split over the resolution of the case and a dissenting opinion was issued. Thus, Table C(II) indicates not just the constitutional issues which have dominated over the 22 year period, but also which of those most gave rise to formal disagreement. Prominent amongst these groups of
187 cases were those concerning the interpretation of section 51(xx)32 (6 split decisions
out of 9); sections 51 (xxi) and (xxii)33 (7 split decisions out of 10 taken in
combination); section 8034 (7 split decisions out of 10); section 9035 (8 split decisions
out of 10); section 11836 (5 split decisions out of 7); section 12237 (9 split decisions out of 11); and the implied freedom of political communication (9 split decisions out of 12). Other groups of cases in different constitutional areas certainly had their fair share of decisions in which dissenting judgments were delivered, but disagreement could not be said to be so reliable a feature as it was for cases in respect of the issues just listed.
Most essentially, Table C(II) assists enormously in the identification of likely
‘streams of dissent’ over the relevant 22 years of this study. The table enables us to distinguish those areas of constitutional law which have been returned to by the High
Court with a steady frequency from those which have either given rise to sparse litigation or, while attracting quite a significant amount of focussed attention, did so only for a short time. A good example of the latter is section 51(xxi) which was
frequently considered in cases across the early 1980s but has not been revisited since.
The cases which pertain to topics which have regularly come before the Court over
the entire period, and which feature formal dissent, present far more opportunity for a
sustained discussion of the issues by the Justices and it is in these circumstances that
we might expect to see the rise and fall – and also persistence of – minority opinions.
32 The power to make laws with respect to constitutional corporations. 33 The powers to make laws with respect to ‘marriage’ and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. 34 The requirement that trial on indictment for a Commonwealth offence shall be by jury. 35 The power to levy customs and excise and grant bounties on the production or export of goods duties shall be exclusive to the Commonwealth. 36 Recognition of laws of States throughout the Commonwealth. 37 The power of the Commonwealth to make laws for the government of a territory.
188 Table C(II) provides the basis for substantive analysis of specific groups of cases with
a view to uncovering this phenomenon. As such, it is discussed further in the next
Chapter.
B The Individual Perspective
Having considered the manner in which the Court as an institution disposed of the matters before it over these years, the remainder of this chapter seeks to shed light upon the actions of individual judges. In doing so, statistical tables of each of the four distinct eras of the Court from the study period, as well as one reflecting the overall total, are grouped together as a series all aimed at extracting the same information. So,
Tables D (I)-(V) note the number of judgments written by each member of the Court at that time and classification of these as either part of a unanimous effort with his or her colleagues, or in concurrence with or dissent from them. These tables relate to all the eligible matters tallied, while the Table E series following provides the same information in respect of just the constitutional subset.
189 1 All Matters
Table D (I - Gibbs Court) – Actions of Individual Justices in All Matters Tallied
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gibbs 281 45 (16.01%) 211 (75.09%) 25 (8.90%) Stephen 42 5 (11.90%) 32 (76.19%) 5 (11.90%) Mason 285 63 (22.11%) 202 (70.88%) 20 (7.02%) Murphy 190 29 (15.26%) 120 (63.16%) 41 (21.58%) Aickin 60 5 (8.33%) 49 (81.67%) 6 (10.0%) Wilson 312 65 (20.83%) 216 (69.23%) 31 (9.94%) Brennan 301 60 (19.93%) 192 (63.79%) 49 (16.28%) Deane 217 51 (23.50%) 125 (57.60%) 41 (18.89%) Dawson 230 62 (26.96%) 144 (62.61%) 24 (10.43%)
The first thing to be aware of with respect to Table D(I) is that the statistics given for
Justices Stephen and Aickin are not really comparable to those of the other members of the Court. Both Justices served on the Court for less than half of Chief Justice
Gibbs’ tenure and thus even an analysis based upon the percentage figures is difficult.
Nevertheless, as both sat on cases which have contributed to the statistics for the total study, it is appropriate to record their individual actions for the sake of completeness.
Three other Justices also had less than a full run on the Gibbs Court. Justices Deane and Dawson are, of course, late arrivals who replaced the Justices discussed in the preceding paragraph. Justice Murphy did not take part in many cases between 1984 and 1986 whilst being tried on charges of attempting to pervert the course of justice and a Parliamentary Commission investigated allegations of misbehaviour against him. However, while these Justices are less represented on the table than the remaining four, the disparity is not so great as to deny the possibility of useful comparison being made.
190
The member of the Court who was least in dissent was Justice Mason with just 7% of
his judgments being in the minority. The Chief Justice has a rate of dissent not far off
Justice Mason’s, though it is worth noting the gap in the rates of unanimity between these two. Justices Wilson and Dawson have a comparable dissent rate hovering around 10% but then the degree to which the remaining members of the Court found
themselves outside the majority becomes more marked. It also becomes more
staggered - all the way to Justice Murphy’s fairly notable figure of 21.58%.38
Interestingly, Justice Murphy’s participation rate in unanimous judgments is on par
with that of his Chief Justice. Of course, the individual rate of unanimity is highly
dependant upon those Justices who find themselves sitting with each other when the
Court is not at full strength. It is possible that Gibbs CJ’s relatively low involvement
in unanimous judgments is due to his sitting notably more often with Murphy J whose
heightened tendency to explicit disagreement was destructive of a single joint opinion.
But, while subjecting the raw data to further analysis along these lines may confirm
that suspicion, it is fairly curious that this does not translate to at least some of the
other judges who must have sat as often with Murphy J. The more likely explanation
is that both Gibbs CJ and Murphy J were more prone to individual expression – albeit
through concurrences and dissents respectively – than the other members of the
bench.
38 This figure is almost exactly the same as Tony Blackshield produced when calculating the percentage of dissents across Justice Murphy’s entire judicial service on the High Court. Blackshield said that his Honour dissented in 137 cases out of 632 (which comes to 21.67%): AR Blackshield, ‘Introduction’ in AR Blackshield, David Brown, Michael Coper and Richard Krever (eds), The Judgments of Justice Lionel Murphy (1986) xix.
191 Table D (II – Mason Court) – Actions of Individual Justices in All Matters Tallied
Number of Participation Concurrences Dissents Judgments in unanimous judgment Mason 330 84 (25.45%) 226 (68.48%) 20 (6.06%) Wilson 80 26 (32.50%) 47 (58.75%) 7 (8.75%) Brennan 342 76 (22.22%) 204 (59.65%) 62 (18.13%) Deane 352 81 (23.01%) 207 (58.81%) 64 (18.18%) Dawson 344 82 (23.84%) 217 (63.08%) 45 (13.08%) Toohey 349 83 (23.78%) 218 (62.46%) 48 (13.75%) Gaudron 356 90 (25.28%) 209 (58.71%) 57 (16.01%) McHugh 252 59 (23.41%) 141 (55.95%) 52 (20.63%)
The striking difference between Table D(II) and the one just examined is how much higher the individual dissent rate is on average for the members of the Mason Court.
Whilst Mason as Chief Justice has an even lower incidence of dissent than he did as a member of the Gibbs Court, the other Justices (barring Justice Wilson whose early departure from the court renders his figures not comparable) all possess rates of dissent well into the teens. The Justice nearest to the Chief Justice is Dawson J who dissented over twice as often – on 13% of occasions. Justices Brennan and Deane are significant dissenters and Justice McHugh is almost within 1% of Murphy J’s figure in Table D(I).
The comments made earlier in respect of Tables A and B about the preparedness of the members of the Mason Court to give voice to legitimate disagreement through dissent whilst at the same time being able to effectively build occasions of consensus into unanimous opinions are echoed by the marriage of these generally high rates of dissent with a similarly uniform incidence of high unanimity across the Court. There is nothing like the range of figures which were observed in respect of unanimity for the Gibbs Court. Admittedly the absence of any specific individual who can be
192 recognised as regularly standing outside opinion on the Court must be of assistance here, but clearly there is also a cohesiveness to judgment writing which discourages repetitive concurrences.
Table D (III – Brennan Court) – Actions of Individual Justices in All Matters
Tallied
Number of Participation Concurrences Dissents Judgments in unanimous judgment Brennan 104 8 (7.69%) 80 (76.92%) 16 (15.38%) Deane 8 1 (12.50%) 7 (87.50%) 0 (0%) Dawson 83 9 (10.84%) 60 (72.29%) 14 (16.87%) Toohey 94 9 (9.57%) 68 (72.34%) 17 (18.09%) Gaudron 120 14 (11.67%) 94 (78.33%) 12 (10.0%) McHugh 127 13 (10.24%) 97 (76.38%) 17 (13.39%) Gummow 132 12 (9.09%) 111 (84.09%) 9 (6.82%) Kirby 100 8 (8.0%) 59 (59.0%) 33 (33.0%) Hayne 29 4 (13.79%) 21 (72.41%) 4 (13.79%) Callinan 17 3 (17.65%) 12 (70.59%) 2 (11.76%)
The figures in Table D(III) indicate far less consistency in the Brennan Court than the era which preceded it. But for ease of analysis, it is best to put to one side Justice
Deane who left very soon after Chief Justice Mason’s retirement and also Justices
Hayne and Callinan who arrived towards the end of Brennan’s tenure. The scores of all three judges are not statistically comparable with the others in this table. While amongst the remaining seven there is still quite a range (with a discrepancy of 49 cases between Dawson and Gummow JJ), the percentages do not defy useful comparison.
193 As already observed in Table A, unanimity in the Brennan era was rare and this is obviously carried over to these figures for opinions which each individual judge delivered of this character. All unanimity figures are, as a band, much lower than those of the two earlier courts. Nor is there the range which was observable in the comparable statistics for the Gibbs era, despite the presence once again, in Justice
Kirby, of a notable dissenter relative to the rest of the Court. In this respect, it is easier to understand these figures as reflecting the degree of unanimity overall than was the case in respect of those given for the Gibbs Court.
Kirby J’s dissent rate is remarkably high – one in every three cases sees him in the minority at this time. While this seems to clearly outstrip Justice Murphy’s level of dissent, one must be wary of direct comparison given the Court’s gaining control over its own docket in 1984 and the abolition of appeals from State Supreme Courts to the
Privy Council in 1986. Both factors mean that today’s High Court is more likely to receive more ‘hard cases’ than in Murphy’s time. It is feasible to presume that
Murphy J would have had a numerically higher rate of dissent if he had served on the
Court subsequent to those changes.39 But the impossibility of such speculation is that it tends to overlook the pivotal factor in determining dissent rates which is not simply the nature of the cases but the makeup of the Court of which the Justice is a member.
As discussed in Chapter Three, how any judge relates to the others on the bench will determine the status of the judgments which they issue. It is the development and movement of majority and minority voting blocs, intrinsic to collegiate decision- making, which ultimately decides these reputations. In a clear acknowledgement of
39 Cf. Russell Smyth, ‘What Explains Variations in Dissent Rates?: Time Series Evidence from the High Court’ (2004) 26 Sydney Law Review 221, 238-9. For consideration of the effect of these developments upon the Court’s judicial style generally, see Matthew Groves and Russell Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903- 2001’ (2004) 32 Federal Law Review 255, 259-262.
194 the relational nature of dissent, Justice Kirby has sought to explain his isolation on the
present Court:
It’s true, if I had been appointed to the High Court in the time of Chief Justice
Mason, in that period, I would think my dissent rate would be very low. I look
back on that time and see the decisions that came through and I don’t believe I
would have disagreed so much. You get different moods in an institution,
including courts.40
We can only really assess each judge according to the time at which they find
themselves on the Court and so while it is probably safe to say that Lionel Murphy’s
judicial method would have always tended to make him an outsider on any era of the
High Court to date,41 hypothesising about dissent rates had things been different will
generally prove a fruitless task.
While Justice Kirby clearly disagrees with his colleagues a lot of the time, the dissent
rates generally remained robust in the Brennan Court. The Chief Justice himself
recorded the highest dissent rate by far of any other holding that office in the course
of this study, even though it was down slightly on his rate under Mason’s leadership.
The other survivors from that earlier era either increased (Dawson and Toohey JJ) or decreased (Gaudron and McHugh JJ) the percentage of occasions on which they formally disagreed with the outcome of a case. If Justice Kirby appeared to take on
40 Interview with the Australian Broadcasting Corporation on 16 November 2003, available at
195 the mantle of Murphy J and make it his own, then the newly arrived Justice Gummow
seemed to step straight into the shoes left by Mason CJ as a central voice in the
majority of the Court, with a very low dissent rate indeed.
Table D (IV – Gleeson Court) – Actions of Individual Justices in All Matters Tallied
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gleeson 221 28 (12.67%) 181 (81.90%) 12 (5.43%) Gaudron 181 15 (8.29%) 148 (81.77%) 18 (9.94%) McHugh 204 24 (11.76%) 143 (70.10%) 37 (18.14%) Gummow 222 27 (12.16%) 188 (84.68%) 7 (3.15%) Kirby 223 18 (8.07%) 133 (59.64%) 72 (32.29%) Hayne 216 26 (12.04%) 176 (81.48%) 14 (6.48%) Callinan 215 19 (8.84%) 152 (70.70%) 44 (20.47%)
Interestingly, many of the trends from the Brennan era are observable in the more
stable period which followed – the first five years of the Gleeson Court. In particular,
the polarisation of the Court between Justices Gummow and Kirby is perhaps the
defining statistical feature of the institution at this time. Justice Gummow has the highest rate of concurring opinions (though he is closely followed by the Chief Justice and Justices Gaudron and Hayne) and a startlingly low level of dissent – the lowest of any Justice considered within this 22 year study. But one should not fail to notice that the Chief Justice and Justice Hayne also record fewer disagreements with the outcome of a case, as a percentage, than any other judge in any of the earlier eras – including
Chief Justice Mason whose rate of dissent was easily the lowest among any of his contemporaries. While significant, it is important to bear in mind the fewer number of cases which the current members of the Court have sat on when making fine comparisons such as that. But undoubtedly, one cannot fail to be impressed by the
196 rarity with which formal disagreement is expressed by these members of the Gleeson
Court.
The degree of consensus in the Court is generally high – certainly the fact that four
Justices have a concurrence rate over 80% - whilst also maintaining a respectable rate of unanimity is noteworthy. It is less than fair to compare the figures in Table D (IV) with those of the Brennan Court in Table D (III) due to the latter’s transient membership, but in doing so we can see that both unanimity and concurrences are higher under Gleeson. A different impression is gained by comparison with the
Mason Court (Table D(II)) where, as we earlier saw, unanimity was impressively both high and uniform, with less individual concurrences as a consequence. It is fair to say that these two Courts both have generally high levels of consensus but stylistically
there is a clear difference in approach with agreement being expressed much more
often through use of unanimous judgment in the Mason Court. However, one should
not jump to the conclusion that the members of the Gleeson Court are simply
determined individualists. In explaining the recent rise of dissent rates for the Court as a whole, Smyth has attributed this to Justice Kirby – calling it the ‘Kirby effect’.42 To borrow that pithy expression, the ‘Kirby effect’ also makes itself felt in denying the opportunity for the other six members of the Gleeson Court to increase the delivery of unanimous judgments. Quite a number of the concurring judgments tallied were authored by all members of the bench but Justice Kirby. The presence of one committed dissenter on the Gleeson Court is a factor which the Mason Court did not have as an impediment to unanimous expression of its consensus.43
42 Smyth, above n 39, 239; Groves and Smyth, above n 39, 275. 43 This would seem to be supported by Groves and Smyth’s findings that joint judgments per 100 judgments (by which they mean any authored by two or more Justices) remained high (and climbed) in the first three years of the Gleeson Court, while the number of single-author
197
While the ‘Kirby effect’ is a very real consideration, one does not wish to
overemphasise it at the expense of other factors. In discussing elsewhere the Gleeson
Court’s apparent difficulty in converting consensus to unanimity, I remarked:
Despite any cohesiveness of outlook which we may tentatively presume
amongst Chief Justice Gleeson, Justices Gaudron, Gummow and Hayne, as a
group of four working alongside two judges with robust dissent rates and one
whose dissension is quite frankly phenomenal, it is no mystery why the
relatively high rates of concurrence do not translate into more unanimity. This is
not even to suggest that it is the dissents themselves which are destructive of
opportunities for unanimous judgments – though that is undoubtedly true.
Rather, my point is a wider one, and it is that the dissent rates indicate a climate
of pronounced individuality which may be observed by those even more
frequent occasions where there is a high degree of concurrence across all sitting
judges.44
The other two members of the Court whose dissent rate cannot be ignored are, of course, Justices McHugh and Callinan. The former, after having lowered his proportion of dissenting opinions from being the highest amongst members of the
Mason Court so as to be amongst the lowest during the Brennan era, has climbed back
concurring opinions, although not as low as under Mason CJ, was still at much lower levels than in the Court’s past: Groves and Smyth, above n 39, 267-8 (Figures 2 and 3). Additionally, Bagaric and McConvill have performed their own, much more limited study, in order to expose as false the perception that the High Court is presently beset by multiple concurring opinions: Mirko Bagaric and James McConvill, ‘Illusions of disunity’ (2004) 78 Law Institute Journal 36 cf. Martin Davies, ‘Common law liability of statutory authorities: Crimmins v Stevedoring Industry Finance Committee’ (2000) 8 Torts Law Journal 133, 145-51. 44 Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years’ (2003) 26 University of New South Wales Law Journal 32, 49.
198 to a rate of 18.24% - not only the third highest on the Gleeson bench, but well away from the low levels of the other Justices discussed above. Justice Callinan records a proportion of dissents just one percent below that of Justice Murphy in Table D (I).
Although I accept the findings that there are certainly no more separate judgments than there have been in earlier times of the High Court, and that there are in fact rather fewer,45 I would maintain that the Gleeson Court curiously manages to combine strong levels of agreement with the presence of significant individualism from several of its members – but in a way not seen in any of the earlier tables, particularly that of the Mason Court about which the same general comment could nevertheless be made.
Indeed, our overall observation must be to note just how different each of these four tables are from each other. With changes in the Court’s composition over time have come not just changes in the relative levels of consensus and disagreement – but also in how those have found expression.
45 Above, n 43.
199 Table D (V – Total Period) – Actions of Individual Justices in All Matters Tallied
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gibbs 281 45 (16.01%) 211 (75.09%) 25 (8.90%) Stephen 42 5 (11.90%) 33 (78.57%) 4 (9.52%) Mason 615 147 (23.90%) 428 (69.59%) 40 (6.50%) Murphy 190 29 (15.26%) 120 (63.16%) 41 (21.58%) Aickin 60 5 (8.33%) 49 (81.67%) 6 (10.0%) Wilson 392 91 (23.21%) 263 (67.09%) 38 (9.69%) Brennan 747 144 (19.28%) 476 (63.72%) 127 (17.00%) Deane* 577 133 (23.05%) 339 (58.75%) 105 (18.20%) Dawson* 657 153 (23.29%) 421 (64.08%) 83 (12.63%) Toohey* 443 92 (20.77%) 286 (64.56%) 65 (14.67%) Gaudron* 657 119 (18.11%) 451 (68.65%) 87 (13.24%) McHugh 583 96 (16.47%) 381 (65.35%) 106 (18.18%) Gummow 354 39 (11.02%) 299 (84.46%) 16 (4.52%) Kirby 323 26 (8.05%) 192 (59.44%) 105 (32.51%) Hayne 245 30 (12.24%) 197 (80.41%) 18 (7.35%) Callinan 232 22 (9.48%) 164 (70.69%) 46 (19.83%) Gleeson 221 28 (12.67%) 181 (81.90%) 12 (5.43%)
Table D (V) simply presents the raw number and percentage of opinions issued by each Justice which were unanimous, concurring or dissenting over the entire period under study. For most judges these results do not, of course, span their total career – but an asterisk denotes those for whom they do.46
46 The results produced for these four Justices are those which we might have expected to bear the closest similarity with the figures produced by Groves and Smyth in tabulating the method of judgment delivery for every member of the High Court since its inception: above n 39, 279-80. However, the figures here do not simply repeat those provided by those authors for Justices Deane, Dawson, Toohey and Gaudron. There are a number of reasons for this. Firstly, in respect of the last named Justice, Groves and Smyth’s study concludes in 2001 whereas this one takes her Honour’s departure from the High Court as its finishing point. Secondly, of the remaining three Justices whose careers on the High Court are covered by both studies, the different results can be explained by different methodologies. The number of judgments provided in Table D (V) above is slightly more for all three than that given by Groves and Smyth – reflecting this author’s greater willingness to multiple tally those reports which can be sensibly be seen as containing more than one matter (see the discussion of this approach in Chapter Three). As for the breakdown of the opinions themselves, it should be clear that the two studies have a very different approach. Groves and Smyth do not separately identify unanimous judgments, but rather include them in the category of joint judgments which may have two or more authors so long as they concur in the orders given. This, plus the isolation of ‘short concurring judgments’
200 Given that the levels of unanimity, concurrence and dissent are crucially affected by the opinions of the Court’s members at any one time relative to those of each other, ‘it is difficult to compare judgment writing of individuals Justices across time’.47 These figures are not as illuminating as those for the Justices operating within the reasonably stable four eras of the Court. But even so, some greater longitudinal perspective is worth examining if only because it indicates in general those Justices who managed to find a place in the centre of the Court and those whose position tended to be more to one side of it and thus more frequently in the minority.
2 Constitutional Matters
Table E (I - Gibbs Court) – Actions of Individual Justices in Constitutional Matters
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gibbs 70 15 (21.43%) 43 (61.43%) 12 (17.14%) Stephen 8 0 (0%) 7 (87.50%) 1 (12.50%) Mason 72 18 (25.0%) 49 (68.06%) 5 (6.94%) Murphy 44 7 (15.91%) 28 (63.64%) 9 (20.45%) Aickin 10 0 (0%) 8 (80.0%) 2 (20.0%) Wilson 74 17 (22.97%) 46 (62.16%) 11 (14.86%) Brennan 66 17 (25.76%) 40 (60.61%) 9 (13.64%) Deane 61 17 (27.87%) 33 (54.10%) 11 (18.03%) Dawson 58 16 (27.59%) 33 (56.90%) 9 (15.52%)
means that the figures provided by those authors for ‘concurring judgments’ (by which they mean only those single author opinions which agree with the final orders) must necessarily be at variance with what is provided here. In saying this, I am certainly not saying that the results produced by Grove and Smyth in the categories as they have defined them are in any way in error. They are simply a different way of looking at the same raw material and in so doing cast their own particular illumination on the opinion delivery practices of the High Court. One might expect more commonality in the number of dissenting opinions since this is a stand alone category in both studies, but for the reasons already detailed earlier (see Chapter Three, text accompanying nn 109-26) there is a crucial difference in the way in which the two studies have classified dissent. This is reflected in the varied results between the two studies. In this respect, I do think there are competing strengths in the two approaches but maintain that consistency and accuracy is best served by a strict application of the concept of dissent as it is formally understood. 47 Groves and Smyth, above n 39, 277.
201
The most dramatic change between this table and that of Table D (I) presenting statistics for the totality of cases from the same period is just how more often Chief
Justice Gibbs found himself in the minority in constitutional cases. Whereas his dissent rate overall was second only to that of Mason J and he was one of the few
Justices to maintain a score of less than 10% across the entire span of the study, when the matter was constitutional in nature, Gibbs CJ was much more regularly in dissent.
Whilst one must always be wary about equating a low rate of dissent with a high level of influence on the bench, the reverse conjecture is less risky. Thus it can confidently be said that with a dissent rate in constitutional cases double that of his delivery of minority opinions generally, Gibbs CJ was less frequently in a position to amass support for his views in such cases than the other judges of the Court.
This may be contrasted nicely with Mason J’s level of dissent which has barely wavered in the move to the specific context of constitutional cases. It seems safe to say that Mason J was particularly representative of – if not actually marshalling – majority thought across the Court at this time. The Justices in between these two are also interesting as they do not necessarily follow the order which we might have expected. Justice Brennan dissented slightly less often in constitutional cases but the shift across the court was such that in this context he was now the second least likely to be in the minority. Following him are two Justices – Wilson and Dawson JJ – whose fortunes in this respect seem linked to that of the Chief Justice. The federal questions which seemed to predominate in this period – specifically those concerning interpretation of the corporations and external affairs powers – tended to present a fractured court with Gibbs CJ, Aickin (and then his replacement Dawson) and Wilson
202 JJ often in dissent as a less centralist trio.48 All these members of the Court had a
higher level of involvement in minority opinions when sitting on constitutional
matters.
Apart from Mason J’s significant lead, the figures for all the other Justices tend to work their way up between 13.64% to 20.45% by increments.49 In considering the
ranking of the Justices according to the frequency with which they formally recorded disagreement, one should not lose sight of the amount of dissent and how that has
altered in this specific context. So although Justices Deane and Murphy remain the
most regular dissenters with results of roughly one in five opinions in the minority,
they have remained steady (dipping a little if anything). It is the Chief Justice and
Justices Wilson and Dawson whose levels of dissent have risen significantly,
indicating a slip in the extent of their influence over the resolution of constitutional
matters.
Table E (II – Mason Court) – Actions of Individual Justices in Constitutional Matters
Number of Participation Concurrences Dissents Judgments in unanimous judgment Mason 75 18 (24.00%) 50 (66.67%) 7 (9.33%) Wilson 16 5 (31.25%) 8 (50.0%) 3 (18.75%) Brennan 75 17 (22.67%) 45 (60.00%) 13 (17.33%) Deane 74 17 (22.97%) 40 (54.05%) 17 (22.97%) Dawson 76 18 (23.68%) 42 (54.26%) 16 (21.05%) Toohey 76 18 (23.68%) 48 (63.16%) 10 (13.16%) Gaudron 74 16 (21.62%) 40 (54.05%) 18 (24.32%) McHugh 57 11 (19.30%) 33 (57.89%) 13 (22.81%)
48 Sir Anthony Mason has also made this direct link between Gibbs CJ’s federalist outlook and his dissent rate: Sir Anthony Mason, ‘The High Court of Australia: A Personal Impression of its First 100 Years’ (2003) 27 Melbourne University Law Review 864, 885. 49 The results for Justices Stephen and Aickin are statistically insignificant.
203 The general contours of decision making in the Mason Court which were observed
when considering Table D (II) are translated to the constitutional subset without much
variation. That Court’s distinctive ability to produce a high frequency of unanimous
judgments while accommodating robust individual dissent rates is, in fact, even more
starkly demonstrated by Table E (II). The percentage of minority opinions issued by
each member of the Court, with the exception of Justice Toohey, has increased in constitutional law cases. While the rise for the Chief Justice and Justice Brennan has not been great, it has been markedly higher for Justices Deane, Dawson, Gaudron and
McHugh, all of whom enjoyed a dissent rate comfortably over 20%. One gains an interesting perspective on the results for these four Justices by comparison with the
Gibbs Court on constitutional law where Justice Murphy was the most extreme case with a dissent rate of just over 20%. That figure is unremarkable in light of the levels of formal disagreement in the Mason Court when considering the same kind of matters.
At the same time, the manifestation of consensus through unanimity was achieved with striking regularity. The results of the Mason Court in this regard are uniformly
high, though not, note, as high as the figures for some of the same Justices when
members of the Gibbs Court (see Table E (I)) – but it must be borne in mind that dissent was generally lower in the institution at that time, which would certainly
facilitate the delivery of unanimous opinions. As with the results of the Mason Court
for its total decisions, the absence of any specific individual(s) as a more regular outsider than others seems to have been crucial in avoiding the frustration of unanimous expression. Under such circumstances, it is interesting that the existence
204 of regular, but importantly shifting, divisions amongst the Justices was not of itself harmful to unanimity.
Lastly, it would be remiss not to note that, unlike his predecessor, Chief Justice
Mason retains his central place in the Court’s majority when the constitutional cases are isolated. Given the high levels of dissent for most of the other members of the
Court at this time, and the fact that these are a notable increase upon the levels generally, Mason CJ’s ability to so often be a voice of the Court rather than against the Court is impressive. Statistically speaking, the only other Justice who appears to have kept his position as one readily identifiable with the majority is Toohey J – a result which is perhaps somewhat exaggerated by the extent to which the other
Justices were more prone to jump in and out of the majority in constitutional matters.
Table E (III – Brennan Court) – Actions of Individual Justices in Constitutional Matters
Number of Participation Concurrences Dissents Judgments in unanimous judgment Brennan 25 1 (4.00%) 22 (88.00%) 2 (8.00%) Deane 2 0 (0%) 2 (100%) 0 (0%) Dawson 22 1 (4.54%) 16 (72.73%) 5 (22.73%) Toohey 24 1 (4.17%) 18 (75.00%) 5 (20.83%) Gaudron 23 1 (4.35%) 19 (82.61%) 3 (13.04%) McHugh 25 1 (4.00%) 21 (84.00%) 3 (12.00%) Gummow 25 1 (4.00%) 24 (96.00%) 0 (0%) Kirby 15 1 (6.67%) 9 (60.00%) 5 (33.33%) Hayne 2 0 (0%) 2 (100%) 0 (0%) Callinan 0 0 (0%) 0 (0%) 0 (0%)
The beautiful thing about empirical research is the way in which its presentation can
make a point so simply and yet to such dramatic effect. Given the contents of the
205 preceding table for the Mason Court, one is immediately struck by the sharp
distinctions between it and the era of Chief Justice Brennan which followed. The
production of just one unanimous judgment in a constitutional law case over this time
– Lange v Australian Broadcasting Corporation of all unlikely prospects50 – is a drop
from the situation under Mason CJ that cannot be simply accounted for by the fewer
number of such cases heard in a mere three years. Comment has already been made
about the short duration of this era and the significant changes to the Court’s
composition which occurred within it. While the transitional nature of the Court at
that time must be a substantial reason for such an altered performance, the nature of
the Court’s work may also sustain an explanation.
It might be fair to say that the Court faced questions prompted by the innovative spirit
of the preceding era, but for the answers to which, it inherited little guidance as to
how best to proceed. The departure of a figure as central to the Court’s majority view
as Mason CJ (as we have seen) must necessarily create something of a vacuum. In a
different sense, the departure of Justice Deane removed a strong alternative voice
from the bench. Although the Mason Court had settled some matters with the seal of
solidarity, it might be said that it more troublingly left behind a wake of issues upon
which real division was highly likely. The implied freedom of political
communication is, of course, the obvious example and while that was the one topic
upon which consensus was clearly secured (or at least appeared to be so secured),51 even that was not accomplished without a significant realignment of thought – and division – on the issue in McGinty v Western Australia.52 Cases which demonstrate
50 See n 26. 51 For consideration of the disagreements latent in the unanimous opinion of Lange, see discussion of the implied freedom of political communication in Chapter Six. 52 (1996) 186 CLR 140.
206 the open-ended nature of the questions facing the Court, and hence the perhaps
understandable sparseness of unanimous opinions, include Kruger,53 Kartinyeri,54 Ha
v NSW,55 and Kable v DPP.56 These were matters in respect of which guidance from
past authority could hardly be said to be decisive.
While all those cases produced memorable dissents, it is important to note that although unanimity dropped almost as far as it could go, the incidence of formal disagreement fell for many of the Court’s members. The new Chief Justice more than halved his dissent rate from the preceding era and became the member of the bench least likely to be in the minority on constitutional issues. Significantly, Brennan CJ’s dissent rate in these cases is also much lower than his level of disagreement overall
(Table D (III)). Justices Gaudron and McHugh dropped their dissent rate in
constitutional matters dramatically from their Mason era highs. Justice Dawson lowered his also to a degree, but Justice Toohey now found himself much more often in the minority.
Of the two new arrivals who are statistically significant for analysis in this table,
Justice Kirby’s early forays with the Constitution more than match his level of dissonance generally. His rate of dissent of one in three opinions augured poorly for his chances of finding regular consensus with his colleagues on the Court in the future. The reverse was true of Justice Gummow who did not lodge a single minority judgment in a constitutional case in the Brennan era.
53 Kruger v The Commonwealth (1997) 190 CLR 1. 54 Kartinyeri v The Commonwealth (1998) 195 CLR 337. 55 Ha v New South Wales (1997) 189 CLR 465. 56 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
207 The final comment on Table E (III) is simply to note that behind the simple tally for
Justice Callinan of zero constitutional decisions made whilst a member of the Brennan
Court, lies his aborted participation in one such case – Kartinyeri v Commonwealth
(The Hindmarsh Bridge Case).57 His Honour’s absence from these results was not entirely due to his appointment just before Chief Justice Brennan’s retirement but also his unilateral decision to disqualify himself from involvement in that particular case.58
Table E (IV – Gleeson Court) – Actions of Individual Justices in Constitutional Matters
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gleeson 52 4 (7.69%) 46 (88.46%) 2 (3.85%) Gaudron 53 3 (5.66%) 44 (83.02%) 6 (11.32%) McHugh 50 3 (6.0%) 38 (76.0%) 9 (18.0%) Gummow 54 4 (7.41%) 49 (90.74%) 1 (1.85%) Kirby 54 3 (5.56%) 38 (70.37%) 13 (24.07%) Hayne 51 3 (5.88%) 44 (86.27%) 4 (7.84%) Callinan 50 1 (2.00%) 33 (66.00%) 16 (32.00%)
The actions of individual members of the Gleeson Court when deciding constitutional law matters are, to some extent, consistent with the results presented for resolution of all matters by that Court. The similarity is strongest when one looks at the very low rates of dissent. The figures for the Chief Justice and Justice Gummow are unparalleled by any other Justice across the entire study. With the exception of his
Honour’s opinion in Abebe v Commonwealth,59 Justice Gummow spoke with a majority of the Court in all other cases. The Chief Justice recorded two dissents in constitutional matters, though even that low figure is somewhat inflated as in neither
57 (1998) 195 CLR 337. 58 For a discussion of this decision, see Sidney Tilmouth and George Williams, ‘The High Court and the Disqualification of One of Its Own’ (1999) 73 Australian Law Journal 72. 59 (1999) 197 CLR 510.
208 was his resolution of the case determined by constitutional factors.60 Justice Hayne’s result is not to be overlooked either, being as it is, also lower than that of any other
Justice in constitutional cases. Of course, the percentages are derived from raw figures which vary from era to era but the number of judgments upon which Table E (IV) is based should not be thought to be too few to take as reliable indicators. There are approximately twice as many as members of the Brennan Court decided, and about two-thirds of the number considered by the Mason Court.
The rate of unanimous judgments drops off in this context as against the equivalent results in Table D (IV), but not startlingly so. As mentioned earlier, it is widely recognised that securing consensus on questions of constitutional interpretation is particularly challenging. Additionally, there is the frequent obstacle to unanimity provided by a Justice who is a standout dissenter. This problem is multiplied for the
Gleeson Court, as it appears to have two particularly strong dissenters in constitutional law. The ‘Kirby effect’ was observed earlier, but that Justice has a substantially lesser proportion of constitutional opinions which are in the minority.
Admittedly, it is still a large number – roughly a quarter of his Honour’s judgments in this context. But, while Justice Kirby was easily the most frequent dissenter in both the total caseload of the Gleeson Court and the constitutional cases of the Brennan
Court, his Honour has been dislodged from that position in respect of the constitutional matters of the Gleeson era by Justice Callinan. Indeed, as a percentage, his Honour’s is the highest rate of dissent of any Justice in the constitutional cases across the 22 years of this study. He also has the lowest incidence of joining a unanimous opinion. Although he has heard slightly fewer cases than Justice Kirby, the
60 His Honour’s dissents are found in Wong v The Queen (2001) 207 CLR 584 (see comments above n 8) and a partial dissent in Roberts v Bass (2002) 212 CLR 1.
209 comparison does not necessarily suffer on that account. The evidence very clearly supports the view that Callinan J was the Justice least representative of mainstream thought in constitutional matters overall for the first era of the Gleeson Court.
When one considers also that Justice McHugh has, in comparison with his figure for the Brennan Court, returned to a position of having a higher level of dissent with 18% of his judgments being in the minority, it is something of a wonder that consensus has been achieved as often as it has.
The Gleeson Court is perhaps more of an enigma than any of its predecessors. In the next section of this chapter, the incidences of joint judgment authorship will usefully supplement this picture. But even before considering those results, two things are certainly apparent. Three members of the court – the Chief Justice, Justices Gummow and Hayne – have the lowest rates of dissent on constitutional matters of all the judges considered in this study. It follows that those members of the Court have been consistently involved in shaping the Court’s institutional position in these cases. This has occurred in a context which, on the other hand, displays a high level of individual disagreement from the Court’s other members. Table B showed that the percentage of constitutional matters decided with a split court was actually lower in the Gleeson era than it had been under either Mason or Brennan as Chief Justice. Yet the amount of disagreement emanating, in descending order, from Justices Callinan, Kirby and
McHugh makes that rather surprising. The explanation is, of course, that those
Justices often dissented in the same cases rather than across the whole range of constitutional matters. Obviously their Honours did not always dissent on the same occasions, but it occurred often enough for the Court’s overall incidence of dissent to
210 have fallen while the levels for some of its individual members were the highest seen in this study.
Table E(V– Total Period) – Actions of Individual Justices in Constitutional Matters
Number of Participation Concurrences Dissents Judgments in unanimous judgment Gibbs 70 15 (21.43%) 43 (61.43%) 12 (17.14%) Stephen 8 0 (0%) 7 (87.50%) 1 (12.50%) Mason 147 36 (24.49%) 99 (67.35%) 12 (8.16%) Murphy 44 7 (15.91%) 28 (63.64%) 9 (20.45%) Aickin 10 0 8 (80.0%) 2 (20.0%) Wilson 90 22 (24.44%) 54 (60.0%) 14 (15.56%) Brennan 166 35 (21.08%) 107 (64.46%) 24 (14.46%) Deane* 138 34 (24.64%) 76 (55.07%) 28 (20.29%) Dawson* 156 35 (22.44%) 91 (58.34%) 30 (19.23%) Toohey* 100 19 (19.00%) 66 (66.00%) 15 (15.00%) Gaudron* 150 20 (13.34%) 103 (68.67%) 27 (18.00%) McHugh 132 15 (11.36%) 92 (69.70%) 25 (18.94%) Gummow 79 5 (6.33%) 73 (92.41%) 1 (1.27%) Kirby 69 4 (5.80%) 47 (68.12%) 18 (26.09%) Hayne 53 3 (5.66%) 46 (86.79%) 4 (7.55%) Callinan 50 1 (2.00%) 33 (66.00%) 16 (32.00%) Gleeson 52 4 (7.69%) 46 (88.46%) 2 (3.85%)
Like Table D (V) before it, Table E (V) is simply designed to reveal the occurrence of individual consensus and disagreement across the length of this entire 22 year study – though this time in the specific context of constitutional decision-making. The caveats given earlier apply once more and the reader should be particularly wary of overt comparison between Justices who did not serve with each other.
The figures are most valuable in conveying the way in which a Justice’s propensity to agree or disagree is subject to changes in the court’s membership over the span of his
211 or her tenure. This is not apparent simply through an examination of this table alone
but requires us to contrast the individual statistics given here with those provided for
their Honours in respect of more discrete eras of the Court. So, for example, Justice
Gaudron’s results in Table E(V) for all three categories are fairly average and
unremarkable, but it is important to appreciate that they do not simply represent her
constant performance on the Court. Her Honour’s percentage of unanimous opinions
is derived in part from the high frequency with which such judgments were issued
during the Mason era but also reflects the much lower incidence of unanimity in the
Brennan and Gleeson courts. Similarly, her Honour’s lower dissent rates towards the
end of her membership of the Court is not simply translated to this total figure, but is
bolstered by her earlier, much higher, level of disagreement. For many Justices
(including Gaudron J, as our example) their total levels of consensus and dissent may
not be especially striking, having been flattened out over time and fluctuations in the
Court’s internal dynamic.
Conversely, those Justices for whom the results in total retain a markedly extreme quality, have clearly occupied a consistent position relative to their colleagues over time. While for many the particularities may be dimmed and require scrutiny of more limited periods of the Court’s recent history, the overall figures here still reliably suggest certain things about certain Justices. For example, it is clear that over a high number of cases and through several changes in the Court’s personnel, Chief Justice
Mason maintained a central position with great steadiness. Similarly, Justice Deane’s much greater propensity to deliver dissenting opinions – admittedly to varying degrees over the different eras in which he took part – is readily observable by the high figure given in this respect here as a total.
212
All that may seem rather obvious, but the point is simply to acknowledge that the value of a cumulative table is not simply the interest generated by the extent of the data it contains. Rather, it reveals the operation of shifting relativity upon the
individual results for the Justices over time. In doing so, it enables identification of
certain members of the Court who maintained a fairly constant position vis-à-vis their
colleagues. Only for those individuals can Table E(V) be used as the basis for broad
comment about a specific judicial career on the High Court. The majority of Justices
require a more careful assessment in order to capture the changing nature of the Court
as they experienced it.
C Collaboration
The tables presented in this section indicate the joint authorship of opinions in
constitutional cases over the four eras of this study. In doing so, they aim to give
further depth to what has been considered above by noting the occurrence of this most
explicit and unequivocal form of agreement between the Court’s members. All
instances of judicial collaboration – whether the opinion is unanimous, concurring or
dissenting – were recorded.
Lest the inclusion of joint minority opinions raises some concern about use of these
tables to assist in the identification of those members of the Court who appear to garner (or at least associate with) majority support, it should be stated that the number of joint judgments written for the minority was statistically slight.61 Writing a
dissenting opinion is, it would seem, an activity (at least in constitutional law)
61 In order that readers may assess this for themselves, Part V of the Appendix to this chapter offers an alternative version of the Table F series indicating only those joint judgments written by members of the minority.
213 generally undertaken as a solo exercise.62 This is particularly interesting when one
considers that Table C(I) revealed that in constitutional cases, the Court was just as
likely to split 4:3 as it was to have just a single member in disagreement. Of course just because one does not share the majority view does not mean one agrees with all others who also reject it. The reasons for dissatisfaction with the Court’s result are unlikely to be confined to one neat alternative position and there seems little strategic incentive for minority judges to compromise with each other so as to collaborate.63
There may also be an element of what Justice Scalia of the United States Supreme
Court has identified as the sheer pleasure of writing individually absent any need to link one’s judgment to that of others on the Court, but this probably has lesser
significance given the delivery practices of the High Court of Australia would enable
such individualism as a matter of course if a Justice wished to exercise it.64 In any
case, co-authored minority opinions are still included here because the primary purpose of these tables is to discern the full extent of explicit agreement between the
Court’s individual members regardless of outcome.
Of course, one needs to acknowledge that circumstances can limit the opportunities
for the Justices to achieve high levels of joint authorship due to quirks of rostering,
absences from the bench while on leave (eg. Murphy J) and lack of perfect overlap of
62 Of course, there is no practice in the High Court equivalent to that in the United States Supreme Court whereby the authorship of a single dissenting opinion is formally assigned by the most senior minority Justice: Del Dickson (ed), The Supreme Court in Conference (1940-1985) – The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001) 12; and, for the origin and development of this practice, Beverley Blair Cook, ‘Justice Brennan and the Institutionalization of Dissent Assignment’ (1995) 79 Judicature 17. 63 Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99, 118-9. McCormick does add that ‘perhaps more signatures make a minority opinion more likely to be taken into account in the future, but absent any empirical evidence, this is sheer conjecture, no more or no less credible than the alternative assertion that the passionate vigour of uncompromised solo argument makes it more attractive to revisit’. 64 Justice Antonin Scalia, ‘The Dissenting Opinion’ (1994) Journal of Supreme Court History 33, 42.
214 tenure (eg. neither Wilson J nor McHugh J serve out the entirety of the Mason era,
and so had less opportunity to co-author than the other Justices of that Court).
It is important also to bear in mind that these tables measure explicit agreement and
one should not lose sight of the fact that the Justices will certainly have agreed with
each other on many more occasions, albeit through the device of an individually
written concurrence. Stylistic preferences may explain the decision not to write
jointly, but there may also be minor disagreements over issues not affecting the final
outcome but significant enough to be prevent Justices speaking with one voice.
These figures assist in the identification of a central voice in the Court on
constitutional matters. In saying that, I am careful not to assume that a high incidence
of joint authorship with one’s colleagues automatically equates with a dominant influence exercised by any particular Justice. That Justice may simply be a highly
collaborative member of the Court – not a leader but more a solid team player.
Certainly, however, if one member of the Court is clearly favoured as a writing
partner over others and is one who is rarely in the minority, then it is plausible to
suggest, in the absence of competing evidence, that he or she is an influential member of the bench. It is definitely the case that that person’s judgments are a sound guide to
majority opinion on the Court, though this will undoubtedly be a matter of degree.
The tables in this section should be read horizontally in order for the percentage
figures to correlate in respect of each Justice. Those percentages are arrived at through
215 use of the number of constitutional opinions delivered by each individual Justice (as
already indicated in the Table E series).65
Table F (I – Gibbs Court) Joint Judgment Matrix - Constitutional Cases
Gibbs St’n Mason Murphy A’in Wilson Brennan Deane Dawson
Gib _____ 0 24 7 0 31 20 20 27 (34.29%) (10.0%) (44.29%) (28.57%) (28.57%) (38.57%)
St’n 0 ___ 0 0 0 0 0 n/a n/a
Mas 24 0 _____ 11 0 30 29 35 26 (33.33%) (15.28%) (41.67%) (40.28%) (48.61%) (36.11%)
Mur 7 0 11 _____ 0 10 9 8 6 (15.91%) (25.00%) (22.73%) (20.45%) (18.18%) (13.64%)
A’in 0 0 0 0 ____ 0 0 n/a n/a
Wil 31 0 30 10 0 _____ 23 24 34 (41.89%) (40.54%) (13.51%) (31.08%) (32.43%) (45.95%)
Bre 20 0 29 9 0 23 _____ 27 21 (30.30%) (43.94%) (13.64%) (34.85%) (40.91%) (31.82%)
Dea 20 n/a 35 8 n/a 24 27 _____ 23 (32.79%) (57.38%) (13.11%) (39.34%) (44.26%) (37.70%)
Daw 27 n/a 26 6 n/a 34 21 23 _____ (46.55%) (44.83%) (10.34%) (58.62%) (36.21%) (39.66%)
The immediate indications are of a court which has two discernible camps. One
consists of the Chief Justice and Justices Wilson and Dawson. That trio favoured each
other as writing partners over any others. The other, slightly less neat, group of
regular co-authors comprised Justices Mason, Brennan and Deane. Justice Mason
65 Only one co-authorship statistic is affected by the practice of multiple tallying and it is that between Gummow and Hayne JJ which is inflated due to multiple tallying of 198/511: see Appendix A, n 10.
216 wrote most often with Deane J, but then slightly more often with Wilson J before
Brennan J. This feature points to the fact that for some Justices, the gap between their second and third most frequent co-author is not so significant. Consequently, to the extent that there are two factions it is hardly as though they are locked in diametric opposition. It is interesting to note that Mason J appears to be the key to this – he was a close third for Gibbs CJ, Wilson and Dawson JJ in the collaborative writing stakes.
The third most frequent partner for both Brennan and Deane JJ (after Mason J and then each other) was Wilson J, separated by a considerable margin. Mason J’s position as preferred co-author for Justices Brennan and Deane, and his frequent co- authorship with the other bloc of three Justices on the Court confirms, in many ways, his centrality in this area as previously evidenced by his low dissent rate in Table E(I).
The statistics for Justice Murphy are, despite his period of absence from the Court, worth considering. It is, though, perhaps best to look merely to his Honour’s own frequency of co-authorship in the cases on which he sat, rather than attempting to build a picture using the disproportionate figures from the other Justices. The raw data behind Justice Murphy’s figures are significantly lower, but they still point to the unifying force of Mason J with whom Murphy co-authored a quarter of his constitutional law opinions over this period.
217 Table F (II – Mason Court) Joint Judgment Matrix - Constitutional Cases
Mason Wilson Brennan Deane Dawson Toohey Gaudron McHugh
Mason _____ 7 33 42 31 37 35 24 (9.33%) (44.00%) (56.00%) (41.33%) (49.33%) (46.66%) (32.00%)
Wilson 7 _____ 5 6 11 8 5 n/a (43.75%) (31.25%) (37.50%) (68.75%) (50.0%) (31.25%)
Brennan 33 5 _____ 30 26 34 25 23 (44.00%) (6.67%) (40.00%) (34.67%) (45.33%) (33.33%) (30.67%)
Deane 42 6 30 _____ 25 34 36 20 (56.76%) (8.11%) (40.54%) (33.78%) (45.95%) (48.65%) (27.03%)
Dawson 31 11 26 25 _____ 32 22 22 (40.79%) (14.47%) (34.21%) (32.89%) (42.11%) (28.95%) (28.95%)
Toohey 37 8 34 34 32 _____ 38 21 (48.68%) (10.53%) (44.75%) (44.75%) (42.11%) (50.00%) (27.63%)
Gaudron 35 5 25 36 22 38 _____ 19 (47.30%) (6.76%) (33.78%) (48.65%) (29.73%) (51.35%) (25.68%)
McHugh 24 n/a 23 20 22 21 19 _____ (42.11%) (40.35%) (35.09%) (38.60%) (36.84%) (33.33%)
There are some surprises to be had in Table F(II). Chief Justice Mason is a strongly
preferred co-author for all Justices of the Court, but only Deane and McHugh JJ wrote
most often with his Honour above all others. The Chief Justice is pipped by Justice
Toohey as the most frequent collaborator of Justices Brennan, Dawson and Gaudron
(Justice Wilson is disregarded for the purposes of analysis due to the small size of his
sample). Admittedly, the difference is marginal in the case of Justices Brennan and
Dawson, but even so the information is intriguing. One should be careful not to
simply interpret these results as suggesting that Justice Toohey was the member of the
Court around whom the others tended to cluster – as acknowledged at the outset,
frequency of co-authorship alone does not equate with influence. It can just as likely
218 be explained as demonstrating that the Justice in question was a great ‘joiner’ rather than shaper of majority opinion.66 However, what can be said is that in constitutional matters, with his Honour’s lower than average dissent rate and high frequency of involvement in joint judgments, Justice Toohey was more often aligned with the majority stance than has, perhaps, been appreciated. It is particularly interesting to contrast the above with Smyth’s figures on joint judgments in respect of all matters heard by the Court over this time, in which the other members of the Court were far less likely to participate in a co-authored opinion with Justice Toohey.67 Thus, his
Honour appears to have been more likely to collaborate with his colleagues in cases of this ilk than was generally so.
Regardless of the interesting position of Justice Toohey, one should not lose sight of the Chief Justice’s obvious centrality as indicated by taking the results above regarding co-authorship and considering them against the background of his Honour’s lower dissent rate as established earlier. In this, there is no dissonance with Smyth’s broader study. As a result of his examination of all cases and using various indicators,
Smyth found that the Chief Justice was the most ‘powerful’ Justice and at the centre of the decision-making on the Court.68 There is little in the more limited data
66 It is, of course, quite difficult to be conclusive about this looking in from the outside and without access to the Court’s papers no definitive pronouncement can be stated with confidence. But a solid example of where the appearance of leadership has been shown to be more often a case of following one’s colleagues (even reluctantly) is provided by Chief Justice Warren E Burger of the United States Supreme Court: see Phillip J Cooper, Battles on the Bench: Conflict Inside the Supreme Court (1995) 43-6; and generally Bernard Schwartz, The Unpublished Opinions of the Burger Court (1988); Bernard Schwartz, Decision: How the Supreme Court Decides Cases (1996); and, of course, the infamous Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court (1979). 67 Russell Smyth, ‘‘Some are More Equal than Others’ – An Empirical Investigation into the Voting Behaviour of the Mason Court’ (1999) 6 Canberra Law Review 193, 206 and Table 7, 216. 68 Ibid 205.
219 considered here which leads to any contrary conclusion in respect of Mason CJ’s position in constitutional cases.
Other features are also noticeable. The Chief Justice and Justice Deane were each other’s most frequent co-author with Justices Toohey and Gaudron being runners-up
for each. Indeed, there was remarkable cohesion between these four Justices who all
wrote most commonly with each other, and more often than any of them did with
Justice Brennan – and more often again than joining with Justice Dawson. But when
the latter two Justices co-wrote it is interesting that their most frequent partners were
not each other, both seemingly slightly distant from mainstream opinion, but the Chief
Justice and Justice Toohey. This tends to reinforce not just the comments already
made about those Justices and their relationship to the Court’s majority opinion, but
also the wider observation about the members of the Mason Court being adept at securing broad consensus or disagreeing markedly. Given the high level of unanimity in constitutional cases, it is not surprising to see that there are not, as there was in the
Gibbs era, two reasonably identifiable groups within the Court. There are certain members who are more likely to express agreement through a joint judgment with certain other Justices, but this does not appear to have resulted in the remaining members of the Court forming a faction of their own. They were still connected to the dominant members of the core group as indicated by their high level of willingness to
collaborate with them when the occasion suited.
220 Table F (III – Brennan Court) Joint Judgment Matrix - Constitutional Cases*
Bre Dea Daw Too Gau McH Gum Kirb H Ca
Bre ____ 2 8 8 5 8 6 2 0 0 8.00 32.00 32.00 20.00 32.00 24.00 8.00% 0 0% % % % % % % % Dea 2 ____ 2 1 0 0 0 100 100% 50.0% 0% 0% 0% n/a n/a n/a % Daw 8 2 ____ 9 6 4 4 1 36.36 9.09 40.91 27.27 18.18 18.18 4.55% n/a n/a % % % % % % Too 8 1 9 _____ 8 6 7 1 0 33.33 4.17 37.50 33.33 25.00 29.17 4.17% 0 n/a % % % % % % % Gau 5 0 6 8 _____ 5 6 1 0 0 21.74 0% 26.09 34.78 21.74 26.09 4.35% 0 0% % % % % % % Mc 8 0 4 6 5 ____ 10 3 0 0 32.00 0% 16.00 24.00 20.00 40.00 12.00 0 0% % % % % % % % Gu 6 0 4 7 6 10 ____ 4 1 0 24.00 0% 16.00 28.00 24.00 40.00 16.00 4.0 0% % % % % % % % Kir 2 1 1 1 3 4 ____ 0 0 13.33 n/a 6.67% 6.67% 6.67% 20.00 26.67 0 0% % % % % Hay 0 0 0 0 1 0 __ 0 0% n/a n/a 0% 0% 0% 50.0% 0% 0% Cal 0 0 0 0 0 0 __ 0% n/a n/a n/a 0% 0% 0% 0% 0 % * The size of the Court over this era has required unavoidable changes to formatting of this table in order to accommodate it on the page - namely irregular column width, abbreviated names and the lack of parentheses around the percentage figures.
Perhaps the first impression of there being too many Justices for Table F (III) to
afford useful analysis, may be offset by noting that Justices Deane, Hayne and
Callinan may all be immediately discounted as being statistically insignificant. This
leaves seven Justices who had, although not a perfect coincidence of membership, sufficient opportunity for co-authorship so as to allow meaningful observation to be attempted.
221
That said, the turnover of membership on the Court is clearly not insignificant and it must surely be the factor which ensures that this table is so very different from those which preceded it. The other main point of distinction is the brevity of the Brennan era. Those two considerations would certainly contribute to the much lower number of joint judgments. Obviously, the raw figures are much less than for the Justices of the earlier Courts, but even the percentiles are, on the whole, reduced as well. Under such circumstances, it is hard to identify with any great precision which Justices significantly gravitated to each other in the area of constitutional law across this time.
The frequency with which Justices McHugh and Gummow joined each other in judgment is the highest across the matrix, being over a third of their opinions in constitutional cases. Justices Dawson and Toohey found themselves writing together almost as often. Justice Toohey retained his prominent level of judicial collaboration from the Mason era, being additionally Justice Gaudron’s most frequent co-author and one of the three members of the Court whom the Chief Justice wrote with most often.
These results do not, to be frank, indicate much one way or another. We cannot even make any seemingly safe observation about Justice Kirby’s minimal participation in explicitly agreeing with his colleagues due to his Honour’s relatively fewer opportunities to do so.
All Table F (III) allows us to say with any certainty is to confirm that the circumstances of the Brennan Court appear to have presented more limited opportunities for giving unified expression to basic consensus. In Table B, we saw that unanimity in constitutional matters dropped dramatically under this Court.
222 Although Table E (III) indicated that this was not due to widespread dissension, with individual dissent rates falling significantly overall relative to earlier eras, the above table rounds out the picture by suggesting that, unanimity aside, even the partnership of two Justices in a concurring opinion was not terribly common in constitutional cases of this period.69
Table F (IV – Gleeson Court) Joint Judgment Matrix - Constitutional Cases
Gleeson Gaudron McHugh Gummow Kirby Hayne Callinan
Gleeson _____ 18 20 22 6 18 11 (34.62%) (38.46%) (42.31%) (11.54%) (34.62%) (21.15%)
Gaudron 18 _____ 18 29 6 23 13 (33.96%) (33.96%) (54.72%) (11.52%) (43.40%) (24.53%)
McHugh 20 18 _____ 20 4 15 13 (40.0%) (36.0%) (40.0%) (8.0%) (30.0%) (26.0%)
Gummow 22 29 20 _____ 5 32 13 (40.74%) (53.70%) (37.04%) (9.26%) (59.26%) (24.07%)
Kirby 6 6 4 5 _____ 6 2 (11.11%) (11.11%) (7.41%) (9.26%) (11.11%) (3.70%)
Hayne 18 23 15 32 6 _____ 11 (35.29%) (45.10%) (29.41%) (62.75%) (11.76%) (21.57%)
Callinan 11 13 13 13 2 11 _____ (22.00%) (26.00%) (26.00%) (26.00%) (4.00%) (22.00%)
Due to its fixed membership over almost five years, the period of the Gleeson Court included in this study presents us with none of the ambiguities or need for qualification required in respect of the three earlier eras. Although 14 of the 54 constitutional matters heard by the High Court over this time were not decided by all
69 This is consistent with Groves and Smyth’s finding that the frequency of majority joint judgments per 100 judgments dropped markedly during this time (albeit nowhere near to the very low levels recorded in earlier eras in the Court’s history): Groves and Smyth, above n 39, 267 (figure 2).
223 members of the Court, the seven Justices clearly had substantial opportunities to
collaborate with each other and so the figures provided in Table F (IV) give a solid
indication of the propensity for particular partnerships in opinion writing.
The immediately noticeable thing is that, overall, the rate of co-operation has lifted
again as a percentage of judgments delivered. The stability of the Court over this time appears to have resulted in greater collaboration – though of course that cannot be the only determinant. As the results for Justice Kirby demonstrate, a different perspective on constitutional problems (earlier evidenced by his Honour’s high rate of dissent)
will inevitably limit the possibilities of judicial co-operation. Differences in
personality, method and style may also explain why some Justices work less
frequently in conjunction with their colleagues. Constancy of membership alone will
not produce heightened levels of judicial co-authorship. Two additional factors which
must account in part for the increase of joint judgments in the Gleeson court would be
the holding of regular conferences to discuss the Court’s casework since the new
Chief Justice’s arrival and a particularly cohesive outlook on behalf of some of the
Justices.
There have been various attempts at establishing a conferencing system in the High
Court of Australia over the years, but this has often been difficult to both achieve and
sustain – and has apparently never matched the formality of the process as it has long
existed in the United States Supreme Court.70 Chief Justice Gleeson appears,
however, to have successfully implemented a conferencing system which, although
70 See Chapter Two, text accompanying nn 89-97.
224 not having the purpose of securing consensus,71 must surely assist in facilitating joint
judgment delivery amongst the Justices.
Although there existed a form of conferencing during the Mason era,72 that was not,
despite a strong record on the delivery of unanimous judgments, a period marked by
low rates of dissent. The Gleeson Court is different in that several of the Justices issue
very few minority judgments and so there appears to be a reliably strong core of
opinion which one might reasonably expect to be voiced, as often as not, in concert.
The impediments to unanimity on the Gleeson Court have already been considered, but the suspicion that there should be high levels of collaboration between several
individual Justices is borne out by the results presented in Table F(IV).
Amongst the three members of the Gleeson Court – the Chief Justice and Justices
Gummow and Hayne – whom we have earlier identified as having the lowest
incidence of dissent in constitutional cases, there is a high level of co-authorship,
though Justice Gaudron is also a significant collaborator with these three judges. The
frequency of co-authorship between Justices Gummow and Hayne is especially high.
It is, in fact, the highest percentage of collaboration seen across this entire study. Put
simply, those Justices wrote more often together in constitutional matters than any other possible pairing across the 22 years. At the same time, they wrote together in
such cases more often than they did not – the only other two judges of whom that
could also be said are Chief Justice Mason and Justice Deane (see Table F(II)). The
Gummow-Hayne partnership exists at the core of a sizeable group who together
appear to dominate constitutional thinking on the Court. Both Justices Gummow and
71 High Court of Australia, Annual Report: 1998-99 (1999) 5. 72 Above n 20.
225 Hayne wrote next most often with Justice Gaudron and the Chief Justice (in that order). While Justice Gaudron responded in kind, the Chief Justice wrote more opinions with McHugh J, after Gummow J, than he did with Hayne J. Justice
McHugh’s relative position in the Court is further indicated by his writing with the
Chief Justice just as much as he did with Gummow J and Justice Gaudron writing with him as many times as she did with Gleeson CJ.
One does not want to overburden these figures with interpretation as, apart from anything else, they tend to be self-confirming if cut into fine distinctions about who wrote most often with whom. But, all qualifications aside, it is clear that the very regular pairing of Justices Gummow and Hayne and the frequent collaboration amongst their Honours with the Chief Justice and Justices Gaudron and McHugh may be contrasted easily with the positions occupied by Justices Kirby and Callinan. While any one of the other five Justices collaborated in a joint judgment with each other in never less than a third of their opinions, Justice Callinan did not co-author that much with any other member of the Court. Justice Kirby, it need hardly be said, joined only very rarely with anyone. This table would seem to confirm the outsider status which
Justices Kirby and Callinan had during the first era of the Gleeson Court in constitutional law matters.
Justice Gummow was the most frequent co-author of all other members of the Court
(with the exception of Justice Kirby and it must be noted that both McHugh J and
Callinan J had him tied with others in first place). We cannot, to apply the usual caveat, simply conclude that his Honour is the most influential or dominant contributor to constitutional law on the Court. But we can say that he is certainly
226 rarely in disagreement with the direction it takes in such matters and (which need not always necessarily follow) that he is the judge whom most of the others on the Court explicitly agreed with through co-authorship most often. Despite the remote possibility of other explanations, it seems most reasonable to conclude that Justice
Gummow was a pivotal member of the Court in constitutional cases in the first portion of the Gleeson era.73 But unlike the position which Chief Justice Mason
occupied in an earlier time era, Justice Gummow did not stand alone as the voice of
the mainstream thought on the Court. Rather, he clearly shared that position with his
Chief Justice and Justices Gaudron and Hayne who all enjoyed low rates of dissent
and high levels of collaboration with each other.
IV CONCLUSION
This chapter has presented the results of a 22 year survey of High Court cases with a view to revealing empirically the patterns of institutional and individual behaviour. It has focussed on the Court’s constitutional caseload but sought to present those results against figures for the entirety of the Court’s work in order to provide a point of comparison. Although, as the above analysis has attempted to show, there are any number of specific observations and hypotheses which can be drawn out of these figures, it is appropriate to end this chapter with a single general point.
The broad significance of all the information presented above is simply to recognise the dynamic complexity of High Court decision-making. No two eras under discussion had essentially the same sort of pattern of judicial consensus or division.
73 See also Lynch, above n 44, 62; and Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2003 Statistics’ (2004) 27 University of New South Wales Law Journal 88, 98.
227 The overall impression is of the Court as a collegial institution whose constituent parts are constantly realigning themselves in respect of each other. This may not be the result of any conscious or deliberate process – certainly that cannot be assumed simply on the data considered above. But regardless of individual intention, it is an inevitable feature of the Court’s nature as a multi-member body that the relativity between the viewpoints of those inside it will determine the institutional result. Those relativities are highly prone to alteration. This is not just due to the obvious shake-up caused by the departure and replacement of a Justice – though that is clearly of huge significance and appreciated as such by those who appoint.74 In respect of that latter remark, McCormick, in making a similar comment about the Supreme Court of
Canada, argues that no apology is needed for its apparent banality.75 While it may seem incredibly obvious that changes to personnel and caseload will affect the rate and nature of disagreement on the bench, the example of the United States Supreme
Court demonstrates that this need not be so. As McCormick points out, the pattern of decision-making in either of the two distinctive eras of the United States Supreme
74 The remark by the Deputy Prime Minister Tim Fischer that the government wanted to appoint ‘capital C conservatives’ to the Court in the late 1990s is but one example: ‘Conservatives on Court shortlist’, Sydney Morning Herald, 19 July 1997, p 5. The most spectacular, however, remains President Franklin Roosevelt’s unimplemented plan to appoint six additional Justices for each Justice of the United States Supreme Court over 70 years age in order to overcome the existing Court’s hostility to his New Deal legislation. For a recent and thorough discussion of this controversy, see Marian C McKenna, Franklin Roosevelt and the Great Constitutional War – The Court Packing Crisis of 1937 (2002). The ability to add to the size of the Court is a particularly dramatic means by which the existing balance between its members may be altered. While Roosevelt’s threat did not eventuate, the enlargement of the Supreme Court to nine Justices in 1868 did enable President Grant to swamp the majority bloc which had declared dollar notes not to be legal tender under the Constitution: see Morris L Ernst, The Great Reversals: Tales of the Supreme Court (1973) 51-61. On the power of appointment generally in the United States Supreme Court, see Laurence H Tribe, God Save this Honourable Court – How the Choice of Supreme Court Justices Shapes Our History (1985). 75 McCormick, above n 63, 132-3.
228 Court,76 has, by and large, proven impervious to significant fluctuation in spite of
such changes.
Even amongst the judges of a steady court, individual positions are regularly
challenged by the contrary judgments of others as well as the pull of earlier precedent.
The levels of disagreement (a little over half of constitutional cases contained
dissenting opinions, and we can assume further levels of disagreement exist within the
concurring judgments) ensure that the fabric of the law is far from static or one
dimensional and that the Justices who pronounce it are far from complacent. Where
there is division, there must be debate and from that exchange of opinion may come
individual change, possibly precipitating a movement in the Court’s institutional
position. In that sense, the figures produced here indicating the amount of formal dissent in the Court demonstrate that it is in a position to capitalise on the benefits of disagreement to the deliberative process which were considered in Chapter Two.
However, these results alone cannot address one of the perceived functions of dissent.
Despite now knowing exactly the extent and prevalence of disagreement in the Court over the 22 years, it remains a matter of conjecture as to what contribution these minority opinions have made to the development of the law. That the Justices’ individual rates of participation in unanimous, concurring and dissenting judgments can so clearly alter over time is indicative of movement and transformation. Patapan vividly captured this when he described the Court’s decisions as ‘protean and slippery, each in a sense consuming and rewriting all that went before’.77 The extent
76 Essentially the highly consensual pattern of case resolution which marked the Court’s work for many decades since its inception and then the more regularly fractured approach since the explosion of dissent under Chief Justice Stone in the early 1940s. 77 Patapan, above n 30, 139.
229 to which, in the area of constitutional law, that change is driven by the reversal of majority opinion in favour of an earlier dissent is the question to which we now turn.
230 CHAPTER FIVE
THE IMPACT OF MINORITY OPINIONS ON CONSTITUTIONAL LAW
I INTRODUCTION
In the preceding chapter, a little over two decades of decision-making on the High
Court of Australia was reduced to a tabular form so as to enable quantification of the way in which cases have been resolved and the part which individual Justices have played in that process. Overall, the findings were clear in portraying the Court as an institution whose members are regularly in disagreement with each other over the rights of the parties before them. Dissonance on the Court proved only to be stronger when the focus was turned specifically to its constitutional caseload. The reduced weight accorded to judicial precedent, in light of the paramount position of a highly stable constitutional text, appeared to provide fertile ground for diverse opinions. It was necessary to measure the prevalence of dissent in order to appreciate its centrality to the way in which the Court functions. McCormick’s remark of the Supreme Court of Canada is, in light of the data considered in Chapter Four, even more true in respect of the High Court – it ‘may be primarily in the business of deciding, but it is also in
the business of disagreeing’.1
While, as discussed in Chapter Two, an ability to deliver minority opinions serves to enhance a court’s decision-making processes and also its political standing as an institution in tune with democratic ideals, neither of those benefits offers much comfort to an individual dissenting in any particular case. Rather, from that Justice’s
1 Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99. point of view, the purpose in giving his or her reasons for reaching a contrary conclusion must not simply be to explain why that has occurred, but to hopefully persuade those who will revisit the question at some later date. This much is apparent from the form which most minority judgments take in the High Court – they rarely
just identify those aspects of the majority approach which they are unable to accept,
but invariably seek to provide a comprehensive justification for an alternative
resolution. This is strongly reflected in the mythology surrounding dissents which has
tended to stress not just their immediate fate as a defeated opinion but, somewhat
paradoxically, one which retains an aspirational quality in its ‘appeal to the
intelligence of a future day’.2 It is an understandable wish that the wisdom of one’s
viewpoint will eventually be appreciated and accepted. There is little evidence to
suggest that judges are immune from this condition.3 Indeed, in the face of a regular
inability to agree with one’s colleagues, a belief that the correctness of one’s position
will finally prevail can sustain a judge. Justice Kirby has been very clear in his
confidence that some of his minority opinions ‘will be appealing to a different and
future time’.4 The practice of persistent dissent on a question is even more direct in its
attempt to secure mainstream adoption for the views expressed in minority. By
refusing to let the Court solidify an institutional position, persistent dissent wants the
future today.
2 Charles E Hughes, The Supreme Court of the United States (1928) 68. 3 For a general discussion of the psychology of group decision-making, see Cass Sunstein, Why Societies Need Dissent (2003); and, in comment upon that work’s relevance to judicial attitudes, Andrew Lynch, ‘Taking Delight In Being Contrary, Worried About Being A Loner Or Simply Indifferent: How Do Judges Really Feel About Dissent?’ (2004) 32 Federal Law Review 311. 4 Interview with the Australian Broadcasting Corporation on 16 November 2003, available at
232 In light of the amount of dissent in the High Court and the fact that such judgments must be delivered not without the hope that they will be redeemed at some later point, the purpose of this chapter is to assess the degree to which the effort expended by members of the Court in disagreeing over constitutional questions is rewarded with ultimate vindication. Unlike other areas of the law where a minority opinion can perhaps be seized upon by the legislature and implemented as part of reform to reverse the Court’s holding, this is not so easily accomplished in response to constitutional decisions.5 The requirement of a referendum to alter the
Commonwealth Constitution,6 and the consequential practical considerations of such a course mean that it is neither lightly undertaken nor likely to be successful.7 As a result, the strongest agent for constitutional change remains the Court itself and so it is within the institution that this search for subsequent influence takes place. Put simply, how often have dissents won over a later majority so as to be adopted by the
Court as the law? And does the answer to this inquiry provide reassurance for those in particular who choose to persist in dissent from the Court’s approach on certain issues?
This chapter will attempt to respond to these questions. In Part II, the general method of analysis to be applied to the cases is discussed. Part III engages in an overview of
5 The successful insertion of section 51(xxiiiA) into the Commonwealth Constitution by the 1946 referendum result might be seen as a powerful response to the High Court’s finding the Pharmaceutical Benefits Act 1944 (Cth) invalid in A-G (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237. However, it can hardly be said that the new head of power drew upon the opinions delivered in that case (let alone just those in dissent), which were primarily concerned with the limits inherent in section 81’s power of appropriation. On the difficulty generally of campaigning a referendum aimed at reversing a decision of the Court, consider the remarks of Greg Craven, ‘Judicial Activism in the High Court – A Response to John Toohey’ (1999) 28 Western Australia Law Review 214, 222. 6 Commonwealth Constitution, s 128. 7 The cost of conducting a constitutional referendum necessarily limits their frequency. This is compounded by the low percentage of successful referendum results, with only 8 in 44 proposals receiving the approval of the electorate.
233 the major areas of disagreement in the High Court’s interpretation of the
Commonwealth Constitution as revealed by the preceding empirical data. In doing so,
it suggests which of those are more likely to demonstrate the influence of minority
opinions.
Specific analysis of the cases forms the basis for Parts IV and V. The former identifies
instances where dissenting opinions have been abandoned by their authors in later
decisions as they accept the authority of the result reached by the earlier majority. Part
V, by contrast, discusses four streams of minority opinion which were resilient to
hostility from the rest of the Court. The acceptability of the practice of persistent
dissent will be assessed through consideration of these examples, including the
distinguishing features which exist between them.
Part VI identifies the two clear reversals by the Court during the period under study
which moved to favour an earlier dissenting judgment. Lastly, the chapter concludes
with observations as to the impact of minority opinions during this time overall, but
suggests that in the interests of obtaining as rounded a picture as possible, a more
nuanced consideration of the interaction of judgments is necessary. In doing so, it sets
the stage for the two case studies examined in Chapter Six.
II METHOD
In Chapter Four, Table C (II) presented a complete listing of the High Court’s
constitutional decisions from the 22 year period under review. From that table, the major areas of judicial activity and the levels of (dis)agreement in the cases themselves were able to be discerned. The significant groups of cases from Table
234 C(II) have formed the basis for a further series of tables found in Appendix B at the
conclusion of this work. These new tables simply provide the identifying features of
the particular decisions and the behaviour of individual justices in the resolution of those matters. In doing so, they flesh out the basic information which was given in
Table C (II) and those tables comprising series E and F, and enable more meaningful recognition of those constitutional areas upon which the Court was regularly divided
and the specific identity of those frequently in dissent. While that provides a useful
starting point, the tables produced are, of course, merely indicative of any more
specific conclusions regarding the occurrence and impact of minority opinion. They
do not reveal the reasons for delivery of a dissent, nor do they illuminate the presence
of a minority opinion on a matter of interpretation which may lurk under the cover of
a formal concurrence in the result of a case. Additionally, due to the multiplicity of issues in many of the cases, they may appear in several of the tables given in respect of different areas, but to varying degrees of importance in each.
In order to move beyond the limitations which necessarily inhere in the tables, resort to the cases listed in each has been essential so as to assess both the reason for any disagreement and also connections between minority opinions which might establish a stream of dissent on a particular issue. Although, up to this point, insistence upon a strict definition of ‘dissent’ and ‘concurrence’ has been vital for the purpose of empirical analysis, that has been slightly relaxed here in identifying significant differences of opinion which have had subsequent importance in affecting the Court’s institutional position. So, any important minority view contained within a concurring
235 judgment has not been excluded from the analysis which follows.8 The criteria is simply that the opinion is able to be identified with sufficient precision and was not embraced by a majority of the bench. However, the form of that rejection need not be outright, nor need the majority have developed a coherent alternative position amongst themselves.
In addition to identifying the persistent expression of minority opinion, it is, of course, only through consideration of the cases themselves that it is possible to track with precision whether any stream of dissent has been picked up and adopted by a later
Court.
It should be emphasised that the clustering of cases in Table C(II) (and thus also the specific tables derived from that which concern particular constitutional topics) has been done almost entirely on the basis of the catchwords and information in the headnote to each case which identified the constitutional issue(s). This was seen as sufficient to establish categories in which to group cases which built upon or were interrelated with each other, and within which streams of opinion could be discerned.
This is a slightly more relaxed approach than that employed by Spaeth and Segal in their vast study tracking the influence of precedent upon Justices of the United States
8 The reader will recall Lively’s willingness to consider concurrences in the United States Supreme Court in a similar context (Chapter Two, text accompanying nn 56-7). That was rejected as unacceptable flexibility in an empirical study of disagreement and was seen as requiring great care in more substantive analyses. In having resort to minority concurring opinions for present purposes, it is not being suggested (as was the case in some Canadian and United States studies) that dissent and concurrence are logically part of some broader class of ‘separate opinion’. The division between the two types of opinion remains an essential one to observe in respect of a court which issues judgments in seriatim. For that reason, when minority concurrences are discussed here, their character as such is explicitly stated so as to avoid confusion.
236 Supreme Court.9 While admitting that ‘determination of the connection between a precedent and succeeding decisions is, of course, far from an exact science’,10 those
authors nevertheless embark on a fairly strict means of classifying the ‘progeny’ of
any particular precedent (the issues and factual circumstances of the former decision
should closely resemble those of the latter) using the Shepherd’s Citations function on
the LEXIS database to chart subsequent discussion of the authority.11
A similar approach has not been adopted here. Although the search facility within the
‘Commonwealth Law Reports’ database on Lawbook Online was employed to
confirm the clustering of cases pertaining to specific topics, the use of a citation
search function to identify specific relationships between cases was seen as prone to
problems (even with Shepherd’s, Spaeth and Segal experienced several difficulties).
This stance was supported by the important fact that, unlike Spaeth and Segal, the
purpose of this project was to look for more than a simple relationship between a case
and its progeny (a binary classification which seems difficult and artificial to apply to
many of the decisions of the High Court of Australia). Instead, the present goal was to
track the fate of discrete minority opinions and while to do so entails examining cases
of a similar ilk, the requirement that a later decision be so closely linked to an earlier
one through citation that it could be said to be the latter’s ‘progeny’ seemed likely to
close off opportunities to discern the re-emergence of those opinions. This was made
clear by Spaeth and Segal’s willingness to disregard any possible relationship
9 Harold J Spaeth and Jeffrey A Segal, Majority Rule or Minority Will: Adherence to Precedent on the US Supreme Court (1999). 10 Ibid 25. 11 This process is described at ibid 25-29.
237 between two opinions due to the failure of the one issued in a later case to reference that which had been delivered in an earlier decision.12
However, despite the use of different processes in linking cases to each other, there is much in common between this study and that of Spaeth and Segal. Both are concerned with establishing relationships between decisions in order to observe how
Justices behave in the face of legal authority with which they disagree. The groups of cases discussed in this and the next chapter have simply been created through a more generous process of issue identification rather than citation analysis. The clustering of cases around specific issues inevitably results in the inclusion of cases addressing disparate aspects of the one constitutional topic. But use of citation as the indicia for classification would not necessarily reduce that possibility to any significant degree.
Substantive consideration of the decisions alone enables them to be sensibly assessed for continuity of opinion.
While Spaeth and Segal have looked to citation to identify the ‘progeny’ of a precedent, it should be stressed that they have not relied upon citation alone as a means of gauging the influence of earlier decisions. Indeed, they could not be more direct in rejecting a correlation between citation and influence.13 For that reason, their study does not consider the adoption of precedent by a newcomer to the bench as at all significant since it is impossible to tell whether the authority simply coincides with the individual Justice’s preference on the issue. That is a compelling argument upon which they build their methodology, but it is at this point that the different aims of the
12 Ibid 30. The authors state: ‘the fact that a subsequent decision addresses the same issue as a case referenced in its syllabus (ie. headnote) does not necessarily make the referenced case a precedent’. 13 Ibid 43.
238 two studies lead to a divergence. As the present inquiry is primarily concerned with
the impact of minority opinions (rather than purely the constraint of existing
precedent), the citation of earlier dissents by a lone member of the Court cannot be
said to be masking anything. Those earlier dissents have merely a persuasive value
and do not serve to obscure a later dissenter’s preferences in respect of the issue – if
anything they make it apparent that his or her position rests not on judicial authority
but appeals to other considerations. Reliance upon earlier minority judgments by later
Justices is crucial in appreciating the role which dissent can play.
For this reason, the discussion which follows is rather a different one from that in which Spaeth and Segal have engaged. Links between minority opinions across
different eras of the Court’s history are readily made. While consideration is not
restricted simply to citations of earlier dissents, there is no denying that such an
occurrence is a powerful sign of the continued importance of those judgments. Spaeth and Segal’s study as to the effect of precedent was necessarily sceptical of its mere endorsement and so restricted itself to finding influence only when a member of the court who initially dissented subsequently accepted the contrary approach which the majority had taken. My appreciation of their method for the purposes of that particular
study is reflected in the fact that the part of this chapter which deals with the pull to
follow precedent only discusses Justices who recant from their initial dissent, and not
later appointments whose true preferences are unable to be discerned with sufficient
clarity. But the examination of persistent dissent by a succession of the High Court’s
239 Justices on specific questions owes little to Spaeth and Segal, as in the present study, we are coming at precedent from quite a different angle.14
Discussion of the impact which minority opinions have had across the constitutional cases of the period under examination will take two forms. In this chapter, an overview of the decisions is provided, taking into account significant instances of persistence or restraint in judicial disagreement and also any vindication of positions initially stated with minority support. In the following chapter, two specific sets of cases – those dealing with the implied freedom of political communication and section 80’s guarantee of trial by jury for offences on indictment – are the focus of close scrutiny in order to better examine how minority views can operate in different ways to exert influence over the Court’s opinion on the law.
III THE PRESENCE AND NATURE OF DISAGREEMENT
The members of the High Court have, on average, formally divided in a little over half of all the constitutional cases which it heard across the 22 year period of this study. When one takes account of the additional likelihood of diverse opinions existing within cases resolved through concurrence, it is true to say that the Court disagrees more often than it achieves consensus in constitutional matters.
However, some issues of constitutional interpretation proved noticeably more divisive than others and thus contributed more significantly to the Court’s rate of dissent in this area of the law. As identified in discussing Table C(II) in Chapter Four, topics
14 This is best illustrated by the different questions posed by each study. While Spaeth and Segal essentially ask, ‘does precedent actually cause justices to reach decisions that they otherwise would not have made?’ (ibid 7); the inquiry here is, ‘how often have dissents won over a later majority so as to be adopted by the Court as the law?’.
240 giving rise to notable levels of dissent included the interpretation of section 51 (xx)15
(6 split decisions out of 9); sections 51 (xxi) and (xxii)16 (7 split decisions out of 10
taken in combination); section 51(xxix)17 (7 split decisions out of 10); section 8018 (7
split decisions out of 10); section 9019 (8 split decisions out of 10); section 11820 (5
split decisions out of 7); section 12221 (9 split decisions out of 11); and the implied
freedom of political communication (9 split decisions out of 12). While other aspects
of the Constitution also saw a reasonable amount of disagreement, that was not to the
same extent as in the areas just listed.
In respect of no topic on which there was a significant series of cases was there an
absence of dissent. It is not the case that there are a select number of issues which vex the Court so as to regularly produce disharmony, while there are others through which
it sails without a murmur of division. The centrality of disagreement to the Court’s life which was indicated by its statistical frequency, is further confirmed by its reach.
No area of the High Court’s constitutional work appears to be so straightforward as to preclude alternative interpretations or applications springing up over the course of a few decisions. Admittedly, that must in part reflect the limited likelihood of matters reaching the Court which concern issues upon which all its members will agree time after time. Even so, the point remains simply that dissent is widespread across the
Court’s engagement with the Constitution.
15 The power to make laws with respect to constitutional corporations. 16 The power to make laws with respect to ‘marriage’ and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. 17 The power to make laws with respect to ‘external affairs’. 18 The requirement that trial on indictment for a Commonwealth offence shall be by jury. 19 The power to levy customs and excise and grant bounties on the production or export of goods duties shall be exclusive to the Commonwealth. 20 Recognition of laws of States throughout the Commonwealth. 21 The power of the Commonwealth to make laws for the government of a territory.
241 Disagreement must also be distinguished as to its nature. A judge may dissent from
the orders of the Court on the basis that either the majority’s opinion on the law is not
correct or over matters of application to the particular facts of the case. For present
purposes, the former is that which is significant since division over a question of legal principle or interpretation is far more likely to continue over into the Court’s subsequent cases in that area than differing perceptions as to matters of application.
For obvious reasons, dissents having their origin in the specific facts of a case are highly unlikely contenders for future redemption.
The area which is perhaps the best example of this is that concerning inconsistency between Commonwealth and State laws. In this study, no other area discussed by the
Court over this time produced more cases than s 109 of the Constitution.22 However,
dissenting judgments were far from constant (only 13 in 36 cases) and this must
undoubtedly be due to the largely settled operation of the constitutional provision in
principle (note that 10 of the cases were decided by unanimous judgment).
Historically, cases concerned with inconsistency have only rarely featured a division
of opinion over the interpretation of s 109 or the tests to be applied. Instead, where
there was disagreement it was likely to be due to differences over application of the
rule to the particular facts. Thus, despite its pre-eminent representation amongst the
pool of constitutional cases over this period, the set of cases identified in connection
to the Constitution’s mechanism for resolving inconsistency under s 109 is not
significant so far as the establishment of a pattern of disagreement, let alone one
resulting in doctrinal development, is concerned. A similar qualification may be made
in respect of the cases discussing section 92 which, since the crystallisation of its
22 Though the category of cases with respect to judicial power ties with this, having 36 cases also.
242 interpretation in Cole v Whitfield,23 have featured disagreement that, if related to the express freedom at all, has tended to focus on questions of application.
The other noticeably large series of cases is that grouped generically under the moniker of ‘Federal Jurisdiction/Chapter III’. Although separate attempts have been made to isolate decisions with respect to particular provisions found within Chapter
III of the Commonwealth Constitution, this was, given the interconnection of those sections, inevitably a somewhat artificial exercise. Additionally, there are decisions in which the notion of judicial power per se, rather than any specific constitutional text, was determinative of the Court’s reasoning. But while this category has proved a usefully broad one in which to deposit such cases, as a consequence it contains all manner of discussions – many of which bear only a tenuous relationship to each other.
Those 36 matters, very much more than is generally so in respect of those in other groups, should not be seen as successive instalments in a coherent narrative. As a result, an attempt to trace an overarching pattern of dissent throughout those decisions is doomed. There are, however, discrete streams of cases within that bulk which are able to be gainfully analysed for patterns of disagreement – those chiefly being concerned with the powers of military tribunals and with the exercise of non-judicial functions by judicial officers.
As stated earlier, in examining the decisions for significant disagreement which had a subsequent relevance (if not impact), all minority opinions – whether concurring in or dissenting from the final orders – were noted. However, it must be admitted that the presence of regular dissents in a series of cases is a robust indicator that the
23 (1988) 165 CLR 360.
243 constitutional topic with which they are concerned is one about which very clear lines of division exist. As such, we would expect examples of that sort to yield more
striking demonstrations of the rise of minority opinions from obscurity than those
topics in which viewpoints are exchanged in the conglomeration of various concurring judgments. Unsurprisingly, the dominant streams of disagreement tend to manifest themselves largely through the delivery of formal dissents, making recourse to minority concurring opinions a rarity.
Lastly, before turning to the task at hand, it is worth emphasising that the interplay of judgments across the Court’s cases is probably not as common as popularly perceived. For many of the reasons above, a large number of the 234 constitutional matters were able to be decided on their own terms, without reference to – let alone the continuation of – some perennial debate in the area. Additionally, not every dissent will warrant future attention. After all, the failure to attract majority support
must say something about the reasoning contained in the opinion. Obscurity is clearly
the fate of many of these judgments, as their authors must surely realise. Despite what
follows, it would be an error to form the impression that all minority opinions have a relevance beyond the case in which they are delivered. Only on certain issues, has a division in the Court been particularly relevant to later decision-making.
IV THE PULL TOWARDS CONFORMITY
If stare decisis is to fulfil the purposes for which it exists, the opinions expressed by a
minority of Justices should not be maintained after their clear rejection by a majority
of the Court. The latter’s position, to which attaches the imprimatur of the institution,
should stand free from further challenge. As Chief Justice Mason made very clear,
244 ‘since the rationes decidendi of this Court are the law of this country, the Justices of
this Court are bound to accept the ratio of a previous decision of this Court as the
law…’.24 While, as earlier discussed, this level of deference occurs not without exception in a court of last resort, especially in respect of its constitutional work, it certainly does happen.
The cases considered in this study provide several examples of where a minority view was abandoned by its author for precedential reasons alone. This can be the only accurate guide to the power of precedential constraint for ‘when prior preferences and precedents are the same it is not meaningful to speak of decisions as being determined by precedent’.25 The continued acceptance, on subsequent occasions, of a case’s
authority by a member of its own majority or by a Justice who did not sit on the case
at all does not conclusively point to the influence of precedent. But the adoption of the
decision as precedent by one who initially dissented from it is a true indicator of the
effect of stare decisis.26
Importantly, the judgments considered below demonstrate the odds against which a
dissent must prevail in order to win wider acceptance. If the institutionalised
conservatism of the law has such a dampening effect upon the sustaining of minority
opinions by their own authors, it is clear that at any time on the Court, the pull is to
continue strongly in the direction chosen by the majority without looking back.
24 O’Toole v Charles David Pty Ltd (1990) 171 CLR 232, 267. 25 Spaeth and Segal, above n 9, 3. 26 Ibid 5.
245 A Surrender to the Majority
There are three particularly clear examples of precedent-induced judicial restraint
among the constitutional cases of the period considered by this study. These are found
in respect of the cases interpreting section 51(xxxi)’s requirement that a compulsory acquisition of property be made on just terms; those matters concerned with the jurisdiction of military tribunals and their compatibility with Chapter III of the
Constitution; and the decisions favouring a broad reading of the external affairs power. In each there is the express abandonment of a minority position in favour of the orthodoxy – though generally this occurs unaccompanied by any admission of the latter’s correctness. The values underlying stare decisis are the overriding factor rather than the persuasiveness of the majority position.
1 Compulsory acquisition of property on just terms
While many of the cases interpreting section 51(xxxi) were decided through concurrence, that fact tends to mask a certain amount of ambiguity of principle underlying those decisions.27 In particular, there were differing views as to just what
constitutes ‘property’ and when it may be said to have been ‘acquired’. However,
Georgiadis v Australian and Overseas Telecommunications Corporation28 was an
instance where the range of opinion amongst the bench produced a clear divide as to
the resolution of the case. Georgiadis was a Commonwealth employee who sought
compensation for work-related injuries. He possessed an ability to claim relief either
through the workers’ compensation scheme or suing under the common law for
damages. By federal enactment subsequent to Georgiadis incurring his injuries, the
27 Surveying the recent caselaw in 2000, Evans remarked that they had ‘produced no coherent approach’ : Simon Evans, ‘When Is an Acquisition of Property Not an Acquisition of Property? The Search for a Principled Approach to Section 51 (xxxi)’ (2000) 11 Public Law Review 183, 184. 28 (1993) 179 CLR 297.
246 Commonwealth, to its distinct financial benefit, extinguished his right to pursue
common law damages against it. A majority of the Court29 found that the enactment effected an acquisition of Georgiadis’ property without just terms and was thus invalid in its operation upon causes of action not otherwise statute-barred.
There were two strains of reasoning underlying the dissenting opinions. Justices
Dawson and Toohey argued that the acquisition of a financial benefit by the
Commonwealth through its extinguishment of the common law action was not to be simply equated with an ‘acquisition of property’ under section 51(xxxi).30 In doing so,
their Honours each drew upon their earlier joint judgments where they had expressed
similar views without attracting wider support.31 Justice McHugh’s dissent focused
less upon the conception of property and its acquisition and instead stressed that
Georgiadis’ right was dependent upon federal law enacted under a power other than
section 51(xxxi). As such, it was always liable to revocation of that law.32
It was Justice McHugh’s dissent which formed the main plank of the
Commonwealth’s challenge to the authority of Georgiadis just three years later in
Commonwealth v Mewett.33 In that decision, the Commonwealth sought again to
employ the statutory provision considered in Georgiadis as a means of blocking its
common law liability to injured employees.34 It was submitted that the right to sue the
29 Mason CJ, Deane and Gaudron JJ, with Brennan J concurring. 30 (1993) 179 CLR 297, 315 (Dawson J); 320 (Toohey J). 31 Australian Tape Manufacturers Association Pty Ltd v The Commonwealth (1991) 176 CLR 480, 528 (dissenting opinion); and Mutual Pools and Staff Pty Ltd v The Commonwealth (1993) 179 CLR 155, 194-7 (concurring opinion). 32 (1993) 179 CLR 297, 325. 33 (1997) 191 CLR 471. 34 The respondents in Mewett were actually statute-barred under State law from bringing such an action, though they sought an extension of time. The orders of the Court in Georgiadis had not answered the question as to the validity of the Commonwealth law so far as it affected statute- barred litigants, hence the slightly different facts facilitated a return to the issue.
247 Commonwealth emanated from section 64 of the Judiciary Act 1903 and, as such, it was statutory and inherently susceptible to repeal. No acquisition was involved.35
The challenge to Georgiadis was rejected by the Court – with all three of the earlier dissenters accepting the authority of that decision. Justices Dawson and Toohey, in dismissing the Commonwealth’s arguments, acknowledged the strength of the distinction drawn by the majority in the earlier case between statutory conferral of a right to proceed at common law and a right arising purely by statute.36 The Judiciary
Act did not create the cause of action of which the litigants were being deprived in
Georgiadis and Mewett – it merely recognised it. As such, it was not correct to say that the cause of action was, by its nature, always liable to be revoked by legislative action. Neither of their Honours saw fit to object to the Commonwealth provision by revisiting their earlier conception of ‘property’.37
Of all the members of the Court, the Commonwealth might have expected support from Justice McHugh. However, his Honour delivered a brief judgment in which he abandoned – though did not recant from – his opinion from Georgiadis. His reasons for doing so were eminently pragmatic:
In these appeals, the Commonwealth seeks leave to re-open the decision in
Georgiadis. The Commonwealth contends that the Court should give effect to
my reasoning in that case and hold that s 44(1) does not bring about an
acquisition of the property of injured Commonwealth employees. However, no
35 (1997) 191 CLR 471, 476-9. 36 (1997) 191 CLR 471, 504-5 (Dawson J); 512-3 (Toohey J). 37 Even though Dawson J had, in the interim, affirmed the statement of that opinion from Mutual Pools in his judgment in Victoria v The Commonwealth (The Industrial Relations Act Case) (1996) 187 CLR 416, 573.
248 ground exists for re-opening Georgiadis. It was one of four decisions handed
down on the same day. Those decisions comprehensively examined the meaning
and application of s 51(xxxi) of the Constitution. Nothing has emerged since
they were decided that provides a reason for re-opening any of them.38
In the later decision of Smith v ANL Limited,39 Justice Hayne sought to distinguish both Georgiadis and Mewett on the basis that while the Commonwealth legislation before them sought to remove a common law right to sue for damages, it did so prospectively rather than through instantaneous action which could be characterised as an ‘acquisition’. That view was expressed in dissent as the majority found section
51(xxxi) to have been infringed. The concurrence of Justice McHugh in Hayne J’s dissent in Smith should not be seen as some attempt to attack Georgiadis via the backdoor. The legislation’s use of a six-month time frame for extinguishing the right to sue was a clear difference between the two cases and no doubt was expressed as to the propositions for which Georgiadis itself stands.
Thus, the group of section 51(xxxi) cases may perhaps be said to demonstrate an idealised form of judicial decision-making, in which the capacity for choice and diversity is clearly answerable to more dominant values of consistency and fidelity.
Principle is derived by majority opinion, over contrary views. When the issue is revisited, however, the authority of the earlier decision is universally accepted by all members of the Court. Some former dissenters indicate the extent to which the majority opinions have had a persuasive effect upon them. Another simply affirms the case on precedential grounds. Lastly, a subsequent instalment raises new issues,
38 (1997) 191 CLR 471, 532. 39 (2000) 204 CLR 493, 535.
249 giving rise to fresh disagreement, but this is resolved in the context of – rather than in
opposition to – the earlier authority.
2 Military Tribunals and Judicial Power
In the case of Re Tracey; Ex parte Ryan,40 the Court considered the constitutional
status of military service tribunals, with a majority finding under the grant of defence
power in section 51(vi) a fairly broad capacity for those bodies to punish service
personnel for offences against military discipline. The express and implied limitations
which governed the federal judicial power sourced in Chapter III of the Constitution
had no relevance in respect of the jurisdiction of the tribunals. However, there were
internal divisions within the majority, with one group accepting that such tribunals
could be validly invested with power to discipline any conduct which already constituted a civil offence when committed by a defence member,41 while another
took the view that military judicial proceedings were limited to serving the purpose of
maintaining or enforcing service discipline and, as such, not all civil offences could
simply be picked up by the tribunal.42 Justices Deane and Gaudron (the latter in a concurring judgment), were unable to share either of the majority views and instead favoured a jurisdiction for the military tribunals which was strictly limited so as to prevent any supplantation of the ordinary criminal justice system.43 As will be
discussed in the next part of this chapter, those two Justices determined upon a course
of persistent dissent on this question.
40 (1988) 166 CLR 518. 41 Ibid 545 (Mason CJ, Wilson and Dawson JJ). 42 Ibid 571 (Brennan and Toohey JJ). 43 Ibid 585 (Deane J); 603, (Gaudron J).
250 But the focus of discussing these cases in respect of judicial conformity is the path of opinion trod by Justice McHugh. The departure of Justice Wilson had a very distinctive impact on the next decision concerned with military tribunals – Re Nolan;
Ex parte Young.44 Chief Justice Mason, Justices Brennan, Dawson and Toohey JJ all reaffirmed the result in Tracey that military tribunals could exercise judicial power over service offences which had counterparts under the general law – though they remained divided (equally so, with Wilson J now gone) as to whether there was any limit to the range of offences within that jurisdiction. Justices Deane and Gaudron both dissented and insisted that the jurisdiction of any judicial power sustained by section 51(vi) was narrow and not to intrude upon ‘the administration of ordinary criminal justice’.45 Justice McHugh, the only new member of the Court since Tracey, chose to concur with Justice Deane and insisted that:
…unless a service tribunal is established under Ch III of the Constitution, it has
jurisdiction to deal with an “offence” by a member of the armed services only if
such an “offence” is exclusively disciplinary in character or is concerned with
the disciplinary aspect of conduct which constitutes an offence against the
general law.46
Thus, the result was a 4:3 split on the central issue of the defence power’s relationship to Chapter III.
With such uncertain results in both cases, it was highly likely that the Court would be asked to return to the question and it did so just two years later in Re Tyler; Ex parte
44 (1990) 172 CLR 460. 45 Ibid 499 (Gaudron J). 46 Ibid 499 (McHugh J).
251 Foley.47 All Justices wrote short opinions which essentially incorporated by reference
those they had delivered in the preceding cases. All maintained their existing position,
with the exception of Justice McHugh who said:
Although I remain convinced that the reasoning of the majority Justices in Re
Nolan and Re Tracey is erroneous, I do not regard that as a sufficient reason to
refuse to give effect to the decisions in those cases. They are recent decisions of
the Court where, after full argument on each occasion, the Court upheld the
validity of the Act in circumstances where the facts are not readily
distinguishable from the present case…for the Court now to hold that a service
tribunal had no jurisdiction to try this case after reaching the opposite
conclusion twice in the past five and a half years would defeat the expectations
of the Parliament and those concerned with the administration of discipline in
the defence forces. Both the Parliament and those responsible for the
administration of service discipline could be fairly excused for thinking that the
constitutional question had been settled.48
Although the abandonment by Justice McHugh of his earlier opinion is of assistance in attaining certainty in the area, Justices Deane and Gaudron could be forgiven for thinking that he jumped ship a little prematurely. The other four Justices of the majority remained hopelessly divided over the limits, if any, of their approach and
Justice McHugh’s opinion did nothing to assist in breaking that deadlock. Yet, his
Honour’s acceptance of the result in the earlier cases was an apparent attempt to
overcome unhelpful and lingering discord on the threshold question so as to narrow
47 (1993) 181 CLR 18. 48 Ibid 39-40.
252 the scope within which some useful principle might be worked out. In that respect,
and in light also of his Honour’s judgment in Commonwealth v Mewett considered above, Justice McHugh might be presumed to share the opinion of Justice Jackson of the United States Supreme Court when he said:
Each dissenting opinion is a confession of failure to convince the writer’s
colleagues, and the true test of a judge is his influence in leading, not in
opposing, his court.49
3 The External Affairs Power
The final example of abandoned minority opinion is one which is already very well
known and while it is similar to those considered above, it has a distinctive force all
of its own. The opinions are those delivered by Justice Dawson in the wake of the 4:3
decision in Commonwealth v Tasmania (Tasmanian Dams Case).50 In that case, the
majority interpreted the Commonwealth’s external affairs power under section
51(xxix) of the Constitution in such a way that it could be used to pass domestic
legislation which was reasonably appropriate and adapted to the purpose of giving
effect to any international treaty to which the Commonwealth was a party. The
dissenters were Gibbs CJ, Wilson and Dawson JJ.51
49 Justice Robert H Jackson, ‘The Supreme Court as a Unit of Government’ in Alan F Westin (ed), The Supreme Court: Views from Inside (1961) 28. 50 (1983) 158 CLR 1. This discussion was foreshadowed in Chapter Two, text accompanying nn 148-50. 51 Additionally, Justice Dawson expressed grave reservations about the result in an extra-curial address: Sir Daryl Dawson, ‘The Constitution – Major Overhaul or Simple Tune-up?’ (1984) 14 Melbourne University Law Review 353. All three Justices dissented yet again on the scope of the power, but on somewhat more complicated facts in Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1984) 159 CLR 351.
253 When Tasmanian Dams arose directly on the facts again in Richardson v Forestry
Commission,52 both Justices Wilson and Dawson felt compelled to accept its
authority, but made it clear they did so without having been persuaded as to its correctness. While Wilson J only went so far as to add that the argument in the
present case had served to strengthen his view that the earlier decision was
erroneous,53 Dawson J delivered a passionate attack on the reasoning in Tasmanian
Dams which reprised the key points from his original dissent.54 He then made it very
clear that, in accordance with the injunction offered by Justice Isaacs in Australian
Agricultural Co v Federated Engine-Drivers and Fireman’s Association of
Australasia,55 he would have ‘great difficulty in deciding that the Constitution said
something which I thought it did not’.56 However, as the parties had argued the case
without challenge to Tasmanian Dams, he assumed the decision possessed authority.
By the time of the next instalment, Justice Dawson was the only one of the three
dissenters in Tasmanian Dams remaining on the bench. While the remainder of the
Court delivered a joint judgment in Queensland v The Commonwealth,57 Justice
Dawson dissented. He did so by actually taking a more generous position as to when
the external affairs power was to be enlivened, arguing this was compelled by the
broad interpretation of that power from Tasmanian Dams. Yet simultaneously, his
Honour affirmed his continued opposition to the reasoning in that case and his
willingness to overrule it when the occasion arose.58 Justice Dawson’s swansong on
the interpretation of section 51(xxix) was his solo concurrence in Victoria v The
52 (1988) 164 CLR 261. 53 Ibid 298. 54 Ibid 320-1. 55 (1913) 17 CLR 261, 278-9. 56 (1988) 164 CLR 261, 321. 57 (1989) 167 CLR 232. 58 Ibid 247-9.
254 Commonwealth (The Industrial Relations Act Case),59 wherein he stated once more
(and at considerable length) his objections to the broad view of the power and lamented its debilitating effect upon the federal system of the Australian state.
These opinions are a curious amalgam of the acknowledged defeat of a minority view expressed with the stridency of persistent dissent. Although it appears from all the examples considered in this section that judges who relinquish a minority opinion rarely do so because they have been convinced as to the merits of the majority approach, the judgments delivered by Justice Dawson in respect of the external affairs power display a distinct reluctance to cease the debate. This seems to be a rather strange form of judicial restraint. Any benefit to the stability of the Court’s jurisprudence through formal concurrence, must surely have been heavily abated by the repeated attacks on the substantive reasoning upon which that approach rests.
Nevertheless, precedential constraints were still clearly operative in keeping Justice
Dawson from splitting the Court over the question of the binding value of that earlier authority.
B Foreclosing Opportunities for Minority Opinions
A significant device in the promotion of judicial respect for past precedent has been the Court’s practice of requiring leave to be given before a party may even challenge an earlier decision. This plays a clear role in the muffling of minority voices and, as it was adopted in a constitutional case during the period under review, clearly requires consideration here.
59 (1996) 187 CLR 416, 566-73.
255 The rule of practice was established in the context of the Court wishing to discourage
repeated attempts to topple the shaky foundations upon which rested the States’
ability to charge licence fees by reference to past sales of goods without offending s
90’s guarantee that the power to levy excise tax is exclusive to the Commonwealth.
The cases which enabled that form of State revenue-raising were the trio of ‘franchise
cases’ spearheaded by Dennis Hotels Pty Ltd v Victoria.60 Citing the States’ reliance
upon those decisions, in Evda Nominees Pty Ltd v Victoria,61 the Court made it clear
that it would not ‘hear full argument on every occasion when counsel wishes to
contend that a previous case was wrongly decided’. The effect of this approach in the
area of section 90 was, rather ironically, to protract uncertainty as it was apparent that
dissatisfaction with the earlier authorities persisted despite the unwillingness of a
majority of the Court to reopen them in Phillip Morris Ltd v Commissioner of
Business Franchises (Vic),62 Capital Duplicators Pty Ltd v ACT [No. 2]63 and
Rainsong Holdings Pty Ltd v ACT.64 The aversion to assessing the reasoning of the
franchise cases on its merits made it extremely difficult to pursue a principled
reconsideration of the concept of excise generally and stifled very necessary debate
until leave was sought and given in Ha v NSW.65
While the requirement of leave is an obstacle to overruling which applies in respect of
any decision, including those reached through unanimous judgment,66 it clearly
60 (1960) 104 CLR 529. The other cases were Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 and HC Sleigh (1977) 136 CLR 475. 61 (1984) 154 CLR 311, 316. 62 (1986) 167 CLR 399. 63 (1993) 178 CLR 561. 64 (1993) 178 CLR 634. 65 (1997) 189 CLR 465. Further observations on the form of minority opinions in these cases are made in the next part of this chapter. 66 For example, the applicants in Newcrest Mining Pty Ltd v The Commonwealth (1996) 190 CLR 513 sought leave to overturn the unanimous decision of Teori Tau v Commonwealth (1969) 119 CLR 564.
256 impedes the ability of dissenting opinions to amass support so as to bring about a change in the law.67 For that reason, it is not without its critics. In Evda Nominees,
Justice Deane, while concurring with the majority that the time was not ripe to reassess the franchise cases, was clear that in his view:
…counsel representing a party does not require the permission of the Court to
present or to continue to present argument that is relevant to the decision in the
case, including argument seeking to show that a previous decision of the Court
is wrong and should not be followed.68
Justice Kirby has adopted this stance also, but has also explicitly based his objection to the requirement of leave upon its effect on the development of minority opinion:
There is an additional practical reason why the foregoing should be so. The
history of the Court demonstrates, many times, how changes in circumstances
and in membership of the Court can alter the outcome of great constitutional
questions. Sometimes a minority view on the meaning of the Constitution will
be propounded, contrary to authority accepted to that time, only to emerge later
as the doctrine of the Court. If a barrier of leave could be imposed by a majority
of Justices, to nip in the bud constitutional propositions inimical to their
expressed opinions, the advance and change of the Court’s understanding of the
Constitution, including that held by those for the time being in a minority, could
be thwarted. There is no warrant in the text of the Constitution for assigning to
67 Indeed, its clear effect in this respect was illustrated above by its influence upon Justice Dawson in compelling him to accept the authority of the Tasmanian Dams decision in Richardson v Forestry Commission as the parties had not sought to question the earlier authority: (1988) 164 CLR 261, 322. 68 (1984) 154 CLR 311, 316.
257 some Justices of the Court a right to prevent others, in effect, from even
considering, with the benefit of full argument, and deciding, points of
constitutional principle which parties before the Court wish to propound. No
doubt if a Justice or Justices find that their receptiveness to a new argument is
not shared by the majority, they would ordinarily co-operate in the expeditious
consideration of the point. The Court might, for practical reasons, impose time
limits, require written submissions or implement other like procedures. But the
exclusion of argument by a requirement to obtain leave is an impermissible
barrier to the elucidation of constitutional meaning. It is incompatible with the
text of the Constitution. It is the duty of this Court to uphold the meaning of that
text as it is properly understood – not as a majority of Justices for the time being
understand it.69
It is difficult to reconcile his Honour’s comments with those of Chief Justice Mason
cited at the start of this Part.70 Certainly they appear to take a very different view as to
the status of the majority opinion. While the Chief Justice agreed that there may be
value in ‘judicially-expressed doubt about or dissatisfaction with a particular
decision’, the ratio of the majority was, until overruled after being formally reopened,
invested with the character of law by virtue of the authority of the Court itself.71
Justice Kirby’s ability to separate the institution from the individuals appears to
enable him to simultaneously recognise the Court’s duty to uphold the Constitution –
which must, presumably, involve a corresponding recognition of its authority in doing
so – and yet also the vulnerability and transience of a judicial majority. Maybe this
69 Brownlee v R (2001) 207 CLR 278, 314-5 (my emphasis). See also, Re Colina; ex parte Torney (1999) 200 CLR 386, 407. 70 See text accompanying n 23. 71 O’Toole v Charles David Pty Ltd (1990) 171 CLR 232, 267.
258 approach is more candid, but it obviously involves a reordering of the traditional legal
values of consistency and efficiency.
This is a crucial difference in outlook and one which has significant implications for
the willingness of a Justice to continue to voice a minority opinion. Coalescing the individuals and the Court on which they serve means that a refusal to follow earlier decisions can be said to amount simply to a refusal to accept the authority of the law.72 But Justice Kirby’s reluctance to imbue a majority with any character beyond
its immediate numerical superiority is to leave open the extent to which its opinion on
the law should command allegiance. Such a stance explains why, in spite of the strong
pull which precedent clearly exerts upon High Court judges, there has simultaneously
existed a lesser, yet notable, tradition of persistent dissent. It is to occurrences of that
practice in the constitutional cases under review that we now turn.
V THE DIEHARDS – PERSISTENT DISSENT
Since the sustained efforts of Justices Isaacs and Higgins in calling for the overthrow of the implied immunities and reserved state powers doctrines met with such spectacular success in the Engineers’ Case,73 the practice of persistent dissent has laid
claim to a strong legitimacy in the field of constitutional law. While, as just noted,
stare decisis remains a judicial ideal, it has been difficult to reject outright the merits of continued opposition to a prevailing view – given that the decision which established the central interpretative principles applied by the High Court to the
Constitution appears to owe so much to just that judicial strategy. In light of the
72 Recall the discussion in Chapter Two, Part III for further instances where such an approach has been classified as ‘law breaking’. 73 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
259 significance of Engineers in effecting a shift in constitutional methodology, it would
seem fair to say that it remains the Court’s greatest reversal. It is impossible to deny
the importance to that story of the persistent minority opinions in earlier cases.74
With such a powerful and prominent example before them, it is not difficult to understand the temptation amongst Justices of the Court to refuse to yield on certain issues and instead hold out for the balance of the court to tilt towards ultimate acceptance of their view. Subsequent instances where minority opinion – even when not persistently expressed75 – gathered support (much of the history of the Court’s
interpretation of section 92 is particularly demonstrative of this kind of continual
evolution)76 has fed into the perception that dissents could, under the right
circumstances, obtain majority approval. The odds of bringing off such a revolution in
the law might well be enhanced by a refusal to compromise, even in the interim. But
to close the door on the opinion would likely result in its consignment to obscurity.
It should be made clear that in looking for examples of persistent dissent, some
heightened degree of coherency between the opinions is required. There are, as the
tables in Chapter Four and Appendix B generally indicate, ongoing disagreements
amongst the Court as to how various provisions are to be interpreted, but this by itself
is not enough. For example, almost all the cases in which the Court considered the
Commonwealth power over territories in section 122 resulted in a split bench. And
74 See especially Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; R v Barger (1908) 6 CLR 41; Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469; and Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330. 75 As with the acceptance by the Court in The Commonwealth v Cigamatic Pty Ltd (in liq) 108 CLR 372 of Justice Dixon’s lone dissent in Foreman & Sons Pty Ltd, In re; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508, which the latter had not, despite it having been raised, referred to in judgment in intervening cases. 76 See Michael Coper, Freedom of Interstate Trade under the Australian Constitution (1983).
260 while the reasons for that might be simplistically reduced to division over the place of territories with the federal structure otherwise established by the Constitution, it is clear that the nuances of that question and the disparate factual circumstances giving rise to the Court’s examination of it, have forestalled the emergence of a regularly stated minority opinion from any particular Justice or coalition of Justices. The general occurrence of disagreement over a particular constitutional provision does not necessarily possess the level of consistency and frequency being sought after when identifying streams of minority opinion.
Over the period under review here, it was possible to trace six series of cases which featured an appropriately clear strain of minority opinion repeatedly expressed in the face of continued rejection by the majority. This is a deliberately wide net to cast and, as will be made apparent from the discussion which follows, results in two quite distinctive forms of persistence being brought to light. Of the six areas in which dissent is maintained, two have been set aside for detailed consideration in the following chapter. These are the decisions concerned with section 80 and the implied freedom of political communication. Specific comments in respect of those areas are reserved for that discussion. The remaining four notable streams of, as yet unrequited, dissent were identified amongst those cases dealing with the areas considered briefly below.
261 A Instances of Persistent Dissent
1 A narrow interpretation of the Corporations Power in section 51 (xx)
Just by glancing at the pattern of decision-making in the cases of the early 1980s involving the corporations power,77 a steady minority of Chief Justice Gibbs, Justice
Wilson and (later) Justice Dawson is clear. Although the features of those cases threw up different concerns which explain the refusal to concur in the Court’s result, the overriding theme throughout their Honours’ opinions was their attempt to contain the scope of section 51(xx). That section provides a power to make laws with respect to
‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’.
In Actors and Announcers Equity Association v Fontana Films Pty Ltd,78 the Chief
Justice, with whom Wilson J agreed, argued that ‘extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations’. As a means of delineating the reach of the power, Gibbs CJ invested the descriptors in section 51(xx) with particular importance:
The words of par. (xx) suggest that the nature of the corporation to which the
laws relate must be significant as an element in the nature or character of the
laws, if they are to be valid…In other words, in the case of trading and financial
corporations, laws which relate to their trading and financial activities will be
within the power. This does not mean that a law under s. 51 (xx) may apply only
to the foreign activities of a foreign corporation, for ex hypothesi the law will be
77 See Appendix B. 78 (1982) 150 CLR 169, 181.
262 one for the peace, order and good government of the Commonwealth. It means
that the fact that the corporation is a foreign corporation should be significant in
the way in which the law relates to it.79
This narrow reading of the power was subjected to a stinging refutation by Justice
Mason when the issue arose in respect of provisions in the World Heritage Properties
Conservation Act 1983 (Cth) under challenge in Tasmanian Dams.80 Nevertheless, the
Chief Justice cited his dicta from Actors Equity and concluded that the legislation was valid only to the extent that section 10(4) forbade a corporation from engaging in various activities on the property to which the Act applied when they were done ‘for the purposes of its trading activities’.81 The remainder of section 10 which purported to restrain corporations generally from engaging in those activities were invalid.
Justices Wilson and Dawson both adopted the words of Gibbs CJ in Actors Equity as the basis for their understanding of the extent of the power.82 They, however, were not prepared to credit any value in section 10(4) as an attempt to come within that narrower definition. As Dawson J pointed out, all activities of a trading corporation are ultimately directed toward the end goal of trade. That does not mean those activities bear the character of ‘trading activities’.83
The High Court’s attention then turned to other aspects of the corporations power and the central matter of its width was given little emphasis for some time. This was
79 Ibid 182-3. It was already settled that those descriptors served to identify the ‘constitutional corporations’ to which section 51(xx) applied: Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 393 (Isaacs J); Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468. 80 (1983) 158 CLR 1, 148-9. 81 Ibid 118-9. 82 Ibid 202 (Wilson J); 316 (Dawson J). 83 Ibid 317.
263 despite the far from conclusive result in Tasmanian Dams in respect of the power.84
That section 51(xx) was a difficult provision to interpret was made abundantly clear by the multitude of different approaches offered when the Court returned to its scope in Re Dingjan; Ex parte Wagner.85 Justice Dawson continued to adhere to the statement of Gibbs CJ in Actors Equity,86 and Justice Brennan, although favouring his
own formulation, also cited that approach and confessed he saw no error in it.87 But
his Honour added, in a notable qualification, that that approach ‘leaves much to
judicial impression from case to case’. His later comments suggest that the true
importance of the descriptors in section 51(xx) remains simply in use of them as a
means to identify those corporations which the law must affect in a discriminatory
manner in order to have the requisite character of one made under the head of power.88
However, in spite of two Justices of the 4:3 majority citing the view of Gibbs CJ with
varying approval, it seems fairly clear from the opinions delivered overall in Dingjan
that, while the Court has yet to settle upon the boundary of the Commonwealth’s power over constitutional corporations, it is most unlikely to adopt the formula advanced by the former Chief Justice. Apart from Justice Dawson, there was a marked aversion to pedantic insistence upon regulation only of ‘trading’ or ‘financial’ activities, and instead a tendency to examine, through a variety of semantic formulations, whether the law was truly one ‘with respect to’ constitutional
84 There was no clear majority in favour of simply an expansive view of section 51(xx) since Brennan J upheld the restraints upon the Hydro-Electric Commission simply under section 10(4) without discussing the validity of the other provisions. 85 (1995) 183 CLR 323. 86 Ibid 346. 87 Ibid 337. 88 Ibid. At this point, I would submit, that Brennan J is effectively reading the Gibbs test down to a meaning which is certainly not incompatible with his own approach based on the need for discriminatory operation of the law upon a constitutional corporation.
264 corporations. As Justice Gaudron, in dissent, put it, that meant that the power extends
‘at the very least, to the business functions and activities of constitutional corporations
and to their business relationships’.89 Regardless of the divide over the specific
legislative provision in the case, that view was certainly not at odds with the
substance of the enquiry engaged in by the bulk of the Court.
2 A narrow definition of ‘excise’ in section 90
Settling upon a concept of ‘excise’ in section 90’s recognition of the
Commonwealth’s exclusive power to raise such a tax has proved to be a troublesome task for much of the High Court’s life. From a modest definition in the decision of
Peterswald v Bartley90 in 1904, the Court has expanded the meaning of ‘excise’
significantly, to the chagrin of the States.91 The only relief granted to the latter was
the precarious line of decisions enabling the raising of revenue through back-dated
license fees (to which reference was made when discussing the requirement of leave
to reopen a past decision in the preceding part of this chapter).
The point at which the time frame of this study intervenes in this saga is with the case
of Hematite Petroleum Pty Ltd v Victoria.92 Both that decision and the subsequent one
of Gosford Meats Pty v NSW93 featured a fairly obvious divide between those
members of the Court who were prepared to find an excise being raised by the
relevant State due to the economic consequences of the law and those who insisted
that the law must identify, as a criterion of liability, a step in the production or
89 Ibid 365; Cf 347 (Dawson J). 90 (1904) 1 CLR 497. 91 See in particular, Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263; and Parton v Milk Board (Vic) (1949) 80 CLR 229. 92 (1982) 151 CLR 599. 93 (1984) 155 CLR 368.
265 distribution of the goods. The latter approach had once been unanimously supported in the decision of Bolton v Madsen,94 but had quickly lost support to a more substantive level of inquiry into the effect of the law in question.95 The artificiality of the back-dated license fees, as upheld in the franchise cases, seemed particularly at odds with the move away from Bolton, yet, as the refusal of the Court to reconsider those decisions in Evda Nominees96 made apparent, they were to be seen as concerned with a distinct category of levy, insulated from the consequences of shifts in the meaning of ‘excise’.97
The dissenting Justices in both Hematite and Gosford Meats were engaged in fighting a rearguard action for the maintenance of the criterion of liability test and the binding authority of Bolton.98 These cases demonstrate the fallacy in the lazy characterisation of dissenting judgments as ‘radical’ or somehow destructive. In arguing for the continued application of a test stated in a unanimous opinion, these dissents sought to conserve the old orthodoxy.
The departure of Chief Justice Gibbs and Justice Wilson left, as it did in respect of the narrow view of the corporations power, the defence of Bolton v Madsen to Justice
Dawson alone. Although he concurred in the result of Phillip Morris Ltd v
Commissioner of Business Franchises (Vic),99 Dawson J did so not simply through a refusal to reconsider the franchise cases and a finding that they applied to confirm the
94 (1963) 110 CLR 264. The test had been proposed by Kitto J in Dennis Hotels (1960) 104 CLR 529. 95 See Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353, 365 (Barwick CJ) for the first blow against the authority of Bolton. 96 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311. 97 For direct confirmation of the policy reasons underpinning that refusal, see Phillip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399, 438-41. 98 Hematite (1982) 151 CLR 599, 623 (Gibbs CJ); 643-51 (Wilson J); Gosford Meats (1984) 155 CLR 368, 380 (Gibbs CJ); 400-2 (Wilson J); 416-7 (Dawson J). 99 (1989) 167 CLR 399.
266 validity of the State levy in question, which was the approach of Mason CJ and Deane
J.100 Rather, he accepted the authority of Dennis Hotels because he still felt bound to
support the ratio of Bolton.101 His Honour did, however, suggest with some regret that
‘perhaps the basic error was to depart from the limited conception of an excise duty which the Court laid down in Peterswald v Bartley’.102
Support for the unanimous judgment in Bolton finally ran dry when Justice Dawson,
attempting to seize the opportunity for an overall reassessment of section 90 offered by Capital Duplicators Pty Ltd v ACT [No. 2],103 abandoned it in favour of a return to
the definition from Peterswald v Bartley – hardly a surprise after the obiter he had expressed in Phillip Morris. Although in this way, the stream of dissent defending
Bolton may be said to have failed, it was obviously substituted with support for a more venerable authority which favoured a modest interpretation of section 90, protective of the financial interests of the States.
In adopting this new stance, Justice Dawson found himself in the company of Justices
Toohey and Gaudron. Building upon their joint concurrence in Phillip Morris,
Toohey and Gaudron JJ delivered a dissent which bore remarkable points of similarity to that of Dawson J. All three Justices favoured winding back the definition of excise so as to confine it to a tax upon production or manufacture. They, rather surprisingly,
100 Essentially the result in Evda Nominees above, n 60. The nearest judgments to this, so far as matters of principle were concerned, were those of Justices Brennan and McHugh, in dissent, who likewise accepted the authority of the franchise cases but distinguished this levy on the facts. Justices Toohey and Gaudron were the remaining members of the majority, but they adopted a distinctive approach, discussed in text above. 101 (1989) 167 CLR 399, 472-5. 102 Ibid 473. 103 (1993) 178 CLR 561, 616-7.
267 placed great store in the emphasis with which Justice Murphy, without wider support,
had imbued section 90 – discrimination – in several cases, including Hematite:104
Section 90 prohibits State taxation which discriminates between goods produced
in the State and those produced outside the State, and prohibits State bounties on
production (or export). The constitutional concept of excise forbidden to the
States is limited to taxes on production within the State; it does not extend to
taxes on distribution or consumption unless these are in substance taxes on
production within the State.
Justice Dawson left open whether Murphy J’s position should be adapted so as to
include within the meaning of ‘excise’ a tax imposed by a State on goods produced
outside of it,105 while Justices Toohey and Gaudron were of the view that such
broadening should occur.106 This difference aside, the use of production or
manufacture alone as the means of identifying which goods would attract the levy,
involved the dissenters in rejecting the result in Parton v Milk Board (Vic)107 which
had included the stage of sale or distribution as within the scope of ‘excise’.
The strength of this attack on those authorities which had taken the Court from the narrow meaning of excise in Peterswald v Bartley was put to the test in the final case of Ha v NSW.108 It failed. Justices Dawson, Toohey and Gaudron, having been
unsuccessful in attracting the crucial fourth vote, delivered a joint dissent. Whilst a majority of Brennan CJ, McHugh, Gummow and Kirby JJ finally drew a veil over the
104 (1982) 151 CLR 599, 638 (Murphy J). 105 (1993) 178 CLR 561, 616-7. 106 Ibid 630-1. 107 (1949) 80 CLR 229. 108 (1997) 189 CLR 465.
268 legislative device of back-dated license fees as a means of raising State revenue
(though they resisted overruling the specific decisions in the three franchise cases), they also reasserted the authority of Parton so as to include a levy on distribution of goods as within the meaning of ‘excise’. The dissenters offered a cohesive case for reading section 90 as prohibiting States from the imposition of a tax which fell upon locally produced goods so as to discriminate against them in favour of imported goods
(excise duty) and imposition of a selective tax upon imported goods (customs duty).109 The meaning of the prohibition on States charging excise was, as Justice
Murphy had earlier insisted and they had since embraced, to be understood in relation to section 90’s denial of State-based customs tariffs. This complementary approach required Justices Toohey and Gaudron to dispense with their extension of Murphy’s definition of ‘excise’ to goods produced outside a State, in Capital Duplicators (No.
2).110
It is difficult, in light of the political developments since Ha, to imagine that there will be a further chapter to this story. The States, resigned to the final result of the High
Court’s efforts over many years to inhibit their ability to raise finances in relation to goods, have struck a financial rescue deal with the Commonwealth. Certainly, if any further litigation is to arise, it would be surprising if the Court was to once again reopen the earlier authorities and this time overrule them. It seems safe to say that the dissent of Justices Dawson, Toohey and Gaudron, seeking a return to the Court’s initial understanding of section 90, will lie where it fell.
109 Ibid 512. 110 Ibid 513.
269 3 A role for section 118’s recognition of ‘full faith and credit’ of State laws in
resolution of choice of law questions
The problem of which law was to be applied by a court hearing a matter which had its
factual origins in another jurisdiction has traditionally been conceived of as one of
choice between the lex fori (the law of the forum) and the lex loci delicti (the place
where the wrong was committed). The choice of law rules at common law aim to
provide guidance on how this tension is to be resolved and were an inheritance from
the English legal system. As such, their utility in addressing conflict of law situations
in the context of states within a federation, rather than between nations, has been open
to question.
It was the judgments delivered by members of the Court in Breavington v
Godleman,111 which first strongly objected to the failure of the choice of law rules at
common law to acknowledge the place of the Australian states within a single
national entity. Justice Deane argued that the common law’s treatment of the states as
being akin to foreign nations was contrary to the terms of section 118 of the
Commonwealth Constitution:
Full faith and credit shall be given, throughout the Commonwealth to the laws,
the public Acts and records, and the judicial proceedings of every State.
Essentially, on this view the constitutional directive that ‘full faith and credit’ be given to the laws of each State, meant that the lex loci delicti was always to be applied
111 (1988) 169 CLR 41.
270 by whichever Court heard the matter.112 The only role for the lex fori was in respect of
regulation of procedural matters of the court proceedings. The substantive legal rules
were to be those of the jurisdiction in which the wrong had occurred.113 Justices
Wilson and Gaudron indicated agreement with the constitutionally derived solution to
choice of law problems when they opined:
…effect is given to the requirement flowing from s 118 that there should only be
one body of State law determining the legal consequences attaching to a set of
facts occurring in a State only by the adoption of an inflexible rule that
questions of liability in tort be determined by the substantive law that would be
applied if the matter were adjudicated in a court exercising the judicial power of
the State in which the events occurred.114
While all Justices concurred as to the result in the case and there were admissions as to the artificiality of the existing rules as applied to states with a federation, the remaining members of the Court showed little inclination to give section 118 a role in
the area of choice of law rules, with Justice Dawson perhaps best explaining the basis
of the objection and the limited role for the provision:
In my opinion, the requirement that full faith and credit be given to the laws of a
State, statutory or otherwise, throughout the Commonwealth, affords no
assistance where there is a choice to be made between conflicting laws. Once
the choice is made, then full faith and credit must be given to the law chosen but
the requirement of full faith and credit does nothing to effect a choice. Nor is it
112 Ibid 134-5. 113 Ibid 135-6. 114 Ibid 98.
271 to the point to say that the full faith and credit requirement assumes the
applicability of a single law. No doubt that is so, but it is to say no more than
that where there is a conflict of laws upon a given question a selection must be
made before the question can be answered. The conflict rules are based upon the
same assumption but they, unlike the full faith and credit requirement, provide a
basis upon which the selection can be made. Section 118 of the Constitution is
not directed to a conflict of laws…115
These positions hardened in McKain v RW Miller & Co (SA) Pty Ltd,116 with a majority joint judgment from Brennan, Dawson, Toohey and McHugh JJ rejecting any relevance for section 118 in the choice of law rules whatsoever117 and affirming
the common law’s control of the issue by statement of a test adopted from Brennan
J’s opinion in Breavington.118 Chief Justice Mason dissented but on the classification
by the majority of a statute of limitation from the lex loci delicti as procedural in
nature, and therefore not to be applied by the court of the lex fori. Although he said
that section 118’s requirement of ‘full faith and credit’ could also support his
approach, he was at pains to repeat that the section was ‘not a choice of law
provision’, and indeed the case was not one of a choice of law problem.119 Although
the other dissenting judges, Justices Deane and Gaudron, shared Mason CJ’s
dissatisfaction with the majority’s refusal to accord the limitation provisions a
substantive character, they also continued to express their opinion that section 118
was of central importance in choice of law matters.120
115 Ibid 150; see also 83 (Mason CJ); 117 (Brennan J); 163-6 (Toohey J). 116 (1991) 174 CLR 1. 117 Ibid 36. 118 Ibid 39. 119 Ibid 31. 120 Ibid 46 (Deane J); 55 (Gaudron J).
272
The Court split in exactly the same way one year later in Stevens v Head.121 The
majority of four and the Chief Justice persisted in use of the common law alone to
resolve choice of law questions, agreeing that procedural laws of the lex loci delicti
should not supplant those of the lex fori, but with Mason CJ dissenting over the
majority’s broader conception as to what constituted a procedural law.122 Justices
Deane and Gaudron dug themselves in over the significance of section 118, signalling a clear course of persistent dissent. In the words of Deane J:
I have given careful consideration to the question whether I should abandon the
views which I expressed in my judgments in Breavington v Godleman and
McKain. The perception that this country is a single nation with a unitary system
of law, in the sense that I explained in Breavington v Godleman, lies at the heart
of my understanding of the structure and working of the Constitution. Any
denial of that perception seems to me to be flawed by an unjustifiable
underestimation of the extent of the compact between the Australian people and
a mistaken denial of the fundamental imperative embodied in s 118 of that
compact. I am fully conscious of the weight of the considerations which support
the view that a decision of the Court which still enjoys majority support should
be treated by an individual member of the Court as being as binding upon him or
her as it is on the members of every other Australian court. There are, however,
weighty statements of authority which support the proposition that, in matters of
fundamental constitutional importance, the members of this Court are obliged to
adhere to what they see as the requirements of the Constitution of which the
121 (1992) 176 CLR 433. 122 Ibid 445-452.
273 Court is both a creature and the custodian. Ultimately, I have come to the
conclusion that I should adhere to the views which I expressed in Breavington v
Godleman and McKain.123
Their Honours united once more in dissent on the question of section 118 in Goryl v
Greyhound Australia Pty Ltd.124 The other notable event in that case was, in a nice
juxtaposition of approaches, the abandonment by Chief Justice Mason of his attempt
to convince the majority that the application of a limitation period or indeed any law
affecting the ability to recover a remedy was properly viewed as a question of
substance, not merely procedure.125
By the time choice of law was revisited by the High Court in John Pfeiffer Pty Ltd v
Rogerson,126 decisions made in other areas in the intervening years meant that the
focus of the debate was substantially altered. In its examination of the implications of
the separation of judicial power at federal level upon the ability of State legislatures to
make laws respecting their own courts127 and the consolidation of the implied freedom
of political communication,128 the Court had begun to develop the concept of a unified
Australian common law. Additionally, it was said that the Constitution and the
common law must not be incompatible.129 The significance of these ideas to questions of the jurisdiction of State courts over matters involving interstate elements was made apparent by the opinions delivered in Lipohar v R.130 Although that case was not one
in which the choice of law rules needed to be applied, much of what was said in
123 Ibid 461-2 (Deane J); see 464 (Gaudron J). 124 (1993) 179 CLR 463. 125 Ibid 471. 126 (2000) 203 CLR 503. 127 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 128 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 129 Ibid 566 (the Court). 130 (1999) 200 CLR 485.
274 Lipohar about the integrated nature of the Australian federation echoed the
dissatisfaction with the old English common law approach given voice by members of
the Court in Breavington.
The precise impact of this conceptual shift so far as choice of law was concerned was
finally explored in John Pfeiffer. The result was not, it should be said at the outset, a
simple vindication of the dissenting view of Justices Deane and Gaudron that section
118 amounted to a choice of law provision. The joint judgment of Gleeson CJ,
Gaudron, McHugh, Gummow and Hayne JJ was express in affirming that the rules
are ‘provided by the common law of Australia’.131 However, in the next breath, it was
said that ‘the common law must adapt to the Constitution’. This reference to the
change in underpinning theory effectively led the Court to an admission that it was uncertain whether and to what extent the Constitution dictated an answer to the problem of choice of law, but the possibility that it might do so was clearly to be countenanced.132 But while the effect might not be clear, the relationship certainly
was. Choice of law was not simply answered by the Constitution (as Deane and
Gaudron JJ had suggested in reference to section 118) but instead by the common law
rules, developed if necessary to conform with constitutional imperatives. The
distinction is arguably a fine, yet crucial one. Even so, while the John Pfeiffer view
does not endorse the specific nature of the Constitution’s role in determining choice
of law favoured by Deane and Gaudron JJ, it certainly was a notable advance upon the
majority’s position in McKain v Miller and Stevens v Head, which, in leaving the
choice of law rules at common law, had seen no potential for their development to be
influenced by constitutional considerations.
131 (2000) 203 CLR 503, 528. 132 Ibid 644 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); 557-8 (Kirby J).
275
So far as section 118 itself was concerned, the majority in John Pfeiffer had this to say as to its importance:
In its terms, s 118 does not state any rule which dictates what choice is to be
made if there is some relevant intersection between legislation enacted by
different States. Nor does it, in terms, state a rule which would dictate what
common law choice of law rule should be adopted. It may well be, however, that
s 118 (and in some cases s 117, or even s 92 in its protection of individual
intercourse) deals with questions of competition between public policy choices
reflected in the legislation of different States – at least by denying resort to the
contention that one State’s courts may deny the application of the rules
embodied in the statute law of another State on public policy grounds.
…it may also be that s 118 suggests that the constitutional balance which should
be struck in cases of intranational tort claims is one which is focused more on
the need for each State to acknowledge the predominantly territorial interest of
each in what occurs within its territory than it is on a plaintiff's desire to achieve
maximum compensation for an alleged wrong.
It has been said that the giving of full faith and credit to the law of another State
only when the choice of law rules of the forum point to that law “is to give full
faith and credit to one’s own law rather than to that of the sister-state, a fact
which the unity of the common law in Australia has so far concealed”. And
there was a deal of debate in the oral argument in the present case about the
effect of s 118. Some of those questions were considered in Breavington but not
resolved by the formulation of a choice of law rule deriving its force from s 118.
276 However, the terms of s 118 indicate that, as between themselves, the States are
not foreign powers as are nation states for the purposes of international law.
That apart, it is not necessary in the present matter to resolve other questions
respecting s 118. The matter is to be resolved, in our view, by developing the
common law to take account of federal jurisdiction as delineated in Ch III of the
Constitution and, also, to take account of the federal system in which
sovereignty is shared between the Commonwealth and the member States of the
federation.
The passage is worth quoting at length because it demonstrates how the Gleeson
Court, while maintaining that choice of law is not dictated by section 118, has nonetheless indicated that it does have a contribution to make to the debate as to how those rules are formulated. That contribution is not direct, but nor is it necessarily insubstantial. The opinion of Justices Deane and Gaudron in the earlier cases has not won over new adherents.133 But, the fact that the Court reframed the rules using the
common law rather than a constitutional directive should not be allowed to
overshadow the fact that, in so doing, the majority left undecided the precise effect
which section 118 may exercise.
Clearly then, the failure of this line of persistent dissent is far more ambiguous than
those considered earlier. Whereas those in the areas of sections 51(xx) and 90 met
with continued rejection until a denouement in which they were finally trounced, the
133 It should, however, be noted that in Stevens v Head (1992) 176 CLR 433, 466, Justice Gaudron also argued in the alternative to find: ‘On the basis that the common law determines the rules applicable in cases such as this, the common law must take account of the fact that the States are not separate and independent nation-States, but constituent parts of a Federal Commonwealth’. This is not wildly at variance with the joint judgment in John Pfeiffer, and so her Honour’s participation in that opinion should not be seen as surprising. The difference is, however, in the later decision’s position that the Constitution compels the common law to take account of the state of the Australian federation. Gaudron J, having set section 118 aside in Stevens, did not otherwise base her approach upon constitutional imperatives.
277 eventual fate of the opinions of Justices Deane and Gaudron was effectively to be
overtaken by a major realignment of thought on a wider principle. The fact that the
majority reasoning in the earlier decisions suffered correspondingly shows that the terms of the choice of law debate were completely recast in the wake of the unanimous assertion in Lange as to the common law’s relationship to the
Constitution.134 That development meant that in ascribing importance to the
Constitution in respect of the choice of law question, the dissenters were not wholly
out of step with the later tide of opinion, though of course the detail of their view was
not to be adopted.
A brief aside to this example is warranted, despite it not concerning a point of
constitutional principle. It will be recalled that in McKain v Miller and Stevens v Head
Chief Justice Mason led Justices Deane and Gaudron in a strain of dissent over the
majority’s characterisation of particular laws, namely those imposing a time
limitation, as procedural rather than substantive in character. The importance of the
distinction lay in the common law rule that on procedural matters, the lex fori was to apply, while the substantive law of the lex loci delicti was to govern the interstate
Court’s hearing of the matter. That consequence retained its force throughout all the cases, despite a difference of opinion as to how the divide between substantive and procedural laws was to be drawn. As mentioned above, in Goryl, Mason CJ abandoned his earlier dissents in which he had argued that a substantive law was any which affected questions as to the availability of a remedy and procedural laws were
134 Above n 129; and Lipohar v The Queen (1999) 200 CLR 485, 509 (Gaudron, Gummow and Hayne JJ).
278 confined to the regulation of the conduct of the court’s proceedings. He accepted the
authority of McKain and Stevens in this regard.135
Despite the forsaking of that position by its most prominent adherent, the majority
opinion in John Pfeiffer expressly adopted the Chief Justice’s distinction between
substantive and procedural laws.136 It noted that this about face ‘has significant
consequences for the kinds of case in which the distinction between substance and
procedure has previously been applied’ ie. McKain and Stevens. This is a clear cut
example of the Court changing its position in order to adopt an earlier, influential dissent. Although Justices Deane and Gaudron shared Mason CJ’s view, the joint judgment did not cite those opinions, presumably on the basis that they were seen as necessarily linked to a view of section 118 not embraced elsewhere in the judgment.
While that is perhaps understandable, such caution was not really necessary, as demonstrated by Justice Callinan’s approval of all three dissenting judgments on this score.137 Indeed, Justice Gaudron’s opinion in Stevens v Head, despite insisting that
section 118 had the meaning she asserted, was argued on the operation of common
law principles, so her reasoning on this question, certainly in that case, accords very
closely with that of the Chief Justice.138
The triumph of a narrow definition of what constitutes a ‘procedural’ law is a
significant reversal brought about through a series of minority opinions on the issue. It
is included here as contextually relevant in showing the influence which those
opinions exerted, but, of course, the specific issue is not constitutional in character
135 (1993) 179 CLR 463, 471. 136 (2000) 203 CLR 503, 543 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 137 Ibid 571-4. 138 (1992) 176 CLR 433, 469-70 for relevant text. See also n 133.
279 and this example cannot be added to those redeemed dissents considered for the purposes of this study in the next part of this chapter.
4 The jurisdiction of military tribunals
In considering the power of stare decisis earlier, the abandonment in Re Tyler; Ex parte Foley139 by Justice McHugh of his dissenting opinion from the case of Re
Nolan; Ex parte Young140 was discussed. Those cases concerned, it will be recalled, the constitutional status of military service tribunals and their relationship to federal judicial power found in Chapter III. Apart from Justice McHugh’s acceptance of precedential factors as a curb upon his opinion on the issues, all the other members of the Court displayed a strong reluctance to yield to a position not their own.
This was so in two quite specific senses. Firstly, as already noted, the judges comprising the majority in Re Tracey; Ex parte Ryan,141 Re Nolan, and Re Tyler could not agree upon whether the jurisdiction of military tribunals established under section
51(vi) was enlivened simply through ‘service status’ (that is, so long as the offence was committed by defence force personnel, jurisdiction to hear it could be validly conferred upon the tribunal) or ‘service connection’ (that is, jurisdiction extended to hearing of any offence if it could reasonably be said that the maintenance and enforcement of service discipline would be served by such a hearing). The proponents of the former, clearly widest possible, view throughout all three cases were Chief
Justice Mason and Justice Dawson, while the latter position was advocated by Justices
Brennan and Toohey. Although these four Justices together ensured the validity of the tribunal’s jurisdiction in each case, they remained deadlocked over the limits to the
139 (1993) 181 CLR 18. 140 (1990) 172 CLR 460. 141 (1988) 166 CLR 518.
280 jurisdiction able to be conferred under the defence power. On one view, it might be said that Justices Brennan and Toohey ought to have surrendered to the wider interpretation since that had attracted a third vote from Justice Wilson when he sat on
Re Tracey, but as no group ever had enough support to provide the ratio, perpetual division amongst their Honours seemed likely. Indeed, only now that all four Justices have departed the bench has some degree of clarity on this issue been achieved.142
The second stream of minority opinion maintained with tenacity was on the broader
notion as to whether very much jurisdiction could be granted to the military tribunals
at all without offending the strict constitutional separation of judicial power. Justices
Deane and Gaudron favoured limiting the tribunal jurisdiction so as to apply only to
offences exclusively disciplinary in character or to the disciplinary aspect of conduct
constituting an offence against the general law. Both were keen to minimise the
existence of a judicial system operating outside of that established in respect of the
general population.143 Throughout these cases, Deane and Gaudron JJ maintained a line of dissent, with a resolve as frank as they demonstrated in respect of their belief in the significance of section 118 to choice of law questions. In doing so, they were assisted by the lack of a coherent and united approach from the majority judgments.
In Re Nolan, Justice Deane was explicit in the role which that factor played in his weighing up the arguments for and against acceptance of a recent decision of the
Court:
142 See Re Colonel Aird; ex parte Alpert (2004) 209 ALR 311 in which a majority accepted the ‘service connection’ test: 321 (McHugh J, Gleeson CJ and Hayne J concurring); 334 (Kirby J); 349 (Callinan and Heydon JJ). Gummow J, at 325, said a decision between competing tests was unnecessary on the facts. The case is outside the period of this study thus it was not included in the statistics and tables accompanying this chapter or within the last. 143 Re Tracey; Ex parte Ryan (1988) 166 CLR 518, 585 (Deane J); 603, (Gaudron J); Re Nolan; Ex parte Young (1990) 172 CLR 460, 489-90 (Deane J); 498-9 (Gaudron J).
281 As the division of judicial opinion in Queensland v The Commonwealth makes
plain and as the history of the decisions of this Court on ss 90 and 92 of the
Constitution demonstrates, the arguments favouring and militating against the
abandonment by a member of the Court of his or her own views about the effect
of fundamental constitutional provisions in favour of what was decided by, or
said by a majority of, the Court in an earlier case can, in some circumstances, be
evenly balanced and appeal to different minds differently. That is not, however,
so in the present case where it is impossible to identify in the earlier decision
any general principle accepted by a majority of the Court as justifying the actual
decision…and where the earlier decision has extended the immunity of military
tribunals in time of peace from the requirement of the Constitution’s
fundamental guarantee of the manner of exercise of Commonwealth judicial
power and is beset by quite extraordinary conceptual difficulties. In such a case,
it is, in my view, an “imperative judicial necessity” that I adhere to my own
view of what the Constitution allows and forbids.144
And, from Justice Gaudron in Re Tyler:
Neither of the earlier cases was determined by reference to a principle or line of
reasoning which commanded majority support. They are, thus, of limited
authority. Moreover, where fundamental constitutional principle is involved, as
in this and the earlier cases, the Constitution must prevail over judicial
pronouncements on the subject.145
144 Re Nolan; Ex parte Young (1990) 172 CLR 460, 492-3. 145 (1993) 181 CLR 18, 35.
282 In contrast to Justice McHugh’s willingness to abandon a strict position over the jurisdiction of military tribunals, their Honours clearly regarded the question as one upon which, to adopt the language of Justice Isaacs, their colleagues were ‘manifestly wrong’ and an instance in which the binding authority of majority decisions should be rejected in favour of ‘the organic law of the Constitution’.146 Although neither Justice cited that famous passage from Justice Isaacs which exhorts the practice of persistent dissent in constitutional matters, the passages above clearly indicate agreement with those sentiments.
The fate of this stream of dissent is far less ambiguous than that of their Honour’s endeavours in respect of section 118. Neither Justices Deane nor Gaudron were presented with another opportunity to affirm their opinion on the question of military tribunals and indeed Re Tyler is the last case on the topic within the matters comprising this study. But, the High Court has since returned to the area with its recent decision in Re Colonel Aird; ex parte Alpert.147 Only Justice Kirby expressed sympathy with the view of Deane J, saying that ‘one day’ it would be adopted.148
However, in spite of this, his Honour proceeded to deal with the case through siding with the ‘service connection’ test of Justices Brennan and Toohey in the earlier decisions. And although, Kirby J dissented on the actual result in Aird, his judgment should not be seen as a viable continuation of the resistance maintained by Deane and
Gaudron JJ. It is essentially akin to the acquiescence of Justice McHugh in Re Tyler.
With no opinion in Aird relying upon adoption of those earlier dissents, it appears safe
146 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261, 278-9. 147 (2004) 209 ALR 311. 148 Ibid 333-4.
283 to say that, despite their strong expression and persistence, they are unlikely
candidates for redemption.
B Persistence – a tool of dynamism and conservatism
Before turning to consider those dissents which have had a direct effect in overturning the existing law, some comment on the four occasions of persistent dissent just described is required. There is a strong common feature across all instances of persistent dissent and that is, unsurprisingly, an abiding conviction as to the correctness of one’s own minority opinion. This is only to be expected. But what distinguishes the course of these judgments from those examples of abandoned minority views considered in Part IV? It is not that the Justices in the earlier Part had actually changed their mind – their belated concurrence with the majority was often accompanied by a statement still maintaining that their earlier views were correct. So when will a Justice feel justified in delivering repeated dissents from the Court’s approach?
Some light may be shed on this puzzle through considering the difference between the examples of acquiescence and some – but not all – of those in which persistent dissent was present. In all the cases in the first category, the original dissent was from a majority opinion which, in the absence of any earlier and contrary precedent, established its claim to legitimacy. The dissenters, having failed to win sufficient support on the occasion of the Court’s first definitive response to the issue, and without any competing judicial authority with which to appeal to their colleagues, had little ground for continued opposition beyond their belief the majority was wrong.
Clearly, that alone, was seen as insufficient.
284
The first two instances of persistent minority opinion – both involving Justice Dawson as a central proponent – occurred in quite different circumstances. In neither the approach to section 51(xx) nor section 90 were the dissenters merely continuing to express their interpretation despite it having been rejected by the Court. Rather, the dissent was seeking to maintain a line of reasoning from earlier antecedents which had either commanded attention in the Court (this is especially true of Justice
Dawson’s opinions in respect of section 90 which argue for allegiance to firstly
Bolton v Madsen, and then Peterswald v Bartley) or had at least not yet been clearly dismissed by a majority (Dawson J’s continued support for the Gibbs approach to section 51(xx) may be justified given that, due to Brennan J’s reserve, only three of the majority judges in Tasmanian Dams reached their decision by rejecting it). In short, the maintenance of a minority view was sustained by appeal to either a still viable alternative or a previous decision which had possessed strong precedential value.
However, it is not possible to characterise the dissents of Justices Deane and Gaudron in the last two examples in this way. On the distinctions drawn above, those cases presented themselves as far more likely candidates for the capitulation of minority opinion. Their Honour’s position on section 118 met with clear disfavour from the majority and, as a novel approach to the problem, could not point to any earlier authority as a rejoinder to the Court’s rejection. While the situation in regard to the military tribunals was slightly different given the majority’s internal fragmentation, it was clear that there was still broad consensus amongst it which disfavoured the
285 restrictive approach of the dissenters. Indeed, as Justice McHugh said when he
abandoned dissent on that issue in Re Tyler, although:
…neither of those cases has a ratio decidendi...that does not mean that the
doctrine of stare decisis has no relevance or that the decisions in those cases
have no authority as precedents.149
In the absence of any earlier judicial precedent (other than their previous opinions)
upon which the dissenters could rely, the authority to which Justices Deane and
Gaudron appealed in both instances was none other than the terms of the Constitution itself. As the opinion of Isaacs J in Australian Agricultural150and those of Barwick CJ
and Aickin J in Queensland v The Commonwealth151 argued, a Justice’s ultimate responsibility is to the Constitution itself not the opinion of other judges as to its meaning. The difficult uncertainty which inheres in this approach has already been commented upon.152
It is clear then, that persistent dissent can be a vehicle for two very different,
oppositional forces in constitutional law. Those seeking to defend the status quo may
well be forced into a pattern of persistent dissent as they attempt to stay the hand of
progressivism by urging respect for the Court’s earlier pronouncements. This would
seem to be an entirely legitimate course of action, being based as it is, upon adherence
to precedential values. On the other hand, repeated dissent on an issue whereby the
Justices concerned are urging upon the rest of the Court a new approach involves a
149 Re Tyler; Ex parte Foley (1993) 181 CLR 18, 37. 150 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261. 151 (1977) 139 CLR 585 152 See Chapter Two, Part IV.
286 more problematic tension between different aspects of the judicial role. Persistent
dissent as a tool for dynamism in interpretation obviously involves a refusal to accept
both the existing precedents and the institutional authority of the Court as a law-giver.
In an attempt to overcome these objections, recourse is made to the highest authority of all – the Constitution itself. Any attempt to generalise about persistent dissent must be wary of overlooking these crucial distinctions. Remarkably different conditions and motivations give rise to repetition of a minority opinion. The legitimacy of the practice cannot be usefully appraised or condemned without consideration of the specific circumstances in which it is employed.
One may, however, still pass comment on its effectiveness in either sense in which it may operate. It might be conjectured that persistent dissent in favour of a new direction in the law is more likely to eventually prevail than when employed as a conservative tool. There are basically two reasons for this suspicion. First, if those arguing for the continued support of earlier authority are already in a minority, it seems that the approach which they seek to defend has already had its day. Having already lost support, the chances are that the slide will inexorably continue. Second, those Justices who maintain a minority opinion in favour of a novel development because they see it as demanded by the terms of the Constitution are not likely to abandon their attempts at persuasion and surrender to the status quo. On the other hand, those engaged in repeatedly defending an earlier authority clearly possess a set of judicial values which will strongly compel them to accept a reversal of it by a clear majority of the Court if that comes to pass.153
153 On the ‘one-sided’ nature of respect for precedent from the liberal wing of the United States Supreme Court (ie. they insist upon its observance in protecting decisions they favour but are cavalier in the constraint it poses in respect of decisions they do not like): see Earl M Maltz, ‘Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern
287
Nevertheless, and to return to those few central points of commonality shared by occurrences of persistent dissent, this study makes it apparent that whatever the motivation of the Justices involved, the success of exerting influence through repeated statement of a minority opinion is far from assured in practice. In fact, subject to what follows, the ability of a stream of dissent to bring about a direct reversal in the law must be properly seen as highly unlikely and such reversals when they do occur must be explained in part upon the presence of other considerations.154
VI THE REDEMPTION OF MINORITY OPINIONS
The suggestion that persistence is of very limited use in securing the acceptance of a minority opinion is further borne out by a consideration of those instances where the
Court has changed its position in order to embrace such a view. Across the course of this study, only on three occasions did the Court expressly adopt the reasoning of a dissenting judgment so as to effect an alteration of constitutional principle. One of those occurrences was in the context of the consolidation of the implied freedom of political communication in Lange v Australian Broadcasting Corporation and is discussed extensively as one of the two case studies in the next chapter. As will be made apparent in the course of that examination, the implied freedom cases contained such a diversity of individual views that the minority portion of the Court in the early cases was in a strong position to influence the form of the freedom as it developed.
Pennsylvania v Casey’ (1992) 68 Notre Dame Law Review 11, 30-31. See also Charles J Cooper, ‘Precedent and Principle in Constitutional Adjudication’ (1988) 73 Cornell Law Review 401, 401-2. 154 So, to return to the example of the pre-Engineers dissents of Justices Isaacs and Higgins, we might agree that it is not just the dissents themselves, nor even those opinions in combination with the enlargement of the Court and the arrival of new appointments, that resulted in their triumph in Engineers, but the ‘consequence of developments that had occurred outside the law courts as well as a cause of further developments there’: Victoria v The Commonwealth (1971) 122 CLR 353, 396, (Windeyer J).
288
The two instances of redeemed dissent considered in this Part probably accord more
with the classic perception of a dissent which, after a period of some dormancy and neglect, has attracted the intelligence of a future day. Significantly, in neither case had
the minority opinion been stated more than once previously.
The first such redemption is actually of an opinion delivered in a case prior to those
within the timeframe of this study. The dissent in question was delivered eight years
before the Gibbs era by Justice Stephen in Henry v Boehm.155 That case considered
the effect of the guarantee in section 117 of the Constitution that:
A subject of the Queen, resident in any State, shall not be subject in any other
State to any disability or discrimination which would not be equally applicable
to him if he were a subject of the Queen resident in such other State.
In the 1904 decision of Davies and Jones v Western Australia156 the Court had
effectively robbed that provision of much significance by allowing discrimination based upon some other criteria in addition to residence, such as domicile. The formalism of that decision was emulated by the majority judgment in Henry v Boehm which found that a residency requirement in order to be admitted to legal practice in
South Australia was not discriminatory as residents and non-residents of that State were under the same obligation. The absurdity of denying the very real practical
155 (1973) 128 CLR 482. 156 (1904) 2 CLR 29.
289 disadvantage to which this subjected a non-resident of South Australia was
highlighted in the minority opinion of Justice Stephen.157
Essentially the same kind of law, in the same professional context, was challenged in
Street v Queensland Bar Association.158 This time, the Court unanimously found discrimination within the relevant sense of that expression in section 117. Although there were varying degrees of emphasis and opinion as to the future application of section 117, all members of the Court acknowledged the fundamental correctness of
Stephen J’s earlier dissent and endorsed it in overruling the decision of Henry v
Boehm.
The story of the remaining instance of redeemed dissent is more complicated. It concerns the interpretation of the Commonwealth’s power to make laws with respect to ‘naturalization and aliens’ in section 51(xix). In the case of Pochi v Macphee,159
Chief Justice Gibbs led the Court in the view that:
the Parliament cannot, simply by giving its own definition of “alien”, expand the
power under s. 51(xix) to include persons who could not possibly answer the
description of “aliens” in the ordinary understanding of the word…However, the
Parliament can in my opinion treat as an alien any person who was born outside
Australia, whose parents were not Australians, and who has not been naturalized
as an Australian.160
157 (1973) 128 CLR 482, 501-2. 158 (1989) 168 CLR 461. 159 (1982) 151 CLR 101. 160 Ibid 109-10.
290 Pochi had argued that if he had been within the meaning of ‘alien’ at some point, he
had since ceased to be so through absorption into the Australian community. This was
clearly inconsistent with the opinion of the Chief Justice quoted above which enabled
Parliament to persist in the identification of someone as an alien regardless of their
length of stay in the country. The only way in which an individual could divest
himself or herself of the status of an alien was through the formal process of
naturalisation by obtaining citizenship.161
Pochi was a weak authority, having only been decided by four Justices and with
Justice Murphy not sharing entirely in the reasons given by the rest of the Court. But,
in any case, changes to the citizenship law with particular effect upon the status of
British subjects, necessitated further consideration of the Parliament’s power to
determine the identity of ‘aliens’ in Nolan v Minister for Immigration & Ethnic
Affairs.162 Nolan was a non-citizen but a subject of the Queen who had resided in
Australia since 1967. The Commonwealth sought to deport him under s 12 of the
Migration Act 1958 which applied to non-citizens who had been convicted in
Australia of certain offences. The majority of the Court applied Pochi to find the provision valid under section 51(xix). Although such a view would not have been taken in earlier times, on the reasoning of Gibbs CJ cited above, Parliament was certainly capable of including an unnaturalized British subject within the constitutional meaning of ‘alien’. Such a development accorded with the development of a distinct Australian citizenship against the backdrop of Australia’s growth in independence as a nation.163
161 Ibid 111. 162 (1988) 165 CLR 178. 163 Ibid 184-6 (Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ).
291 Justice Gaudron dissented from this result. In essence, she argued that as Nolan was
not regarded as an alien at the time of his arrival in Australia – British subjects having
been awarded a special status until as recently as amendments to the Australian
Citizenship Act 1948 (Cth) taking effect in 1987 – he could not now be treated by the
Commonwealth as falling within that description.164 Her Honour admitted that section
51(xix) would carry a power to reverse the process of naturalization but said that
could not be broad. In particular, she argued that:
…it is not, in my view, open to the Parliament to effect that transformation by
simply redefining the criterion for admission to membership of the community
constituting the body politic of Australia. Nor, in my view, does a mere failure
on the part of a non-alien to acquire citizenship involve any fundamental
alteration of his or her relationship with that community…mere inactivity in the
face of legislative change (perhaps not understood by, or not known to, the
person concerned) cannot, in my view, transform a non-alien into an alien. It
follows that s 12 of the Migration Act cannot be upheld as a valid exercise of the
power to legislate with respect to aliens in so far as it operates with respect to
persons who were non-aliens prior to its coming into operation.165
In stating that view, Gaudron J was careful to ask whether the pithy test offered by
Gibbs CJ for persons whom the Commonwealth is entitled to treat as aliens was intended to apply also to those who, although non-citizens, had also acquired non- alien status before Parliament sought to deal with them under section 51(xix).166
164 Ibid 190-2. 165 Ibid 193. 166 Ibid.
292 Justice Gaudron’s dissent was favourably viewed by a majority of four Justices and
Nolan overruled in Re Patterson; Ex parte Taylor.167 That majority was comprised of
separate concurrences from Justice Gaudron herself and Justices McHugh, Kirby and
Callinan. The case presented facts which, concerning as they did an attempt by the
Minister to deport a non-citizen British subject who had arrived in Australia as a child
in the late 1960s, bore a strong echo of those arising in Nolan. While Justice Gaudron
applied her reasoning anew to these facts, the other members of the majority on this
issue, whilst certainly agreeing with her Honour that Nolan was wrong, each developed their own view as to when it was that British subjects ceased to be equated with non-aliens for constitutional purposes. It is important to note that although her
Honour’s dissent was influential and approved of in comparison to the reasoning of
the Nolan majority, its redemption did not extend to it being simply adopted by those
who overruled the earlier authority.
The diversity of those opinions, combined with the decision of a majority of five
Justices to find in favour of the applicant on the basis of jurisdictional error due to
facts relating to the making of the decision to deport, has had significant
consequences for the authority accorded to that part of Patterson which overruled
Nolan. The triumph of Justice Gaudron’s dissent has proven to be short-lived.
Although the final case in this study involving interpretation of the aliens power, Re
Minister for Immigration and Multicultural Affairs; Ex parte Te,168 did not concern
the status of British subjects, hints were made that Patterson was highly vulnerable in
its contribution in that regard.169
167 (2001) 207 CLR 391, 408-9 (Gaudron J); 421 (McHugh J); 490-1 (Kirby J); 518 (Callinan J). 168 (2002) 212 CLR 162. 169 Ibid 170 (Gleeson CJ); 186 (McHugh J); 200 (Gummow J); 220 (Hayne J).
293 Those did not take long to bear fruit. Since the cut-off date (Justice Gaudron’s
retirement) employed by this study for the collection of a sample of cases, the
overruling of Nolan has been reversed and its majority opinion is once again law. The
circumstances for a direct challenge to Patterson were presented in Shaw v Minister
for Immigration and Multicultural Affairs,170 involving a deportation order against a
British subject who had arrived in 1974 and not been naturalized. Despite the very clearly expressed decision by the majority of four in Patterson to overrule Nolan, the
Chief Justice and Gummow and Hayne JJ had this to say:
Any consideration of the significance to be attached to Patterson must involve
the determination whether Patterson was effective to take the first step of
overruling the earlier decision in Nolan v Minister for Immigration and Ethnic
Affairs. In our view, the Court should be taken as having departed from a
previous decision, particularly one involving the interpretation of the
Constitution, only where that which purportedly has been overthrown has been
replaced by some fresh doctrine, the elements of which may readily be discerned
by the other courts in the Australian hierarchy. On that approach to the
matter…the decision in Patterson plainly fails to pass muster.171
Despite the diversity of their individual approaches in the earlier case, Justices
McHugh, Kirby and Callinan uniformly repeated their dissatisfaction with the
reasoning in Nolan. The replacement of Gaudron J with Heydon J was crucial in the
swing away from the Patterson majority and drew the following comment from
170 (2003) 203 ALR 143. 171 Ibid 152, Heydon J concurring.
294 Justice Kirby, which encapsulates much of what was considered in the course of
Chapters Two and Three earlier in this work:
The success of the Minister’s persistent submission in the conclusion of the new
majority gathered in this case, following a change of membership of the Court,
is a sharp reminder of the opinionative character of constitutional doctrine.
Some citizens and some judges may wish that it were otherwise; but ultimately a
case such as the present obliges us to face the facts. About such questions what
matters in the end is the conclusion of a majority of this Court. Indeed, there
could not be a clearer illustration of that truth. Reason, history, principle, words,
adverse risks and legal precedent, all bend in the wind of transient majorities.
One day, if a larger challenge comes than is presented by Mr Shaw’s unhappy
case, it may be hoped that a new majority in this Court will gather around the
view of the Constitution favoured by the majority in Re Patterson and that that
view will be restored.172
Although, of course, the vindication of Justice Gaudron’s dissent in Patterson was itself surely assisted by a changed court, there is something in his Honour’s lament.
Indeed in light of the rapidity with which the pendulum has swung over this question arising under the aliens power, it is little surprise that even members of the Court have difficulty associating the majority position with an authoritative institutional pronouncement.173
172 Ibid [127]. 173 See the quotation from Justice Kirby at n 69.
295
VII CONCLUSION – THE IMPACT OF MINORITY OPINIONS
Does all this amount to a conclusion that the only minority opinions in constitutional law which have achieved successful adoption by the High Court in this 22 year period are that of Justice Stephen in Henry v Boehm and those delivered in the implied
freedom cases to be considered in Chapter Six?174 Has the abundance of minority
opinion which has been expressed over this time – recall, roughly 50% of
constitutional cases contained dissenting judgments, let alone how many
disagreements within the many concurring opinions – held so little attraction for later
sittings of the Court?
The answer is both yes and no. It cannot be denied that the redemption of minority
opinion occurs with minimal frequency – far less often, I suspect, than is popularly
believed.175 But this should not be so surprising. The Court is, after all, an institution
whose members are drawn from the pinnacle of an inherently conservative profession.
It places an enormous value upon the consistency of legal decision-making and the
incremental development of principle to respond to changes in society. An aptitude
towards the regular making of a volte-face could hardly be less likely under the
circumstances. While such an occurrence is not unheard of, one swallow – or even a
174 Admittedly, a notable difficulty in a study of this sort lies in having to draw a line after which further cases of the Court are not considered. The possibility remains that future decisions will seize upon some minority opinion from this era and invest it with great authority through its adoption. Indeed, that can be said to have already occurred in respect of one of the examples discussed above – the concurring opinions of Justices Brennan and Toohey persistently favoured a ‘service connection’ test in setting the limits of jurisdiction of military tribunals. As already acknowledged, just last year that approach received significant majority support in Re Colonel Aird; ex parte Alpert (2004) 209 ALR 311. 175 Lest it be thought that perhaps 22 years is simply an insufficient timeframe in which to observe such reversals, the point should be made that several important alterations in jurisprudence based upon an earlier dissent have occurred in less time than that – including the shift in the Engineers Case (13 years), Cigamatic (15 years) and, as discussed above, Street v Queensland Bar Association (16 years).
296 couple – does not make a summer. As a collegiate decision-making body, the daily
reality of the High Court’s ability to function is respect for majority rule.
However, it is rightly with very great reluctance that one could think of suggesting
that dissent on the Court is without value to the shaping of the law. Of course, as was
acknowledged at the commencement of this chapter and extensively in Chapter Two,
the expression of minority opinion serves significant institutional purposes related to
process and democratic credentials. But I think that it would be a mistake to assume that minority opinion makes only a rare and sporadic contribution to the law’s
development. The key to appreciating this is to distinguish between the direct and
indirect influence which opinions may exert. In this chapter, we have seen that in the
High Court’s constitutional jurisprudence over a little more than two decades,
minority opinions had only a small success in directly bringing about change in the
law through their eventual adoption. Without doubt, that is an important observation –
particularly for those determined upon a course of persistent dissent.
But that should not be allowed to inhibit an appreciation of the indirect significance
which many minority opinions may have upon the views expressed by the Court.
Within particular contexts, the indirect effect and appeal of a minority approach is
likely to be quite enigmatic. The pedigree of the Court’s unanimous opinion as to the
meaning of section 92’s guarantee of free interstate trade, commerce and intercourse
is an excellent example of drawing upon a number of earlier opinions – both
consciously and not so – to produce an interpretation which is, ultimately, something
297 altogether new.176 By way of a rather different example, the series of cases over this study which concern interpretation of the territories power in section 122 is an instance where, at least at this point in time, the interplay between judgments has been such that the influence exercised by any minority opinions is difficult to discern with consistency or precision. Dissenting opinions may also have an importance beyond the confines of any specific question and in respect of more general principles. From the cases comprising this study, a good example of the latter is the joint dissent of
Mason CJ and Deane J in Re F; Ex parte F,177 wherein they renounced the methodology they had previously employed in respect of the ‘marriage’ power in section 51(xxi)178 and set forth a clear clarification of the principles of characterisation.
Indirect influence is obviously far more elusive than the clear reversal of an earlier authority in favour of an opinion which dissented from it. This is not to downplay its contribution. But, as shall be argued in the next chapter, an inquiry which seeks to trace the influence which a minority opinion may exert at the broader level risks being impressionistic, imprecise and subjective. There is, though, some middle ground between, on the one hand, the vague interconnectedness shared by opinions in many areas of the law and, on the other, clear cut shifts between polar opposites. Without falling into either camp, minority opinions can still exercise a significant – and objectively discernible – effect upon the law. This may even be so when they continue to be rejected.
176 For example, the extent of Justice Murphy’s contribution to the Cole v Whitfield test is a matter of some debate. See discussion on this point in Chapter Six. 177 (1986) 161 CLR 376. 178 Ibid 391. The cases in particular were Gazzo v Comptroller of Stamps (Vic.) (1981) 149 CLR 227; In the Marriage of Cormick (1984) 156 CLR 170; and The Queen v Cook; Ex parte C (1985) 156 CLR 249.
298
In order to fully appreciate the operation and significance of minority opinion, it is therefore necessary to move beyond a search simply for instances of an about face from the Court. This need not move into the field of vague assertions. Instead, through detailed consideration of the part played by dissenting views in particular areas we can observe the often subtle, yet powerful, contribution they may make to the Court’s interpretation of the Constitution. That is the purpose of the examination of the role of minority opinions in the areas of section 80 and the constitutionally implied freedom of political communication in the next chapter.
299 CHAPTER SIX
CASE STUDIES: TWO DIFFERENT STORIES OF DISSENT
I INTRODUCTION
In Chapter Five, general findings were reported as to the significance of disagreement
across the High Court’s constitutional caselaw in the 22 year period under review. It was concluded that those decisions only rarely embraced the reasoning of earlier dissenting judgments. Despite the mythology surrounding dissent, the reality appears to be that they have little likelihood of becoming the law. Through more focussed observation of the operation of disagreement amongst the Justices of the Court, this chapter aims to gain a better understanding not only as to why that might be so, but also of any alternative means by which such opinions are of significance to the law’s development. To these ends, two areas of the Court’s constitutional decision-making from the study were selected for detailed analysis. A number of factors determined the choice of those areas, but an overriding one was that they should present quite different demonstrations as to the value of judicial disagreement and its effect upon the law.
The level of scrutiny required for the task necessitates somewhat greater length than was the case in the preceding chapter. A fairly liberal use of quotation has been employed in support of the various connections which are found to exist between judgments. In the context of looking beyond the simple redemption of minority opinions so as to discover any more elusive impact they may have, this has been unavoidable in order to properly substantiate the arguments contained within.
The examination of these two case studies presents the distinct advantage of enabling a proper assessment of the importance of minority views expressed in concurring opinions rather than outright dissent. As was acknowledged in Chapter Two, quite potent disagreement is often found in judgments which still manage to concur in the final orders of the Court. Although this was referred to in the discussion in Chapter
Five, it was not possible to demonstrate specifically just how it is that quite dramatic changes in the law may emanate from a diversity of opinion amongst a court unanimous as to the result.
Thus, in this chapter, the aim is to flesh out the general picture painted in those which have preceded it about the way in which the High Court as a collegiate institution functions when it cannot agree. In so doing, the distinct benefits of the ability to give voice to individual dissension – even when it fails to find favour with ‘the brooding spirit of the law’ – will be made apparent.
II SELECTING A BODY OF CASELAW FOR ANALYSIS
In order that the reader can appreciate what led to the selection of the two areas which have been singled out for closer examination, it may be helpful to be express about the factors which affected this choice. The threshold considerations were, unsurprisingly, the same as those which guided the discussion in the preceding chapter.
First, it was important to select an area which had been the source of significant litigation over the period of this study, rather than one which had been infrequently
302 considered by the Court. There needed, obviously, to be a sufficient number of cases and ideally they should be spaced across the period to allow for changes in the
Court’s composition when questions were revisited.
Second, even in areas which met the first criteria, it was clear that some would
obviously reveal more about judicial disagreement than others. In order to ensure that
areas were selected which gave ample opportunity for testing the degree to which
minority opinions exert an influence, the primary indicator was the steady, if not quite
constant, presence of dissenting judgments. Even allowing for the possibility that
some of those dissents were filed on grounds not relevant to the Court’s handling of
the particular topic under which the cases were grouped or that equally strong
divisions of opinion may have lurked within the separate judgments of cases decided
by concurrence, the existence of manifest disagreement through dissents remained the
crucial feature which made some series of cases more attractive for further
examination than others.
For example, working from the relevant section in Appendix B, of the seventeen cases which to some degree considered the power of compulsory acquisition on just terms
in s 51(xxxi) of the Commonwealth Constitution, only nine featured dissenting
opinions (in the strictly defined sense of that term as being at variance from the
Court’s final orders). Of course, this is not to suggest that in the other eight cases
there was no disagreement. On the contrary, only one of those decisions was decided
unanimously,1 and it is highly likely that there were divisions of opinion – albeit not
affecting the outcome – in the other seven. But the absence of dissenting opinions in
1 The Queen v Smithers; Ex parte McMillian (1982) 152 CLR 477.
303 about half the cases suggested a lack of pronounced and sustained disagreement
amongst the bench which might form the basis of useful observation. The willingness
to exclude a set of cases in this way was further assisted by an appreciation that, given
the broad way in which cases were classified,2 inevitably there would be some of only
passing significance to the subject with which they have been associated for these
purposes.3 Additionally, the grounds upon which some Justices dissent may be of
little direct relevance to the interpretation of that particular part of the Constitution.
The express disagreement with the Court’s final orders may be due to factual
considerations or the determination of a different issue.4 Given these variables which
inhere in the raw information provided by the tables in Appendix B, the surest way of
tapping a rich seam of relevant disagreement to mine for analysis was to select areas
in which the bench was most regularly and transparently divided. A set of cases like
those involving s 51(xxxi) does not display this to the extent that others in the tables
do.
Lastly, and of specific importance to the purposes of this chapter, there was little to be
gained by selection of two areas which essentially served to illustrate the same
features. It was felt that in order to best consider the variety of ways in which
minority opinions affected the work of the Court, this should be a conscious factor in
the selection process. So while the four examples of unrequited persistent dissent considered in Part V of Chapter Five demonstrated the competing judicial motivations and justifications behind that practice, they did not manage, despite their individual
2 See Chapter Four, Part II. 3 In respect of those cases grouped under section 51(xxxi) a good example of this is Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. 4 In the same context, see as an example, Commonwealth v Tasmania (The Tasmanian Dams Case) (1983) 158 CLR 1.
304 differences, to highlight the diverse ways in which sustained disagreement can be
positively influential upon the law.
The two areas which seemed most likely to yield observable results in this vein, and
were thus selected for scrutiny, are those concerned with the constitutionally implied
freedom of political communication and the interpretation of section 80’s guarantee of
trial by jury.
III GAUGING IMPACT
Before turning to consider separately the two areas selected for patterns of disagreement, it is necessary to explain precisely what is being looked for in these cases.
In attempting to discern any influence which minority opinions may have had over subsequent development of the law, it is essential to look beyond a formalistic examination to one which is more substantive in character. While obviously citation by members of the High Court of their predecessors or contemporaries is a clear indication of influence and is to be noted, it is just as apparent that the many factors which play a part in the emergence of a new doctrine or approach will not always receive direct acknowledgement. There may be a number of reasons for this failure to reference earlier statements which accord with that being presently advanced, including, one might suppose, differences in context and emphasis. It can also reflect the level of prestige with which a particular judge is associated by the legal
305 fraternity.5 While this must be an important consideration in all cases, it has attracted
particular comment in respect of the High Court’s reluctance to cite opinions from
surely its most controversial appointment, Justice Lionel Murphy:
This is not necessarily a measure of influence or lack of it. It is probably more a
reflection of discomfort with Murphy’s overt result-orientation, and of the
predominant judicial perception of his questionable legitimacy. It may assist
[the] argument that Murphy has not been influential, at least to the extent that
the judges see themselves as open to influence only by a process of persuasive
reasoning and not merely by the force of an outcome. However, one should not
draw too much from stylistic conventions in High Court judgment writing…6
Similarly, in discussing the scant references made to Justice Murphy in support of developments in criminal law which appeared to owe something to his earlier jurisprudence, Brown has said:
Whatever the reason for the less than full formal attribution of Justice Murphy’s
doctrinal influence, the key point…is that we cannot look solely to the formal
criteria of direct citation. It is necessary to look at influence in the wider sense
of “preparing the ground” or as a “condition of existence” of later
developments.7
5 As to the effect of personal judicial reputation upon citation by the High Court generally, see Russell Smyth, ‘Who gets cited? An empirical study of judicial prestige in the High Court’ (2000) 21University of Queensland Law Journal 7. 6 Michael Coper, ‘Commentary on ‘Lionel Murphy and Democracy and Rights’’ in Michael Coper and George Williams (eds), Justice Lionel Murphy – Influential or merely prescient? (1997), 66. 7 David Brown, ‘Lionel Murphy and the Criminal Law’ in Coper and Williams, above n 6, 74-5.
306 Both these statements are undoubtedly correct in arguing that influence extends beyond that which is explicitly acknowledged. They do so by offering a less tangible, yet nonetheless powerful, way in which that further impact may be felt. This is in the
sense of the bigger picture – the results which the law may be able to provide. The
methodology of any individual judge may deter his or her successors from direct
citation, even though those earlier opinions have encouraged the exploration of an
idea in a similar vein. The fact that someone has already considered a particular
possibility, albeit through reasoning viewed as flawed, enables others to revisit the
topic less controversially and recast it in more acceptable terms.8
Whilst that must almost certainly be true to a degree, it would actually defeat the purposes of this particular study if the search for non-attributed influence was to extend to that especially wide sense. The problem with such a broad notion of judicial impact is not that it is inaccurate to say it occurs in practice (indeed the whole common law tradition implicitly assumes that it does), but it is very hard to measure the value of individual opinions in this sense with accuracy. An unacknowledged judicial contribution which can, at best, be said to have ‘prepared the ground’, is obviously a matter of conjecture over which there may be vigorous debate. For that reason, the following analysis will seek to avoid connecting subsequent developments in the law to earlier minority views which were only broadly similar.
Instead, in assessing influence, this chapter looks to instances of direct citation but also supplements them by charting the impact which minority judgments have had over later majority opinion through the unacknowledged adoption of specific rules or
8 As shall be seen, this is generally the tenor of any subsequent influence which commentators have been prepared to ascribe to the opinions of Justice Murphy in respect of the implied freedom of political communication.
307 interpretations. This has involved a close reading of judgments in order to devise fixed categories of opinion about the relevant topic. Under each category, a number of distinct opinions may be identified within the judgments of the Court. These were then tracked through subsequent cases for re-emergence. The categories and the opinions grouped within them are of the judges’ own making and are simply drawn from the judgments, with new categories created as the need arises. For example, in reading the cases dealing with the constitutionally implied freedom of political communication, 11 categories in all were identified along such lines as concerning objections to the need for the implication; the basis of the implied freedom; what speech it operated to protect; to what degree the freedom was not absolute; its application to the common law and so on. Within those categories, numerous opinions exist favouring one particular view over another and these were accorded a code which enabled them to be followed in later decisions. As new approaches arose they were added to the relevant category and similarly tracked for support in subsequent decisions.
Necessarily, this process involves the exercise of discretion, particularly in the common classification of opinions which may superficially appear to be somewhat different. Due to the highly personalised writing styles of High Court judges, it is not often (though not unheard of either) that the same idea will be expressed by use of a specific formula of words. The trick is to see past semantic differences to identify conceptual consensus. Similarly, one needs to be wary of too readily assuming that similarities of expression indicate agreement. Although, in the absence of direct citation this is obviously the strongest indicator of shared outlook, it is important to thoroughly examine the surrounding context to be satisfied that this is actually the
308 case. But one should not make too much of concerns in this vein – they are just as applicable to any reading of caselaw and are hardly peculiar to the exercise of classification immediately to hand.
Before beginning the task in earnest, it is as well to note Coper’s sensible caveat that:
…in assessing the influence of a particular person or judge, one is taking a
snapshot of a particular moment of time. We have a Constitution, indeed a legal
system, in constant movement. Our assessment may be good for this frozen
moment. It may not remain so as the never-ending story continues to unfold.9
IV THE STREAMS OF MINORITY OPINION
A Freedom of Political Communication
1 General Observations
The cases dealing with the emergence of a constitutionally implied freedom of political discussion are distinguished by a number of features. The first is the striking way in which most of the cases appear alongside a companion decision. Of the twelve cases in this set, only three were delivered in isolation from a similar matter – the first one and the last two. The rest are part of a pair or, in the instance of the 1994 cases, a trio of decisions. The effect which this had upon the opinions was, at least initially, to quite clearly solidify the divisions and alliances within the Court. For example,
Justices Deane and Toohey collaborated on the first two cases of the 1990s in which
9 Coper, above n 6.
309 the implication was found,10 as did Mason CJ, and Toohey and Gaudron JJ in the
pivotal decisions of Theophanous v Herald & Weekly Times Ltd 11 and Stephens v
West Australian Newspapers Ltd.12 At the same time, while not working as co-authors
of an opinion, a consistent minority comprised of Brennan, Dawson and McHugh JJ
was established over the same period.
That this pattern was broken through the concurring opinion of Toohey J in Cunliffe
and then the departures of Mason CJ and Deane J is not so terribly surprising. What is surprising, even after several years now, is just how the disparate threads of opinion up to that point were woven into a single rope in the case of Lange v Australian
Broadcasting Corporation13 in 1997. It was not simply the arrival of Gummow and
Kirby JJ which enabled those judges who had, up to that point, been largely in the
minority to capture the consensus of the Court. Apart from the challenge of
accommodating the views of those survivors of earlier expansive majorities, Toohey
and Gaudron JJ, there were, as shall be seen, enough differences of opinion amongst
the three early dissenters, Brennan CJ, Dawson and McHugh JJ to augur against the
production of an unanimous judgment.
Of all the sets of cases identified through Table C(II) in Chapter Four, this one is
unique in that it does not possess any antecedent decisions. Aside from the
10 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty v The Commonwealth (1992) 177 CLR 106. 11 (1994) 182 CLR 104. 12 (1994) 182 CLR 211. 13 (1997) 189 CLR 520. Lindell has said, ‘the author or authors of the judgment in Lange deserve considerable praise for bringing together the varied and discordant voices on the Court’: Geoff J Lindell, ‘Expansion or Contraction? Some Reflections About the Recent Judicial Developments on Representative Democracy’ (1998) 20 Adelaide Law Review 111, 137. See also, Nicholas Aroney, ‘The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science? (1998) University of New South Wales Law Journal 645, 653-4; and Andrew Lynch, ‘Unanimity in a Time of Uncertainty: The High Court Settles Its Differences in Lange v Australian Broadcasting Corporation” (1997) 6 Griffith Law Review 211.
310 sympathetic recognition of an implied freedom of access to the seat of government in
191214 (of which more is made in these cases by some judges than is perhaps
warranted), the implied freedom emerges within the 22 year window of this study.
There are advantages and disadvantages attendant upon this. The benefit is, of course,
that the analysis is not dependant to any significant degree upon background
discussion of interpretations prior to 1981. We can safely say that there is nothing
from an earlier generation of judges which is exerting an influence upon the
development of the freedom but which might elude us15 – indeed the sheer novelty of
the implication was one of its defining characteristics and the source of continued
opposition to it. The drawback is that the development of the principle is a necessarily messy process and that, consequently, there are a relatively high number of categories
of opinion as the Court’s members hammered out the details of the freedom over
these cases. This makes tracking shifts in opinion quite challenging as under such circumstances few contentions can be reduced to a black or white dichotomy. The categories which produced multiple opinions were essentially those dealing with the basis of the implication, the extent of its operation in the States, and the degree to which the freedom could be infringed. Obviously, these are difficult and complex questions and the diversity of views as to how they should be answered reflects as much.
The following sections consider the essential categories of opinion which have been identified as underlying much of the discussion in these cases about the nature and extent of a freedom of political communication implied from the terms of the
14 R v Smithers; Ex parte Benson (1912) 16 CLR 99. 15 By this I mean to refer to influences specifically on point of developing a freedom of this sort. There are, of course, broader interpretational methods – namely that prescribed in the Engineers’ Case and the permissibility of drawing implications – which play a recurring role in the judgments of the Court.
311 Constitution. For clarity’s sake, the examination is thematic rather than strictly
chronological.
2 The objections to the need to imply a freedom of political communication
Over the course of these cases, there have arisen principally two outright objections to
the finding of any implication which protects political, or indeed any other form of, speech. First of these was that section 92’s express protection of interstate intercourse
precluded the uncovering of any additional and broader freedom of communication
between persons in the Australian Commonwealth. The second is the related, but far more general, complaint that the framers’ clear intention not to adopt a bill of rights in the American tradition means that any subsequent implication of a freedom (unless necessarily arising from the text) by the Court is illegitimate activism.
The relevance of s 92 to the existence of the implied freedom stems from the context in which the early forays by Justice Murphy were conducted. In the first case of the relevant period in which the spectre of a constitutionally derived freedom of speech is raised, Miller v TCN Channel Nine Pty Ltd,16 the Court was primarily concerned with the extent to which s 92’s freedom of interstate trade and commerce clause applied to invalidate legislation requiring a permit for the establishment, erection, maintenance and use of a transmission tower. However, the television broadcaster also raised a
defence based upon an implied freedom of communication which was attributed to the
suggestion of Murphy J in Buck v Bavone that there existed beyond s 92’s express
guarantee of freedom of intercourse, a ‘right of persons to move freely across or
within State borders…arising from the union of the people in an indissoluble
16 (1986) 161 CLR 556.
312 Commonwealth’.17 This was adapted by the defendant, in line with other statements
by Murphy J, so as to respond to the particular facts of Miller involving transmission
of intangibles and was argued in the case as a freedom of communication. Only
Murphy J was receptive to this submission.18 The argument by Murphy J for such an implication was clearly tied to his Honour’s narrow view of s 92 as prohibiting only the imposition of discriminatory fiscal burdens upon interstate trade and commerce19
– a view rejected by the rest of the Court, but in which one can certainly see an
element of the Court’s eventual settlement of that area in the unanimous judgment of
Cole v Whitfield.20
Thus, the initial discussion over whether it was necessary to imply a freedom of this
nature was linked to how one read the guarantee of section 92. Just as Murphy J’s
view of that express provision led him to find a need for the freedom described, the
majority’s approach to the provision, which was noticeably more expansive, pointed
to no such necessity. In rejecting the existence of an implied freedom of
communication which might have assisted the defendant, the majority were explicit in
saying that the current scope of section 92 left no room for such a development.21 In
doing so, they were clearly indifferent to other possible bases for an implied freedom of speech which Murphy J had raised in earlier decisions, as shall be seen in the next section.
17 (1976) 135 CLR 110, 137. 18 Miller is one of those few cases across the timeframe of this study which actually has more dissenting judgments than not. All judgments but that of Mason J disagree to some extent with the Court’s final orders and are therefore classified as dissenting: see note under 161/556 in the Appendix A. On this phenomenon generally, see Chapter Three, Part IV. 19 (1976) 135 CLR 110, 136. 20 (1988) 165 CLR 360. See Coper, above n 6. 21 (1986) 161 CLR 556, 569 (Gibbs CJ); 592 (Wilson J); 615 (Brennan J); 625 (Deane J); 636-7 (Dawson J). Mason J, at 579, contented himself with saying simply that he could find no ‘basis for implying a new s 92A into the Constitution.
313 This emphatic rejection of the freedom in Miller might have been seen as mildly
difficult to overcome when in cases just six years later, a majority of the Court
uncovered a freedom which was at least superficially similar to that which Murphy J
had proposed. However, few Justices displayed much awkwardness about the issue – though in Australian Capital Television Pty v The Commonwealth Dawson J appeared
to be asserting that they should when he cited the judgments from Miller back to their authors.22 Of those judges in favour of the freedom, only Justices Deane and Toohey
sought to draw a distinction based upon the different context of the 1990s cases which
supported the existence of the freedom,23 whilst Justice Gaudron (not appointed at the time of Miller) preferred simply to highlight the inconsistency of some of her
colleagues. In doing so, her Honour was the only judge in the course of the new
generation of cases to expressly cite Murphy J in support of a proposition.24 Her
argument did not rest on distinguishing the earlier caselaw, but dealt on the merits
with any suggestion that the words of s 92 might compel constraint. It mirrored
perfectly the comments from Buck v Bavone which Murphy J stood by in his dissent in Miller:
…there are indications in s 92 itself that it was not intended to be exhaustive as
to the rights of Australians to communicate with each other. In the first place
and so far as presently relevant, it deals with “intercourse among the States”
which is a discrete topic and one which has its own special importance in the
federal arrangements effected by the Constitution. Another matter which tells
against the exhaustive nature of s 92 is that the freedom it confers is expressed
to come into existence only with "the imposition of uniform duties of customs".
22 Australian Capital Television Pty v The Commonwealth (1992) 177 CLR 1, 185-6. 23 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 81. 24 (1992) 177 CLR 106, 212-213.
314 And, of course, s 92 appears in Ch IV of the Constitution, the provisions of
which focus on finance and trade. It is hardly to be expected that, in that context,
s 92 was intended to deal exhaustively with the right of Australians to
communicate with each other. Accordingly and notwithstanding some
comments to the contrary in Miller v TCN Channel Nine Pty Ltd, s 92 does not,
in my view, preclude the implication of a freedom of political discourse - a
freedom which is required by the nature of the Constitution as one for a free
society governed in accordance with the principles of representative
parliamentary democracy.25
Gaudron J’s defence of the need for implication of the freedom despite the express guarantee of s 92 was the final word on that matter. This is not really to suggest that the view of Murphy J in Miller (and its predecessors) had finally overcome the scepticism of a majority of the Court (though certainly it fared better than Dawson J’s approach of maintaining, at least initially, that s 92 precluded the implication).26 But rather, as the opinion of Deane and Toohey JJ (who agreed with Gaudron J to the extent that s 92 did not preclude the implication then emerging) sought to make clear, the debate had shifted – or indeed, it was an entirely fresh debate altogether. This, I would suggest, was not so much due to the new discovery of the freedom resting on considerations entirely original from those employed by Murphy J (it is clear that it did not, as shall be seen in the next section), but rather owed much more to s 92 having been effectively knocked out of the ring by the afore-mentioned Cole v
Whitfield in the intervening years. It now being clear just precisely what the limits of section 92 were, the Court was in a position to freely consider the need for an implied
25 Ibid 214. 26 Australian Capital Television Pty v The Commonwealth (1992) 177 CLR 1, 185-6; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 190.
315 protection of speech without fear that its scope was in fact covered by the operation of
that express provision. That Murphy J had effectively arrived at that place before
other members of the court is noteworthy but is distinct from saying that he led them
there.
Throughout the 1990s, the only proponent of the view that consideration of the
intentions of the Constitution’s drafters precluded any subsequent implication of a right of free speech was Dawson J, whose resistance to the implied freedom was
staunch. In ACTV, his Honour first expressed the view as follows:
…the Australian Constitution, with few exceptions and in contrast with its
American model, does not seek to establish personal liberty by constitutional
restrictions upon the exercise of power. The choice was deliberate and based
upon a faith in the democratic process…There is no warrant in the Constitution
for the implication of any guarantee of freedom of communication which
operates to confer rights upon individuals or to limit the legislative power of the
Commonwealth.27
His Honour essentially repeated this objection in two of the 1994 decisions applying
the freedom.28 In all but the last of these cases, Dawson J was in dissent. The majority
response to his complaint was forthcoming in Theophanous where Mason CJ, Toohey
and Gaudron JJ contented themselves with asserting that ‘the beliefs of the founders
at the end of the last century as to the sufficiency of protections conferred by statute
and common law cannot limit the content of an implication to be drawn from the
27 (1992) 177 CLR 106, 182-4. 28 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 193; Cunliffe v The Commonwealth (1994) 182 CLR 272, 361-3.
316 Constitution…’.29 Justice Deane gave a much more comprehensive answer which
included his famous reference to the ‘dead hands’ of the founders.30
Eventually, Dawson J’s opinion on this matter was superseded by his (apparent)
capitulation in Lange31 to the view that an implication of free political communication did arise and his retirement almost immediately thereafter. It was, therefore,
surprising to find that on the next occasion the High Court had cause to discuss the implied freedom in Australian Broadcasting Corporation v Lenah Game Meats Pty
Ltd,32 the arguments which Dawson J had so tirelessly expressed until almost the very
end of his tenure, were revived by Justice Callinan. Although his Honour did
acknowledge Dawson J’s remarks in ACTV,33 that was the extent of his recognition
that an objection to the implication on the basis of the framers’ intentions had
previously been raised. He did not quote any of Dawson J’s opinions on the issue nor
make any reference to his Honour’s remarks in Theophanous or Cunliffe. Dawson J’s
participation in the unanimous opinion of Lange seems to have tainted the usefulness
of his earlier dissents in Justice Callinan’s eyes.34 In the most recent of the decisions
in this set, Roberts v Bass,35 Callinan J made it very clear that he intends to maintain a
line of dissent against what he refers to as the ‘Lange defence’.36 As a result, despite
29 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 128. See also, Australian Capital Television Pty v The Commonwealth (1992) 177 CLR 1, 136 (Mason CJ). 30 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 166-174. 31 (1997) 189 CLR 520. As to my qualification in this sentence, see the discussion below of Dawson J’s approach in this case and its immediate successor, Levy v Victoria (1997) 189 CLR 579. 32 (2001) 208 CLR 199. 33 Ibid 331. 34 Ibid. 35 (2002) 212 CLR 1. 36 Ibid 102. This is seemingly the result of his Honour’s consideration of the limitations of the implied freedom’s basis in the text and structure of the Constitution as exposed by Adrienne Stone. Stone has explained that inevitably application of the implied freedom will require the Court to move beyond the text and structure in a resort to values. She advocates a way forward in this respect (see text accompanying n 145 below) but admits that other options might include an absolutist approach to the freedom or its abandonment altogether, though it is clear that she
317 Callinan J putting his own stamp on the intentionalist argument he is persisting with,
there will, by and large, have been a steady stream of dissent across this entire set of cases from the fundamental question as to whether a freedom of political speech is necessarily implied from the terms of the Commonwealth Constitution.
3 Basis of the implied freedom
Much of the Court’s work prior to the Lange decision was directed towards arriving at some consensus as to the grounds upon which the freedom of speech was to be implied. It is possible to identify no fewer than seven opinions which pertain to this category, five of them going to the heart of the question as to the basis of the principle. There is, unsurprisingly, quite a degree of overlap between some of the approaches and so in order that opinions may be definitely classified as belonging to one stream or another, focus has tended to be directed to what makes them distinctive
rather than those points on which there is common agreement. In trying to assess the
influence which Murphy J’s interpretation of s 92 had upon the Court’s eventual
settlement of that question in Cole v Whitfield, Coper quite rightly admitted that, ‘like
all comparisons, it depends on whether you focus on the similarities or the
differences’.37 That truism underpins this entire enterprise, but it is especially
apparent in respect of categories like the present one where one is capable not of
failing to see the wood for the trees, but just the converse.
A good instance of how similarity could cause overlap if not appropriately contained
is provided by the first opinion which we can observe from the cases in support of the
did not regard the latter course as a serious possibility after Lange: Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 699. Clearly, on that last point, Justice Callinan disagrees with her. 37 Coper, above n 6.
318 freedom. In Miller, Murphy J stated simply that ‘the Constitution also contains implied guarantees of freedom of speech and other communications [which] are necessary for the proper operation of the system of representative government at the federal level’.38 His identification of the implication as necessarily arising from representative government drew on earlier, more fulsome explanations. In Ansett
Transport Industries (Operations) Pty Ltd v The Commonwealth, he had said:
Elections of federal Parliament provided for in the Constitution require freedom
of movement, speech and other communication, not only between the States, but
in and between every part of the Commonwealth. The proper operation of the
system of representative government requires the same freedoms between
elections. These are also necessary for the proper operation of the Constitutions
of the States (which now derive their authority from Ch. V of the Constitution).
From these provisions and from the concept of the Commonwealth arises an
implication of a constitutional guarantee of such freedoms, freedoms so
elementary that it was not necessary to mention them in the Constitution.39
Superficially, there is much in these statements which appear to find new adherents in the cases which would come after Murphy J’s time. Of the passage from Ansett,
Williams has said that it ‘could easily have been taken from the decision of the court in Australian Capital Television’.40 But while the doctrine of representative government is a linchpin to all the subsequent theories advanced supporting the
38 (1986) 161 CLR 556, 582. 39 (1977) 139 CLR 54, 88. 40 George Williams, ‘Lionel Murphy and Democracy and Rights’ in Coper and Williams, above n 6, 62.
319 presence of the implied freedom, it is important to resist the temptation to attribute
that to the influence of Murphy J’s view.
Not just has the Court been loath to cite Murphy J in support of arguments implying
the freedom, there are also clear differences between his formulation and those which followed.41 The key to understanding this is actually contained in the above quote
from Ansett – the reference to the ‘concept of the Commonwealth’ as a basis for the
implication is more typically Murphy than much of what appears earlier in that
passage. In the later case of McGraw-Hinds (Aust) Pty Ltd v Smith he managed to be
even more expansive when he said that the implications of freedom of movement and
communication arose from ‘the nature of our society, reinforced by parts of the
written text’.42 The shifting, vague basis upon which Murphy J was prepared to draw
constitutional implications had the consequence that his suggestion that a freedom of
speech was necessarily implied for the efficacy of those provisions of the Constitution
which provided for representative government, was lost on the rest of the Court. Even
after the significance of representative government to the implication emerged in the
1990s, the majority were wary of reliance on Murphy J and the dissents of Dawson J
which sought to undermine the new version of the freedom by connecting it with the
41 As Williams has said, ‘the apparent similarity masks the deep differences between the implied freedoms mentioned by Murphy, based as it is upon ss 7 and 24 of the Constitution and the system of representative government created by the instrument, rather than upon the fact that “it is a Constitution for a free society” or such like…The freedoms are also different in scope, due in part to their being very much defined by their source. Murphy’s implied freedom of communication was not limited to political discussion but encompassed communication generally, while the High Court has been at pains to state that the implied freedom of political discussion is limited in the fashion its name suggests.’: ibid 62. 42 (1979) 144 CLR 633, 670. About which Goldsworthy commented: ‘To derive judicially enforceable constitutional rights and freedoms directly from “the nature of Australian society” is to employ a methodology with no apparent relationship to interpretation of the written Constitution, and one unknown even in the most activist judgments of the United States Supreme Court.’: Jeffrey Goldsworthy, ‘Commentary on ‘Lionel Murphy and Judicial Method’ in Coper and Williams, above n 6, 266.
320 illegitimate method employed by his Honour43 must have only served to maintain their distrust of those earlier opinions.
It is, as identified elsewhere, largely the matter of judicial style that causes Murphy
J’s influence to be strictly limited to the art of the possible rather than opinions able to be specifically employed by later judges.44 As Williams put it:
…the High Court has not developed Murphy’s approach in its decisions on the
implied freedom of political discussion. An examination of Murphy’s legal
method explains why. The lack of a legal foundation to his judgments made
Murphy’s approach unpersuasive and frequently of little value in the scheme of
precedent…Murphy ensured that his decisions would not likely be repeated and
would not be capable of being developed. In seeking to challenge the law and
traditional legal methods, Murphy undermined the value of his decisions to later
judges. While his results may be persuasive to the rights-orientated reader, his
threadbare reasoning is unpersuasive and of little use to the court today. This
explains why Murphy has not been influential in the field of implied rights.45
43 ACTV v Commonwealth (1992) 177 CLR 106, 185-6; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 193. 44 John Williams, ‘Murphy, Lionel Keith’ in Tony Blackshield, Michael Coper and George Williams, The Oxford Companion to the High Court of Australia (2001) 486. Similarly, George Williams was of the view that Justice Murphy ‘created a climate in which the development of the implied freedom of political discussion could be perceived to be less radical (and hence more legitimate) than it otherwise might have been. He created an environment in which members of the High Court, especially Justice Deane, could seek to protect rights within the framework of more traditional legal reasoning. It is thus Justice Deane, and with him other judges including Chief Justice Mason, who are the inheritors of Murphy’s contribution to the interpretation of the Constitution. Murphy made the achievements of these judges possible.’: Williams, above n 40, 63. 45 Williams, above n 40, 62-3. See also Goldsworthy’s comment that: ‘When a judge reaches conclusions so radically new, and so inconsistent with orthodox legal premises and the opinions of his peers, one might expect that they would be based on very careful, substantial reasoning. But what is immediately striking about Murphy’s discussions of the implied rights he claimed to discover is his casual, arguably even careless, attitude to the legal foundations on which they supposedly rested.’: Goldsworthy, above n 42, 265.
321
Winterton has taken a similar view of Murphy’s approach arguing that ‘the reasoning was occasionally sloppy, with essential steps omitted’ and that ‘little effort was made to persuade others to his point of view’.46 I am sympathetic to Coper’s response to
these criticisms that:
…the difference in substance between a Murphy judgment and the more
traditional, typically longer, more intricate and denser judgments is really only
one of degree. Often when one cuts through the latter to its bare essentials, one
is left with the same kinds of unsettling queries about just how the writer has
really made that final leap from reasons to conclusion.47
However, the undeniable uniqueness of Murphy J’s opinions (even if it is just that he
was more transparent about the leaps of reasoning being attempted) necessarily meant
that he was unlikely to win over converts. Sir Anthony Mason has admitted that
Murphy’s ‘judicial methodology and judicial style made it very difficult to agree with
his judgments’.48 So while ultimately it is fair to say that ‘with or without citation, the
implied freedom of political discussion clearly owes something to the freedom of
communication recognised by Murphy’,49 it is clear that the influence is at best
inspirational rather than technical.
46 George Winterton, ‘Murphy: A Maverick Reconsidered’ (1997) University of New South Wales Law Journal 204, 206. 47 Coper, above n 6, 68. 48 Anthony Mason, ‘Personal relations: a personal reflection’ in Blackshield, Coper and Williams, above n 44, 531. Winterton has bluntly suggested that ‘Mason’s adoption of positions earlier rejected when Murphy espoused them might suggest…that the identity of their propounder hindered serious consideration of Murphy’s views’: Winterton, above n 46, 207. 49 Williams, above n 40, 61. Justice Kirby has, on several occasions, voiced the opinion that Justice Murphy’s impact has been strong, albeit unrecognised. See Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 132 ALR 307, 319; Justice Michael Kirby, ‘The Power of
322
The more recent attempts to ground an implied freedom of political communication in
the Constitution are generally more sophisticated than the ‘threadbare’ reasoning
which Murphy J offered up. Conscious of the use by Dawson J of the Murphy
approach as a form of attack, their Honours attempted by various means, and to
varying levels of success, to base the freedom in the text of the Constitution rather
than anything perceived to be external to it and thus contrary to the methodology laid down in Engineers that compelled disregard of ‘hopes and expectations respecting vague external conditions’.50
Moving on from the opening gambit by Murphy J, there are essentially three opinions
advanced over the 1990s as to the proper basis for the implied freedom of speech. The one which initially attracted majority support may be described as a view that various provisions of the Commonwealth Constitution (notably sections 7 and 24) prescribe a system of representative government, the efficacy of which requires an essential level of political discussion. The first judges to spell this out in Nationwide News were
Brennan J51 and Deane and Toohey JJ52, with supportive noises from Justice
Gaudron.53 The Chief Justice added his support in the following case of ACTV.54
Whilst Brennan J was in clear dissent in the latter,55 his Honour’s formulation of the
Lionel Murphy’s Ideas’ in Charles Sampford and Sophie Blencowe (eds), Through the World’s Eye, (2000), ch 11. 50 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 145. 51 (1992) 177 CLR 1, 47-50. 52 Ibid 70-5. 53 Ibid 94. 54 Ibid 137-141 (Mason CJ). See also 149-50 (Brennan J); 168, 174 (Deane & Toohey JJ); 209-11 (Gaudron J). 55 It will be noted that in Appendix B Justice Brennan is recorded as dissenting also in Nationwide News. This is the result of those tables being derived through application of the strict empirical method set down in Chapter Four. Brennan J concurs in the answers given by the Court to the two main questions – and indeed the case is regularly described as having been decided unanimously, which, to the extent that the legislation in question is invalid, was certainly the
323 basis of the implication accorded with that of the other judges mentioned here. The distinguishing feature of this approach was that it seemed to suggest that the textual provisions of the Constitution ‘prescribed’,56 ‘incorporate’,57 ‘brought into existence’58 or ‘predicate’59 a system of representative government, from which it was in turn necessary to imply certain freedoms of speech in order that the electorate would be able to fulfil their constitutional function in support of that by the making of an informed choice. This was most apparent from the statement of Mason CJ, Toohey and Gaudron JJ in Theophanous that they had ‘distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication’.60
Beside this was placed two alternative views from Justices regularly in dissent –
Dawson and McHugh JJ. Justice Dawson’s opinion on the basis of any freedom of political communication is naturally linked to his refusal (as seen in the previous section) to view any implication as necessary. As such, his Honour would probably reject that those judgments suggest any basis at all for drawing the implication, although it is convenient to consider this here, and as I will argue, not entirely inaccurate. What Dawson J was prepared to recognise was that:
case – but he is tallied as dissenting because he also provides substantive responses to the ancillary questions about the effect of section 92 and the implied freedom. While it is necessary to account for this technical purity in classification, it has no detrimental effect upon the present discussion. 56 (1992) 177 CLR 1, 47 (Brennan J) 57 Ibid 73, (Deane & Toohey JJ) 58 (1992) 177 CLR 106, 137 (Mason CJ). 59 Ibid 210 (Gaudron J). 60 (1994) 182 CLR 104, 121.
324 …the Constitution provides for a Parliament the members of which are to be
directly chosen by the people – in the case of the Senate by the people of the
respective States and in the case of the House of Representatives by the people
of the Commonwealth. Thus the Constitution provides for a choice and that
must mean a true choice. It may be said – at all events in the context of an
election – that a choice is not a true choice when it is made without an
appreciation of the available alternatives or, at least, without an opportunity to
gain an appreciation of the available alternatives…It is enough to recognize, as
this Court did in Evans v Crichton-Browne, the importance of ensuring that
freedom of speech is not unduly restricted during an election period. Thus an
election in which the electors are denied access to the information necessary for
the exercise of a true choice is not the kind of election envisaged by the
Constitution. Legislation which would have the effect of denying access to that
information by the electors would therefore be incompatible with the
Constitution.61
Although this is couched in terms of legislation simply being incompatible with the
text of those provisions which requires a ‘direct choice’ of representatives, it is
apparent that an implication is still being made. This is evident from Dawson J’s later
rejection of the legislation in ACTV on the ground that it is ‘incompatible with the
constitutional requirement that an elector be able to make an informed choice in an
election’.62 Such a reading is only sensible, but it is clear that the provisions do not expressly state that the choice must be ‘informed’, only ‘direct’. Thus the requirement
61 (1992) 177 CLR 106, 186-7. 62 Ibid 189 (my emphasis).
325 which Dawson J has found is necessarily implied from that text which is present. It is
disingenuous to suggest that no implication whatsoever is being made.
Even so, it remains an extremely narrow implication which may be contrasted against
the majority view that the same provisions are the key for the substantial importation
of a political system. Dawson J’s disdain for the ‘heresy of importing into the
Constitution by way of implication, preconceptions having their origin outside the
Constitution’63 as being at odds with the clear dictates from Engineers ensured that he
was opposed to the broad brush strokes applied by the majority.
McHugh J’s opinion was significantly closer in tone to the judgment of Dawson J than it was to that of the majority:
The words “directly chosen by the people” in ss 7 and 24, interpreted against the
background of the institutions of representative government and responsible
government, are to be read, therefore, as referring to a process – the process
which commences when an election is called and ends with the declaration of
the poll. The process includes all those steps which are directed to the people
electing their representatives – nominating, campaigning, advertising, debating,
criticizing and voting. In respect of such steps, the people possess the right to
participate, the right to associate and the right to communicate. That means that,
subject to necessary exceptions, the people have a constitutional right to convey
and receive opinions, arguments and information concerning matter intended or
63 Ibid 186.
326 likely to affect voting in an election for the Senate or the House of
Representatives.64
The chief difference between the approach of Dawson J and that of McHugh J is that the former goes so far as to deny any necessity for an implication of free political speech whilst the latter accommodates that approach. But both acknowledge that a requirement for freedom of speech is essential in order for an informed choice to be made. Both also reject the tendency of their colleagues to draw the implied freedom from a notion of representative democracy which is in turn implied from particular sections and the Constitution’s structure. This commonality is reflected in the way in which both dissentients advocate the Engineers methodology and decry the use of external principles as a source for interpretation.
As the Court progressed towards the unanimous Lange judgment, the question of how the implication was justified continued to revolve around these three approaches. The majority in Theophanous maintained their approach based upon a wide appreciation of the concept of representative democracy to which they felt the Constitution gave rise, and pointedly rejected McHugh J’s view of the freedom as only implied to the extent that the electoral process stipulated by the Constitution required it.65 Dawson
J’s determination that the implication was unnecessary led him to persevere in his position that the freedom simply invalidated legislation incompatible with the clear
64 Ibid 231-2. 65 (1994) 182 CLR 104, 121 (Mason CJ, Toohey and Gaudron JJ); (1994) 182 CLR 211, 232 (Mason CJ, Toohey and Gaudron JJ) Cf. (1994) 182 CLR 104, 199-200 (McHugh J). This divide was most apparent in the use of different terminology employed by the majority and McHugh J. While the former tended to speak of ‘representative democracy’, the latter insisted that the implication arose only from ‘representative government’ which alone had a solid basis in the text of the Constitution. For related discussion, see also Deborah Z Cass, ‘Through the Looking Glass: The High Court and the Right to Speech’ (1993) 4 Public Law Review 229, 237; and Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell, Future Directions in Australian Constitutional Law (1994) 150, 178-9.
327 meaning of ss 7 and 24.66 And McHugh J’s dissents on the methodology of the majority hardened. While, unlike Dawson J, he was content to find an implication of free political discussion, he continued to attack the majority’s assertion that such implication came from the system of representative government itself as distinct from those provisions which merely gave effect to elements of that form of political regime. In Theophanous his Honour said:
In my opinion, the institution of representative government is part of the
Constitution only to the extent that the text and the implications to be drawn
from the text and structure of the Constitution make it so. In the Constitution,
representative government is reflected in the terms of ss 1, 7, 24, 30 and 41. But
there is nothing in the text or the structure of the Constitution which makes it
necessary to imply that representative government is part of the Constitution
independently of the content of those sections.67
I do not see how there can be implied into the Constitution from the terms of
those sections – whether by necessity or otherwise – the whole apparatus of
representative government in the sense used in the majority judgments, with
consequential restraints on the powers of the Commonwealth, State and
Territory governments and the common law, when no federal election is
pending.68
An important development in this debate occurred in a case not actually included in the set as it did not directly concern the implied freedom of political communication.
66 (1994) 182 CLR 104, 190-1. 67 Ibid 196. 68 Ibid 203.
328 Instead, in the case of McGinty v Western Australia,69 the High Court was asked to consider whether the doctrine of representative government which had been brought to light in the political speech cases could support a requirement of one vote-one value. That submission was unsuccessful with Brennan CJ, Dawson, McHugh and
Gummow JJ forming the majority and Toohey and Gaudron JJ in dissent.
Despite the different context, the Court was required to address the way in which the
Constitution spoke to the concept of representative government. Brennan CJ abandoned the view which had held majority support up to that point and quite clearly adopted the tenor of McHugh J’s dissents (albeit without citation) when he said:
Although the term “representative democracy” is useful to explain the text on
which the implied freedom depends, the term is not to be found in either the
Commonwealth Constitution or the Western Australian Constitution. It is
logically impermissible to treat “representative democracy” as though it were
contained in the Constitution, to attribute to the term a meaning or content
derived from sources extrinsic to the Constitution and then to invalidate a law
for inconsistency with the meaning or content so attributed. The text of the
Constitution can be illuminated by reference to representative democracy but the
concept neither alters nor adds to the text.70
Justice Dawson appeared to maintain his view from earlier dissents that the question was simply one of incompatibility with the terms of those sections which required
69 (1996) 186 CLR 140. 70 Ibid 169; Cf. his Honour’s earlier statement in Theophanous that the ‘implication is derived from the structure of representative government prescribed by the Constitution rather than inhering in a particular word or phrase of its text’: (1994) 182 CLR 104, 149.
329 direct choice without need of an implication.71 However, his continued attack upon
the methodology of drawing an implication from representative government itself
rather than the Constitution echoed the position of Brennan CJ and McHugh J neatly
on that score.72 There were indications from the newly arrived Gummow J that he
preferred a restrained view on this question also.73 So although no new approach was
put forward in McGinty and its context is quite distinct from the political speech
cases, it remains important for demonstrating a discernible shift across the Court away
from the expansive basis for the implication towards the narrower text-focused
approach advanced by the minority judges in earlier decisions.74
The three streams of opinion are all present in the case of Langer v Commonwealth,75 with just Toohey and Gaudron JJ’s endorsement for the expansive approach making it look particularly vulnerable.76 The extent, at this point, of Gummow J’s support for
any particular view of the freedom remained an enigma. Langer is a curious case
because although Dawson J was once more in dissent, he was the Justice most
sympathetic to an application of the implied freedom on the facts.
The unanimous judgment in Lange answered the question of the basis upon which the
freedom exists not simply by adopting one of the existing views over another. Instead,
71 (1996) 186 CLR 140, 180-1. 72 Ibid 188. 73 Ibid 284. 74 The pivotal nature of McGinty in this respect has been widely noted – most memorably by Justice Dawson’s remarks during the hearing of Levy v Victoria to the effect that the reasoning in Theophanous no longer had majority support: Transcript, 6 August 1996 found at
330 and unsurprisingly with an opinion authored by seven persons, it synthesised much of
those earlier opinions which stressed the significance of the text itself – particularly
the dissents delivered by Dawson and McHugh JJ. The Dawson J view was manifest
when the Court said:
Furthermore, because the choice given by ss 7 and 24 must be a true choice with
“an opportunity to gain an appreciation of the available alternatives”, as Dawson
J pointed out in Australian Capital Television Pty Ltd v The Commonwealth,
legislative power cannot support an absolute denial of access by the people to
relevant information about the functioning of government in Australia and about
the policies of political parties and candidates for election.
That being so, ss 7 and 24 and the related sections of the Constitution
necessarily protect that freedom of communication between the people
concerning political or government matters which enables the people to exercise
a free and informed choice as electors.77
However, the Court took the view that this was more than simply a question of
constitutional compatibility with the express words of those provisions. The freedom which was required was, it was admitted by all concerned, an implied one. But as to what is was implied from, it was also clear that the expansive approach based upon representative government itself which had previously enjoyed majority support,
yielded to the textual approach of McHugh J which complied with the orthodoxy of
77 (1997) 189 CLR 520, 560. Aroney has described the inclusion of this quote from Dawson J’s judgment at this point in the Lange opinion as an ‘accommodating gesture’: Aroney, above n 13, 660.
331 Engineers. The ultimate ascendancy of McHugh J’s opinion was evident in the following passages from the unanimous judgment of Lange:
Since McGinty it has been clear, if it was not clear before, that the Constitution
gives effect to the institution of “representative government” only to the extent
that the text and structure of the Constitution establish it. In other words, to say
that the Constitution gives effect to representative government is a shorthand
way of saying that the Constitution provides for that form of representative
government which is to be found in the relevant sections. Under the
Constitution, the relevant question is not, “What is required by representative
and responsible government?” It is, “What do the terms and structure of the
Constitution prohibit, authorise or require?”…
To the extent that the requirement of freedom of communication is an
implication drawn from ss 7, 24, 64, 128 and related sections of the
Constitution, the implication can validly extend only so far as is necessary to
give effect to these sections. Although some statements in the earlier cases
might be thought to suggest otherwise, when they are properly understood, they
should be seen as purporting to give effect only to what is inherent in the text
and structure of the Constitution.78
Although the complaint about methodology which reached beyond the express words of various constitutional provisions had been similarly raised at a very early juncture by Dawson J, it is probably fairer to argue that the limited version of the freedom produced by the Court in Lange owes more to McHugh J’s dissents setting up an
78 (1997) 189 CLR 520, 566-7. See also Aroney, above n 13, 659; and Andrew Lynch, ‘The High Court – Legitimacy and Change’ (2001) 29 Federal Law Review 295, 307-8.
332 alternative basis for the implied freedom than those of Dawson J which denied the
need for any such innovation at all. The path of revoking the existence of the implied
freedom of speech would have been a difficult one indeed for the Court to adopt even
after the 1992 cases. That is not to deny any credit to his Honour in the ultimate
result. In many ways it can be said that his fundamental opposition to the making of
an implication strengthened McHugh J’s case for restraint.
It was not, however, a simple victory for the McHugh view. His Honour’s denial of
any operation to the implied freedom outside election periods remained unacceptably
narrow to many on the bench. Whilst McHugh J had earlier argued that this was
simply the obvious consequence of tying the freedom securely to sections 7 and 24,79 the Lange opinion made it very clear that political discussion was not to be so confined:
If the freedom is to effectively serve the purpose of ss 7 and 24 and related
sections, it cannot be confined to the election period. Most of the matters
necessary to enable “the people” to make an informed choice will occur during
the period between the holding of one, and the calling of the next, election. If
the freedom to receive and disseminate information were confined to election
periods, the electors would be deprived of the greater part of the information
necessary to make an effective choice at the election.
In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of the
Constitution makes it impossible to confine the receipt and dissemination of
79 Theophanous (1994) 182 CLR 104, 203.
333 information concerning government and political matters to an election
period…Similarly, those provisions which prescribe the system of responsible
government necessarily imply a limitation on legislative and executive power to
deny the electors and their representatives information concerning the conduct
of the executive branch of government throughout the life of a federal
Parliament...Whatever the scope of the implications arising from responsible
government and the amendment of the Constitution may be, those implications
cannot be confined to election periods relating to the federal Parliament.80
Note particularly, the reliance upon responsible, as well as representative, government to justify this temporally unlimited view of the freedom’s operation.
So, what emerged from Lange was an explanation for the implication which, acknowledging the logical need for free political discussion (using Dawson J as a baseline for this) at all times across the life of a federal parliament (the expansive operation view most notably supported by the majorities in Theophanous and
Stephens), derives only from those elements of representative and responsible government which are contained in various textual provisions (the view most consistently advanced by McHugh J and which attracted significant support in
McGinty). Clearly this justification was a new hybrid creature rather than the wholesale adoption of a single opinion from the preceding cases. But particularly significant for present purposes, is to recognise just how much the settlement of this question in Lange owes to the content of earlier dissents. Of the broad approach of the majorities in cases like ACTV and Theophanous, very little survives. Instead, the
80 (1997) 189 CLR 520, 561.
334 implication was drawn in a way which addresses minority criticisms of that method.
The operation of the Lange freedom may exceed that which McHugh J would have preferred, but as to its basis, the Court directly drew on his dissenting view that the implication can only be legitimately based upon those textual manifestations of representative government in the Australian Constitution, rather than upon any free- standing political principle.
A curious postscript to the culmination of this question with the unanimous answer in
Lange is Justice Dawson’s judgment in Levy v Victoria. While his Honour in no way destabilised the content or operation of the freedom which he had recognised in the preceding decision, he did betray a willingness to have the final word on the question of whether this freedom is strictly required by implication:
The freedom is often said to be implied in the Constitution but I do not think
that it really is. The Constitution speaks in terms of representatives being
directly chosen by the people at periodic elections, and to say that those words
require free elections is to construe them in context. Admittedly, the line
between construing the text and making implications from it is not always easy
to draw. But, in any event, the freedom of communication which is protected by
the Constitution is that which everyone has in the absence of laws which curtail
it and that freedom does not find its origins in the Constitution at all, either
expressly or by implication.81
81 Ibid 607.
335 It is a strange passage and one which his Honour’s colleagues in Lange could be
forgiven for finding a little unhelpful. As was seen in respect of the topic of the
external affairs power in Chapter Five, Dawson J on occasion seemed quite prepared
to revisit the substance of his earlier dissents while formally embracing a majority
view which was inconsistent with them. This is what is happening in this part of his
Honour’s Levy opinion. It begs the question though that, if Justice Dawson does not
think that the freedom really is implied, then why did he acquiesce in publication of a
judgment under his name where he said just that? We may be readily able to supply
answers to that question, but the rejoinder to any hypothesis offered is surely to ask
then what purpose is to be served by his Honour trying to distance himself once more
from that view?
4 Application of the implied freedom to the States82
The High Court’s debate over the implied freedom’s relevance to State matters has
been inevitably linked to the fortunes of various theories for the basis of that freedom generally. However, while opinions expressed in dissent played a key role in the eventual settlement of the freedom’s legitimacy, they were less successful in shaping consensus on the question of its impact upon the States.
Once again, we start with Justice Murphy who took the view simply that the various
implied freedoms which he found were ‘also necessary for the proper operation of the
82 There is very limited discussion in these cases in respect of the implied freedom’s operation upon the territories. In ACTV v Commonwealth (1992) 177 CLR 106, Deane and Toohey JJ (at 176) indicated that the implication would constrain the laws made under s 122, whilst McHugh J took the opposite approach (at 246). In Theophanous (1994) 182 CLR 104 both Brennan J (at 155) and Deane J (at 164) gave obiter supporting the extension of the limitation to territorial legislatures. In Lange (1997) 189 CLR 520, the Court limited both the powers of the Commonwealth and the legislatures of self-governing territories to the extent required by the constitutional implication (at 566). See also, in respect of similar principles affecting the operation of an implied freedom of movement and association in the territories: Kruger v The Commonwealth (1997) 190 CLR 1.
336 Constitutions of the States (which derive their authority from Chap V of the
Constitution)’.83 While this seems to suggest, that, in the absence of a contrary
intention, anything found to exist in the Commonwealth Constitution was relayed to
the States by virtue of their recognition as such under the terms of Chapter V, it could
also be argued that when Murphy J said the freedom was ‘necessary for the proper
operation of the Constitutions of the States’ he was suggesting also that those constitutions themselves require such an implication. It seems not unreasonable to
infer from this ambiguous statement that his Honour would have been happy to apply
the freedom of political speech both by reason of the States’ own constitutions and
their connection to the Commonwealth through Chapter V. As shall be seen, various
permutations of this formula are considered in the cases of the next decade.
So far as the significance of Chapter V is concerned, Justice Deane was convinced
that it was the key to applying the freedom to the States. He and Toohey J said so in
Nationwide News,84 and in Theophanous, his Honour stated:
Upon Federation, the federating Colonies were transformed into States which
thenceforth derived existence and authority from the Constitution itself. Both
State constitutions and State laws were continued by the Constitution. That
continuation was, however, subject to the provisions of the Constitution as a
whole, including the Constitution’s implication of freedom of political
communication and discussion.85
In the same case but in dissent, Brennan J appeared to share this view when he said:
83 (1986) 161 CLR 556, 582. 84 (1992) 177 CLR 1, 76. 85 (1994) 182 CLR 104, 164-5.
337
The mechanism by which the constitutional implication operates on State
enactments is the same as the mechanism by which it operates on enactments of
the Commonwealth Parliament, namely, by limiting the power to enact laws that
infringe the Constitution…The same test of validity can be applied to the
statutes of a State as that applied to the laws of the Commonwealth, for the
constitutional prohibition against unnecessary restriction on the freedom of
discussion that is conducive to the formation and exercise of political judgments
limits the powers of the Parliament of a State (s 107) in conformity with the
State’s Constitution (s 106) to make such laws as it deems to be for the peace,
order and good government of the State.86
However, in the very next decision of Stephens, it became quite clear that Brennan J did not simply share Deane J’s approach when, despite any impression he may have given in Theophanous that Chapter V operated so as to bring State legislatures within the reach of the freedom implied under the Commonwealth Constitution, he opined that the implication effected a ‘freedom to discuss government, governmental institutions and political matters in order to protect the structure of the government of the Commonwealth’.87 As such, publication of material concerning the performance of members of the Western Australian Parliament was ‘irrelevant to the government of the Commonwealth and…unaffected by the implication’.88 It was apparent that
Brennan J did not see Chapter V as simply conveying the implied freedom to the State level so as to protect political discussion of non-federal matters.89 By the time of
86 Ibid 155-6. 87 (1994) 182 CLR 211, 235. 88 Ibid. 89 Indeed this harked back to Brennan J’s opinion in Nationwide News (1992) 177 CLR 1, 52.
338 McGinty, his Honour appeared to favour a strict segregation, saying the ‘structure of
the Constitution is opposed to the notion that the provisions of Ch I might affect the
Constitutions of the States to which Ch V is directed’.90
Although his specific use of Chapter V as a conduit was not widely shared,91 Justice
Deane’s expansive view of the operation of the implied freedom upon discussion of
State matters was far from a minority one. His Honour was joined by the other majority justices in Theophanous in the view that:
The interrelationship of Commonwealth and state powers and the interaction
between the various tiers of government in Australia, the constant flow of
political information, ideas and debate across the tiers of government … make
unrealistic any attempt to confine the freedom to matters relating to the
Commonwealth government.92
This approach was confirmed by their Honours in Stephens,93 but received little
attention in the later cases which preceded Lange. The dissentient approach was, of
course, provided by Justices Brennan, Dawson and McHugh. Justice Brennan has
largely been considered already. His Honour settled on a position which was most
manifest in Stephens that the implied freedom under the Commonwealth Constitution
90 (1996) 186 CLR 140, 175; Cf. Deane and Toohey JJ, 75. 91 In McGinty, Justice Toohey could not have been more determined to distance himself from any glimmer of this idea from his earlier joint judgment with Deane J in Nationwide, when he said, ‘Section 106 does not effect a blanket importation of the Australian Constitution into State Constitutions. To interpret s 106 in this way unduly subjects State Constitutions to the Australian Constitution at the price of the other stated aims of the section. Its primary aim is to guarantee the continuation of State Constitutions after federation, though subject to the Constitution.’: (1996) 186 CLR 140, 210. See also, Muldowney v South Australia (1996) 186 CLR 352, 373-4 (Toohey J). 92 (1994) 182 CLR 104, 122 (Mason CJ, Toohey & Gaudron JJ); 164 (Deane J). 93 Ibid 232(Mason CJ, Toohey & Gaudron JJ); 257 (Deane J).
339 could not extend to the State level so as to protect discussion of matters which were
irrelevant to the government of the Commonwealth. His Honour clearly took a more
limited view of the degree to which the tiers of Australian government were
interrelated. It is worth noting, however, that Brennan J agreed with the majority in
Stephens that those provisions of State Constitutions which incorporated
representative government might well provide a basis for drawing an equivalent
implication at that level.94
Justice McHugh’s continued call for the implication to be drawn narrowly from the
text of the Constitution itself sat uneasily with any suggestion that the freedom
extended to the states. There was, his Honour said, ‘not a word in the Constitution that
remotely suggests that a State must have a representative or democratic form of
government’.95 The growing divergence amongst members of the bench on the core
questions mean that it is difficult to isolate his Honour’s opinion on just this issue
alone. In Stephens, McHugh J said that his reasons in Theophanous:
…also [apply] to the claim of the defendant that the Constitution of Western
Australia contains an implied guarantee of freedom of expression that would
render the publication of the articles immune from an action for defamation. It
follows, in my opinion, that the defence pleaded in par 20A is bad in law.96
But this cannot be simply read as opposition to the notion that the State Constitutions
might independently give rise to the implied freedom. It can only be evidence that
McHugh J was of the view that they could not produce an implied freedom of the sort
94 Ibid 236. See also, ACTV (1994) 182 CLR 104, 163 (Brennan J). 95 (1994) 182 CLR 104, 201. 96 (1994) 182 CLR 211, 259.
340 being advanced by the majority ie. one not directly drawn from the textual provisions supporting representative government and which operated with respect to common law, as well as statute.
The same comment may be applied to Justice Dawson’s dissents which, as has been seen, were based on the opinion that the minimal requirements of representative government did not necessitate implication of the freedom but merely rendered invalid legislation which was incompatible with those requirements. This applied equally to the provisions of State Constitutions.97 Within the confines of this particular approach, his Honour was only prepared to say:
No doubt ss 7 and 24 not only inhibit Commonwealth legislative power but also
prevail over any inconsistent State law. If a State legislature were to enact
legislation which interfered with the requirements of s 7 or s 24, the legislation
would be invalid…98
As in the preceding section, one may observe a clear division on the Court between a
majority of Mason CJ, Deane, Toohey and Gaudron JJ and a minority of Brennan,
Dawson and McHugh JJ. And as before, the general cohesion of the majority may be
contrasted with the diversity of opinion apparent amongst the dissentients. This is, as
been pointed out, due at least in part to the close fusion of the issues.99 But whereas
from the splinter views over the basis of the freedom a consensus was assembled
97 Muldowney v South Australia (1996) 186 CLR 352, 370. 98 (1994) 182 CLR 104, 190. 99 Indeed, there is an obvious artificiality in the effort to disentangle these cleanly. However, it would prove nearly impossible to attempt tracking minority opinions through a holistic approach to the statements of implied freedom found in the cases.
341 around a new, composite approach in Lange, on the issue of the application of the freedom to the States the Court could be said to have returned directly to its past:
The Constitution, the federal, State and territorial laws, and the common law in
Australia together constitute the law of this country and form “one system of
jurisprudence”. Covering cl 5 of the Constitution renders the Constitution
“binding on the courts, judges, and people of every State and of every part of the
Commonwealth, notwithstanding anything in the laws of any State”. Within that
single system of jurisprudence, the basic law of the Constitution provides the
authority for the enactment of valid statute law…100
This is not precisely what Justice Murphy said in Miller nor what Justice Deane said
in Theophanous when both referred to the significance of Chapter V, but certainly this
statement is far from being at odds with those individual opinions from earlier
decisions.
The Court also echoed the sentiment of Mason CJ in ACTV, which went on to attract majority support in Theophanous, that ‘the implied freedom of communication extends to all matters of public affairs and political discussion, notwithstanding that a
particular matter at a given time might appear to have a primary or immediate
connexion with the affairs of a State, a local authority or a Territory and little or no
connexion with Commonwealth affairs’.101
100 (1997) 189 CLR 520, 564. 101 (1992) 177 CLR 106, 142.
342 The Court’s handling of this issue in Lange is a good demonstration of the complaint
that unanimous judgments can produce vague and unsatisfactory results. In no way,
through no qualification, were the strong reservations of the early dissenters made
apparent on this issue. Instead, from a position of clear disagreement, the Court
converged to talk of ‘one system of jurisprudence’. This catchphrase has its origins
not in the implied freedom cases preceding Lange, but rather in the intervening
decision of Kable v DPP102 in which Justice McHugh led a majority to the view that
the strict separation of judicial power required by Chapter III of the Commonwealth
Constitution curtailed the legislative power of the State Parliaments. It was not a result which attracted Brennan CJ or Dawson J who specifically dissented from this reasoning. It is, therefore, somewhat surprising to see their Honours embrace the concept of the ‘one system of jurisprudence’ in Lange so as to examine both the statute and common law defences to defamation in New South Wales for consistency with the requirements of the freedom of speech implied from the Commonwealth
Constitution.
The Court’s extension of the common law defence of qualified privilege so as to protect discussion of government or politics at State, Territory, and local government level was motivated by the belief that such communications ‘might bear on the choice that the people have to make in federal elections or in voting to amend the
Constitution…[due to] The existence of national political parties…, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia
102 (1996) 189 CLR 51.
343 make this conclusion inevitable’.103 It seems clear enough from these words that the
freedom of political discussion implied from the Commonwealth Constitution could conceivably be given an expansive operation across all tiers of government. This is not simply a matter of the extension of the common law defences to defamation
(though that is indicative) – it can also arguably be seen as an acknowledgment that any interference with free political discussion regardless of the immediacy of connection to the composition of the federal Parliament is prima facie a breach of the constitutional implication.104 Independently, the State Constitutions may also give rise
to a similar implication but this does not add something lacking from the operation of
the freedom implied from the Commonwealth Constitution – it merely reinforces
what is already required.
However, that the statement from Lange masks the reservations of those earlier
dissenters – including McHugh J – is evident from Levy v Victoria. Although the
Lange judgment could have been more direct in explaining the operation of the
freedom at a non-federal level (Kirby J has neatly described the point as having been
only ‘expressly contemplated’ by the bench in that case),105 it was arguably clear
enough in its endorsement of an approach that did not seek to draw fine distinctions in
the often messy division of responsibility existing in the federal system.106 But in his
103 (1997) 189 CLR 520, 571-2. 104 Cf. Stone, above n 74, 129; and Adrienne Stone, ‘The Freedom of Political Communication since Lange’ in Adrienne Stone and George Williams (eds) The High Court at the Crossroads: Essays in Constitutional Law (2000) 1, 8. But as Stone later acknowledged (in the latter piece at 10), ‘there is nothing in Lange itself that precludes a generous drawing of connections between the discussion of State politics and the federal institutions in question’. 105 Roberts v Bass (2002) 212 CLR 1, 58. 106 However, Chisholm has advised caution in this respect, saying that the decision’s coverage of State and Territory political matters by defence of extended qualified privilege ‘is only one field in which the implied constitutional freedom operates, so what was said in Lange did not necessarily mean that the freedom generally protected communications about State government and political matters’: Helen Chisholm, “The Stuff of which Political Debate is Made’: Roberts v Bass’ (2003) 31 Federal Law Review 225, 241.
344 opinion in Levy, Chief Justice Brennan clearly still considered those questions as requiring specific attention on a case by case basis:
In Stephens, I expressed the opinion that defamatory matter relating to the
conduct of members of the Legislative Council was irrelevant to the government
of the Commonwealth and, on that account, the lawfulness of its publication was
unaffected by the implied freedom. However, a majority of the Court held that
the implication protects political discussion in relation to all levels of
government including State government. In Lange the joint reasons for
judgment extend the defence of qualified privilege to the publication of
defamatory matter relating to government and politics at all levels. The factors
which have led to that conclusion include the “increasing integration of social,
economic and political matters in Australia”. Taking this approach, it is arguable
that permitting the shooting of ducks and any inaction with respect to the
shooting of protected species affects some international obligation binding on
Australia relating to the protection of fauna and thus relates directly to a matter
within the legislative competence of the Commonwealth. I would not accept this
approach. The plaintiff’s intended protest related to the discrete State issue of
the appropriateness of the relevant Victorian laws, especially the Hunting
Season Regulations. However, I have come to the conclusion that the demurrer
must be allowed for a reason which I mention next and I prefer to rest my
conclusion on that reason.107
Similarly, McHugh J perfectly echoed Brennan J (as he then was) in Stephens:
107 (1997) 189 CLR 579, 595-6.
345
It is not easy to see a connection between the message that the protesters wished
to send to the public of Victoria and the freedom of communication protected by
the Constitution. It seems remote from choosing members of the Senate or
House of Representatives or the conduct of the federal government.108
The effect of these reservations was, initially at least,109 to keep alive a tension which we might not have otherwise thought to have persisted. As Justice Kirby said in ABC v Lenah Game Meats Pty Ltd:
In Stephens v West Australian Newspapers Ltd, a majority of this Court held
that, because of the integration of politics within the Commonwealth, the
implied constitutional freedom of communication, as there expressed, protected
political discussion in relation to all levels of government, including State
government. Whether that approach is compatible with the constitutional
principle expounded in Lange has not yet been decided. It is not communication
at large, nor communication relevant to politics generally, that is protected by
the implication upheld in Lange. To be inconsistent, the law must conflict
impermissibly with the postulated operation of the Constitution.110
His Honour then proceeded to list numerous factors demonstrating such an interrelationship between the tiers of government on the particular facts and generally
(including a nod towards the position of Murphy and Deane JJ about the source of the
108 Ibid 626. 109 For the weight ascribed to these views at the time, see Stone, above n 104, 8; and Geoffrey Kennett, ‘The Freedom Ride: Where to Now?’ (1998) 9 Public Law Review 111, 118. 110 (2001) 208 CLR 199, 281.
346 States’ authority) that discussion of politics relevant to the activities of a State
legislature were within the freedom.111 By the following year, in the case of Roberts v
Bass, it was interesting to see his Honour adopt a much more relaxed approach to this
question, virtually assuming that it was a dead letter and that the tacit support of the
Lange bench meant the majority in Stephens was secure.112 Justice Hayne seemed
content to take it as given that Lange sought to protect a freedom to discuss
‘government and political matters that affect the people of Australia…not restricted to the interest of electors or of federal electors in matters of federal politics’.113
In summary, the Court’s approach to the question of the implied freedom’s operation
to curtail laws which hinder discussion of State political matters has suffered from a
number of factors which have conspired against clarity. First of these is that the
uncertainty is an inevitable by-product of the debate over the freedom’s justification
and form which took place in many of these cases. Second, the facts of the cases have
rarely lent themselves to requiring a definite answer to the question. For example,
while Levy presented an ideal opportunity for clarification of this issue, the obvious
proportionality of the law under review meant that precision about the basis of the
implied limitation was not essential as validity was assured. Finally, it is apparent
that, at least in respect of this matter, Lange is not as forthright as it might be and it is
heavily qualified by Brennan CJ and McHugh J’s judgments in Levy which return to
the reasoning of their previous dissents.
That said, the impact of minority views on this question has been minimal. Brennan
CJ, Dawson and McHugh JJ cannot be said to have been at all successful in shaping
111 Ibid 281-2. 112 (2002) 212 CLR 1, 58. 113 Ibid 77.
347 the Court’s opinion as to the freedom’s operation at a State level. The tenor of all the
decisions – and not just those of the Mason Court – go against them. Indeed, the
charms of a holistic approach to Australian political matters under the Commonwealth
Constitution’s implied freedom are well advertised by the inevitably arbitrary and artificial distinctions between the tiers of government drawn by Brennan CJ and
McHugh J in Levy.114 On the other hand, the strain of minority opinion which has had
a more favourable (albeit not decisive) impact is that which draws on the States’ place
within the overall constitutional settlement to extend the implied freedom to them.
Although most often advocated without support from elsewhere on the bench – by
firstly Murphy J, then Deane J, and more recently suggested by Kirby J115 – there is a
strong sense of this approach in the Lange judgment. It has tended, however, to be
overshadowed by the majority view that simply the interrelationship between the
elements of the Australian polity achieves the same end.
5 The degree to which the implied freedom may be permissibly infringed
There was never any doubt that whatever the final justification for the implication, the
freedom would not be absolute. Given its origins in caselaw concerning the
interpretation of section 92 of the Constitution, attention was immediately given to the
manner in which the freedom would be limited. Justice Murphy had understandably
called for the question to be ‘judged by tests analogous to those of reasonable
114 See Lindell, above n 13, 138-9; and for further discussion on this topic, Geoffrey Lindell, ‘Theophanous and Stephens Revisited’ (1997) 20 University of New South Wales Law Journal 195, 198. Meagher has made a strong case that ‘for the Court to draw definite lines where none exist would also betray the Lange constitutional imperative. [As] to narrow the spectrum of ‘political communication’ to those matters that may, according to a judge, ‘properly influence the outcome of those [federal] elections’ runs the risk of the Court defining political communication in terms of what it ought to be not what it is’: Dan Meagher, ‘What is ‘Political’ Communication? The Rationale of the Implied freedom of Political Communication’ (2005) 28(2) Melbourne University Law Review 438, 465. 115 ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 281.
348 regulation presently applied to s 92’.116 Although, of course, the reinterpretation of s
92 occurred two years later, the proportionality test which it utilises117 does appear to have some relationship to that later developed by members of the High Court in respect of the implied freedom.
Before arriving at that point though, the earlier approaches to infringement should be noted. Particularly popular in early cases was the idea that a two-tier standard was to be applied depending upon the character of the law. Those laws which directly regulated or inhibited speech on political matters required, in the words of Mason CJ and McHugh J, a ‘compelling justification’ in order to survive the operation of the implied freedom.118 Justices Deane and Toohey did not use this specific phrase but they similarly indicated that a law operating upon political communications ‘by reference to their character as such’ would meet a stricter standard than a general regulation which only incidentally affected such discussion.119 That standard was as follows:
A law prohibiting or restricting political communications by reference to their
character as such will be consistent with the prima facie scope of the implication
only if, viewed in the context of the standards of our society, it is justified as
being in the public interest for the reason that the prohibitions and restrictions on
political communications which it imposes are either conducive to the overall
availability of the effective means of such communications or do not go beyond
what is reasonably necessary for the preservation of an ordered and democratic
116 (1986) 161 CLR 556, 584. 117 The clearest example of this being found in Castlemaine Tooheys Ltd v South Australia (1989) 169 CLR 436. 118 ACTV v Commonwealth (1992) 177 CLR 106, 143 (Mason CJ); 235 (McHugh J). 119 Ibid 169. See also, Nationwide News (1992) 177 CLR 1, 77.
349 society or for the protection or vindication of the legitimate claims of
individuals to live peacefully and with dignity within such a society.120
The Chief Justice talked simply of the restriction effected by the law being no more than ‘reasonably necessary’ to protect whatever other public interest competed with the freedom of political communication121 – a formulation which his Honour applied to both types of law but which he clearly intended to be harder to satisfy for those directly targeting the protected speech.
Brennan J maintained a minority view which did not seek to distinguish the tests to be applied depending on the directness of the law’s operation on political communication.122 The questions of ‘compelling justification’ and ‘reasonable necessity’ of achieving competing public interests were all discarded in favour of a single requirement that the law was ‘enacted to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose’.123 The use of this concept had the attraction of being consistent with the balancing process engaged in by the Court in other areas – most notably the external affairs power,124 the nationhood power125 and section 92.126
Justice Brennan’s use of the language of proportionality filtered through to the tests put forward by majority judges on later occasions. In Theophanous, Justice Deane
120 (1992) 177 CLR 106, 169. 121 Ibid 143 (Mason CJ). 122 Theophanous (1994) 182 CLR 104, 151; Cunliffe v Commonwealth (1994) 182 CLR 272, 324. 123 (1992) 177 CLR 1, 50. See also, 95 (Gaudron J). 124 Commonwealth v Tasmania (Tasmanian Dams Case) (1983) 158 CLR 1. 125 Davis v Commonwealth (1988) 166 CLR 79. 126 Cole v Whitfield (1988) 165 CLR 360.
350 explained that the concept was implicit in his use of the word ‘necessary’,127 while
Mason CJ joined his Honour in Cunliffe in incorporating the phrase ‘reasonably
appropriate and adapted’ in their respective tests for infringement of the freedom.128
Their Honours did, however, maintain their opinion that a double standard was to be applied along the lines they had each set forth in ACTV v Commonwealth.129 And
while they now seemed to excuse infringement of the freedom when proportionate to
a legitimate end, that test was not so simply applied when the law in question directly
regulated protected political speech. In this sense, the division of opinion between
their Honours and Justice Brennan persisted. While in earlier cases, Justice Gaudron
was disinclined to support a two-tiered test depending on the nature of the law
concerned,130 in the related case of Kruger v Commonwealth,131 her Honour embraced
such an approach.
Justice Gaudron also changed ground on the strictness with which proportionality was
required. In her dissent in Cunliffe her Honour distinguished the approach favoured by
herself and others from that of Justice Brennan:
So far as the implied freedom is concerned, the test is not precisely the same as
that which is sometimes applied to determine the purpose of a law, or its validity
where purpose determines or is relevant to that latter question. That test is
whether the law is reasonably capable of being viewed as appropriate and
127 (1994) 182 CLR 104, 179. 128 Ibid 300 (Mason CJ); 339,(Deane J). I am simply equating ‘proportionality’ with the words ‘reasonably appropriate and adapted’ despite indications from some judges that the two do not precisely correlate. Nonetheless, the Court unanimously in Lange stated that, at least in respect of the implied freedom of political communication, the two are interchangeable: (1997) 189 CLR 520, 562. However, note the Court’s recent discussion of this topic in Coleman v Power (2004) 209 ALR 182. 129 See above nn 118-9. 130 See (1992) 177 CLR 1, 95; (1994) 182 CLR 272, 388. 131 (1997) 190 CLR 1, 126-8.
351 adapted to achieving the purpose in question. Where the implied freedom is
concerned, the test is more direct: it is whether the law is reasonably appropriate
and adapted to the relevant purpose.132
However, having done so, in the next case of Langer v Commonwealth, she and
Toohey J gave a statement of the test which did not require actual proportionality at all,133 and which supported Brennan CJ’s formulation that so long as ‘the impairment of the freedom is reasonably capable of being regarded as appropriate and adapted to
the achieving of a legitimate legislative purpose and the impairment is merely
incidental to the achievement of that purpose, the law is within power’.134 All three
judges maintained this lower standard in individual concurrences in Muldowney.135
Ultimately, all were to return to the original stance that required actual proportionality
rather than an opinion that it be ‘reasonably capable’ of ascertainment, when
participating in the unanimous judgment of Lange:
…the freedom will not invalidate a law enacted to satisfy some other legitimate
end if the law satisfies two conditions. The first condition is that the object of
the law is compatible with the maintenance of the constitutionally prescribed
system of representative and responsible government or the procedure for
submitting a proposed amendment to the Constitution to the informed decision
132 (1994) 182 CLR 272, 388. 133 (1996) 186 CLR 302, 334. 134 Ibid 318. In ACTV, his Honour had made it clear that he preferred this formulation as allowing the legislature, in the words of the European Court of Human Rights, a ‘margin of appreciation’: (1992) 177 CLR 106, 159. 135 (1996) 186 352, 366 (Brennan CJ); 373 (Toohey J); 375 (Gaudron J).
352 of the people which the Constitution prescribes. The second is that the law is
reasonably appropriate and adapted to achieving that legitimate object or end.136
The looser application of the test which had acknowledged a wider ‘margin of appreciation’ for the legislature was clearly expunged in favour of the strict scrutiny applied by the majority in the earlier cases. But it was also apparent that the notion of a two-tier test no longer attracted support. Whilst the departure of Mason CJ and
Deane J was undoubtedly significant on that score, Justices Toohey, Gaudron and
McHugh JJ had all been amenable to that approach in previous decisions. In that respect, it is possible to see in the Lange test’s application of a single standard some
influence from Brennan J’s earlier dissents, despite the different formulation.
However, once more, the unanimity of that judgment was only apparent rather than
actual. In the succeeding decision of Levy v Victoria, Kirby J acknowledged that ‘a distinction has been drawn between laws which incidentally affect constitutionally protected freedom of communication and laws which specifically target communication on political and governmental matters as such’ and acted as though a
‘compelling justification’ was still required if the law was of the latter kind.137 Just as
alarming was the cavalier way in which Justice Gaudron reverted to her opinion that
the tests for these two types of laws are substantively distinct:
In Kruger, I referred to the various tests propounded in the decided cases as
determinative of the question whether a law infringes the freedom of political
communication which the Constitution requires and concluded that the test
136 (1997) 189 CLR 520, 561-2. 137 (1997) 189 CLR 579, 645-8.
353 varies according to the purpose of the law in question. If the direct purpose of
the law is to restrict political communication, it is valid only if necessary for the
attainment of some overriding public purpose. If, on the other hand, it has some
other purpose, connected with a subject matter within power and only
incidentally restricts political communication, it is valid if it is reasonably
appropriate and adapted to that other purpose.138
While some of the Justices in Levy were resurrecting the two-tier test, others – namely
Brennan CJ and Dawson J – were cutting back the standard of the proportionality requirement so as to ‘acknowledge the law-maker’s power to determine the sufficiency of the means of achieving the legitimate purpose’.139 In Cunliffe, Dawson
J had simply rejected that any balancing between interests was required at all:
It is not for the Court to decide whether legislation, which is impugned on the
ground that it interferes with freedom of communication, is disproportionate,
inappropriate or ill-adapted having regard to the existence of that freedom. The
task of the Court is to determine whether the legislation is within power and, in
so far as it is necessary for that purpose, to determine whether any interference
with freedom of communication is inconsistent with the necessary requirements
of representative government.140
138 Ibid 619. Stone has drawn attention to the fact that Toohey and Gummow JJ also appear to tacitly support a two-tier test: Stone, above n 74, 132. 139 (1997) 189 CLR 579, 598 (Brennan CJ). This recalls Brennan CJ’s earlier support for allowing the legislature a ‘margin of appreciation’: Aroney, above n 13, 668; and Stone, above n 74, 130- 1. For an earlier appraisal of this approach, see Arthur Glass, ‘Australian Capital Television and the Application of Constitutional Rights’ (1995) 17 Sydney Law Review 29, 41-2. 140 (1994) 182 CLR 272, 364.
354 Despite that view having clearly been defeated by the establishment of the Lange test,
in Levy Dawson J repeated that his own method of examining the law simply for
compatibility with ss 7 and 24 would be a method just as legitimate.141 The effect of
the re-emergence of these opinions has arguably been to fuel continuing dissatisfaction with the Lange test on the part of Commonwealth and State legislatures. In the recent case of Coleman v Power,142 the Attorneys-General of the
Commonwealth and New South Wales argued unsuccessfully for modification of the
proportionality requirement in line with Brennan CJ’s views.143
However, despite apprehension at the time that there would be ongoing conflict over
the issue of a single or two-tier standard, the cases which have followed have not
provided much sustenance to those who would prefer the reinstatement of the latter.
The influence of earlier minority opinion with its single test looks reasonably secure
for the foreseeable future. For example, Justice Gaudron, in her last foray in the area
joined in an opinion with Justices Gummow and McHugh which restated the second
limb of the Lange test without qualification.144 However, the apparent resolution of
this issue for now may reflect Stone’s opinion that, in the short-term, the general
proportionality test is best suited to development of the implied freedom (‘a period of
141 (1997) 189 CLR 579, 607-8. It is odd, in light of this passage, to see Stone’s assessment that Dawson J applied the Lange test ‘without qualification’ in Levy: Stone, above n 104, 12; Cf. Aroney, above n 13, 668. 142 (2004) 209 ALR 182. The case clearly falls outside the data set for this study. 143 While this submission found little direct favour across the Court, it should be noted that some members of the Court were at pains to make clear that the Lange standard did not substitute the legislature’s balancing of interests with that of the Court’s. In particular, Gleeson CJ (in dissent) said, at 192, of the requirement that the law is reasonably appropriate and adapted to the legitimate purpose that it: …is rather more strict than that proposed by Brennan CJ, but it involves the same proposition, that is to say, that the Court will not strike down a law restricting conduct which may incidentally burden freedom of political speech simply because it can be shown that some more limited restriction “could suffice to achieve a legitimate purpose”. This is consistent with the respective roles of the legislature and the judiciary in a representative democracy. See also, McHugh J, at 205, 210; Callinan J (in dissent), at 257. 144 (2002) 212 CLR 1, 27 (Gaudron, McHugh and Gummow JJ).
355 incomplete theorisation’), but a more sophisticated set of rules with respect to differing forms of communication is warranted in the long term.145 In which case, any
apparent coherency on this issue amongst members of the High Court since Levy, may
be a period of temporary calm before a renewal of experimentation.146
6 Other matters
It is, as noted earlier, somewhat artificial to disentangle the threads of reasoning in the way required in order to track minority opinion. The central issues surrounding the implied freedom are those which concerned its necessity, basis, reach and operation.
But in seeking answers to those questions, the Justices of the Court were also compelled to address significant matters bound up in any determination of the final form of the freedom – namely the status of the freedom and its application to the common law. Although these matters necessarily turned upon the approach taken in respect of the bedrock issue of the basis of the implication, it is both possible and beneficial to examine them in isolation for present purposes. Bearing in mind then that they were contingent positions, it is not surprising that judicial opinion on these
aspects can be organised as simple positive and negative propositions.
To begin with the status of the freedom generally, this divided into a debate as to
whether it conferred personal rights or was simply a limitation upon the form of the law, including obviously, legislative power. Brennan J was the first member to address this when he rejected the idea that the constitutional implication created a
145 Stone, above n 36, 699-708; and Adrienne Stone, ‘Incomplete Theorizing in the High Court: Cass R Sunstein, Legal Reasoning and Political Conflict’ (1998) 26 Federal Law Review 195. 146 Indeed, Gleeson CJ’s favourable citation in Coleman v Power of Gaudron J’s opinion in Levy so far as the test to be applied to a law which ‘only incidentally restricts political communication’, may be seen as an undercurrent in this regard: (2004) 209 ALR 182, 192. The recent decision in general illustrates just how much diversity on core questions remains on the Court.
356 personal right in ACTV.147 His Honour’s pre-emption on this issue was justified by the
later developments in Theophanous. In that case, three Justices of the majority left
open whether the implied freedom could conceivably be a source of positive rights by
saying it was ‘unnecessary to decide’148 but arguably gave indications they would be
receptive to such a view under other circumstances through their treatment of the
freedom as a stand alone defence alongside those already existing at common law.149
Brennan J built upon his earlier statement considerably by a detailed objection to the manifestation of the freedom as a personal right and in so doing made a significant break from the majority of which he had earlier been a part:
…no party sought to reopen Nationwide News or ACTV. But the language in
which the first question is framed (“freedom ... to publish material”), taken in
conjunction with questions 2 and 3, reveals that the “freedom” to which the
questions are directed is a personal right or privilege – perhaps qualified in one
or more of the ways referred to in questions 2 and 3 – to publish defamatory
material without incurring the liability that would otherwise be attached to the
publication by the law of defamation. That is not a freedom of the kind which, in
Nationwide News, I held to be implied in the Constitution.150
This passage helps to explain what may have been unclear from the earlier sections.
Brennan J did not really shift to McHugh J’s basis of the implied freedom until the
147 (1992) 177 CLR 106, 150. Bronitt and Williams explain Brennan J’s view by means of Hohfeld’s differing conceptions of ‘rights’, with his Honour favouring the implied freedom as an immunity. The result is that ‘…constitutional law may satisfy a traditional liberal agenda in protecting the freedoms of protesters from erosion, but it cannot (or is unlikely to be interpreted to) meet the demands of a republican approach to the regulation of political protest’: Bronitt and Williams, above n 74, 306. 148 (1994) 182 CLR 104, 126 (Mason CJ, Toohey and Gaudron JJ). 149 Ibid 140 (Mason CJ, Toohey and Gaudron JJ). See also Stephens (1994) 182 CLR 211, 234 (Mason CJ, Toohey & Gaudron JJ). 150 (1994) 182 CLR 104, 146.
357 case of McGinty in 1996, but he had already distanced himself from the majority of
ACTV in the intervening cases of Theophanous and Stephens. It was largely on this
question and (as shall be seen) the next relating to the relevance of the freedom to the common law, that his Honour found himself in opposition to Mason CJ, Toohey and
Gaudron JJ rather than over the source of the freedom itself.
Reflecting the developing closeness in viewpoint between Brennan J and McHugh J, the latter agreed that ‘nothing in the text, structure or history of the Constitution supports the proposition that the Constitution confers a general private right to defame public or political figures’.151 Similarly, Dawson J adapted his existing objections to
the implication to make it clear that no ‘free-standing right or guarantee of freedom of
communication’ existed in the Constitution beyond what was to be found in s 92.152
Unexpected support, perhaps, came from the fourth judge of the majority, Deane J who also rejected characterising the right as personal.153 But, although the opinion that limited the nature of the freedom was held by a majority of judges it remained predominantly associated with dissenting judgments.
In Cunliffe, Brennan J continued to act as a spoiler on the issue but was frustrated by the opposition’s continued elusiveness in saying that the question did not require an answer on the facts.154 Only McHugh J raised the objection in Langer, but once again
it was not a central concern on the facts.155 The persistence of Chief Justice Brennan
and Justice McHugh paid off in Lange when they were able to eliminate once and for
all any glimmer that the Constitution supported a personal freedom of speech:
151 Ibid 195. 152 Ibid 190. 153 Ibid 168. 154 (1994) 182 CLR 272, 326-7 (Brennan J); Cf. 299 (Mason CJ). 155 (1996) 186 CLR 302, 343.
358
Those sections do not confer personal rights on individuals. Rather they
preclude the curtailment of the protected freedom by the exercise of legislative
or executive power. As Deane J said in Theophanous, they are “a limitation or
confinement of laws and powers [which] gives rise to a pro tanto immunity on
the part of the citizen from being adversely affected by those laws or by the
exercise of those powers rather than to a ‘right’ in the strict sense”. In Cunliffe v
The Commonwealth, Brennan J pointed out that the freedom confers no rights on
individuals and, to the extent that the freedom rests upon implication, that
implication defines the nature and extent of the freedom.156
It is worth noting that both the judgments cited in the above passage come from opinions concurring in the results of those cases. The acceptance of this approach by
the Court meant that the stain of dissent was removed from the earlier support by a
numerical majority in Theophanous. Admittedly, the issue was never as truly alive as it might have been had Mason CJ, Toohey and Gaudron JJ felt inclined to assert the freedom as a personal right.157 But it remains true to say that the success of the
negative view is linked heavily to the impact which those dissenting judges who
advocated it ultimately exercised on the foundations of the implication. To consider
the two issues separately is not, however, to distort or magnify the impact of those
156 (1997) 189 CLR 520, 560. See also, Levy v Victoria (1997) 189 CLR 579, 622 (McHugh J). For a thorough critique of this result, see Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374. 157 A particularly curious feature of their Honours’ judgment is the appearance of two subheadings at (1994) 182 CLR 104, 125, the first of which reads, ‘Is the implied freedom a source of positive rights an immunity or a restriction on legislative and executive power?’. That the opinion’s authors then say that question is unnecessary to decide immediately under the second subheading (‘The relationship between the implied freedom and the common law of defamation’) leads the reader (at least, this reader) to think that originally more was intended to be said.
359 judges initially in the minority in these respects – it is merely to appreciate the full
extent of their influence overall.
On the related question of the freedom’s relevance to the common law, the situation is
less clear cut. Once again, we may observe Brennan J striking an early blow for a
restrained position – that the freedom could have no direct operation upon the
common law.158 The facts of Theophanous soon provided an appropriate setting in
which this view could be challenged. While the majority in that case could hedge around the question of whether the constitutional freedom conferred a personal right,
they necessarily had to adopt a very clear stance on the common law with Mason CJ,
Toohey and Gaudron JJ stating simply that ‘the implied freedom is one that shapes
and controls the common law. At the very least development in the common law must
accord with its content.’159 Their Honours then went on, in reliance upon New York
Times Co v Sullivan,160 to found a constitutional defence equally applicable to an
action based upon statute or common law.161
The reasoning was, as Brennan J keenly observed, far from persuasive. While the
United States Supreme Court’s extension of the First Amendment to the common law
of America might have been, of itself, somewhat dubious, it was at least an
implication from an express guarantee. Brennan J’s opinion that the freedom of
speech which he had acknowledged in Nationwide was simply not analogous led him
to make arguments which echoed Dawson J’s core objection to finding any
implication at all:
158 (1992) 177 CLR 1, 52. 159 (1994) 182 CLR 104, 126; see also 178 (Deane J). 160 376 US 254 (1964). 161 (1994) 182 CLR 104, 140.
360
It appears that, at one time, the prevention of libellous speech was not thought to
raise any constitutional problem under the First and Fourteenth Amendments of
the United States Constitution but, in New York Times Co v Sullivan, the
Supreme Court reversed that view…
…Going beyond the textual limitation on power (“Congress shall make no law”)
the Supreme Court elevated the First Amendment to the level of a constitutional
right or privilege to be claimed by the mass media and, perhaps, by non-media
defendants who publish defamatory matter of public officials or public figures
but not, it seems, of private persons…
The text of the United States Constitution finds no resonance in our own
Constitution. The history which has so affected the interpretation of the First and
Fourteenth Amendments is different from ours. We have no First Amendment,
no Bill of Rights. Indeed, our Founding Fathers were not attracted to a Bill of
Rights though the American model was before them….
…What is material is that there is no basis on which to attribute to New York
Times Co v Sullivan any persuasive influence on the interpretation of the
Australian Constitution.162
162 (1994) 182 CLR 104, 158-61. The concerns regarding the majority’s reliance upon American caselaw without acknowledging the philosophical tradition upon which they rest are most forcefully made by Stone: Adrienne Stone, ‘The Constitution, the Common Law and the Freedom of Political Communication’ (1998) 26 Federal Law Review 219, 230-5; and Stone, above n 104, 18-9.
361 Justice McHugh shared Brennan J’s resistance on this point, though his reasoning
stemmed more from his essential view of the implication as being very strictly tied to
those provisions of the Constitution which provided for representative government at
the federal level.163
While both Justices Brennan and McHugh restated their opposition to the common
law’s ensnarement in the constitutional freedom in Stephens,164 the issue was not
substantially addressed again until the Court set about the task of consolidation in
Lange. In this respect, once more, the unanimous opinion demonstrates a high level of
compromise. On a blunt analysis, it would seem to have been impossible for the
Brennan-McHugh view to prevail without the Court overruling Theophanous, which
it was not prepared to do. Yet, nevertheless, the Court described the freedom as a
curtailment of legislative and executive power165 and used its non-personal nature as a
basis for denying any direct operation it may have in the sphere of the common law.
To that extent, Stone is quite right when she says that in Lange, ‘the position taken by
Brennan J in his dissent in Theophanous prevailed’.166
However, as she goes on to acknowledge, the Lange decision does admit that the implied freedom has an indirect effect upon the form of the common law because ‘of necessity the common law must comply with the Constitution’.167 In Levy, Justice
McHugh confirmed that ‘the common law cannot be at odds with the Constitution’.168
Acceptance of this interrelationship seems to reflect the minimalist position advocated
163 (1994) 182 CLR 104, 205. 164 Ibid 236 (Brennan J); 259 (McHugh J). 165 See quote accompanying n 156. 166 Stone, above n 156, 405. 167 (1997) 189 CLR 520, 566. 168 (1997) 189 CLR 579, 622. See also, Roberts v Bass (2002) 212 CLR 1, 26 (Gaudron, McHugh and Gummow JJ).
362 by Mason CJ, Toohey and Gaudron JJ in Theophanous.169 The Brennan influence is
not as solid as the rhetoric suggests. As a result, Stone has expressed frustration with
the Lange court’s formal distinction between the common law and the Constitution,
saying ‘the fact that the High Court is already acting as if the common law is subject
to constitutional requirements is really an argument for reconfiguring its reasoning to match its results’.170
In neither of the later cases of Lenah Game Meats or Roberts v Bass in the set under
analysis is the relationship between the common law and the constitutional freedom
addressed in a way which might answer Stone’s concerns about inconsistency with the formal attitude set forth in Lange towards this question. But at the same time, the
Justices (barring Callinan J’s fundamental objection to the implication per se) have continued to readily acknowledge the effects upon the common law which the
Constitution may indeed require.171
7 Conclusion
What observations then can be made about the role which minority voices have
played in the caselaw developing the implied freedom of political communication? It
is apparent at the outset that the Court’s adjudication in these cases has comprised a
form of judicial conversation in which all positions have been subjected to counter
argument and persuasion. The law in this area did not arrive fully formed. Rather, in
169 See quote accompanying n 159. 170 Stone, above n 156, 414. cf. Greg Taylor, ‘Why the Common Law should be only Indirectly Affected by Constitutional Guarantees: A Comment on Stone’ (2002) 26 Melbourne University Law Review 623. 171 ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 220 (Gleeson CJ); 260 (Kirby J). It is perhaps worth noting here that these two Justices disagreed directly over whether the implied freedom should be used as a factor in considering a discretionary exercise of judicial power: 220 (Gleeson CJ); 284 (Kirby J); and Roberts v Bass (2002) 2121 CLR 1, 26 (Gaudron, McHugh and Gummow JJ).
363 keeping with the common law tradition, it was fashioned through the application of
the concept to differing fact situations in order to test the limits and consequences
attendant upon its use.
The member of the Court whose judgments best demonstrate this is Justice (and later
Chief Justice) Brennan. From an initial position of basic agreement over the freedom
in Nationwide News, through a drift to dissent mainly on the facts in ACTV but
extending to conceptual disagreement with the developments thrown up by
Theophanous, reaching a stance of objection to the core of the implication in
McGinty, and culminating in the ascendancy of much, but not all, of his earlier views
in Lange, Brennan J found himself constantly reassessing the implication and its
proper role and place in the Australian legal system. In doing so he found himself in the majority and minority camps but rarely in total agreement with those he found in either. His Honour’s contributions thus show a remarkable level of movement and accommodation – something which the Court itself ultimately embraced in the production of the Lange judgment which reflects Brennan CJ’s opinion on several points.
The only judge whose earlier opinions are perhaps more observable in the law than
Brennan CJ’s as it now stands is, of course, Justice McHugh. McHugh J’s opinions in these cases are marked particularly by their steadiness. It is true that the Lange opinion rejects limitations which his Honour had previously favoured so as to prevent operation of the freedom outside federal election periods, to the discussion of non- federal matters and upon the shape of the common law of defamation. However, while all those came to pass, it was McHugh J who provided the lasting basis for the
364 implied freedom with his calls for an implication to be made solely from the relevant text rather than the principle of representative government itself. The acceptance of
this foundation may not have resulted in the freedom adopting the form which
McHugh J favoured (though certainly it prevented any lasting suggestion that it was a
personal right) but it did ensure that it finally attained a legitimate footing in the eyes
of the entire Court – and which makes it more resilient to attacks from newcomers
like Callinan J than would otherwise be the case.
Both Brennan CJ and McHugh J were often, though not always, writing from a
position of formal dissent. While the fluidity of principle which pervades these cases
as a set means that formal classification of the judgments is far from the whole
picture, it would be wrong to ignore the contribution which the holding of minority
opinions surely had in the results of litigation. This is particularly clear in respect of
the pair of decisions from 1994, Theophanous and Stephens. While the minority trio
of Brennan, Dawson and McHugh JJ had earlier appeared in ACTV, Brennan J’s dissent in that case was largely on the application of the law (about which he had substantial points of agreement with the majority) to the facts. But in Theophanous, while there were obvious distinctions between the reasoning of the majority with
Mason CJ, Toohey and Gaudron JJ on one hand and Deane J on the other, and also amongst all three dissenters, there is a basic division over the parameters of the implied freedom which explains that 4:3 split. The attainment by Brennan, Dawson and McHugh JJ of the majority status in Cunliffe through the addition of Toohey J on the facts does not alter that situation but only masks it from formal view. The truth remains that much of what is established as orthodoxy in Lange derives from the dissenting opinions delivered in Theophanous and Stephens and minority opinions
365 held whilst actually being in concurrence with the majority on the result in cases such
as Cunliffe and Langer.
To what extent does this series of cases illuminate the factors canvassed in Chapter
Two which govern the desirability and dangers of dissent? There is obviously a highly transparent level of deliberation taking place amongst the Court’s members. This is not established by the mere holding of different opinions but rather by the way in
which those opinions clearly interact. There is judicial dialogue in respect of all the
topics isolated in the above analysis. For example, the majority in Theophanous seeks
to refute the substance of Dawson J’s dissent in ACTV based upon the drafter’s
intentions and the absence of a bill of rights. This debate has been rerun in the
judgments of Kirby and Callinan JJ in Lenah Game Meats and Roberts v Bass.
Additionally, and more importantly, these exchanges can be seen to lead to changes in judicial opinion. Aside from the compromise of Lange itself, the shifts in the stance of
Chief Justice Brennan are an excellent example of this – particularly his endorsement in McGinty of McHugh J’s more limited view of the implication. The way in which the judgments of the Court interact is strongly beneficial to the clarity of the cases as a whole. Propositions require the defence of their makers and argument by assertion is exposed for weakness.
It is evident also, from much of the above, that the minority opinions exercised a substantial impact on the shape of the law as it presently stands. This was not often in the way of leading the Court towards change. As already commented upon, the influence of Murphy J might conceivably be characterised in that manner in the widest possible sense, but the impact of the dissents penned by Justices Brennan,
366 Dawson and McHugh was not progressive in nature. Rather, they served – particularly
the more constructive and engaged opinions of Brennan and McHugh JJ – in the
tradition of Lord Radcliffe when he said that a dissent could be used ‘to try to limit
what you regard as an unsatisfactory line’.172 The opinions of their Honours curb the
bolder experimentation of the majority, whilst not risking irrelevance by refusing to
partake in the necessary conversation. This last comment is not, as might first appear,
to criticise the approach of Justice Dawson. His Honour’s persistent resistance to the
emerging implication remains a legitimate response and certainly accords with the
majority’s total dismissal of the idea when promoted by Justice Murphy in earlier
years. And, of course, if his Honour continued to believe in the fallacy of the
implication then ongoing dissent would be a viable option, when not the only appropriate course. However, it remains fair to acknowledge the very limited impact of such an approach if the rest of the Court is determined to settle upon some form of implication. In many ways, Justice Dawson’s most effective opinion over these cases is his dissent in Langer in which he applies the freedom in the face of resistance from the majority.173
The cases also highlight the arguments previously considered which augured in
favour of restraint. There is Justice Deane’s curious appendix to his opinion in
Theophanous which simultaneously asserts the correctness of his approach but sets it aside so as to provide a useful, coherent majority on the result. Similarly, and once again, there is the evident compromise from all Justices in order to produce the unanimous opinion in Lange. The individualism which feeds dissent was necessarily curbed in order to achieve that unified statement of the law.
172 Alan Paterson, The Law Lords (1982) 101. 173 See Lindell’s assessment of this case and the persuasiveness of Dawson J’s solo dissent: Lindell, above n 13, 126-7.
367
But, just when we may have seen the implied freedom as securely protected by the
precedential value of that decision, the opinions in subsequent cases throw open some
aspects to doubt. The uneasy intersection between dissent and precedent is exposed,
not simply by the overt challenges issued by Callinan J, but just as effectively through
the difficulty which quite a few members of the Court had in discarding their
individual pre-Lange preferences in Levy. The suggestion from Chief Justice Brennan,
and Justices Gaudron, McHugh and Kirby that they still had some room to move in
respect of various issues despite the apparent resolution of same in Lange was
worrying. Arguably even more curious was Justice Dawson’s direct acknowledgment
that the necessity for the implication was resolved coupled with his belief that his original approach remained more correct despite being having been superseded – best described as a mildly grudging acquiescence.
It is ultimately impossible to separate the law on the implied freedom of political communication from the permutations in judicial disagreement. The dissenting opinions in these cases – and the array of minority opinions generally – are not a sideshow to the erection of a new constitutional doctrine. Rather, they are at the heart of that very process. Ironically, the Court’s settlement of the freedom in Lange owes
an enormous debt to the lack of consensus which preceded it. But it was patently
obvious almost immediately thereafter that Lange was not the final page – if one can
ever be said to reach such a thing in any area of law. The refinement of that principle
through application and possibly extension will doubtless follow the pattern of
368 occurring through transparent diversity. The indicators are that this process has
already begun.174
B The Right to Trial by Jury
1 Pre-1981
The caselaw surrounding the interpretation of the Commonwealth Constitution’s guarantee of trial by jury provides a very different demonstration of the role which dissenting judicial opinions may assume over time. Unlike the preceding topic of the constitutionally implied freedom of political communication, the High Court’s consideration of section 80 is not simply confined to the sample period of this study.
As such, it is necessary to note the pre-history of the Court’s interpretation in order to fully understand the nature of the divisions in cases since 1981.
Section 80 of the Commonwealth Constitution provides:
The trial on indictment of any offence against any law of the Commonwealth
shall be by jury, and every such trial shall be held in the State where the offence
was committed, and if the offence was not committed within any State the trial
shall be held at such place or places as the Parliament prescribes.
The High Court’s first comments on the meaning of section 80 were made in R v
Bernasconi175 but it is the later decision of R v Archdall and Roskruge; Ex parte
174 In addition to the cases included in this study post-Lange, see the more recent decisions of Coleman v Power (2004) 209 ALR 182 and Mulholland v Australian Electoral Commission (2004) 209 ALR 582. 175 (1915) 19 CLR 629.
369 Carrigan and Brown176 which has most clearly left its stamp on the provision. In that
case the Court upheld sections of the Crimes Act 1914 (Cth) which enabled trial for an
offence attracting a maximum penalty of one year’s imprisonment to be by court of
summary jurisdiction. Without opposition, the Court was of the view that the
Commonwealth Parliament was able to determine the extent of section 80’s guarantee
by designating offences as indictable or not as it saw fit. Section 80 did not operate to
tie Parliament’s hands on the matter of trial by jury:
The suggestion that the Parliament, by reason of s 80 of the Constitution, could
not validly make the offence punishable summarily has no foundation and its
rejection needs no exposition.177
So while, as Higgins J acknowledged, ‘if there be an indictment, there must be a jury’,178 there was nothing to compel classification of the offence in that manner.
This reading of the provision, while clearly defensible on the text, inevitably invites
speculation as to the point of its inclusion. The Convention debates, however, offer
very little in the way of an obviously helpful answer to this question. Indeed, on some
readings they give the impression that the framers supported the inclusion of a
provision into the Commonwealth Constitution which they either regarded as serving
no practical purpose at all or misunderstood. Although the first draft of the provision
by Andrew Inglis Clark, as modelled on Article III, s 2 of the Constitution of the
176 (1928) 41 CLR 128. 177 Ibid 136 (Knox CJ, Isaacs, Gavan Duffy and Powers JJ). 178 Ibid 139.
370 United States, and later amended by Sir Samuel Griffith,179 seemed intended to provide some level of protection beyond the control of the legislature, this was not to survive the 1898 Convention. While, at those proceedings, Wise of New South Wales insisted that the clause was ‘a necessary safeguard to the individual liberty’,180 the other delegates who spoke to the topic seemed far less certain. Apparently sharing in
Wise’s understanding of the effect of the provision, but not his enthusiasm for it,
Glynn proposed an amendment emanating from the Legislative Assembly of South
Australia which was designed to:
render the Federal Parliament as omnipotent within its own authority as the
existing Parliaments of the states are at present. I do not see why we should put
any limit on the Federal Parliament within its own jurisdiction such as is
181 proposed in this clause. We are making trial by jury a fixture.
Glynn’s motion was defeated, but it is clear that this result was not simply because the majority believed that section 80 provided an effective guarantee of trial by jury in respect of federal indictable offences While that was certainly Wise’s view, Isaacs, in a direct foreshadowing of the joint judgment in Archdall, could not have been plainer in stating that there was:
179 George Williams, Human Rights Under the Constitution (1998) 104; though Pannam’s account of the origins of the provision leaves out any reference to Griffith’s role in limiting the scope of it to ‘all indictable offences’: Clifford L Pannam, ‘Trial by Jury and Section 80 of the Australian Constitution’ (1968) 6 Sydney Law Review 1, 2-3. 180 Convention Debates, vol 5, Melbourne 1898, 350. 181 Ibid.
371 no fetter on the Federal Parliament, because, when it creates an offence it may
say it is not to be prosecuted by indictment, and immediately it does it is not
within the protection of this clause of the Constitution.182
While there is no express acknowledgement of the logic of Isaacs’ opinion on the
wording of the clause, it is apparent from remarks like that of O’Connor during the
debate that, among other delegates who voted down the South Australian amendment,
there was as much faith in the legislature’s wisdom and self restraint as there was in
any inherent power in the provision.183 The delegates returned to the provision briefly
later on in the Convention, when Barton successfully advocated its alteration so as to
restrict its application from simply ‘all indictable offences’ to only those brought
before the courts ‘on indictment’.184 The purpose behind this was to preserve the
flexibility of summary trial of minor offences, including contempt of court, rather
than necessitating trial by jury in all instances for offences which may be classed as
indictable. While that can be seen as indicating a bifurcation based upon gravity of
offence in the minds of the framers,185 it also equally tends to confirm a determination
to ensure that the requirement of a jury trial could be dispensed with when desired. As
Barton said, ‘the object [of the provision] was to preserve trial by jury where an
indictment has been brought’ and, one might add, clearly only that and not any broader requirement of trial by jury based upon the nature of the offence itself.
Regardless of his personal thoughts as to the propriety of trial by jury for certain
182 Ibid 352. 183 O’Connor’s response to Isaacs was to say, ‘You may trust the Parliament not to increase the list of offences to be dealt with by summary jurisdiction’: ibid 352-3. Isaacs’ retort was, ‘Then you may trust the Parliament not to wipe out the right to a jury?’: ibid 353. 184 Convention Debates, vol 5, Melbourne 1898, 1894-5. 185 Amelia Simpson and Mary Wood, ‘“A Puny Thing Indeed” – Cheng v The Queen and the Constitutional Right to Trial by Jury’ (2001) 29 Federal Law Review 95, 110.
372 offences,186 in moving the amendment in this way Barton very clearly left the
application of the guarantee up to the wisdom of Parliament, and sought to remove
any constitutional constraint in this respect.
Once again, Isaacs, while conceding the attractions of Barton’s proposal, repeated his
opinion that the provision generally was without ‘any real effect at all’, given
Parliaments’ ability to control it.187 Although Simpson and Wood argue that Isaacs’
views can hardly be taken as ‘indicative of the mood of the Convention’,188 it is
extremely difficult to imagine that, on the contrary, the majority of the delegates
disagreed with his opinion on the draft provision and yet sought neither to pursue amendment of it so as to ensure such a result was avoided nor to refute his claims.
There appears to have been a tacit recognition amongst most of the delegates that,
regardless of one’s thoughts as to the value of trial by jury, this section was not
designed to compel its provision in respect of Commonwealth offences. In displaying
a high level of faith of in the parliamentary process as ensuring restraint, the delegates’ treatment of this section is hardly at odds with the tenor of the finished
Constitution overall.
Despite the acceptance by the High Court in Archdall of an interpretation of section
80 which enables the Parliament to decide upon the scope of its application, several
judges have since tried to challenge this approach, and in so doing, invest the words
of section 80 with seemingly more purpose than most of its creators were prepared to
expressly admit. Still the most significant of these assaults upon the orthodoxy is the
186 Simpson and Wood suggest that one must set Barton’s amendment of 4 March against his dismay on 31 January at Isaacs’ remark that magistrates regularly imposed prison sentences of up to two year’s duration: ibid 109. 187 Convention Debates, vol 5, Melbourne 1898, 1895. 188 Simpson and Wood, above n 185.
373 first. In R v Federal Court of Bankruptcy; Ex parte Lowenstein189 Dixon and Evatt JJ dissented from an approach to the section which, in their eyes, rendered it without substantive value. In responding to Higgins J’s comment in Archdall, their Honours were blunt:
It is a queer intention to ascribe to a constitution; for it supposes that the concern
of the framers of the provision was not to ensure that no one should be held
guilty of a serious offence against the laws of the Commonwealth except by the
verdict of a jury, but to prevent a procedural solecism, namely, the use of an
indictment in cases where the legislature might think fit to authorize the court
itself to pass upon the guilt or innocence of the prisoner. There is high authority
for the proposition that ‘the Constitution is not to be mocked.’ A cynic might,
perhaps, suggest the possibility that sec. 80 was drafted in mockery; that its
language was carefully chosen so that the guarantee it appeared on the surface to
give should be in truth illusory. No court could countenance such a suggestion,
and, if this explanation is rejected and an intention to produce some real
operative effect is conceded to the section, then to say that its application can
always be avoided by authorizing the substitution of some other form of charge
for an indictment seems but to mock at the provision.190
In saying that they ‘should not have taken the view that s 80 was intended to impose
no real restriction upon the legislative power to provide what kind of tribunal shall
decide the guilt or innocence on a criminal charge’, Dixon and Evatt JJ sought to give
189 (1938) 59 CLR 556. 190 Ibid 581-2.
374 substance to the identification of an offence as one triable on indictment by requiring the presence of two elements:
... the first of them would be seen to be that some authority constituted under the
law to represent the public interest for the purpose took the responsibility of the
step which put the accused on his trial; the grand jury, the coroner's jury or the
coroner, the law officer or the court. A second element, we think, would be
found in the liability of the offender to a term of imprisonment or to some graver
form of punishment.191
The suggestion that trial should be by indictment when the offence attracted a punishment of sufficient gravity, rather than simply on the classification applied by the legislature, was not supported by the other members of the Court. Indeed, in the sporadic opportunities for reconsideration of the matter which arose after 1938, the
Court was clearly disinclined to be persuaded by the arguments of the dissenters in
Lowenstein.192 Reliance upon the pithy opinions of Archdall was the tenor of the
Barwick Court’s approach on the two notable occasions it turned to section 80. In
Zarb v Kennedy,193 the Chief Justice said simply that ‘the proposition that the parliament is unable to provide that any offence shall be tried summarily is untenable’ and that he regarded the question as ‘long settled’.194 The other Justices agreed with
Barwick CJ’s opinion with varying levels of specificity. Certainly there was no hint of dissatisfaction with the Archdall approach.
191 Ibid 583. 192 Indeed, Dixon CJ declined to avail himself of the opportunity to persist in the views he had expressed in Lowenstein when he applied that decision in Sachter v Attorney-General for the Commonwealth (1954) 94 CLR 86, 88. 193 (1968) 121 CLR 283. 194 Ibid 294.
375
That was not the case in the Court’s decision ten years later in Li Chia Hsing v
Rankin.195 Although Barwick CJ led a majority of the Court to confirm the existing
authorities, the circumstances of the case, which involved a fishing offence
punishable by a maximum of six months imprisonment, were highly unsuited to any
significant testing of the Dixon-Evatt interpretation. This was acknowledged by
Justices Gibbs,196 Stephen and Aickin197 who appeared to suggest that the precedents
could have been usefully exposed to more principled scrutiny had the situation been
different. However, Justice Murphy, while also concurring in the result, gave an
opinion of section 80 which, like that of Dixon and Evatt JJ’s, operated independently
of the legislature as ‘a basic right entrenched in the Constitution to trial by jury, at
least in serious criminal cases’.198 In addition to American authorities,199 his Honour
cited the key passages above from the dissent in Lowenstein and indicated agreement
with the view that exposure to a punishment of imprisonment rendered an offence sufficiently ‘serious’ in character as to require trial by jury.200 This was a more precise
endorsement of the Lowenstein dissent than Murphy J had offered in his obiter dicta
remarks in Beckwith v R.201 Yet, as demonstrated by Justice Murphy’s agreement with
the final orders made in each case, in neither did anything much turn on the holding of
this opinion.
It may appear then that, on the whole, the caselaw on section 80 prior to the
commencement of Chief Justice Gibbs’ tenure in 1981 displays a reasonably high
195 (1978) 141 CLR 182. 196 Ibid 193. 197 Ibid 195-6. 198 Ibid 202. 199 Most notably, Baldwin v New York (1970) 399 US 66. 200 (1978) 141 CLR 182, 201. 201 (1976) 135 CLR 569, 585.
376 level of consensus about the provision’s interpretation. But while that is certainly
evidenced by the unbroken ascendancy of the narrow view of the guarantee given in
the earliest precedents and the general paucity of disagreement on the issue, it is not
the whole picture. The dissent in Lowenstein is a powerful one and, as shall be seen,
has managed to retain significant status in the eyes of later generations of judges. The
reasons for this are best suggested after consideration of the Court’s recent handling
of the question, but two preliminary hypotheses may be stated at the outset.
First, is the sense of disquiet which the Archdall reading of the right to trial by jury
engenders, even despite its apparent concurrence with the views of delegates at the
1898 Convention. While some have argued the contrary,202 the traditional approach to
section 80 seems very much to confine it as a merely procedural requirement, so far
from a guarantee of any real worth that it may as well be absent from the Constitution.
There may be room for shades of grey on that score, but it is undeniable that as a
‘guarantee’ section 80 has been apparently interpreted in such a way that it may be
completely avoided – in short, as little guarantee at all.203 The attraction of the
Lowenstein dissent rests essentially upon its refusal to accept such obtuseness on behalf of the framers.204
Second, is the thrall in which Sir Owen Dixon has held members of the High Court
during and after his service on that institution. Smyth’s citation analysis study
202 Brown v R (1986) 160 CLR 171, 215, per Dawson J (see text accompanying n 248). 203 Sir Anthony Mason has gone so far as to say euphemistically that the dissenting opinion from Lowenstein is thus ‘an unusual instance of interpretation of s 80 of the Constitution’: Sir Anthony Mason, ‘The High Court of Australia: A Personal Impression of its First 100 Years’ (2003) 27 Melbourne University Law Review 864, 875. He adds that the judgment was ‘so persuasive that one wonders why it did not prevail’, which is somewhat odd given his disinclination to be swayed by its appeal in Kingswell v R (1985) 159 CLR 264. 204 Pannam has argued that as an examination of the debates shows that this is the sad reality, we might as well accept it: Pannam, above n 179, 6; Cf. Simpson and Wood, above n 185, 107-111.
377 indicated that, at least in terms of statistical evidence, Dixon is regarded as the most prestigious judge to have served on the Court in the eyes of its other members.205
Although Evatt was a very brilliant man also, it seems fair to say that he – nor indeed any other member of the Court – ever matched the status which Dixon achieved.206
This is not simply a matter of the latter having served for a much greater duration
(others have served longer) or his having been Chief Justice for his final thirteen years on the Court (not all Chief Justices are held in higher regard than their Associate brethren) – though both these are undoubtedly important. Dixon was publicly feted throughout the common law world in a way in which no other Australian judge has been before or since.207 It is less likely that the dissent in Lowenstein would still command the respectful attention which it does had it been penned by Evatt alone or even in conjunction with any other of his colleagues.208 That said, of all the other co- authors which Dixon could have had in Lowenstein who would add to the considerable pull of his own authoritative voice, Evatt is the most obvious contender on the basis of his own intellectual strengths – both generally and, I would suggest, relative to the other members of the Court at that time. Coper is surely right when he
205 Smyth, above n 5, 16. 206 This general observation is also, for the statistically minded, borne out by Smyth’s study: ibid 17. 207 See Philip Ayres, Owen Dixon (2003) 232; and Kenneth Hayne, ‘Dixon, Owen’ in Blackshield, Coper and Williams, above n 44, 219. Maher’s comment that ‘much of the skiting about Dixon is firmly rooted in snobbery and well practiced techniques of mutual admiration’ (Laurence W Maher, ‘Owen Dixon: Concerning his Political Methods’ (2003) 6 Constitutional Law and Policy Review 33, 35) appears to owe much to the close relationship which Dixon established with Justice Felix Franfurter of the United States Supreme Court. 208 This is not to be dismissive of Evatt’s subsequent influence generally. For example, his Honour’s dissenting judgment in Chester v Waverley Corporation (1939) 62 CLR 1 was well ahead of its time and was later adopted in the development of tortious liability for nervous shock. But a distinction may be made between that example and the present instance. The changed attitudes to psychology and a greater understanding of harm of that nature may be said to underpin the Court’s later extension of tort law in that regard. The matters which revolve around section 80, by contrast, are ones of considerable antiquity and which are germane to the legal system and its institutions. No obvious social or medical shift has occurred between 1938 and 2004 which would assist to stimulate reassessment of the Court’s approach to s 80. As such, the endurance of Dixon and Evatt JJ’s dissent must come solely from itself rather than any increased appeal with which external circumstances invest it.
378 argues that the judgment retains an audience due to its ‘powerful combination of two divergent legal minds in Dixon and Evatt’.209 In making this point, I am not embracing the simplistic theory that a great dissent is one written by a great Justice
(aka a Great Dissenter).210 At the same time, and whilst partially sympathetic to
Primus’ argument that ‘greatness’ and ‘heroism’ are retrospectively constructed by later justices with a view to redemption of the minority opinion,211 it must remain fair to say that judicial standing is a relevant factor in the likely rehabilitation of a minority opinion.
Until the commencement of the period under study, the dissent of Dixon and Evatt JJ had only received express support from Justice Murphy in obiter. But it was a secure piece of the section 80 landscape. The topic could not, after that point, be discussed without acknowledging the existence of that contrary view. This was particularly so given the absence of any real attempt from the majority to explain the provision’s purpose under their interpretation. The cases within the study period demonstrate this starkly – and see substantial new growth in the line of dissent on the question of the
Constitution’s guarantee of trial by jury.
2 The degree to which Parliament may determine the operation of the guarantee
As the foregoing demonstrates, the central issue over the Court’s interpretation of section 80 is the extent, if any, to which it imposes a meaningful check upon the
209 Coper, above n 6. Sir Anthony Mason has also highlighted the strong contributions from these two Justices over this period: Mason, above n 203. For a statistical analysis of collaboration between Dixon and Evatt, see Russell Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting patterns on the High Court 1935-1950’ (2001) 47 Australian Journal of Politics and History 330; and Russell Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935-50’ (2002) 26 Melbourne University Law Review 88. 210 The origins and use of this term were considered in Chapter Four, n 30. 211 Richard A Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243, 259-264.
379 Commonwealth legislature’s ability to determine which offences are to be tried by
jury. This is not, as shall be seen, the only ground of disagreement to which the section gives rise, though it is certainly both the most important and persistent.
The traditional understanding of the section’s limited powers of constraint upon the
Parliament was affirmed by members of the majority in the first relevant case of the period, Kingswell v R:
It has been held that s 80 does not mean that the trial of all serious offences shall
be by jury; the section applies if there is a trial on indictment, but leaves it to the
Parliament to determine whether any particular offence shall be tried on
indictment or summarily. This result has been criticized, but the Court has
consistently refused to reopen the question and the construction of the section
should be regarded as settled: R v Archdall and Roskruge; Ex parte Carrigan
and Brown; R v Federal Court of Bankruptcy; Ex parte Lowenstein; Sachter v
Attorney-General (Cth); Zarb v Kennedy; Li Chia Hsing v Rankin.212
With two specific exceptions (of which more later), the passage quoted is a perfect
reflection of the chief reason advanced by differently comprised majorities over the
course of these cases as to why the Archdall reading of section 80 still holds.
Although, such majority opinions have acknowledged the presence of the dissenting
view, this cannot compete with the weight of authority provided by the chain of past
decisions.213 That chain may well be linked together by strong logic and the clear
212 (1985) 159 CLR 264, 276-7 (Gibbs CJ, Wilson and Dawson JJ). 213 Brown v R (1986) 160 CLR 171, 182 (Gibbs CJ), 184 (Wilson J), 215 (Dawson J); Re Colina; Ex parte Torney (1999) 200 CLR 386, 396-7 (Gleeson CJ and Gummow J); Cheng v R (2000) 203 CLR 248, 268-9 (Gleeson CJ, Gummow and Hayne JJ), 279 (Gaudron J).
380 history behind the provision, but it is striking how this is assumed on the basis of
earlier decisions – the most important of which such as Archdall and Lowenstein are
more vulnerable to attack on precedential grounds than at first appears.
In rejecting the narrow view of section 80 seemingly advanced by those decisions,
Justice Deane, in his dissent in Kingswell, was keen to point to the inadequate
foundations upon which those authorities had been built. While conceding that ‘if one
refers to numbers rather than weight of reasoning, the predominant tendency of the
views expressed in judgments of members of the Court is plainly enough towards the
conclusion that s 80 should be construed [narrowly]…one searches in vain, in
judgments favouring the view which would deprive the “fundamental law” of s 80 of
effective operation, for any coherent statement of a line of reasoning leading to that
conclusion’.214 Deane J’s preference was essentially to confine those decisions to their
facts. Doing so was not just important in enabling him to dissent from the majority’s
unquestioning acceptance of those authorities – it also directed the form of the
substantive operation of section 80 which he advocated. Deane J was keen to point
out that his interpretation of the Constitution’s right to trial by jury was not
inconsistent with the result reached in any of the Court’s earlier decisions, though
Zarb ‘comes closest to being inconsistent’.215
What then was Justice Deane’s view of section 80? Throughout his dissent, Deane J was ready to acknowledge the persuasive power of the minority opinion of Dixon and
Evatt JJ in Lowenstein. He shared entirely in its reasoning as a basis for rejecting the
Archdall approach, saying it was ‘unnecessary to go beyond [it] to demonstrate the
214 (1985) 159 CLR 264, 318. 215 Ibid 317.
381 error of their Honours’ assertion [in Archdall] that the rejection of the argument based
on s 80 needed no exposition’.216 Indeed, the joint dissent demonstrated that to interpret the provision without reference to substance over mere form was to fail to apply ordinary principles of constitutional construction.217 It was made very clear by
Deane J that he saw himself as carrying the mantle of the dissenters in Lowenstein.
Although his Honour acknowledged the opinion of Murphy J in Li Chia Hsing,218 he did not directly connect it with the dissent of Dixon and Evatt JJ nor his own response in this case. That is probably due, more than anything else, to his dismissal of Li Chia
Hsing on its facts as not involving an offence which was ‘serious’ enough to require
trial by jury under s 80219 – a point which Murphy J’s own concurring judgment in that case accepted in light of the applicant’s concessions.220
But while endorsing the Lowenstein dissent’s dissatisfaction with the majority
approach to section 80, Deane J was unable to accept its requirement that the
provision guarantees trial by jury whenever the accused faces punishment by a term
of imprisonment. This was the indicia proposed by their Honours to separate serious
offences from those of a minor character. Deane J agreed that seriousness is the key
factor which determines the scope of section 80, arguing that this is what the framers
intended through use of the words ‘on indictment’.221 But, after reviewing the
criminal law at the turn of the century, he concluded that the boundary between
serious (‘indictable’) and minor (‘non-indictable’) offences was not simply the
216 Ibid 311. 217 Ibid 308. 218 Ibid 317. 219 Ibid 315. 220 (1978) 141 CLR 182, 202. 221 (1985) 159 CLR 264, 309.
382 possibility of imprisonment.222 Instead, the question turns on whether dealing with the offence summarily is appropriate – which is a question of law to be determined by the courts, rather than the legislature.223 While Deane J maintained that propriety is enough of a guide, in order perhaps to stave off criticism of a vague and unworkable test, he ultimately laid down a more precise standard:
The conclusion to which I have finally come is that, notwithstanding the
contrary trend in subsequent judgments in this Court, the views expressed by
Dixon and Evatt JJ in Lowenstein, as qualified in the manner which I have
mentioned, should be accepted as a correct statement of the effect of the
reference to “trial on indictment” in s 80 of the Constitution. On that
construction, the guarantee of the section is applicable in respect of any trial of
an accused charged with an offence against a law of the Commonwealth in
circumstances where the charge is brought by the State or an agency of the State
and the accused will, if found guilty, stand convicted of a “serious offence”. As
has been said, a particular alleged offence will, for the purposes of
characterizing a particular trial as a “trial on indictment”, be a “serious offence”
if it is not one which could appropriately be dealt with summarily by justices or
magistrates in that conviction will expose the accused to grave punishment. It is
unnecessary, for the purposes of the present case, to seek to identify more
precisely the boundary between offences which are not and offences which are
capable of being properly so dealt with. I have, however, indicated the tentative
view that that boundary will ordinarily be identified by reference to whether the
222 Ibid. 223 Ibid 310-1.
383 offence is punishable, when prosecuted in the manner in which it is being
prosecuted, by a maximum term of imprisonment of more than one year.224
This paragraph encapsulates the position which Deane J adopts in Kingswell – a slightly modified version of the dissenting opinion of Dixon and Evatt JJ. As alluded to earlier, the change to use of a jail term of over a year’s duration as the identifying feature of an indictable offence has the advantage of not directly contradicting the result of any of the previous cases on section 80 – as well as being supported by the contemporary standards of the framers as evidenced through English and colonial legislation. In Cheng v R, McHugh J makes much of Deane J’s qualification saying that between them, Dixon and Evatt JJ, Murphy J and Deane J ‘have not been able to agree, however, as to the meaning that should be given to the phrase “trial on indictment” in s 80’.225 Nothing in Murphy J’s broad obiter statements is at all discordant with the other opinions and although the different standard as to seriousness in the two dissents from Lowenstein and Kingswell has the potential in practice to produce a real disparity over which offences are to be tried summarily without offending section 80, I think it is a mistake to suggest that this amounts to a disagreement which is in any way destructive of the essential coherency and consistency of these two minority opinions written over fifty years apart.
The latest bearer of the role of dissenter from the orthodoxy of section 80 is Justice
Kirby, though interestingly his destiny as such was not made immediately apparent.
The Court’s consideration of section 80 was certainly more frequent in the 1990s than
224 Ibid 318-9. 225 (2000) 203 CLR 248, 295. Gleeson CJ, Gummow and Hayne JJ, at 269, merely said, ‘Those who have dissented have disagreed amongst themselves as to what the section means’. Even Justice Kirby, who is sympathetic to the thrust of the dissents, in acknowledging the disagreement as a reason for adhering to the orthodox view, seems to conflate the issue unnecessarily in Re Colina; Ex parte Torney (1999) 200 CLR 386, 421.
384 it had been in earlier decades, but the focus in the cases of Cheatle v R,226 Re Tyler;
Ex parte Foley,227 Byrnes v R,228 and Katsuno v R229 was not on the legislature’s freedom to determine the indictable nature or otherwise of offences for the purpose of s 80. It was not until, in responding to the issues raised in Re Colina; Ex parte
Torney,230 that Kirby J aligned himself with the earlier dissents of Dixon and Evatt JJ in Lowenstein and Deane J in Kingswell. His Honour also included Murphy J’s remarks in Li Chia Hsing v Rankin as one of the Court’s ‘dissenting voices’ on this question.231
Justice Kirby’s opinion in Re Colina could not be more explicit in its acknowledgment of the influence of earlier dissents – and it presents itself as a very conscious and clear continuation of those earlier views:
…in my view the proper construction of s 80 of the Constitution is that favoured
by Deane J in Kingswell...I must pay due regard to the opinions of other Justices
past and present about the question. I have sought to demonstrate that I have
done this. But being convinced of the error of previous authority on the meaning
of the Constitution, I have a duty to express what I consider to be its proper
construction. I will state my reasons. I can do so briefly because they follow
substantially those upon which predecessors, holding the like opinion currently
in the minority, have based their conclusions.232
226 (1993) 177 CLR 541. 227 (1993) 181 CLR 18. 228 (1999) 199 CLR 1. 229 (1999) 199 CLR 40. 230 (1999) 200 CLR 386. 231 Ibid 420. 232 Ibid 422.
385 In accepting Deane J’s modification from Kingswell as to a serious offence being one
which attracts a maximum penalty of imprisonment over one year, Kirby J avoided
contributing to a perception that the challengers are splintered over what precisely ‘on
indictment’ in section 80 is to mean. But, as Meagher has explained, his alignment
with Deane J’s dissent creates a different and deeper inconsistency.
In justifying his rejection of the Archdall reading of section 80, Kirby J firstly affirms his commitment to a non-originalist interpretative methodology,233 and in so doing, aims to free the provision from the evidence that its creators apparently viewed it as a very limited, if not hollow, guarantee. But Meagher points out the incongruity of espousing a Constitution no longer a ‘hostage’234 to the intentions of its draftsmen
while purporting to embrace the opinion of Deane J in Kingswell which draws on
those very same intentions in order to support a reading of the words ‘trial on
indictment’ as requiring trial by jury for all ‘serious’ offences:
For Justice Kirby to remain faithful to the methodology of non-originalism he
cannot endorse the approach used by Deane J in Kingswell to argue that s 80
requires all ‘serious’ Commonwealth offences to be tried by jury. An alternative
basis for this argument must be proffered lest Justice Kirby concede that the
intentions of the founders are not only relevant but crucial to the construction of
233 Ibid 422-3. Justice Kirby has consistently warned of the perils of employing an originalist approach in both his judicial and extra-curial writings: for examples further to those discussed in the context of section 80 in this chapter, see particularly Re Wakim; Ex parte McNally (1999) 198 CLR 511, 599-600; Re the Governor, Goulburn Corrections Centre; Ex parte Eastman (1999) 200 CLR 322, 354-56; Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 522-25; Eastman v R (2000) 203 CLR 1, 79-80; and, most notably amongst his Honour’s numerous speeches and publications, Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’ (2000) 24 Melbourne University Law Review 1. 234 (1999) 200 CLR 386, 423.
386 s 80. That would be an untenable situation for one who eschews the relevance
and legitimacy of the founders’ intentions in constitutional interpretation.235
This is certainly an astute criticism but it seems fair to point out that the same tension lies at the heart of Deane J’s Kingswell opinion itself.236 The Court’s pre-Cole v
Whitfield237 denial of recourse to the Convention Debates simply means that it is not
so manifest. So while Deane J’s equation of ‘on indictment’ with ‘serious’ in
understanding those offences to which section 80’s guarantee applies does indeed
draw significantly upon historical evidence, at the same time his Honour is readily
dismissive of any use of the debates which might counter his determination to invest
the guarantee with substantive protective power. Indeed, this attitude underpins his
rejection of the majority opinion in Lowenstein:
Latham CJ also made an indirect reference to some pre-Federation views
expressed by Isaacs J, as a delegate to the 1898 Convention…Even if regard
could properly be had to such views expressed by a delegate in the course of
debate however, it could scarcely be assumed that they were shared by the
majority of the Convention which adopted the section.238
While there is a distinction between the material which Deane J draws upon to explain
the operation of section 80 on trials for serious offences and that which is found in the
debates about the purpose of the provision, it is clear that his Honour is also engaged
235 Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 141, 167. 236 Of course, after Kirby J, Deane is probably the High Court judge who has been least sympathetic to originalist constraints: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 171. 237 (1988) 165 CLR 360. 238 (1985) 159 CLR 264, 313.
387 in an exercise of originalism through trying to discover the framers’ understanding of
the character of an indictable offence. This inconsistency is replicated then by Kirby
J’s later acceptance of Deane J’s approach to section 80 whilst adopting a stance which is similarly dismissive of anything to be found in the debates.
The refusal to accept that the framers could have intended section 80 to operate at the direction, as it were, of Parliament, is a strong point of continuity among all these minority voices. The centrality of this factor to the dissent of Dixon and Evatt JJ in
Lowenstein has already been made apparent.239 Deane J’s incredulity on this, as
evidenced by the passage quoted above, was echoed in Re Colina when Kirby J said
that such an approach:
…truly would be the mockery of the Constitution which Mr Isaacs implied at
the Conventions, and always thereafter believed s 80 to entail. The fact that, in
the face of these suggestions, the section was adopted as part of the Constitution
negates an interpretation which would have such a consequence.240
It is interesting that both Deane J and Kirby J seem to be suggesting that Isaacs’
remarks made about the effect of section 80 at the Conventions – to which there is no
evidence of direct opposition – are discredited by the provision’s inclusion in the final
draft.241 While it cannot be simply assumed that all delegates entirely shared Isaacs’
opinion of the matter, nothing – indeed, I would submit, certainly not their agreement
to include section 80 after it had been discussed in such terms – indicates that they
239 See quote accompanying n 190. 240 (1999) 200 CLR 386, 423-4. 241 For a similar approach, see also Simpson and Wood, above n 185, 109-10; Williams, above n 179.
388 rejected it. The approach of their Honours is to take very considerable evidence of the
framers’ understanding of the provision and use it to support the contrary. This is, to
be blunt, too clever by half. It displays a reluctance to admit the occasional fallibility
of the framers in performing their task. Pannam has, by way of contrast, suggested
that we accept section 80’s presence in the Constitution simply as a result of
‘uncritical and seemingly senseless copying of inappropriate American precedent’.242
This is, though, difficult for many to swallow. The significant reliance upon precedent by majorities in section 80 cases over the years might be seen as a reflection of this.
Justice Callinan, however, was more revealing about his misgivings as to the section
80 orthodoxy when, in Re Colina, he said:
The intention of the framers so clearly expressed, the long history of summary
proceedings for contempt and the recent considered judgment of this Court in
Kingswell bring me to the conclusion that s 80 of the Constitution does not
require that the charge of contempt of the Family Court by scandalising it be
tried by jury, notwithstanding that I share some of the concerns expressed by
Dixon and Evatt JJ in Lowenstein and by Brennan J in Kingswell in the passage I
have quoted.243
242 See Pannam, above n 179. As shall be seen, Justice McHugh has offered an explanation for the section’s inclusion which also takes its cue from the American equivalent, but in a much more positive way than suggested by Pannam. On the general perception of the United States amongst delegates to the Constitutional Conventions, see Helen Irving, To Constitute a Nation (1999) 69- 72. 243 (1999) 200 CLR 386, 439. The significance of Justice Brennan’s dissent in Kingswell will be considered in the next section.
389 His Honour is not, however, at any risk of doing an about face and adding his name to
that of the line of dissenters on this issue. Although in Cheng v R,244 he said that it ‘is
impossible not to feel disquiet about a proposition that might leave it entirely for the
legislature to define what is, and what is not to be an offence charged on indictment, and its elements’, he made it clear that he was not open to persuasion that a different view was preferable. By the following year in Brownlee v R,245 there were to be no
more regrets, just an uncritical acceptance of the traditional approach.
The minor rumble of dissatisfaction from Callinan J is interesting, not because it was
ever too likely to have turned into a dissenting view, but because it further
demonstrates that the orthodox position, if it is ever to be totally free of doubt as to its
legitimacy, must find stronger grounds of support than precedent alone. From the
cases of the period under review, two majority judgments in particular are
distinguished by the attempt of their authors to dispel the disquiet over the apparent
oddity of the framers drafting a provision which was so deferential to the power of the
legislature. Both have done so by ascribing a purpose to the section which they say
has been fulfilled.
In Brown v R,246 Dawson J said that he thought the framers’ restriction of the right to trial by jury on indictment was to avoid the uncertainty of the American precursor,
Article III, s 2(3), which had required the Supreme Court to draw difficult distinctions between serious and minor offences so as to determine the availability of a jury.247
The use of indictment as an indicia of seriousness indubitably gives the
244 (2000) 203 CLR 248, 344. 245 (2001) 207 CLR 278, 341-2. 246 (1986) 160 CLR 171, 214-5. 247 Schick v United States 195 US 65 (1904).
390 Commonwealth the ability to grant or withhold trial by jury as it pleases, but Dawson
J points out that the Australian experience to date has not demonstrated any difficulty
arising as a result. Can it be that section 80 has, in fact, worked perfectly to plan?
There is, of course, difficulty in drawing a precise line between serious and less
serious offences, as the United States experience shows, but I do not think that
there has since Federation been any instance in a law of the Commonwealth of
obvious or deliberate disregard for the distinction in order to avoid trial by jury.
It does not much matter whether this is because of the presence of s. 80 itself or
because our criminal procedures and the occasions appropriate for their use are
so deeply ingrained that government may abuse them only at its peril. It means
that s. 80 is not without force and that there is no justification for departure from
the plain meaning of its words merely because theory rather than practice sees
weakness in the choice which it offers the Commonwealth in the mode of
prosecution to be adopted.248
The equating of ‘on indictment’ with ‘serious’ offences in the minds of the framers is,
as has been observed, something with which the minority judges have agreed. But
they have then sought to use this as a means of reading section 80 in a way which guarantees a jury, independently of the legislature’s judgment. Dawson J’s point is that the framers’ faith in Parliament was not misplaced and the section has operated to provide the intended protection, without any of the uncertainty experienced in the
United States.
248 (1986) 160 CLR 171, 215-6. This view seems to have been that which O’Connor had of the effect of the section: above n 183.
391 The other member of the Court in these cases who makes a principled defence of the
majority’s interpretation is Justice McHugh. In Cheng v R,249 the Court was invited to
reconsider Kingswell. While a majority of the bench chose to accept the earlier decision as authority on the ‘wider issue’250 of Parliament’s ability to determine which offences are to be tried on indictment and which are not, at least until a more suitable case came along,251 McHugh J saw fit to consider the arguments, perhaps in light of
Kirby J’s fresh addition just the year before to the Court’s dissenting voices on this
question.
Justice McHugh seems to take a less generous view of section 80 than Dawson J,
when he concedes not only that its literal meaning produces a ‘mere procedural
provision’252 but that this actually accords with its purpose. But, it is clear that the
difference is more one of style than substance. Despite the lack of any citation,
McHugh J’s general agreement with Dawson J’s opinion in Brown is evident from the
following passage:
When the section is read in the light of its United States counterpart, its drafts
and the discussion at the Constitution Conventions, it is plain that it took the
form that it did to avoid the mischief that would result if Parliament could not
determine which offences against the laws of the Commonwealth were to be
tried by juries. The words of s 80 were deliberately and carefully chosen to give
the Parliament the capacity to avoid trial by jury when it wished to do so. The
249 (2000) 203 CLR 248. 250 (2000) 203 CLR 248, 268 (Gleeson CJ, Gummow and Hayne JJ) 251 The objection to these facts as an agent for substantial re-interpretation of s 80 hinged particularly on the defendants having made guilty pleas so that there was ‘nothing for a jury to try’: ibid 268 (Gleeson CJ, Gummow and Hayne JJ). See Simpson and Wood’s criticism of this stance: above n 185, 104-5. 252 (2000) 203 CLR 248, 291. See Dawson J, above n 248.
392 current and traditional interpretation of s 80, therefore, gives effect to the
purpose of the section.253
McHugh J’s conclusion that section 80 is ‘not a great guarantee’ and remark that this
result is ‘unlikely to be acceptable to many civil libertarians’254 would probably be
viewed as overly pessimistic by Dawson J. But they are essentially agreed as to the
purpose behind the provision. It is important to appreciate that in arguing that it has
one, they reject the bleak futility of the Pannam view255 which has probably only encouraged the dissenting judges to actively attribute a function to the section which its words could not easily bear.
This brings us, ultimately, to the task of assessing the merit of the interpretation which the minority opinions would make in respect of section 80. In Cheng, McHugh J was keen to stress that reading the guarantee as applying to ‘serious’ offences (in all the various formulations which the judges have used to convey that basic idea) would leave the Court without any objective means of determining when the section was to operate and allow its individual members to follow their own instincts in that regard. I have said earlier that I think McHugh J rather overstates the level of disagreement between the dissenters on this score. The differences in language are not any more pronounced than the usual consequence of the Court speaking with several voices about the same idea. Both Deane J and Kirby J have, in any case, seen this complaint
coming and sought to give ‘seriousness’ a definite barometer in the form of a penalty of maximum imprisonment over one year.
253 Ibid 292. 254 Ibid 295. 255 Pannam, above n 179.
393 But McHugh J’s objection is logically anterior to, and thus not answered by, the use of the jail term in this way. That threshold only has importance as a means of deciding with certainty when an offence is ‘serious’. But where does that qualification enter into understanding section 80 at all? The framers chose a different, more precise, indicia with the purpose of giving Parliament the final say.256 However, once a dissenting judge has dismissed those intentions, the section, as we have seen, becomes something into which he tries to pour meaning. This is strongly apparent in the justification offered by Kirby J in Re Colina:
…to the criticism that the introduction of a criterion of liability to imprisonment
or to imprisonment for a term of more than one year involves introduction into s
80 of the Constitution of conditions not expressed in the text, there is a simple
answer. It is often the case that this Court must elaborate and explain the
application of a disputed constitutional provision. In the United States, there is a
developed jurisprudence on the instances of “petty” crimes to which Art III, s 2
of the Sixth Amendment does not apply.
Every legal system must draw “nice distinctions” and, as a consequence, accept
“borderline cases”. So long as these are defined by reference to an “intelligible
principle” they escape justifiable criticism. The criterion proposed by Deane J in
Kingswell is no different, in principle, from the developed case law in the United
States.257
256 See text accompanying nn 183-6. 257 (1999) 200 CLR 386, 426-7.
394 With respect, this passage fails to convince. Firstly, the argument that the text of
section 80 requires augmentation due to its status as a ‘disputed constitutional provision’ is a wholly circular one. It suggests that the existence of persistent dissent itself means that a provision which is otherwise regarded as perfectly clear must be teased out for further nuance – even though to do so would obviously offend the majority position that simply no further qualification or extrapolation is required or
indeed permissible. Secondly, the parallel to the United States provision ignores the very cogent arguments of Dawson J in Brown and McHugh J later in Cheng that the
Australian version was consciously designed in order to avoid the very problem of having to draw ‘nice distinctions’, which the Americans had experienced. The framers’ intended that which the text reflects – Parliament is given unchecked power to decide which offences will be tried by jury. There is simply no need for the Court to play the role which Kirby J insists it must.
Meagher has assessed Kirby J’s opinion in Re Colina in the harshest terms, though
there is no reason why the criticism cannot be generally extended to all dissentients on this issue:
…‘trial on indictment’ cannot be interpreted to mandate that all ‘serious’
Commonwealth offences must be tried by jury. Such an interpretation smuggles
the word ‘serious’ into the text of s 80 and permits the court to define what
offences fit this category. Justice Kirby has failed to heed his own warning –
that a non-originalist reading of the Constitution is permissible only ‘so far as
the words and structure permit’. By disregarding the text of s 80 he has crossed
395 the line that separates legitimate constitutional interpretation from constitutional
amendment.258
McHugh J made a very similar comment, albeit not specifically directed to Justice
Kirby, in Cheng v R.259 His Honour’s judgment in that case argues persuasively that when ‘one looks at text, history or purpose, the answer is the same: the approach to
the construction of s 80 accepted by the majority in Kingswell and…in earlier cases is
correct’.260 A desire, despite the synthesis of these considerations, to confer upon the
provision a more independent operation is, as Callinan J admitted, appealing. But, it
cannot withstand the objections that to do so requires an illegitimate exercise of
judicial power.
The binary nature of the Court’s approach to the central question of section 80’s impact upon the legislature has been mirrored in many of the more ancillary, yet still important, issues surrounding its operation. Two of the most significant of these are now considered.
3 Meaning of “offence”
Over the set of section 80 cases falling within the period under study, two consider the same legislative provisions and involve the Court in examining Parliament’s control over the definition of an offence for the purpose of providing trial by jury. The cases are Kingswell v R and Cheng v R and the legislation under review in each were sections 233B(1) and 235 of the Customs Act 1901 (Cth). Under the former provision
it was an offence to be knowingly concerned in the importation of narcotic goods into
258 Meagher, above n 235, 167. 259 (2000) 203 CLR 248, 291. 260 Ibid 295.
396 Australia and a person found guilty of that crime was to be punished in accordance
with section 235. That section provided for varying degrees of maximum punishment
dependant upon the Court (meaning the judge alone) being satisfied of particular additional facts, for example, the quantity of narcotics involved. The objection which was raised was that the legislature could not leave various factual matters out of the definition of a particular offence, but then confer upon the judge an ability to decide upon those facts with a view to imposition of a stronger sentence.261 Instead, section
80 required that all factual elements of an offence to be tried on indictment should be
determined by the jury not the judge.
That challenge failed in both cases, but not without significant dissents. In Kingswell,
this objection to the legislation was the basis for Justice Brennan’s dissent, rather than any agreement on behalf of his Honour with the views of Justice Deane on the scope of section 80 generally.262 Justice Brennan’s opinion on the meaning of ‘offence’ was
made clear when he said:
…I construe s 80 as prohibiting the Parliament from withdrawing issues of fact
on which liability to a criminal penalty or to a particular maximum penalty
depends from the jury’s determination when any offence against a law of the
Commonwealth is tried on indictment. If the Parliament creates what are distinct
offences for the purpose of s 80, the Parliament cannot divide the offences into
elements to be tried by the jury and elements to be tried by the judge and, by
calling the former elements the “offence”, cast aside the constraints of the
261 It should be made clear that the argument sought to draw a distinction between the legislature’s approach here in specifying the impact of particular aggravating facts upon the penalty which the judge may impose and the use of general discretion to consider factual circumstances of the case when sentencing. 262 Brennan J clearly sided with the orthodox view on that question: (1985) 159 CLR 264, 293.
397 Constitution as to the mode of trial of the latter elements. The Parliament cannot
treat facts on the existence of which liability to different maximum penalties
depends as though they are not elements of an offence and withdraw from jury
determination the issue of their existence.263
Justice Deane took a similar stance, agreeing that a number of different offences were effectively recognised by the provisions and that the failure to provide jury determination of all factual questions for those offences failed to meet the constitutional requirement that they be tried on indictment.264
Although this issue is separate from the wider one of section 80’s inability to dictate to Parliament which offences are to be tried on indictment, it was clear that there is a degree of interrelationship between the two questions. This was made evident by the majority’s rejection of the challenge on the ground that to uphold it would be futile as the general interpretation of section 80 enables the Commonwealth to avoid any restrictive consequences in any case:
The fact that s.80 has been given an interpretation which deprives it of much
substantial effect provides a reason for refusing to import into the section
restrictions on the legislative power which it does not express…To understand
s.80 as requiring the Parliament to include in the definition of any offence any
factual ingredient which would have the effect of increasing the maximum
punishment to which the offender would be liable would serve no useful
constitutional purpose; indeed the Parliament might feel obliged to provide that
263 Ibid 294-5. 264 Ibid 320-2.
398 some offences, which would otherwise be made indictable, should be triable
summarily.265
While we would expect Justice Deane to be dismissive of this approach in its entirety,
Justice Brennan’s support for the Archdall interpretation of the section means his
Honour’s rejection of it is more intriguing. Even though he concurs with the majority
as to the general flexibility of the legislature’s compliance with section 80, his Honour
is steadfast in his insistence that, within the limits of the section’s operation, the
constitutional requirements must be met – once an offence against the law of the
Commonwealth is expressed to be tried on indictment then trial by jury of all factual elements is necessary.266
Before turning once more to the case of Cheng v R in which the Gleeson Court was invited to overrule the specific result in Kingswell, it is important to note the swift follow up to the latter case by the Court’s decision the following year in R v
Meaton.267 Three members of the majority in Kingswell had proposed, as a matter of
practice, the inclusion in the indictment of any aggravating circumstances being relied
upon by the prosecution to secure a higher penalty, enabling them to be considered by
the jury.268 Gibbs CJ, Wilson and Dawson JJ were keen to point out that this course
was not mandatory and failure to observe it would not suggest a miscarriage of justice
where the aggravating facts were not in dispute. But, by implication, it would be
possible to argue such a miscarriage when a judge alone applied section 235 of the
265 Ibid 276-7 (Gibbs CJ, Wilson and Dawson JJ, with Mason J concurring). 266 Ibid 295-6. 267 (1986) 160 CLR 359. Meaton is not a constitutional matter as it involves no direct appeal to section 80. It does, however, obviously develop the ideas discussed in Kingswell. 268 (1985) 159 CLR 264, 280 (Gibbs CJ, Wilson and Dawson JJ).
399 Customs Act to impose a sentence due to the presence of an aggravating fact, the
existence of which was denied by the accused.
Although the other member of the majority, Justice Mason, strongly disagreed with
this part of their Honours judgment, it was subsequently endorsed by those same three
judges as a clear majority in R v Meaton.269 The dissenters in that case were, once
again, Brennan and Deane JJ. Their Honours did not waste the opportunity to point
out that, whether the practice was to be applied only when the aggravating
circumstances were in dispute or simply in all cases, its adoption only seemed to
confirm their opinion in Kingswell that the aggravating factors were a substantial part of the offence for which the accused was charged. It is worth quoting the dissent at some length as it demonstrates a determination to hold the majority to their earlier rejection of the minority reasoning in Kingswell – even at the expense of achieving the practical result which that reasoning had advocated!
The dichotomy between the majority and minority views in Kingswell is
complete: either the s.235 matters are to be viewed as a matter of substance as
elements of an offence (the minority view) or they are not (the majority view). If
the s.235 matters are merely relevant to the sentencing of an offender – “ the
class of matters commonly dealt with by trial judges exercising a sentencing
discretion”, as Mason J held them to be – and need not be charged in the
indictment or found by the jury if not admitted by plea, the sentencing power
conferred by pars (c) and (d) of s.235 does not and cannot be made to depend
upon the jury’s satisfaction of the existence of s.235 matters. If the judge is
269 Ibid 282-5.
400 satisfied of the existence of the relevant s.235 matters and imposes a sentence in
accordance with sentencing principles, the sentence is validly imposed. We are
respectfully unable to agree that a sentence within the range of the statutory
discretion and imposed in accordance with sentencing principles can be set aside
for miscarriage of justice – a miscarriage consisting merely in a failure to follow
a practice of variable application.
To insist on the practice would be tantamount to amending the statute so that the
jury would be charged with the responsibility of finding all the issues under
s.233B (1) and s.235 (2)(c) and (d). If that had been the intention of the
legislature, there would have been no question in Kingswell of disconformity
between those provisions and the requirements of s.80 of the Constitution. To
prescribe the practice by judicial decision is to bring the statute into conformity
with what the minority in Kingswell held s.80 to require. Although we were the
minority, we are bound by the authority of Kingswell so long as it stands, and
we are unable to concur in a practice which is inconsistent with the principle for
which that case is an authority.270
In spite of the logic of this argument, the practice favoured by Gibbs CJ, Wilson and
Dawson JJ was to prove an integral factor in defending their Kingswell interpretation of “offence” when litigants unsuccessfully sought to challenge the validity of the same provisions of the Customs Act fifteen years later in Cheng v R.271 The joint judgment of Gleeson CJ, Gummow and Hayne JJ in that case simply declined to
270 (1986) 160 CLR 359, 368-9. 271 (2000) 203 CLR 248. Given that Kingswell withstood the attack launched in Cheng (6:1), it may seem surprising that the High Court granted special leave. The fact that two of the three Justices – Gaudron and Kirby – who granted leave were to endorse the Brennan dissent in Kingswell goes some way to providing an explanation.
401 reconsider the earlier decision.272 In addition to their Honours’ general reasons for
maintaining Kingswell as considered earlier,273 on the specific question of the
acceptability of excluding aggravating factors from the statutory definition of an
offence, they pointed to the fact that the practice endorsed by majority in R v Meaton
had been generally adopted after that decision. It had been followed in relation to
these offences and as the applicants had pleaded guilty and the aggravating fact was
not disputed, the absence of a jury was not a miscarriage of justice warranting the
setting aside of the verdict.274 Indeed, so long as the practice of including aggravating
facts on the indictment was continued, the proper occasion to consider these questions
was ‘unlikely to arise’.275 Although expressing ‘disquiet’ over the legislature’s unfettered ability to not just classify offences as indictable or not, but also the specific
elements of those offences, Justice Callinan agreed with the joint judgment that the
‘apparently satisfactory’ operation of the practice prescribed by Meaton seemed to
allay any unease in this regard.
The comfort taken by the joint judgment in this practice as a means of removing any
further cause for doubt as to the constitutional validity of the legislative scheme may
be contrasted with Brennan J’s insistence in Kingswell that section 80 requires the
legislature to provide trial by jury for all elements of an offence to be tried on
indictment. The fact that this will occur as a matter of practice when those elements
are disputed is, on this view, simply no answer to the constitutional directive. In
Cheng, that response is taken up by Justice Kirby whose objection that the statutory
272 Ibid 268. 273 Chiefly, factors of precedent, reliance thereupon and their Honours’ opinion of the purpose of the section as revealed by the Convention Debates. 274 For a solid condemnation of this reasoning in respect of the applicants’ guilty pleas, see Simpson and Wood, above n 185, 105. 275 (2000) 203 CLR 248, 268.
402 scheme of sections 233B(1) and 235 is ‘a bifurcation of the “offence”, for
constitutional purposes, which was not permitted to the Parliament’,276 keeps the
focus squarely on the terms of the Act.
As to the substantive issue of whether separation of the aggravating circumstances from the definition of the offence and their determination by judge alone is to in fact create a number of offences which are not tried by jury, Justice McHugh was the only member of the majority who ventured beyond the practical solution afforded by
Meaton so as to consider the merits of the divide in Kingswell. His Honour was very clear in his endorsement of the holding of that case, saying:
It cannot be right to think that the offenders have committed different offences
merely because the presence of some factor has made one offender liable to a
greater punishment than the other offender. What difference can it make that,
instead of leaving punishment to the discretion of the judge, the legislature has
said that, if the law is breached in particular circumstances, the offender should
receive, or is liable to receive, a greater punishment?...If the legislature has
made the breach of a law the “offence” and indicated that, while an aggravating
feature calls for a heavier sentence, it is not part of the offence, that is the end of
the matter. Nothing in the notion of “offence” requires the aggravating feature to
be regarded as an element of the offence for the purpose of s 80 or otherwise. In
my opinion, Kingswell was rightly decided on this point.277
276 Ibid 327-8. 277 Ibid 301.
403 Justices Gaudron and Kirby mounted a defence of the principles underlying the
Brennan dissent, and both expressly approved the earlier opinion from Kingswell, with Gaudron J saying that, ‘s 80 operates to deny the power to create a single offence with a range of different maximum penalties varying according to the circumstances of its commission which, if disputed, are to be determined by a judge and not the jury’.278 However, her Honour’s agreement was mitigated by her construction of
sections 233B(1) and 235 as creating a number of distinct offences in combination rather than simply one offence to which a range of different penalties may be applied depending upon the finding of additional facts. On this basis, she did not think the legislation infringed section 80 and she delivered an opinion concurring in the Court’s orders.279 Justice Kirby, on the other hand, took a view of the legislation identical to
that of Justice Brennan’s and, with additional support from American authorities,
called for the earlier dissent to be adopted as correct.
The following year, in the case of Cheung v R,280 the applicant challenged the ability
of a judge to determine factual questions at the time of sentencing which were left
unresolved by the jury in their determination of guilt (eg. the extent and duration of
the accused’s knowledge of the behaviour giving rise to the offence). This was easily
distinguishable from the structured legislative scheme considered in the two earlier
decisions.281 Given the Court’s approval of that scheme, success in attacking the more traditional process in Cheung must surely have been far from likely. The argument
278 Ibid 282-3. 279 Ibid 283-4. This was an interpretation of the provisions not shared by any of the other judges in this case or Kingswell. Additionally, her Honour was of the opinion that the applicants’ failure to dispute the specific aggravating fact (quantity of heroin imported) meant that their convictions involved no substantial miscarriage of justice. 280 (2001) 209 CLR 1. 281 Ibid 24-5 (Gleeson CJ, Gummow and Hayne JJ, with Gaudron J and Callinan J concurring); 43 (Kirby J).
404 was clearly ill-fated and met with the approval of no member of the Court. In his
concurring opinion, however, Justice Kirby saw fit to confirm his adherence to the
views he expressed in Cheng about legislative attempts to limit the elements of an
offence.282
It is hard to envisage that the High Court will return once more to these provisions of
the Customs Act in the foreseeable future. Even if the question was to arise in a new
context, there seems ample support between the majorities in Kingswell and Cheng
for the possession by the legislature of the flexibility to define the elements of an
offence so as to limit the operation of section 80 with respect to the finding of
particular facts. The minority opinion of Justice Brennan, although supported by
Justices Deane, Gaudron and Kirby, and regardless of its considerable appeal, has
probably had its only chance for redemption.
4 Waiver
In Brown v R,283 the High Court considered whether an accused could apply to
dispense with the provision of a jury for trial of a federal offence on indictment. A 3:2
majority decided that waiver was not possible under section 80. The majority was
comprised, interestingly, of Justices who took a fundamentally different view of the
constitutional provision. Both Justices Brennan and Dawson had made it clear in
Kingswell that they were comfortable with the ‘procedural’284 nature of section 80’s guarantee under the Archdall interpretation while Justice Deane, the third member of the majority, had argued for reinterpretation of the provision as a strong instrument of
282 (2001) 209 CLR 1, 41. 283 (1986) 160 CLR 171. 284 Spratt v Hermes (1965) 114 CLR 226, 244.
405 rights protection. How could the holders of those diametrically opposed views be
agreed that the section was not to be waived?
Apart from the fairly unequivocal nature of the command in section 80 that there
‘shall’ be a trial by jury whenever there is an indictment,285 all three of the majority saw section 80 as being about more than the personal right of any individual accused
– the issue over which their earlier differences lay. In discussing the broader role which section 80 fulfilled, their Honours focussed upon the provision as it related to
‘the constitution or organization’ of the federal courts themselves.286 Having argued
unsuccessfully for greater strength in the provision as a source of individual freedom
in Kingswell, Justice Deane had a particular onus in explaining why he was now not
prepared to see an individual choose whether or not to avail himself or herself of the
protection his Honour believed was found there:
It is true that the peremptory prescription of trial by jury as the method of trial
on indictment of any offence against any law of the Commonwealth represents
an important constitutional guarantee against the arbitrary determination of guilt
or innocence. That constitutional guarantee is, however, for the benefit of the
community as a whole as well as for the benefit of the particular accused…It
suffices to say that the advantages of trial by jury to the community generally
serve to reinforce what the plain words of the Constitution convey, namely, that
the general prescription of trial by jury as the method of trial on indictment of
any offence against any law of the Commonwealth constitutes an element of the
285 (1986) 160 CLR 171, 196 (Brennan J); 201 (Deane J); 208 (Dawson J). 286 Ibid 199 (Brennan J). Justice Dawson, at 214, argued that ‘the ultimate scope of s. 80… is not limited to individual privilege. The privilege which it does confer is contained within the wider prescription of trial by jury in all prosecutions upon indictment’.
406 structure of government and distribution of judicial power which were adopted
by, and for the benefit of, the people of the federation as a whole. To construe
the fundamental law of s. 80 as involving no more than the mere conferral of a
privilege would be to distort the whole by confining attention to a single
aspect.287
Chief Justice Gibbs and Justice Wilson dissented in Brown after applying American
authorities by analogy which members of the majority had dismissed.288 Their
Honours took, essentially, a directly contrary view of section 80, choosing to stress the importance of it as a guarantee for the individual over any broader community benefit to be gained through an insistence upon trial by jury for federal indictable offences.289 Gibbs CJ went so far as to say that ‘the provision was inserted for the
benefit of the accused’.290 This stance seems extremely difficult to reconcile with their
Honours’ opinions as members of the Kingswell majority which gave such short shrift
to arguments that section 80 should be interpreted as a guarantee of substance. The
Chief Justice, however, attempted to further justify his opinion that an accused could
waive section 80 by saying that, as a result:
It would give a most capricious operation to s. 80 if it were held that that section
requires the trial to be by jury only when the prosecution in fact proceeds on
indictment but nevertheless forces the accused person to accept trial by jury,
287 Ibid 201-2. 288 Most notably Patton v United States 281 US 276 (1930) and Singer v United States 380 US 24 (1965). 289 A passage which clearly demonstrates this is found at (1986) 160 CLR 171, 192-3 (Wilson J). 290 (1986) 160 CLR 171, 182.
407 notwithstanding that there exists an alternative procedure which the accused
would prefer to adopt.291
It is difficult to make much of this approach given that it is but an instance, one might suggest, of the generally capricious – but, as we saw earlier, not necessarily unintended or illegitimate – effect of section 80. Additionally, the dissenters in Brown had little success in overcoming the textual hurdles to their position; nor did they adequately respond to the majority’s insistence upon placing section 80 in the context of a constitutional chapter concerned with the federal judicature.
So long as the orthodox interpretation of section 80 holds – and there is little indication that it will not – the question of waiver must be seen as similarly settled.
The view of the provision as one which ultimately privileges the legislature’s decision as to the classification of offences in which trial is to be by jury, would be at odds with a subsidiary opinion allowing the accused to unilaterally opt for trial by judge alone. Continued recognition that the section does not necessarily benefit the accused but exists to fulfil a broader interest is an important component in the preservation of the status quo in this respect.292
This would explain the very lukewarm treatment accorded the question of waiver in subsequent cases. Only Justice Kirby, in his concurring opinion in Brownlee v R293 has expressed any enthusiasm for the minority position in Brown. His Honour’s judgment on this point displays much of the inconsistency and incompleteness of reasoning which marked those earlier dissents. In expressly endorsing Gibbs CJ’s comments, Kirby J argues that ‘if s 80 of the Constitution can so easily be avoided or
291 Ibid. 292 See Cheng v R (2000) 203 CLR 248, 298-9 (McHugh J). 293 (2001) 207 CLR 278, 319-20.
408 confined, to the disadvantage of the accused, it is hardly convincing, in the matter of informed waiver, to force the mode of trial provided in the section on the accused, contrary to that accused’s interests and desires’.294 But this argument continues to fail to impress because it assumes that the legislature’s flexibility in respect of section 80 demands a corresponding freedom on behalf of the individual accused when there is little indication as to why that should be so. Not even Justice Deane – among the staunchest advocates for an interpretation of the provision which tied the hands of
Parliament through finding a substantive guarantee – thought that the possibility of individual waiver accorded with the section’s purpose. Although Stellios, in support of Justice Kirby, has argued that ‘the framework for the consideration of the compatibility between a law and s 80 has now developed’ beyond that employed in
Brown,295 it is doubtful whether the recent caselaw concerned with identifying the
‘essential characteristics’ of a jury is of much significance in the specific context of whether the accused can dispense with trial by that body.296
In the last of the section 80 decisions in this study, Cheung v R,297 Justice Kirby accepted, ‘for the time being’, the authority of Brown. The decision by the other members of the Court in Brownlee to leave the earlier authority intact without reconsideration appears to have sent a clear message that further dissent on the question of waiver will be in vain.
294 Ibid 318-9. 295 James Stellios, ‘Brownlee v The Queen: Method in the Madness’ (2001) 29 Federal Law Review 319, 338. 296 The remarks by Justice McHugh in Cheng v R on the specific significance of the key cases of the 1990s are pertinent here: (2000) 203 CLR 248, 305-6. 297 (2001) 209 CLR 1, 37.
409 5 Conclusion
The picture painted above with respect to the High Court’s interpretation of section 80
is, perhaps, a little bleaker than the reality. It is important to realise that although a
majority of the Court has, despite steady dissent, unwaveringly maintained a view of
the provision that enables the legislature to determine which offences – and indeed,
which elements of offences – will attract trial by jury, the Court as a whole has been
far more restrictive of any legislative ability to define the concept of a ‘jury’ itself. A
majority of the Court has insisted that any jury required by section 80 must conform
with the essential characteristics of such a body existing at the time of the
Constitution’s acceptance in 1900.298 Justice Kirby, on the other hand, in rejecting
that approach generally as ‘ancestor worship’,299 has sought to contain Parliament’s power in this regard through discovering the essential characteristics of the jury according to contemporary standards.300 Although some dissatisfaction has been
voiced over either methodology’s fixation on ‘essential characteristics’,301 Williams is
correct in his assessment that the decisions of the Court which constitutionalise
aspects of trial by jury have finally seen s 80 invested with the ability to restrain
governmental power.302
298 Cheatle v R (1993) 177 CLR 541; Katsuno v R (1999) 199 CLR 40; Brownlee v R (2001) 207 CLR 278. 299 See Kirby, above n 233. 300 This is most fully discussed by his Honour in Brownlee v R (2001) 207 CLR 278, 320-7. 301 James McConvill and Martin Joy, ‘Approaching Constitutional Trial by Jury: Brownlee v The Queen’ (2001) 6 Deakin Law Review 344, 355 and 357; Bradley M Selway, ‘Anthony John Brownlee and Section 80’ (2002) 13 Public Law Review 7, 9. 302 Williams, above n 179, 108-10. Although there is some logic in the argument of McConvill and Joy, above n 301, 358, that the result in Brownlee is a ‘further diminution of s 80 as a constitutional right to trial by jury’, it must be accepted that the strain of authority from Cheatle onwards in this respect is consistent in its core principle that the concept of the ‘jury’ is for the Court’s interpretation rather than the legislature’s. That approach must, overall, invest the provision with greater strength than would otherwise be the case.
410 Not only, therefore, does section 80 pose a real constraint so far as the rules governing the composition and practices of the jury are concerned, but this is something about which the Court is basically in agreement. There has been no opinion delivered arguing that Parliament is completely free to determine for itself the nature of the
‘jury’ it is required to provide for trials on indictment. Behind that broad consensus, however, exists a very clear division of opinion amongst the Court as to how it is to determine the meaning of that word. This debate though is really just part of a much larger one as to the strengths and weaknesses of different means of constitutional interpretation – section 80 is but one of the lists in which are joined knights defending their preferred methodology.303 Ironically, that divide need not translate through so as to produce disagreement on the factual result of a case304 – indeed in none of the cases included in this study were the members of the Court in disagreement over which characteristics of a jury were essential and which were not. It is for these reasons that this aspect of the jurisprudence surrounding section 80 was not singled out for specific commentary.
303 Brownlee is probably the most significant example of this, but Justice McHugh’s judgment in Cheng as a response to that of Justice Kirby in Re Colina (not over the meaning of ‘jury’, but rather the central question of section 80’s purpose) is also underpinned by the different approaches of each. For further instances of Justice Kirby’s judicial statements on methodology, see above n 233. For a thorough statement by Justice McHugh of his approach, see Eastman v R (2000) 203 CLR 1, 41-51. As to leading comment on the wider debate, see generally, Greg Craven, ‘Heresy as Orthodoxy: Were the Founders Progressivists?’ (2003) 31 Federal Law Review 87; Jeremy Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1; Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677; Meagher, above n 235, and Bradley M Selway, ‘Methodologies of constitutional interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234. 304 That the two approaches often produce the same result has been noted: Graeme Hill, “Originalist’ vs ‘Progressive’ interpretations of the Constitution : does it matter?’ (2000) 11 Public Law Review 159.
411 Returning to those areas of section 80’s guarantee of trial by jury which were tracked for specific disagreement, it is necessary to reflect upon the role which minority
opinions have played. In 1997, Coper said that:
There is a long history of respectable dissent in favour of the broader view of
this guarantee, from the powerful combination of two divergent legal minds in
Dixon and Evatt through to the modern-day agitators, Murphy and Deane. I
suspect that in this area, today’s heterodoxy will become tomorrow’s
orthodoxy.305
Given the latest manifestation of this debate on the Court, this prediction may need
reassessment. Certainly, the poorly elucidated reasoning underlying the orthodox
view from Archdall and related cases such as Bernasconi has merely served to fuel
dissents from that approach.306 Although Kirby J has continued that tradition of dissent on the question of the strength of section 80, the majority view has now
though, through McHugh J’s contribution in the most recent round of the debate, been
stated in a way which, perhaps for the first time, responds to the fundamental source
of dissatisfaction by asserting a clear purpose to the text as it appears.307 The fact that,
on this occasion, the Court was able to freely consider the evidence of the Convention debates as an aid to understanding the provision, has only provided strength to
McHugh J’s riposte. A professed aversion to originalist methods is no response to this
305 Coper, above n 6. 306 Grant Webster, ‘Trial by Jury? Re Colina; Ex parte Torney’ (2000) 5 Deakin Law Review 217, 24; Williams, above n 179, 107. 307 In doing so, McHugh J’s judgment in Cheng overcomes the criticism attracted by the majority’s refusal to be drawn on the issue in Re Colina which had led at least one commentator to suggest that future judges would follow in the wake of Kirby J’s dissent in the latter case: Webster, above n 306, 224 and 228.
412 interpretation, as Meagher has shown, since the text itself so evidently routs any
reading to the contrary.308
Given the frequency with which the Gleeson Court has revisited the area, redemption of the dissenting judgments on the central question of section 80’s operation appears unlikely at any point in the future, despite Justice Kirby’s confidence that this will
‘eventually’ occur.309 Has the chain of dissent from Dixon and Evatt JJ through to
Kirby J simply been nothing more than a procession of wishful, yet futile, opinions?
Unlike the redeemed dissents considered in Chapter Five and the judgments examined
in respect of the implied freedom of political communication, the minority opinions in
the section 80 cases offer little, if anything, to the Court’s direct development of the
law. Rather, in a way we more commonly perceive dissent to operate, those
judgments stand outside the mainstream and voice opposition to it.
However, it would be a mistake to assume that the minority opinions have brought
little benefit to the High Court’s interpretation of section 80. As stressed in Chapter
Two, regardless of their chance of eventual majority acceptance, dissents fulfil a
valuable service in demanding better-reasoned judgments from the majority. This is
strikingly illustrated in the present context. The strength of the orthodox position has,
it is fairly clear to see, been improved upon remarkably since the terse, self-satisfied
opinions of the Archdall decision were delivered in the absence of any contrary view.
Although the Lowenstein dissent of Dixon and Evatt JJ failed to spur the rest of the
Court to produce a more compelling case for its approach, it did stand to ensure a
sense of lingering disquiet with the basis of the traditional position. The failure of the
308 See quote accompanying n 258. 309 Cheung v R (2001) 209 CLR 1, 38.
413 Barwick Court to overcome this on those occasions when it turned to section 80 was
emphasised by Justice Murphy’s appeal to that earlier opinion. Similarly, in
Kingswell, the majority’s reliance on precedential grounds made for a poor contrast to
the arguments of Justice Deane in dissent. Indeed, his Honour seized upon the fact
that the Lowenstein dissent ‘remains unanswered’.310 Due to later majority opinions,
that has not been a line which Justice Kirby is able to deliver with the same
conviction.
The two majority opinions (Dawson J in Brown v R and McHugh J in Cheng v R)
which I have submitted as presenting by far the strongest case for the Court’s
interpretation of section 80 are those which most directly seek to respond to the
arguments of the dissentients. This should not be a surprise. An opinion which responds to and refutes – rather than simply dismisses – the claims of those who disagree is bound to be more convincing. Of course, as Kadzielski and Kunda pointed out, strengthening the majority position in this way is hardly a motivation for the dissenting judge,311 but that is not to the point. Those proposing an alternative approach must make a case for it – even when, somewhat unfairly, the majority has simply asserted their view without much exposition. If in doing so, the dissenter’s arguments serve as ammunition which provokes from members of the majority a more vigorous and compelling set of reasons for their stance then that is all to the good. In acting in this way the Court is engaging in protracted and public deliberation. The result of this kind of productive use of disagreement amongst the Court’s members is to provide the community with decisions based upon transparently stronger reasoning.
The dissenters in these cases – from Dixon and Evatt JJ through to Kirby J – have
310 (1985) 159 CLR 264, 318. 311 Mark A Kadzielski and Robert C Kunda, ‘The Unmaking of Judicial Consensus in the 1930’s: An Historical Analysis’ (1983) 15 University of West Los Angeles Law Review 43, 55.
414 fulfilled an important role in extracting a more principled and convincing explanation
of the traditional interpretation from its adherents. A minority opinion which has not
been ignored cannot be said to have been of no effect upon the law.
V CONCLUSION
The two case studies considered in this chapter have demonstrated quite different fates for the minority opinions delivered in each. In the cases concerned with the High
Court’s development of a constitutionally implied freedom of political communication, minority judgments played an important, and lasting, role in that process. The sense of flux which imbues many of those decisions was enhanced by significant changes in the Court’s composition over the course of their delivery.
Those departures and arrivals, in addition to the malleability of the topic as new and
unexplored territory, also undoubtedly assisted in securing the fortune of several
opinions which began in isolation from majority support. Recognition that the unanimity in Lange v Australian Broadcasting Corporation masked latent
disagreement over a range of issues is not to discredit it in any way. In its wake,
diversity of opinion has once more sprung up which is both to be expected and, in
light of the history of the area, perhaps cautiously welcomed. The implied freedom
owes its present form to the clash of adverse opinions – it is only natural that its
further development will be similarly marked. While Justice Callinan has expressed a
degree of dread over what lies ahead if the Court perseveres with the freedom,312 the lesson from the cases considered here is that disagreement is a necessary preliminary
to (even a degree of) clarity. It is also important to acknowledge that the minority opinions exercised a powerful restraining influence upon the development of the law.
312 Roberts v Bass (2002) 212 CLR 1, 102.
415 In their incorporation of those views in the Lange consensus, the Brennan Court
attempted to ensure that future debates will at least take place within narrower parameters and thus produce less uncertainty.
The immediate contrast between the implied freedom cases and those dealing with
section 80 could not be much more pronounced. In the latter group of decisions, the
Court has, over this period, continued a debate about the role of the provision which
already had a lively history. The minority opinions in this area have enjoyed none of
the success in influencing a change in the Court’s institutional position which they
have so ardently advocated. Instead, there is simply a long line of decisions
containing what Primus would call the canon and anti-canon of section 80’s
interpretation.313 The canon – the orthodoxy from Archdall – has remained
impervious to the blows which judges as diverse as Dixon, Evatt, Murphy, Deane and
Kirby JJ have sought to inflict. The Court is simply not for turning. Infuriatingly for
those individuals, the traditional approach was supported by an example of some of
the weakest reasoning ever offered by the Court to justify an interpretation of the
Constitution.314 That deficiency, I would submit, has now been overcome through the
opinion delivered by Justice McHugh in Cheng v R. It may well staunch the flow of
dissent which has marked the Court’s involvement with the Constitution’s guarantee
of trial by jury.
But, as was said at the conclusion to the discussion of the section 80 cases, this is not
to say that the dissents in that area have been worthless. While the interpretation they have promoted has consistently found little favour with the Court’s members, they
313 Above, n 211. 314 To my mind, the winner in a contest of this sort must, however, be the explanation of section 96 found in Victoria v The Commonwealth (The Federal Roads Case) (1926) 38 CLR 399.
416 have demanded more of the majority and ultimately met with some success in obtaining it. Justice McHugh’s opinion in Cheng is an important development in obtaining a more appropriate understanding of section 80 and it is very clear from its own words that the catalyst for its production were the stream of opinions, up to that of Justice Kirby’s dissent in the preceding case of Re Colina, which rejected the status quo.
In both case studies then, can it be fairly said that the minority have made an important contribution. In the implied freedom decisions, the minority opinions urged a more restrained approach and much of their reasoning succeeded in capturing majority support so as to directly impact upon the shape of the law. The dissents in respect of section 80 have, by comparison, argued for a more expansive view of its role in the protection of rights than the rest of the Court has been prepared to concede.
Despite the persistence with which that minority position has been stated, the Court has never embraced any dissenting opinion on any aspect of section 80’s interpretation. The regularity of those expressions of dissatisfaction with the orthodox approach to the guarantee has, however, ensured that members of the majority must provide more compelling reasons for its continued acceptance. Despite the several distinctions which may be drawn between these two case studies, the feature common to both is that the minority have played a vital role in exposing deficiencies in majority reasoning. This may lead to the latter’s collapse and supplantation by those earlier dissenting views or it may produce a more robust and principled statement of the Court’s traditional position. In either case, and regardless of more specific misgivings we might have about their respective interpretations, it is impossible to say that either of the areas examined here would be in a more satisfactory state had the
417 Court not heard the voices of dissent which have challenged and stimulated the law’s development.
418 CHAPTER SEVEN
CONCLUSION
This thesis has sought to determine the value brought to the High Court’s constitutional law jurisprudence by dissenting opinions. The inquiry was prompted by the not infrequent declaration by members of the Court that their view is correct and that it will ultimately prevail over a present majority’s erroneous interpretation. Far from being a recent phenomenon, an appeal to the future wisdom of the Court is one of its older traditions – stretching from current adherents such as Justices Kirby and
Callinan all the way back to Justices Isaacs and Higgins – embraced at various times across its history. The fact that other members of the High Court have not adopted such an approach but have more willingly surrendered their individualism to the institutional position only sharpens the need to discover more. Of the two paths before a Justice who is opposed to the majority of his or her colleagues, which most commends itself? While, of course, that must turn on the specific nature of the issues, it is not possible to make a proper assessment without fully appreciating the impact of dissent – particularly when persistently expressed – upon the development of the law.
The way in which this study has gone about discovering an answer to this question has been to consider the facility for expression of judicial disagreement from first principles. Chapter Two discussed the general merits of allowing the delivery of minority opinions relative to the law’s traditional preoccupation with the promotion of coherence and conformity. Although concerns have long existed that dissents are harmful to both the prestige and authority of a court and also the clarity of the law which it propounds, it was argued that those fears are difficult to maintain in a legal
system where judgments are traditionally expressed in seriatim. The individualism
which is a source of worry to some commentators is not a feature exclusive to cases of
pronounced disagreement but rather a norm of judicial style in this jurisdiction. Given
that is so, the arguments in favour of permitting dissenting judgments are rendered yet
more compelling.
Dissent serves essentially three functions of benefit to courts. First, it augments the
crude, but effective, democratic quality of deciding matters by majority vote with a significantly deliberative character. This is so in respect of both the immediate decision in which the minority judgment is filed and also the wider, public domain in which the opinions of the Court are seen to interact with each other, possibly over a series of related decisions. The use of dissent as evidence of the Court as a site of deliberative democracy is certainly plausible and enables reconsideration of some of the standard assumptions about the undemocratic nature of the judicial arm of government. Second, the possibility of a challenge to the Court’s result by minority opinions is a powerful incentive for the adoption of procedures designed to enhance judicial co-operation. The benefit of a multimember court is not simply in having a greater number of judges to decide a matter – but also to introduce a collegial dimension to the decision-making itself. Even where consensus is not possible, oppositional voices can play an important role in the immediate process of adjudication by making necessary the provision of more thorough reasoning for the result which the majority has reached. The final function served by an ability to dissent was that of fostering change in the law. Unlike the previous two strengths, this was not one which could be sustained by argument alone. Although widely
420 acknowledged as a core benefit which dissents may bring, the assertion that such opinions regularly signpost future developments (to the extent they could even be said to possess a ‘prophetic’ quality) clearly required further substantiation, which foreshadowed the concerns of later chapters.
The determination with which dissents may be delivered by some Justices so as to push a change in the law, by denying the majority position a chance of becoming entrenched through broad acceptance, is to take the inevitable and healthy occurrence of disagreement and convert it to a direct challenge to the judicial values enshrined in the doctrine of stare decisis. In theory, persistent dissent on an issue involves a judge in flouting the Court’s authority and the dictates of precedent. Even in a court of last resort, this is not a course to be pursued without controversy. But in constitutional matters, their Honours have a problem of divided loyalties. While the past decisions of the Court must, as always, exert a strong influence, a Justice in disagreement with those authorities is able to point instead to the text of the Constitution as demanding a higher fidelity. Inevitably, this is an expected consequence of possessing a written constitution, but it has certainly been supported by the High Court’s view that the difficulty of amending our fundamental law justifies a weaker deference to its own decisions as precedent. Although arguments may be made against that reasoning, the reality is that the behaviour of the Justices receives less formal constraint in constitutional cases and so the practice of persistent dissent is particularly associated with this area of the law.
The complexity of judicial relationships is thus made starkly apparent by the delivery of dissenting opinions – especially in repeated refutation of a majority view. The
421 undercurrent of individualism beneath the institutional authority of a multimember court was more fully explored in Chapter Three. In that part of the thesis, a methodology for the quantification of disagreement in the High Court was developed from the rules utilised for comparable work by the Harvard Law Review in respect of the United States Supreme Court. Although amendment of the latter method was necessary to take account of differences in the judgment delivery practices between the two courts, it was possible to construct a clear criteria for the measurement of dissent which was both conceptually precise and suitably objective so as to enable replication by other scholars. The methodology addressed the difficult classification of many judgments in cases delivered by a seven-member court and responded to the rival strategies employed by others working in the field.
In the course of devising and testing that methodology, the distinctly relational nature of dissent was evident in the way the bench could fracture amongst itself so as to produce orders from the Court in which only a minority of its members actually concurred. The problems of institutional incoherence arising through the synthesis of individual opinions were recognised as a highly probable, albeit rarely acknowledged, feature of multimember adjudicative bodies, particularly those employing a seriatim mode of opinion delivery. Dissent, then, both exposes the importance of the individual decision-maker’s role on the Court and simultaneously affirms that the institution is more than the sum of its parts, being as it is, able to speak with its own distinctive voice.
Chapter Four saw the application of the empirical methodology to a substantial period of the High Court’s recent past in order to produce statistics revealing something of
422 the extent and nature of disagreement on the Court. Commencing with the elevation
of Sir Harry Gibbs to the Chief Justiceship and concluding with the retirement of
Justice Gaudron, the chapter gave results of institutional and individual rates of unanimity, concurrence and dissent across the eras of four Chief Justices. The figures
concerned both the Court’s total number of matters and also specifically its decisions
in constitutional law. In respect of the latter, this is the first empirical study to
examine the opinion delivery practices of members of the High Court in constitutional
law cases across a substantial timeframe. The two sets of results displayed general
similarities in the fluctuation of accord and division, but it was clear that dissent was
more likely when the Court was engaged in the interpretation of the Constitution.
What was striking was the shifts between eras – although disagreement was basically
solid throughout, the way in which consensus was expressed tended to vary quite
markedly over the years. The place of individual Justices within this moving sea of
majority and minority blocs was also often prone to change, so much so that it was
extremely notable when this did not occur. Members of the Court over this time who were rarely in disagreement with its results were Chief Justices Mason and Gleeson and Justices Gummow and Hayne. The standout dissenter was Justice Kirby, but
others, particularly most members of the Mason Court, also accumulated strong rates
of formal disagreement. The overall value of the material presented in Chapter Four
was in its confirmation of the centrality of disagreement to the Court’s work, and its
clear demonstration of the fluid nature of that phenomenon as the relativities amongst
the Justices moved over time.
The Court’s levels of harmony and discord in constitutional law cases received more
detailed focus through the addition of further tables. Explicit agreement in the form of
423 joint judgments between members of the bench for each era lent support to many of the tentative conclusions based upon individual rates of concurrence and dissent. The precise nature of the way in which benches of various sizes decided constitutional matters was detailed in Table C(I) which made it clear that disagreement was just as likely to split the Court roughly down the middle as it was to emanate from a single member. Table C(II) grouped these cases by topic and identified the behaviour of the bench in their resolution. This enabled observation as to which constitutional questions have dominated the Court’s attention over the 22 year period under study and which amongst those have been most prone to produce division. Those results, in particular, formed the basis for analysis in Chapter Five and Six.
Chapter Five examined the empirical results in order to identify instances in which minority opinions in constitutional cases were significantly considered in later decisions. The first series of examples concerned the abandonment of an earlier dissent by its author in a subsequent case. These served to demonstrate the persuasive power of precedential factors, despite the official stance that the Court is neither bound by its own decisions nor is stare decisis as strong in relation to the interpretation of the Constitution. The point was made that in a climate where the holder of a minority opinion willingly surrenders it in the interests of institutional coherence, the odds must be against likely redemption of dissents at a future date. The chapter then considered four cases of persistent dissent. Although each demonstrated a refusal to yield to majority opinion on successive occasions, there were distinctions amongst this group. On the one hand, were dissents which proposed a novel approach and maintained that the majority had fallen into error. The Justices’ commitment to the true constitutional meaning prevented them from joining the majority’s opinion
424 now or ever. The minority opinions with respect to section 118 and the jurisdiction of
military tribunals were of this nature. The remaining two examples were different in
that the Justices under scrutiny had retained what had once been accepted as orthodox views, but found themselves squeezed into the minority by the movement of the rest of their colleagues in a new direction. The dissents in these instances, those concerned
with the scope of sections 51(xx) and 90, were in no sense radical, relying as they did
upon precedential arguments to sustain them. But nevertheless they amounted to a
persistent refusal to adopt the reasoning favoured by the rest of the Court. Any
comment upon the legitimacy of the practice of persistent dissent must take into
account the two very different circumstances in which it may occur. It was submitted
that persistent dissent as a call for restraint and respect for past authority is far more
acceptable in that disagreement is being voiced in support of the fundamental values
of our legal system. However, the use of repeated disagreement as a means of
provoking upset and change in the status quo is difficult to reconcile with a Justice’s
obligation to accept the authority of the Court of which he or she is a part. It offends the rule of law’s requirement that the Court is seen primarily as an institution guided
by legal principle rather than as a body vulnerable to capture by differently
constituted majorities of individuals.
The challenges posed by persistent disagreement are only rendered more
objectionable by their apparent futility. Chapter Five concluded its survey of
constitutional cases over the period by reporting only two findings of a clear cut
reversal by the Court in favour of an earlier dissent. In neither had the dissent been
expressed on more than one occasion. And while the redemption of Justice Stephen’s
425 minority opinion in Henry v Boehm1 has gone unchallenged, the favourable treatment of Justice Gaudron’s dissent in Nolan v Minister for Immigration & Ethnic Affairs2 so as to overrule that decision has not been sustained by a majority in subsequent cases.
Thus, Chapter Five concluded with the observation that in the High Court’s approach to constitutional law, an area where persistently expressed disagreement is more likely than elsewhere, there was little support over a substantial period of time for the belief that dissents were occasionally, let alone regularly, redeemed at some future point.
But in light of the comments in Chapter Two about the various ways in which minority opinions were of value to the judicial process, Chapter Six sought to move beyond a search for direct reversal in favour of a dissent to consider the less obvious impact which such deliberation may have upon the law over time. It did so through analysis of two sets of cases which stood out from the results of the empirical survey.
In the first, the decisions concerned with the implied freedom of political communication, it was clear that the uncharted nature of the topic produced both great diversity and fluidity of opinion. Under those circumstances, several of the views expressed in earlier dissents eventually gained mainstream acceptance by the Court in its efforts to speak with unanimity in Lange v Australian Broadcasting Corporation.3
In the wake of that decision, it has been clear that the deliberative process has commenced anew. The cases in this group actually see some Justices engaged at various times in all three examples of judicial behaviour considered in isolation in the previous chapter – acceptance of precedent, persistent dissent and redemption of minority opinion. The scope of judicial choice across the many issues in an area of
1 (1973) 128 CLR 482. 2 (1988) 165 CLR 178. 3 (1997) 189 CLR 520.
426 law as novel and uncertain as this one, defies portrayal of entire opinions as a
selection made from between simple alternatives.
That last comment is not true in relation to the second area of constitutional law
studied in Chapter Six – the interpretation of section 80’s guarantee of a jury for all
offences tried on indictment. That provision has tended to divide the Court between
two distinct positions, with those preferring an interpretation more favourable to
individual rights being perpetually in dissent. In this instance, no minority judgment
has managed to dent the grip of the orthodox interpretation of the various aspects of the guarantee. The unrequited nature of the dissents is, however, only part of the story as to their utility. It was argued that the minority opinions served to put the Court’s discussions of the topic in a different, somewhat harsher light, than would otherwise have been the case. The extent to which this can add discernible value to the law itself
has been demonstrated by the delivery of more recent majority opinions which,
through engagement with the substance of those criticisms, offer more convincing
reasoning than has previously supported the traditional position.
The conclusion then to this thesis involves the following propositions. Disagreement
is an inevitable feature of a multimember court – particularly a final court engaged in
the interpretation of a written Constitution. This can produce challenges to both the
traditional understanding of how judicial decisions are reached, with shifting
majorities and institutional incoherence not uncommon, and indeed the institutional authority of the court in question. However, there are numerous benefits which flow from the expression of disagreement that can be used to offset its apparent incompatibility with the traditional legal values of conformity and stability. Of these,
427 the claim that dissents foreshadow change in the law is the one which has perhaps
exerted more fascination than others. Certainly, a belief that redemption is possible has contributed to a practice by some members of the High Court of persistently dissenting from constitutional interpretations with which they do not agree. The results of this study show that the likelihood of a subsequent sitting of the Court reversing a precedent in favour of a minority opinion is low. While the High Court will regularly disagree amongst itself as to the result in a constitutional case, it will seldom do an about-face. At least in this context, the mythical image of a Great
Dissenter, a ‘prophet with honour’, is just that – a myth. But that is not to suggest that the argument that minority opinions may affect the substance of the law, is erroneous.
It is merely to require a less romanticised and less dramatic appreciation as to the subtle influence which dissents can exercise, even when they are never adopted by a majority of the Court. As contributions to judicial dialogue, earlier minority opinions cannot help but affect the context in which subsequent decisions are made. In so doing they are highly likely, in some sense, to impact upon the content and quality of the Court’s reasons in those later cases.
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441 SELECTED CASE LIST
Abebe v Commonwealth (1999) 197 CLR 510. Actors and Announcers Equity Association v Fontana Films Pty Ltd (1983) 158 CLR 1. A-G (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237. Al-Kateb v Godwin (2004) 208 ALR 124. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. Anderson’s Pty Ltd v Victoria (1964) 111 CLR 353. Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54. Arizona v Fulminate 499 US 279 (1991). Attorney-General (NSW) v Brewery Employees Union of NSW (1908) 6 CLR 469. Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237. Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261. Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199. Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. Australian Education Union, Re; Ex parte the State of Victoria (1995) 184 CLR 188. Australian Tape Manufacturers Association Pty Ltd v The Commonwealth (1991) 176 CLR 480.
Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1. Baker v Campbell (1983) 153 CLR 52. Baldwin v New York (1970) 399 US 66. Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087. Beckwith v R (1976) 135 CLR 569. Bolton v Madsen (1963) 110 CLR 264. Breavington v Godleman (1988) 169 CLR 41. Brown v Board of Education 347 US 483 (1954). Brown v R (1986) 160 CLR 171. Brownlee v R (2001) 207 CLR 278. Buck v Bavone (1976) 135 CLR 110. Burnet v Coronado Oil & Gas Co 285 US 393. Bush v Gore 531 US 98 (2000). Byrnes v The Queen (1999) 199 CLR 1.
Cain v Malone (1942) 66 CLR 10. Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118. Capital Duplicators Pty Ltd v ACT [No. 2] (1993) 178 CLR 561. Castlemaine Tooheys Ltd v South Australia (1989) 169 CLR 436. Cheatle v The Queen (1993) 177 CLR 541. Cheng v R (2000) 203 CLR 248. Chester v Waverley Corporation (1939) 62 CLR 1. Chief Executive Officer of Customs Pty Ltd v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161.
442 Cole v Whitfield (1988) 165 CLR 360. Coleman v Power (2004) 209 ALR 182. Colina, Re; ex parte Torney (1999) 200 CLR 386. Colonel Aird, Re; ex parte Alpert (2004) 209 ALR 311. Commissioner of Taxation v The Myer Emporium Limited (1987) 163 CLR 199. Commonwealth v Cigamatic Pty Ltd (in liq) 108 CLR 372. Commonwealth v Mewett (1997) 191 CLR 471. Commonwealth v Tasmania (The Tasmanian Dams Case) (1983) 158 CLR 1. Cooper v Aaron 358 US 1 (1958). Cormick (In the Marriage of) (1984) 156 CLR 170. Cullen v Trappnell (1980) 146 CLR 1. Cunliffe v The Commonwealth (1994) 182 CLR 272.
D’emden v Pedder (1903) 1 CLR 91. Davies and Jones v Western Australia (1904) 2 CLR 29. Davis v Commonwealth (1988) 166 CLR 79. Davis v Johnson [1979] AC 264. Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 132 ALR 307. Dennis Hotels v Victoria (1960) 104 CLR 529. Di Santo v Pennsylvania 273 US 34 (1927). Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177. Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323. Duncan v State of Queensland (1916) 22 CLR 556.
Eastman v R (2000) 203 CLR 1. Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311.
F, Re; Ex parte F (1986) 161 CLR 376. Federal Commissioner of Taxation v St Helens Farm Pty Ltd (1980) 146 CLR 336. Federal Maritime Commission v South Carolina State Ports Authority 535 US 743 (2002). Federation Insurance Limited v. Wasson And Others (1987) 163 CLR 303. Fencott v Muller (1983) 152 CLR 570. Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345. Foreman & Sons Pty Ltd, In re; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508. Fox v Percy (2003) 214 CLR 118.
Gazzo v Comptroller of Stamps (Vic.) (1981) 149 CLR 227. Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576. Georgiadis v Australian and Overseas Telecommunications Corporation (1993) 179 CLR 297. Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463. Gosford Meats Pty v NSW (1984) 155 CLR 368. Gould v Brown (1998) 193 CLR 346. Governor, Goulburn Corrections Centre, Re; Ex parte Eastman (1999) 200 CLR 322. Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479. Grollo v Palmer (1995) 184 CLR 348.
443
Ha v New South Wales (1997) 189 CLR 465. Hannah v Dalgarno (1903) 1 CLR 1. Hematite Petroleum Pty Ltd v Victoria (1982) 151 CLR 599. Henry v Boehm (1973) 128 CLR 482. Hepples v Federal Commissioner of Taxation (1992) 173 CLR 492. Hilton v Wells (1985) 157 CLR 57. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.
Jaensch v Coffey (1984) 156 CLR 41. John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503. John v Commissioner of Taxation (1989) 166 CLR 417.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. Kartinyeri v The Commonwealth (1998) 195 CLR 337. Katsuno v The Queen (1999) 199 CLR 40. Kingswell v R (1985) 159 CLR 264. Kirmani v Captain Cook Cruises Pty Ltd (No. 1) (1984) 159 CLR 351. Kruger v The Commonwealth (1997) 190 CLR 1.
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Langer v Commonwealth (1996) 186 CLR 302. Levy v Victoria (1997) 189 CLR 579. Li Chia Hsing v Rankin (1978) 141 CLR 182. Lipohar v R (1999) 200 CLR 485. London Tramways Co Ltd v London City Council [1898] AC 375.
Marbury v Madison 5 US 137 (1803). Matthews v Chicory Marketing Board (Vic) (1938) 60 CLR 263. McGinty v Western Australia (1996) 186 CLR 140. McGowan v Maryland 366 US 420 (1961). McGraw-Hinds (Aust) Pty Ltd v Smith (1979) 144 CLR 633. McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1. Melbourne Corporation v The Commonwealth (1947) 74 CLR 31. Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556. Minister for Immigration and Multicultural Affairs, Re; ex parte Te (2002) 212 CLR 162. Mitchell v WT Grant Co 416 US 600 (1974). Mountney v Smith (1903) 1 CLR 146. Muldowney v South Australia (1996) 186 CLR 352. Murray v Collector of Customs (1903) 1 CLR 25. Mutual Pools and Staff Pty Ltd v The Commonwealth (1993) 179 CLR 155.
National Mutual Insurance Co v Tidewater Transfer Co 337 US 582 (1949). Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 New York Times Co v Sullivan 376 US 254 (1964). Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513. Nguyen v Nguyen (1990) 169 CLR 245. Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178. Nolan, Re; Ex parte Young (1991) 172 CLR 460.
444 NSW v Commonwealth (The Incorporation Case) (1990) 169 CLR 482.
O’Toole v Charles David Pty Ltd (1990) 171 CLR 232.
Pacific Coal Pty Ltd, Re; Ex parte CFMEU (2000) 203 CLR 346. Parton v Milk Board (Vic) (1949) 80 CLR 229. Patterson, Re; Ex parte Taylor (2001) 207 CLR 391. Patton v United States 281 US 276 (1930). Payne v Tennessee 501 US 808 (1991). Pennsylvania v Union Gas 491 US 1 (1989). Perpetual Executors and Trustees Association of Australia Ltd v FCT (1949) 77 CLR 493. Peters v R (1997) 192 CLR 493. Peterswald v Bartley (1904) 1 CLR 497. Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457. Phillip Morris Ltd v Commissioner of Business Franchises (Vic) (1986) 167 CLR 399. Plessy v Ferguson 163 US 537 (1896). Pochi v Macphee (1982) 151 CLR 101. Pollock v Farmers Loan & Trust Co 157 US 429 (1895).
Queensland v Commonwealth (Second Territory Senators case) (1977) 139 CLR 585. Queensland v Commonwealth (Tropical Rainforests Case) (1989) 167 CLR 232.
R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128. R v Barger (1908) 6 CLR 41. R v Bernasconi (1915) 19 CLR 629. R v Commonwealth Court of Conciliation and Arbitration and the President Thereof and The Australian Tramway Employees Association, Ex Parte The Brisbane Tramways Company Limited, Ex Parte The Municipal Tramways Trust Adelaide [No. 1] (The Tramways Case) (1914) 18 CLR 54. R v Cook; Ex parte C (1985) 156 CLR 249. R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556. R v Meaton (1986) 160 CLR 359. R v Mills [1999] 3 SCR 668. R v O’Connor [1995] 4 SCR 411. R v Smithers; Ex parte Benson (1912) 16 CLR 99. R v Smithers; Ex parte McMillian (1982) 152 CLR 477. Rainsong Holdings Pty Ltd v ACT (1993) 178 CLR 634. Reference re Secession of Quebec (1998) 161 DLR (4th) 385. Richardson v Forestry Commission (1988) 164 CLR 261. Roberts v Bass (2002) 212 CLR 1. Royall v The Queen (1990) 172 CLR 378. Sachter v Attorney-General for the Commonwealth (1954) 94 CLR 86.
Schick v United States 195 US 65 (1904). SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51. Shaw v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143. Singer v United States 380 US 24 (1965).
445 Smith v ANL Limited (2000) 204 CLR 493. Spratt v Hermes (1965) 114 CLR 226. Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211. Stevens v Head (1992) 176 CLR 433. Street v Queensland Bar Association (1989) 168 CLR 461. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
Tasmania v Victoria (1935) 52 CLR 157. Telstra Corporation Ltd v Treloar (2000) 102 FCR 595. Teori Tau v Commonwealth (1969) 119 CLR 564. Theophanous v Herald & Weekly Times (1994) 182 CLR 104. Thomas v Washington Gas Light Co 448 US 261. Tracy, Re; Ex parte Ryan (1989) 166 CLR 518. Trade Practices Act 1974 (Cth) Trident General Insurance v McNeice Bros (1988) 165 CLR 107. Tyler Re; Ex parte Foley (1993) 181 CLR 18.
Uebergang v. Australian Wheat Board (1980) 145 CLR 266. United States v Nixon 418 US 683 (1974). United States v Ramirez-Lopez 315 F.3d 1143 (2003).
Victoria v Commonwealth (Payroll Tax Case) (1971) 122 CLR 353. Victoria v The Commonwealth (The Federal Roads Case) (1926) 38 CLR 399. Victoria v The Commonwealth (The Industrial Relations Case) (1996) 187 CLR 416
WA v Commonwealth (First Territory Senators case) (1975) 134 CLR 201. Wakim, Re; ex parte McNally (1999) 198 CLR 511. Waterford v Commonwealth (1987) 163 CLR 54. Waverley City Council v Chester (1939) 62 CLR 1. Western Australia v Hammersley Iron Pty Ltd (No 2) (1969) 120 CLR 74. Wik Peoples v Queensland (1996) 187 CLR 1. Wong v The Queen (2001) 207 CLR 584.
Young v Bristol Aeroplane Company Ltd [1944] KB 717.
Zarb v Kennedy (1968) 121 CLR 283.
446 LIST OF STATUTES
Australian Citizenship Act 1948 (Cth) Commonwealth Constitution Copyright Act 1968 (Cth) Corporations Act 1989 (Cth) Crimes Act 1914 (Cth) Crimes Act 1961 (NZ) Customs Act 1901 (Cth) High Court of Australia Act 1979 (Cth) Human Rights Act 1998 (UK) Income Tax Assessment Act 1936 (Cth) Industrial Relations Act 1988 (Cth) Judiciary Act 1903 (Cth) Licensing Act 1958 (Vic) Migration Act 1958 (Cth) Native Title Act 1993 (Cth) Pharmaceutical Benefits Act 1944 (Cth) Telecommunications (Interception) Act 1979 (Cth) Wildlife (Game) (Hunting Season)Regulations 1994 (Vic) Wireless Telegraphy Act 1905 (Cth) World Heritage Properties Conservation Act 1983 (Cth)
447
APPENDIX A
NOTES RELATING TO THE COMPILATION OF STATISTICS IN CHAPTER FOUR
I CASE REPORTS INVOLVING A NUMBER OF MATTERS – HOW TALLIED
Reports tallied singly due 149/431; 150/402; 150/510; 151/302; 151/342; 151/566; to a common substratum 152/25; 152/211; 152/254; 152/329; 152/477; 153/168; of facts or legal question 153/402; 154/261; 154/311; 155/21; 156/397; 156/532; which leads to little or no 157/149; 158/622; 159/1; 159/323; 160/55; 160/315; distinction being drawn 160/423; 160/475; 161/119; 161/315; 162/549; 163/329; between the matters in the 163/558; 165/71; 166/351; 167/348; 168/461; 169/379; judgments 169/482; 170/249; 170/649; 171/432; 173/95; 173/194; 176/277; 177/378; 178/44; 178/249; 178/379; 181/41; 181/338; 183/501; 185/185;1184/265; 184/399; 185/149; 185/410; 187/416; 191/471; 191/559; 192/1; 192/285; 197/61; 198/334; 199/1; 199/160; 199/321; 199/462; 200/485; 201/443; 203/346; 204/559; 207/235; 207/562; 207/584; 208/1; 209/165; 209/372; 211/317; 211/540; 212/1 Reports tallied multiple times due to distinctions being drawn between the matters in the judgments and orders made:2 (italics denote constitutional cases)
Tallied as two 151/117; 153/1;3 154/404;4 158/395; 163/378; 167/259; 174/268;5 192/159; 192/330; 197/510;6 205/50; 205/337; 205/507;7 206/323;8 206/401
1 The case of Re Australian Education Union; Ex parte the State of Victoria (1995) 184 CLR 185 contains fifteen separate matters. The dilemma over tallying this case (in which Dawson J dissents in fourteen of the matters and concurs in one) was discussed in Chapter Three, text accompanying nn 135-8. 2 The purpose behind multiple tallying is discussed in Chapter Three, Part IV. 3 The timing of Aickin J’s death means that this report effectively comprises two hearings of differently composed courts. 4 There are two individual matters – staggered over a 3:2 decision on leave, appeal pending filing of affidavit from ASIO; and then 4:1 on dismissal. 5 There are three matters in this report and although there is a common factual substratum, one matter (R v Nowytanger) is kept significantly distinct from the other two. Thus the report is tallied twice. This results in the recording of two concurring judgments from Mason CJ, Brennan and Toohey JJ; two dissents from Deane J who refuses special leave in all three matters; and a concurrence and dissent from McHugh J. 6 Abebe v Commonwealth (1999) 197 CLR 510 is tallied twice for the purposes of compiling statistics on the total number of cases, but only once with respect to constitutional cases (for this reason, the case reference is not italicised). This is because of the two matters dealt with by the judgments, (a) the jurisdiction of the Federal Court and the meaning of ‘matter’; and (b) Abebe’s application for prerogative relief under s.75(v), only the former involves a constitutional question. 7 There are actually four matters in Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 – two appeals by the Minister for Immigration and Multicultural Affairs and two applications for prerogative relief under s.75(v) of the Constitution by different visa applicants. 205/507 is tallied twice. The appeal and application concerning each individual visa applicant have enough common ground to be treated together (It should be noted that, despite immediate appearances, this is not equivalent to what is occurring in (197/510) which, although only involving one visa applicant was nevertheless tallied twice due to the considerations raised by the Minister’s appeal being quite distinct from those arising through the applicant’s case for prerogative relief under s.75(v)). However, as distinctions are drawn between the different facts applying to each applicant in 205/507, their respective litigation cannot simply be lumped
450 Tallied as three 167/94;9 Tallied as four 198/511;10
II CLASSIFICATION OF CASES
In almost all instances, the catchwords have appropriately indicated the involvement of constitutional issues. However, there are cases not so identified but which have been tallied as constitutional due to relevant discussion occurring within them. In classifying ‘constitutional cases’, I have adopted Stephen Gageler’s definition as being: ‘that subset of cases decided by the High Court in the application of legal principle identified by the Court as being derived from the Australian Constitution.
That definition is framed deliberately to take in a wider category of cases than those simply involving matters within the constitutional description of ‘a matter arising under this Constitution or involving its interpretation’.11
The list below identifies these cases and indicates the reason for inclusion:
together as a whole and is best treated as two separate matters – neither of which of is constitutional. 8 This is exactly the same situation as in respect of 205/507. 9 There is a common factual substratum but sufficient difference remains to be reflected in the orders of the three matters. Brennan and Dawson concur in the orders of 94(ii) and (iii) but dissent in 94(i). 10 Re Wakim; Ex parte McNally (1999) 198 CLR 511 is tallied as four cases – both for the statistics on the constitutional subset and in general. Although the four matters dealt with in the report have significant features of commonality, there are enough distinctions to lead to members of the court dealing with them separately in their judgments. Additionally, three judges (McHugh, Kirby and Callinan JJ) arrive at different conclusions in respect of some of the matters and not others. There are a number of discrete constitutional issues at play which account for these differences beyond simply the central question of the validity of the cross-vesting law. Whilst it was judged that multiple tallying was preferable in this case, it must also be noted that this has a mildly distorting effect, particularly so in respect of the raw figures (but not the percentiles) pertaining to joint judgments between Gummow and Hayne JJ. However, this at least has the advantage of being consistent throughout. By way of contrast, consider the advice of the Harvard Law Review as an example of what can occur when multiple tallying is not approached in this way: see (1961) 75 Harvard Law Review 40, 92: ‘Some distortion is introduced into the Table [showing voting alignments between Justices] by the fact that when the same Justices join in more than one opinion applying to a single decision, the Review notes two agreements but only one decision; thus it is theoretically possible for two Justices to agree more times than the number of cases in which they participate together’. 11 Stephen Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ (2002) 25 UNSW Law Journal 194, 195.
451 (154/1) - An industrial law case but interpretation of s.51(xxxv) occurs.
(154/207) - An industrial law case but passing interpretation of s.75(v)
occurs.
(171/232) - An industrial law case but a question as to whether a privative
clause may be protected on constitutional grounds is
considered.
(176/154) - An industrial law case but interpretation of s.51(xxxv) occurs.
(176/433) - A private international law case but Deane and Gaudron JJ
apply s.118 of the Commonwealth Constitution – hence tallied
as a constitutional matter.
(192/1) - An industrial law case but interpretation of s.51(xxxv) occurs.
(207/584) - A criminal law case in which issues of judicial power are raised
by the appellant and discussed by some members of the Court.
Cases not tallied as constitutional in nature are (203/194), (203/645), (205/507),
(206/57), (206/128) which, while involving constitutional writs in s.75(v), do not feature any substantive interpretation of that provision.
Reports not included
• Single and two judge decisions of the High Court were not included in tallying
for the purposes of this study;
• In volume 148 three cases under the Chief Justiceship of Garfield Barwick are
reported (two being constitutional matters) and these are not tallied here either.
They are 148/337; 148/383; and 148/457;
452 • Matters contained in later volumes heard by the Gleeson Court after the
departure of Gaudron J;
• Matters contained in volume 180 which predate the ascension of Chief Justice
Gibbs.
III CLARIFICATION OF PARTICULAR TALLYING DECISIONS
(151/170) - Stephen and Mason JJ each also order certorari in addition to
mandamus but this has not been used to characterise their,
otherwise concurring, judgments as dissents.
(152/188) - Deane J grants an additional injunction refused by the rest of
the Court – tallied as a dissent.
(152/528) - Deane and Dawson JJ both refuse leave while the rest of the
Court grants it but then dismisses the appeal. Their Honours are
tallied as dissenting.
(153/317) - Gibbs and Wilson JJ refuse leave but say that if the rest of the
Court grants it then they would allow the appeal. As this
indicates agreement with the majority’s ultimate result, they are
tallied as concurring.
(156/41) - Mason and Deane JJ are tallied as dissenting because they
would simply restore the trial judge’s orders whereas the rest of
the Court makes orders in lieu.
(156/532) - The five matters in this report, in respect of which various
questions are asked, ensures plenty of room for discrepancy.
Variations across the many questions which are actually very
453 slight in significance and no import in achieving the result
(denial of an injunction) were set aside as the combined effect
of acknowledging the variation in responses would only be to
inflate the true incidence of dissent. Gibbs CJ is regarded as the
only truly dissenting judge in this report as he clearly disagrees
with the rest of the court on the orders required.
(157/605) - Gibbs and Dawson JJ both differ from the final orders on one
incidental question. Due to its relative unimportance, they are
tallied as concurring.
(158/1) - Tasmanian Dams Case. There is a core majority of Mason,
Murphy, Brennan and Deane JJ despite a few discrepancies in
the answering of incidental questions. On the whole, there is
enough agreement to argue against separate tallying of the
judges as dissenting on these grounds.
(159/192) - Deane J tallied as dissenting despite overruling the demurrers
on substantial (but crucially not all) parts of the Act in question.
(161/217) - Mason, Brennan and Deane JJ simply answers the questions
asked with a ‘No’ whereas the orders reflect the more fulsome
responses of Gibbs CJ, Wilson and Dawson JJ. However, the
negative answer is the common ground and so the former are
not tallied as dissenting.
(161/556) - Miller v TCN Channel 9.12 As only Mason J concurs precisely
in the final orders all other six judges who disagree by varying
12 The phenomenon of more dissenting judges than those concurring in the result is discussed in Chapter Three, text accompanying nn 76-77. This case is further discussed in that chapter at text accompanying nn 81-6.
454 degrees – but nonetheless significantly on the central question
of substance – are tallied as dissenting.
(162/110) - Gibbs CJ orders a new trial while the rest of the Court orders
that a judgment of acquittal be entered. He is tallied as
dissenting.
(162/574) - Brennan and Deane JJ allow the appeal in part and are therefore
tallied as dissenting.
(163/329) - Brennan and Deane JJ are tallied as dissenting as although they
substantially agree with the majority, they differ on the effect of
the Melbourne Corporation principle.
(163/561) - Toohey and Gaudron JJ effectively dissent in substance but
then in light of ‘those circumstances’, agree with the course
proposed by the majority. They are tallied as concurring.
(166/409) - Deane J is tallied as dissenting as although he agrees that
special leave should be granted, he then wishes to hear the
appeal rather than remit the hearing back to the CCA.
(169/279) - Toohey J (with Dawson J’s approval) would return the matter
to the CA for further determination, whereas the majority in
allowing the appeal determine the outstanding issues
themselves. Both justices are tallied as dissenting.
(173/222) - Brennan J is tallied as concurring even though he initially
suggests a different resolution of the matter which is preferable
to him.
(173/492) - The case contains two discrete legal questions and Brennan,
Dawson, Toohey and Gaudron JJ are all tallied as dissenting as
455 they find assessable income under one of two subsections of the
Income Tax Assessment Act 1936. There is, however, no
majority in favour of such a result for any one specific
subsection and so the Court’s final orders (delivered
unanimously after a hearing as to their precise formulation) find
that the taxpayer’s income was not assessable under either
subsection. This result is only reflected in the opinions of three
judges of the Court – Mason CJ, Deane and McHugh JJ. 13
(175/1) - The majority in Mabo v Queensland [No 2] is 6:1 in finding
that the Murray Islands are not Crown land, but that majority is
then split over the further question of whether extinguishment
of native title gives rise to compensation – Mason CJ, Brennan
and McHugh JJ deny this; whereas Deane, Toohey and
Gaudron JJ make orders for a declaration that such is the case.
But as Dawson J (in dissent on the central question) indicates
support for no compensation, the final order does not include
this restraint upon the Queensland Parliament. While
admittedly the compensation is somewhat hypothetical on the
facts of the case (the native title in question not having been
extinguished), Deane, Toohey and Gaudron JJ are at pains to
include it in their orders and the brief judgment of Mason CJ
and McHugh J is entirely dedicated to clarifying that such is not
the finding of the Court as a body. This result is only reflected
in the opinions of three judges of the Court – Mason CJ,
13 The phenomenon of more dissenting judges than those concurring in the result is discussed in Chapter Three, text accompanying nn 76-77. This case is further discussed in that chapter at text accompanying nn 92-5.
456 Brennan and McHugh JJ. The remaining four are tallied as
dissenting.14
(177/1) - Deane and Toohey JJ do not give a express ‘No’ answer to
Q.2(a) unlike the other judges in the majority but they are quite
right in saying it is unnecessary to answer given the effect of a
‘Yes’ to Q.1(a). They are therefore not tallied as dissenting
despite not formally answering Q.2(a).
Brennan J, however, is tallied as dissenting because although he
agrees with the majority on the substance of the case, he does
answer affirmatively the two questions regarding an implied
constitutional guarantee – something which the rest of the
majority found unnecessary to answer.
(178/408) - Gaudron J (with McHugh J) believes that a specific question
should go back to the Federal Court but otherwise agrees with
Brennan and Dawson JJ. However, her Honour and McHugh J
are both tallied as concurring.
(178/477) - The case produces six judges in dissent from the final orders,
with only Brennan J being tallied as concurring.15
(179/101) - McHugh J’s only difference from the majority is to substitute
different language in the Federal Court’s order. Although there
is a nuanced disagreement happening here, it is slight enough
that tallying his Honour as concurring is still justified.
(182/572) - Although Brennan J allows the appeal, his reasons are
sufficiently distinctive that he disagrees with the court’s order
14 As above. 15 As above. This case is further discussed in that chapter at text accompanying nn 87-91.
457 to have the matter remitted to the Federal Court for
determination in accord with the judgment. Thus he is tallied as
dissenting in this case.
(183/245) - Mason, Brennan and Toohey do not expressly name s.252AA
as a provision they would invalidate, but this seems implicit in
their statement that ‘so much of the Act as provides for
registration and enforcement of a determination is invalid’.
They are tallied as concurring.
(185/307) - Deane J is tallied as concurring as he agrees with the orders of
the court – despite also ‘extending to the plaintiffs the
opportunity of applying for a further order which would allow
them to apply to the Court of Appeal for leave to seek to
reformulate their case as an action in negligence’. This was
deemed a peripheral factor.
(188/1) - Kirby J is tallied as dissenting as although he agrees to allow
the appeal, he would have ordered that the appeal to the Court
of Appeal (Qld) be upheld rather than dismissed.
(188/501) - Brennan CJ concurs in dismissing the appeal but his dismissal
of the cross-appeal as well is a partial dissent from the final
orders. He is therefore tallied simply as dissenting.
(190/1) - Kruger v Commonwealth. Toohey and Gaudron JJ dissent on
the first question regarding constraints upon s.122. Of the
remaining four justices, only Brennan CJ gives a ‘No’ answer
to question 2 concerning whether a compensation claim for
breach of the Constitution may be brought (thus joining with
458 Toohey and Gaudron JJ on that particular point) while the rest
say that it is ‘unnecessary to answer’. The result of this split
over question 2 is of no material effect to the parties but the
final orders state a clear negative to this question due to
Brennan’s casting vote as Chief Justice. But although Dawson,
McHugh and Gummow could be said to be strictly in dissent
from that aspect of the order, it is only determined by artificial
means not a relative majority on the question. Therefore the
judgments on that question are not used for classification of
dissent.16
(191/471) - Gaudron J allows the appeal just to the extent necessary to say
that the Federal Court should not have answered a secondary
question. As she is otherwise in complete agreement with the
majority, she is tallied as concurring.
(193/1) - Kirby J agrees to not allow the appeal but would have ordered a
retrial rather than quashing of the conviction. He is tallied as
dissenting.
(193/346) - [Gould v Brown] A six-member bench evenly divided. This
decision is not tallied.17
(194/355) - Brennan CJ agrees to allow the appeal but disagrees with the
majority’s decision regarding the Federal Court’s allowance of
the appeal from the primary judge (similar to 188/1). Brennan
CJ is tallied as dissenting.
16 See rule (b) in Chapter Three. 17 Ibid.
459 (196/392) - Callinan J says he would have asked the parties to agree on the
appropriate form of orders. An examination of his Honour’s
handling of the s.109 issue indicates that his judgment is
dissenting.
(197/172) - The original matter only is tallied not the subsequent judgments
regarding the form of additional orders upon which the parties
were invited to make further submissions.
(197/459) - Callinan J dissents on only the issue of remitter of the matter.
Nevertheless, his Honour is tallied as dissenting.
(198/380) - Kirby J agrees substantially with the majority and allows the
appeal. He is tallied as concurring despite disagreeing on the
matter of costs.
(201/351) - The unanimous judgment regarding costs is disregarded.
(204/559) - Kirby J is tallied as concurring despite disagreeing on the
matter of costs.
(205/126) - Callinan J is tallied as concurring despite not making an order
amending the style of the appellant.
(208/1) - These two appeals were tallied singly due to the presence of a
single legal question. As a result, although McHugh and
Callinan JJ allow one appeal and Kirby J allows the other all
three Justices are tallied as dissenting from the Court’s final
orders dismissing both appeals.
(210/285) - Although Kirby J agrees that the appeal should be allowed, he
does not order a new trial and is therefore tallied as dissenting.
460 (211/119) - Kirby J is tallied as concurring despite making no order as to
costs.
(212/1) - Gleeson CJ dissents in respect of one of the two matters in this
report but as they are being tallied singly, he is recorded simply
as being in dissent along with Callinan J who disagrees on the
result of both.
IV SPECIAL FEATURES OF NOTE
150/500 - An example of concurrences of the ‘I agree’ variety.
150/666 - Aickin J deceased between hearing and judgment delivery. In
the text of their judgment, Mason and Wilson JJ say that he
authored their opinion. Nevertheless, Aickin J was not included
in tallying for this matter.
178/634 - This is essentially the same question as in 178/561 but the
legislation under review is the amended version. However, in
light of the case being separately reported and with new, albeit
brief, opinions being given, it is tallied separately.
183/168 - A good example of the (albeit essential) limitations of
classification by final orders as a gauge of disagreement.
Despite the headnote, it is Mason CJ, Brennan, Deane and
Gaudron JJ who concur with the rest in dissent – even though
Deane and Gaudron JJ are substantially at odds with the rest of
the court across the whole matter. This is to the point that those
461 two justices dissent on the separate costs order (which was not
tallied).
183/373 - A Dawson J judgment in the tradition of his post-Tasmanian
Dams s.51(xxix) cases. A dissent converted to a concurrence.
This case concerns the validity of the Native Title Act 1993
(Cth).
202/133 - The case does not involve direct interpretation of section 51(ii)
but in discussing s.55 the Court considers the definition of a
tax. The case is noted under both sections in Table C(II).
212/1 - Even when a majority of the Court chooses to avoid a
constitutional issue, the case will still be tallied as such if (a)
the parties have raised a constitutional issue; and (b) especially
when at least one Justice discusses it (as Kirby and Callinan JJ,
most especially, do here). Note though that this can result in
attributing dissent in a constitutional case to Justices who have
not engaged with the constitutional issue – in this instance,
Gleeson CJ and Hayne J.
V JOINT JUDGMENT MATRICES – MINORITY OPINIONS ONLY
The following tables are included to indicate just how few of the co-authored opinions in Tables F are dissenting in nature (see text accompanying n 61).
CONSTITUTIONAL CASES: Joint Judgment Matrix : Minority Opinions Only (Gibbs Court)
462 Gib S’phn MasonM’phy A’kin W’son B’nan Deane D’son Gibbs _____ 0 0 0 0 1 0 0 0 Stephen 0 _____ 0 0 0 0 0 n/a n/a Mason 0 0 _____ 0 0 0 0 2 0 Murphy 0 0 0 _____ 0 0 0 0 0 Aickin 0 0 0 0 _____ 0 0 n/a n/a Wilson 1 0 0 0 0 _____ 0 0 0 Brennan 0 0 0 0 0 0 _____ 0 0 Deane 0 n/a 2 0 n/a 0 0 _____ 0 Dawson 0 n/a 0 0 n/a 0 0 0 _____
CONSTITUTIONAL CASES: Joint Judgment Matrix : Minority Opinions Only (Mason Court)
Mason Wilson BrennanDeane Dawson Toohey Gaudron McHugh Mason _____ 0 0 0 1 0 0 1 Wilson 0 _____ 0 0 1 1 0 n/a Brennan 0 0 _____ 0 2 0 0 3 Deane 0 0 0 _____ 0 1 3 1 Dawson 1 1 2 0 _____ 2 0 3 Toohey 0 1 0 1 2 _____ 2 0 Gaudron 0 0 0 3 0 2 _____ 1 McHugh 1 n/a 3 1 3 0 1 _____
CONSTITUTIONAL CASES: Joint Judgment Matrix : Minority Opinions Only (Brennan Court)
B’nan D’ne D’son T’hey G’dron McH G’mow K’by H’ne C’nan
Brennan ____ 0 0 0 0 0 0 0 0 0 Deane 0 _____ 0 0 0 0 0 n/a n/a n/a Dawson 0 0 _____ 1 1 0 0 0 n/a n/a Toohey 0 0 1 _____ 1 0 0 0 0 n/a Gaudron 0 0 1 1 _____ 0 0 0 0 0 McHugh 0 0 0 0 0 ____ 0 0 0 0 Gummow 0 0 0 0 0 0 ____ 0 0 0 Kirby 0 n/a 0 0 0 0 0 ____ 0 0 Hayne 0 n/a n/a 0 0 0 0 0 ____ 0 Callinan 0 n/a n/a n/a 0 0 0 0 0 ____
463 CONSTITUTIONAL CASES: Joint Judgment Matrix : Minority Opinions Only (Gleeson Court)
Gleeson Gaudron McHughGummow Kirby Hayne Callinan Gleeson _____ 0 0 0 0 0 0 Gaudron 0 _____ 0 0 0 0 0 McHugh 0 0 _____ 0 0 0 0 Gummow 0 0 0 _____ 0 1 0 Kirby 0 0 0 0 _____ 0 0 Hayne 0 0 0 1 0 _____ 0 Callinan 0 0 0 0 0 0 _____
464
APPENDIX B
STREAMS OF CONSTITUTIONAL CASELAW: 1981 – 2003
APPENDIX TO CHAPTER FIVE
Section 51(ii) – The Taxation Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features MacCormick v (1983) 158 CLR Gibbs CJ, (5:0) – by 1. Gibbs CJ, None Federal 622 Murphy, Wilson, concurrence Wilson, Deane Commissioner of Brennan, Deane and Dawson JJ. Taxation and Dawson JJ Deputy (1985) 158 CLR Gibbs C.J., (6:0) – by 1. Gibbs C.J., None. Commissioner of 678 Mason, Wilson, concurrence Mason, Wilson, Taxation v Brennan, Deane Deane and Truhold Benefit and Dawson JJ Dawson JJ Pty Ltd State Chamber (1987) 163 CLR Mason CJ, (5:2) 1. Mason CJ, Brennan and See Appendix A, of Commerce 329 Wilson, Wilson, Dawson, Deane JJ Part III for and Industry v Brennan, Toohey and clarification of The Deane, Dawson, Gaudron JJ tallying of this Commonwealth; Toohey and report (The Second Gaudron JJ Fringe Benefits Tax Case) Australian Tape (1991) 176 CLR Mason CJ, (4:3) 1. Mason CJ, Dawson, Toohey Manufacturers 480 Brennan, Deane, Brennan, Deane and McHugh JJ Association Pty Dawson, and Gaudron JJ Ltd v The Toohey, 2. Dawson and Commonwealth Gaudron and Toohey JJ McHugh JJ
Northern (1993) 176 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. Suburbs General 555 Brennan, Deane, concurrence Deane, Toohey Cemetery Dawson, and Gaudron JJ Reserve Trust v Toohey, The Gaudron and Commonwealth McHugh JJ Mutual Pools (1993) 179 CLR Mason CJ, (7:0) – by 1. Deane and None. and Staff Pty Ltd 155 Brennan, Deane, concurrence Gaudron JJ v The Dawson, 2. Dawson and Commonwealth Toohey, Toohey JJ Gaudron and McHugh JJ Allders (1996) 186 CLR Brennan CJ, (5:2) 1. McHugh, Dawson and International Pty 630 Dawson, Gummow and Toohey JJ Ltd v Toohey, Kirby JJ Commissioner of Gaudron, State Revenue McHugh, (Vic) Gummow and Kirby JJ Leask v The (1996) 187 CLR Brennan CJ, (7:0) – by None None Commonwealth 579 Dawson, concurrence Toohey, Gaudron, McHugh, Gummow and Kirby JJ
467
Airservices (1999) 202 CLR Gleeson CJ, 5:2 1. Gleeson CJ Gaudron and Australia v 133 Gaudron, and Kirby J Callinan JJ Canadian McHugh, Airlines Gummow, Kirby, Hayne and Callinan JJ Austin v (2003) 215 CLR Gleeson CJ, (5:1) 1. Gaudron, Kirby J Commonwealth 185 Gaudron, Gummow and McHugh, Hayne JJ Gummow, Kirby, Hayne JJ
468 Section 51(xix) – The Aliens Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Pochi v Macphee (1982) 151 CLR Gibbs CJ, 4:0 – by None None Aickin J died 101 Mason, Murphy, concurrence before judgment and Wilson JJ delivered Nolan v Minister (1988) 165 CLR Mason CJ, 6:1 Mason CJ, Gaudron J for Immigration 178 Wilson, Wilson, Brennan, Brennan, Deane, Dawson, Deane, Dawson Toohey and and Toohey JJ Gaudron JJ Chu Kheng Lim (1991) 176 CLR Mason CJ (4:3) 1. Brennan, Mason CJ, v Minister for 1 Brennan, Deane, Deane and Toohey and Immigration Dawson, Toohey Dawson McHugh JJ Gaudron and McHugh JJ Cunliffe v The (1993) 182 CLR Mason CJ, (4:3) None. Mason CJ, Commonwealth 272 Brennan, Deane and Deane, Gaudron JJ Dawson, Toohey, Gaudron and McHugh JJ Re Patterson; Ex (2001) 207 CLR Gleeson CJ, (7:0) – by 1. Gummow and None parte Taylor 391 Gaudron, concurrence Hayne JJ McHugh, Gummow, Kirby, Hayne and Callinan JJ
469 Re MIMA; Ex (2002) 212 CLR Gleeson CJ, (7:0) – by None None parte Te 162 Gaudron, concurrence McHugh, Gummow, Kirby, Hayne and Callinan JJ
470 Section 51(xx) – The Corporations Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Actors and (1981) 150 CLR Gibbs C.J., (5:2) None Gibbs C.J. & Announcers 169 Stephen, Mason, Wilson J Equity Murphy, Aickin, Association v Wilson and Fontana Films Brennan JJ Pty Ltd State (1982) 150 CLR Gibbs C.J., (3:2) 1. Mason, Gibbs C.J. & Superannuation 282 Mason, Murphy, Murphy and Wilson J. Board v Trade Wilson and Deane JJ. Practices Deane JJ 2. Gibbs C.J. and Commission Wilson J. Fencott v Muller (1982) 152 CLR Gibbs C.J., (4:3) Mason, Murphy, Gibbs CJ, 570 Mason, Murphy, Brennan & Wilson & Wilson, Deane JJ Dawson JJ Brennan, Deane and Dawson JJ Commonwealth (1983) 158 CLR Gibbs C.J., (4:3) None Gibbs CJ, See Appendix A, v Tasmania (The 1 Mason, Murphy, Wilson & Part III for Tasmania Dam Wilson, Dawson JJ clarification of Case) Brennan, Deane tallying of this and Dawson JJ report
471
Davis v The (1988) 166 CLR Mason CJ, (7:0) – by 1. Mason, CJ Commonwealth 79 Wilson, concurrence Deane & Brennan, Deane, Gaudron JJ Dawson, Toohey 2. Wilson & and Gaudron JJ Dawson JJ New South (1989) 169 CLR Mason CJ, (6:1) Deane J Wales v The 482 Brennan, Deane, Commonwealth Dawson, (The Toohey, Incorporation Gaudron and Case) McHugh JJ Bourke v State (1990) 170 CLR Mason CJ, (7:0) - Mason CJ, None Bank of New 276 Brennan, Deane, unanimous Brennan, Deane, South Wales Dawson, Dawson, Toohey, Toohey, Gaudron & Gaudron & McHugh JJ McHugh JJ Re Dingjan; Ex (1994) 183 CLR Mason CJ, (4:3) Mason CJ, parte Wagner 323 Brennan, Deane, Deane & Dawson, Gaudron JJ Toohey, Gaudron & McHugh JJ Victoria v The (1996) 187 CLR Mason CJ, (6:0) – by Mason CJ, None Commonwealth 416 Brennan, Deane, concurrence Brennan, Deane, (Industrial Dawson, Toohey, Relations Act Toohey, Gaudron & Case) Gaudron & McHugh JJ McHugh JJ
472 Section 51(xxi and xxii) – The Marriage and Divorce Powers
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Gazzo v (1981) 149 CLR Gibbs C.J., (3:2) None. Mason & Comptroller of 227 Stephen, Mason, Murphy JJ Stamps (Vic.) Murphy and Aickin JJ Fountain v (1982) 150 CLR Gibbs C.J., (7:0) – by None. Alexander 615 Stephen, Mason, concurrence Murphy, Aickin, Wilson and Brennan JJ. D.M.W. v. (1982) 151 CLR Gibbs C.J., (5:2) Mason, Murphy, Gibbs CJ & C.G.W. 491 Mason, Murphy, Wilson, Brennan Dawson J Wilson, and Deane JJ. Brennan, Deane and Dawson JJ. In the Marriage (1984) 156 CLR Gibbs C.J., (6:1) None. Murphy J of Cormick 170 Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ. V. v V (1985) 156 CLR Gibbs C.J., (5:1) Gibbs C.J., Dawson J 228 Mason, Wilson, Mason, Wilson, Brennan, Deane Brennan and and Dawson JJ. Deane JJ. The Queen v (1985) 156 CLR Gibbs C.J., (5:1) None. Deane J Cook; Ex parte 249 Mason, Wilson, C. Brennan, Deane and Dawson JJ.
473 Re F; Ex parte F (1986) 161 CLR Gibbs CJ, (4:2) 1. Mason and Mason and 376 Mason, Wilson, Deane JJ Deane JJ Brennan, Deane and Dawson JJ Fisher v Fisher (1986) 161 CLR Gibbs CJ, (6:0) – by 1. Mason and 438 Mason, Wilson, concurrence Deane JJ Brennan, Deane and Dawson JJ Dougherty v. (1987) 163 CLR Mason C.J., (5:0) – by 1. Mason C.J., None Dougherty 278 Wilson, concurrence Wilson & Brennan, Dawson JJ. Dawson and Gaudron JJ.
P v P (1994) 181 CLR Mason CJ, (5:2) 1. Mason, CJ, Brennan and 583 Brennan, Deane, Deane, Toohey Dawson JJ Dawson, and Gaudron JJ. Toohey, Gaudron and McHugh JJ
474 Section 51(xxix) – The External Affairs Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Koowarta v (1982) 153 CLR Gibbs C.J., (4:3) Gibbs CJ, Aickin Bjelke-Peterson 168 Stephen, Mason, and Wilson JJ Murphy, Aickin, Wilson and Brennan JJ. Commonwealth (1983) 158 CLR Gibbs CJ, (4:3) None Gibbs CJ, See Appendix A, v Tasmania (The 1 Mason, Murphy, Wilson and Part III for Tasmania Dam Wilson, Brennan, Dawson JJ clarification of Case) Deane and tallying of this Dawson JJ report Kirmani v (1984) 159 CLR Gibbs CJ, (4:3) None. Gibbs CJ, Captain Cook 351 Mason, Murphy, Wilson and Cruises Pty Ltd Wilson, Brennan, Dawson JJ (No. 1) Deane and Dawson JJ Richardson v (1988) 164 CLR Mason CJ, (5:2) 1. Mason CJ and Deane and Forestry 261 Wilson, Brennan, Brennan J Gaudron JJ Commission Deane, Dawson, Toohey and Gaudron JJ Davis v The (1988) 166 CLR Mason CJ, (7:0) – by 1. Mason, CJ Commonwealth 79 Wilson, Brennan, concurrence Deane & Deane, Dawson, Gaudron JJ Toohey and 2. Wilson & Gaudron JJ Dawson JJ
475
Queensland v (1989) 167 CLR Mason CJ, (6:1) 1. Mason CJ, Dawson J The 232 Brennan, Deane, Brennan, Deane, Commonwealth Dawson, Toohey, Toohey, Gaudron and Gaudron and McHugh JJ McHugh JJ Polyukhovich v (1991) 172 CLR Mason CJ, (4:3) None Brennan, Deane Commonwealth, 501 Brennan, Deane, and Gaudron JJ (War Crimes Act Dawson, Toohey, Case) Gaudron and McHugh JJ Horta v The (1994) 181 CLR Mason CJ (7:0) – Mason CJ None. Commonwealth 183 Brennan, Deane, unanimous Brennan, Deane, Dawson, Toohey, Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Victoria v (1996) 187 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. Commonwealth 416 Dawson, Toohey, concurrence Toohey, (The Industrial Gaudron, Gaudron, Relations Act McHugh and McHugh and Case) Gummow JJ Gummow JJ De L v Director- (1996) 187 CLR Brennan CJ, (7:0) – by 1. Brennan CJ, None. General, NSW 640 Dawson, Toohey, concurrence Dawson, Department of Gaudron, Toohey, Community McHugh, Gaudron, Services Gummow and McHugh, and Kirby JJ Gummow JJ
476
Newcrest Mining (1996) 190 CLR Brennan CJ, (4:3) None. Brennan CJ, (WA) Pty Ltd v 513 Dawson, Toohey, Dawson and The Gaudron, McHugh JJ Commonwealth McHugh, Gummow and Kirby JJ R v Hughes (2000) 202 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. 535 Gaudron, concurrence Gaudron, McHugh, McHugh, Gummow, Kirby, Gummow, Hayne and Hayne and Callinan JJ Callinan JJ
477 Section 51(xxxi) – Compulsory Acquisition on Just Terms
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features The Queens v (1982) 152 CLR Gibbs C.J., (7:0) - 1. Gibbs C.J., None Smithers; Ex 477 Mason, Murphy, unanimous Mason, Murphy, parte McMillian Wilson, Wilson, Brennan, Deane Brennan, Deane and Dawson JJ. and Dawson JJ. Clunies-Ross v (1984) 155 CLR Gibbs C.J., (7:0) – by 1. Gibbs CJ, None The 193 Mason, Murphy, concurrence Mason, Wilson, Commonwealth Wilson, Brennan, Deane Brennan, Deane and Dawson JJ. and Dawson JJ. Commonwealth (1983) 158 CLR Gibbs CJ, (4:3) None Gibbs CJ, See Appendix A, v Tasmania (The 1 Mason, Murphy, Wilson and Part III for Tasmania Dam Wilson, Dawson JJ clarification of Case) Brennan, Deane tallying of this and Dawson JJ report MacCormick v (1983) 158 CLR Gibbs CJ, (5:0) – by 1. Gibbs CJ, None Federal 622 Murphy, Wilson, concurrence Wilson, Deane Commissioner of Brennan, Deane and Dawson JJ. Taxation and Dawson JJ R v Ludeke; Ex (1985) 159 CLR Gibbs CJ, (5:0) – 1. Gibbs CJ, None. parte Australian 636 Wilson, unanimous Wilson, Building Brennan, Deane Brennan, Deane Construction and Dawson JJ and Dawson JJ Employees and Builders Labourers Federation
478 Australian Tape (1991) 176 CLR Mason CJ, (4:3) 1. Mason CJ, Dawson, Toohey Manufacturers 480 Brennan, Deane, Brennan, Deane and McHugh JJ Association Pty Dawson, and Gaudron JJ Ltd v The Toohey, 2. Dawson and Commonwealth Gaudron and Toohey JJ McHugh JJ Australian (1992) 177 CLR Mason CJ, (4:3) 1. Deane and Brennan, Capital 106 Brennan, Deane, Toohey JJ Dawson and Television Pty Dawson, Toohey, McHugh JJ Ltd v The Gaudron and Commonwealth McHugh JJ Mutual Pools (1993) 179 CLR Mason CJ, (7:0) – by 1. Deane and None. and Staff Pty Ltd 155 Brennan, Deane, concurrence Gaudron JJ v The Dawson, Toohey, 2. Dawson and Commonwealth Gaudron and Toohey JJ McHugh JJ Health (1993) 179 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. Insurance 226 Brennan, Deane, concurrence Deane & Commission v Dawson, Toohey, Gaudron JJ Peverill Gaudron and McHugh JJ Re Director of (1993) 179 CLR Mason CJ, (7:0) – by 1. Deane and None. Public 270 Brennan, Deane, concurrence Gaudron JJ Prosecutions; Ex Dawson, Toohey, parte Lawler Gaudron and McHugh JJ Georgiadis v (1993) 179 CLR Mason CJ, (4:3) 1. Mason CJ, Dawson, Toohey Australian and 297 Brennan, Deane, Deane and and McHugh JJ Overseas Dawson, Toohey, Gaudron JJ Telecommunicati Gaudron and ons Corporation McHugh JJ
479 Nintendo (1993) 181 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. Company Ltd v 134 Brennan, Deane, concurrence Brennan, Deane, Centronic Dawson, Toohey, Toohey, Systems Pty Ltd Gaudron and Gaudron and McHugh JJ McHugh JJ Victoria v The (1996) 187 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. Commonwealth, 416 Dawson, Toohey, concurrence Toohey, (The Industrial Gaudron, Gaudron, Relations Act McHugh and McHugh and Case) Gummow JJ Gummow JJ Newcrest Mining (1996) 190 CLR Brennan CJ, 4:3 None. Brennan CJ, (WA) Pty Ltd v 513 Dawson, Toohey, Dawson and The Gaudron, McHugh JJ Commonwealth McHugh, Gummow and Kirby JJ The (1996) 191 CLR Brennan CJ, 7:0 – by None. None. See Appendix A, Commonwealth 471 Dawson, concurrence Part III for v Mewett Toohey, clarification of Gaudron, tallying of this McHugh, report Gummow and Kirby JJ The (1998) 194 CLR Brennan CJ, 4:2 None. Kirby and Commonwealth 1 Toohey, Toohey JJ v WMC Gaudron, Resources Ltd McHugh, Gummow and Kirby JJ
480
Airservices (1999) 202 CLR Gleeson CJ, 5:2 1. Gleeson CJ Gaudron and Australia v 133 Gaudron, and Kirby J Callinan JJ Canadian McHugh, Airlines Gummow, Kirby, Hayne and Callinan JJ Smith v ANL Ltd (2000) 204 CLR Gleeson CJ, 5:2 1. Gaudron and McHugh and 493 Gaudron, Gummow JJ Hayne JJ McHugh, Gummow, Kirby, Hayne and Callinan JJ
481 Section 51(xxxv) – The Industrial Relations Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features The Queen v (1983) 153 Gibbs C.J., (7:0) – 1. Gibbs C.J., None. Coldham; Ex parte CLR 297 Mason, Murphy, unanimous Mason, Murphy, The Australian Wilson, Wilson, Social Welfare Brennan, Deane Brennan, Deane Union and Dawson JJ and Dawson JJ The Queen v Alley; (1983) 153 Gibbs C.J., (6:0) – by None. None. Ex parte NSW CLR 376 Mason, Murphy, concurrence Plumbers and Aickin, Wilson Gasfitters and Brennan JJ. Employees Union The Queen v (1983) 153 Gibbs C.J., (6:1) 1. Gibbs CJ, Murphy J Williams; Ex parte CLR 402 Mason, Murphy, Mason, Wilson, Australian Wilson, Brennan, Deane Building Brennan, Deane and Dawson JJ. Construction and Dawson JJ. Employees and Builders Labourers Federation The Queen v (1983) 154 Gibbs C.J., (5:0) – by Moore; Ex parte CLR 1 Murphy, Wilson, concurrence NSW Public Deane and Service Dawson JJ. Professional Officers Association
482
The Queen v (1982) 158 Gibbs CJ, (7:0) – by 1. Wilson and None. Duncan; Ex parte CLR 535 Mason, concurrence Dawson JJ Australian Iron and Murphy, Steel Pty Ltd Wilson, Brennan, Deane and Dawson JJ Queensland (1985) 159 Gibbs CJ, (4:2) None. Brennan and See Appendix A, Electricity CLR 192 Mason, Wilson, Deane JJ Part III for Commission v The Brennan, Deane clarification of Commonwealth and Dawson JJ tallying of this report The Queen v Ludeke; (1985) 159 Gibbs CJ, (5:0) – 1. Gibbs CJ, None. Ex parte Australian CLR 636 Wilson, unanimous Wilson, Building Brennan, Deane Brennan, Deane Construction and Dawson JJ and Dawson JJ Employees and Builders Labourers Federation Re Lee; Ex parte (1985) 160 Gibbs CJ, (6:0) – by 1. Mason, None. Harper CLR 430 Mason, Wilson, concurrence Brennan and Brennan, Deane Deane JJ and Dawson JJ Australian Building (1986) 161 Gibbs CJ, (5:0) – 1. Gibbs CJ, None. Construction CLR 88 Mason, unanimous Mason, Brennan, Employees and Brennan, Deane Deane and Builders Labourers and Dawson JJ Dawson JJ Federation v The Commonwealth
483
O’Toole v Charles (1990) 171 Mason CJ, (4:3) 1. Deane, Deane, Gaudron David Pty Ltd CLR 232 Brennan, Deane, Gaudron and and McHugh JJ Dawson, Toohey, McHugh JJ Gaudron and McHugh JJ Re Australasian (1992) 176 Mason CJ, (7:0) – by 1. Mason CJ, Meat Industry CLR 154 Brennan, Deane, concurrence Brennan, Deane, Employees Union; Dawson, Toohey, Dawson, Toohey Ex parte Aberdeen Gaudron and and Gaudron JJ Beef Co Pty Ltd McHugh JJ Nationwide News (1991) 177 Mason CJ, (6:1) 1. Deane and Brennan J See Appendix A, Pty Ltd v Wills CLR 1 Brennan, Deane, Toohey JJ Part III for Dawson, Toohey, clarification of Gaudron and tallying of this McHugh JJ report Re Australian (1994) 184 Mason CJ, (6:1) 1. Mason CJ, Dawson J Education Union; Ex CLR 188 Brennan, Deane, Brennan, Deane, parte Victoria Dawson, Toohey, Toohey, Gaudron and Gaudron and McHugh JJ McHugh JJ Victoria v The (1996) 187 Brennan CJ, (6:0) – by 1. Brennan CJ, None. Commonwealth (The CLR 416 Dawson, Toohey, concurrence Toohey, Industrial Relations Gaudron, Gaudron, Act Case) McHugh and McHugh and Gummow JJ Gummow JJ
484
Attorney-General v (1997) 192 Brennan CJ, (6:0) – by 1. Brennan CJ None. Riordan CLR 1 Dawson, concurrence and McHugh J Toohey, 2. Gaudron and Gaudron, Gummow JJ McHugh Gummow and Kirby JJ Re Pacific Coal; Ex (2000) 203 Gleeson CJ, (4:3) 1. Gummow and Gaudron, parte CFMEU CLR 346 Gaudron, Hayne JJ McHugh and McHugh, Kirby JJ Gummow, Kirby, Hayne and Callinan JJ
485 Section 71 – Federal Judicial Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Victoria v (1982) 152 CLR Gibbs C.J., Mason, (5:0) – by None. None. Australian 179 Murphy, Wilson concurrence Building and Brennan JJ. Construction and Builders Labourers Federation Stack v Coast (1983) 154 CLR Gibbs C.J., Mason, (4:3) 1. Mason, Gibbs CJ, Securities (No. 261 Murphy, Wilson, Brennan and Wilson and 9)Pty Ltd Brennan, Deane Deane JJ Dawson JJ and Dawson JJ. 2. Wilson and Dawson JJ Re Tracey; Ex (1988) 166 CLR Mason CJ, (6:1) 1. Mason CJ, Deane J parte Ryan 518 Wilson, Wilson and Brennan, Deane, Dawson JJ Dawson, Toohey 2.Brennan and and Gaudron JJ Toohey JJ Harris v (1990) 172 CLR Mason CJ, (5:2) 1. Mason CJ and Brennan and Caladine 84 Brennan, Deane, Deane JJ Toohey J Dawson, Toohey, Gaudron and McHugh JJ Re Nolan; Ex (1990) 172 CLR Mason CJ, (4:3) 1. Mason and Deane, Gaudron parte Young 460 Brennan, Deane, Dawson JJ and McHugh JJ Dawson, Toohey, 2. Brennan and Gaudron and Toohey JJ McHugh JJ
486 Precision Data (1991) 173 CLR Mason CJ, (7:0) - 1. Mason CJ, None. Holdings v Wills 167 Brennan, Deane, unanimous Brennan, Deane, Dawson, Toohey, Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Re Governor, (1999) 200 CLR Gleeson CJ, (6:1) 1. Gleeson CJ, Kirby J Goulbourn CC; 322 Gaudron, McHugh and Ex parte McHugh, Callinan JJ Eastman Gummow, Kirby, 2. Gaudron and Hayne and Gummow JJ Callinan JJ Residual Assco (2000) 202 CLR Gleeson CJ, (7:0) - 1. Gleeson CJ, None Group Ltd. v 629 Gaudron, unanimous Gaudron, Spalvins McHugh, McHugh, Gummow, Kirby, Gummow, Hayne and Hayne and Callinan JJ Callinan JJ
487
Section 75 – Original jurisdiction of High Court
Case Name Citation Judges Resolution Joint Dissenters Special Features Judgments The Queen v (1984) 154 CLR Mason, Murphy, (5:0) – 1. Mason, None. Bowen; Ex parte 207 Wilson, Brennan unanimous Murphy, Wilson, Federated and Dawson JJ. Brennan and Clerks Union Dawson JJ. Stack v Coast (1984) 154 CLR Gibbs C.J., (4:3) 1. Mason, Gibbs CJ, Securities (No. 261 Mason, Murphy, Brennan and Wilson and 9) Pty Ltd Wilson, Deane JJ Dawson JJ Brennan, Deane 2. Wilson and and Dawson JJ. Dawson JJ Crouch v (1985) 159 CLR Gibbs CJ, (6:0) – by 1. Mason, None. Commissioner 22 Mason, Wilson, concurrence Wilson, for Railways (Q) Brennan, Deane Brennan, Deane and Dawson JJ and Dawson JJ Attorney- (1986) 160 CLR Mason, Wilson, (5:0) – 1. Mason, None. General (NSW) v 315 Brennan, Deane unanimous Wilson, Commonwealth and Dawson JJ Brennan, Deane Bank of and Dawson JJ Australia The (1986) 161 CLR Gibbs CJ, (5:1) 1. Gibbs CJ, Brennan J Commonwealth 254 Mason, Wilson, Mason, Wilson, v Evan Deakins Brennan, Deane Deane and Industries Ltd and Dawson JJ Dawson JJ
488
Carlton and (1986) 161 CLR Gibbs CJ, (6:0) – 1. Gibbs CJ, None. United 543 Mason, Wilson, unanimous Mason, Wilson, Breweries Ltd v Brennan, Deane Brennan, Deane Castlemaine and Dawson JJ and Dawson JJ Tooheys Ltd Re Cram; ex (1987) 163 CLR Mason CJ, (7:0) – 1. Mason CJ, None. parte Colliery 117 Wilson, unanimous Wilson, Proprietors Brennan, Deane, Brennan, Deane, Association Ltd Dawson, Dawson, Toohey and Toohey and Gaudron JJ Gaudron JJ Re McJannet; Ex (1995) 184 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. parte Minister 620 Deane, Dawson, concurrence Deane and for Employment, Toohey, Dawson JJ Training and McHugh and 2. Toohey, Industrial Gummow JJ McHugh and Relations (Q) Gummow JJ State Authorities (1995) 189 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. Superannuation 253 Dawson, concurrence Dawson, Toohey Board v Toohey, and Gaudron JJ Commissioner of Gaudron, 2. McHugh and State Taxation McHugh and Gummow JJ (WA) Gummow JJ Re East; Ex (1998) 196 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None parte Nguyen 354 Gaudron, concurrence Gaudron, McHugh, McHugh, Gummow, Gummow, Kirby, Hayne Hayne and and Callinan JJ Callinan JJ
489
Abebe v (1999) 197 CLR Gleeson CJ, (4:3) 1. Gleeson CJ Gaudron, Commonwealth 510 Gaudron, and McHugh J Gummow McHugh, 2. Gummow and and Hayne Gummow, Hayne JJ JJ Kirby, Hayne and Callinan JJ Re Refugee (2000) 204 CLR Gleeson CJ, (5:2) 1. Gaudron and McHugh Tribunal; Ex 82 Gaudron, Gummow JJ and parte Aala McHugh, Callinan JJ Gummow, Kirby, Hayne and Callinan JJ MacLeod v ASIC (2002) 211 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, * McHugh J did not sit 287 Gaudron, concurrence Gaudron, but, with the consent McHugh,* McHugh, of the parties, read the Gummow, Gummow, transcript of argument Kirby, Hayne and and participated in the Hayne and Callinan JJ judgment Callinan JJ Plaintiff (2002) 211 CLR Gleeson CJ, (7:0) – by 1. Gaudron, S157/2002 v 476 Gaudron, concurrence McHugh, Commonwealth McHugh, Gummow, Kirby Gummow, and Hayne JJ Kirby, Hayne and Callinan JJ
490 Section 76 & 77 –Federal Jurisdiction
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features The (1981) 150 CLR Gibbs C.J., (7:0) – by None. None. Commonwealth 49 Stephen, Mason, concurrence v Hospital Murphy, Aickin, Contribution Wilson and Fund Brennan JJ. L.N.C Industries (1983) 151 CLR Gibbs C.J., (7:0) – by 1. Gibbs CJ, None. Ltd v B.M.W 575 Mason, Murphy, concurrence Mason, Wilson, (Australia) Ltd Wilson, Brennan, Deane Brennan, Deane and Dawson JJ. and Dawson JJ. Victoria v (1981) 152 CLR Gibbs C.J., (4:3) None. Stephen, Australian 25 Stephen, Mason, Murphy and Building Murphy, Aickin, Brennan JJ Construction Wilson and Employees and Brennan JJ. Builders Labourers Federation Stack v Coastal (1983) 154 CLR Gibbs C.J., (4:3) 1. Mason, Gibbs CJ, Securities (No. 261 Mason, Murphy, Brennan and Wilson and 9) Pty Ltd Wilson, Deane JJ Dawson JJ Brennan, Deane 2. Wilson and and Dawson JJ. Dawson JJ
491
Attorney- (1986) 160 CLR Mason, (5:0) – 1. Mason, None. General (NSW) v 315 Wilson, unanimous Wilson, Commonwealth Brennan, Brennan, Bank of Deane and Deane and Australia Dawson JJ Dawson JJ Carlton and (1986) 161 CLR Gibbs CJ, (6:0) – 1. Gibbs CJ, None. United 543 Mason, Wilson, unanimous Mason, Wilson, Breweries Ltd v Brennan, Deane Brennan, Deane Castlemaine and Dawson JJ and Dawson JJ Tooheys Ltd Harris v (1990) 172 CLR Mason CJ, (5:2) 1. Mason CJ and Brennan and Caladine 84 Brennan, Deane, Deane J Toohey JJ Dawson, Toohey, Gaudron and McHugh JJ Leeth v The (1991) 174 CLR Mason CJ (4:3) 1. Mason CJ, Deane, Toohey Commonwealth 455 Brennan, Deane, Dawson and and Gaudron JJ Dawson, Toohey McHugh JJ Gaudron and 2. Deane and McHugh JJ Toohey JJ Owners of “Shin (1994) 181 CLR Mason CJ, (7:0) – 1. Mason CJ, None. Kobe Maru” v 404 Brennan, Deane, unanimous Brennan, Deane, Empire Shipping Dawson, Dawson, Co Inc Toohey, Toohey, Gaudron and Gaudron and McHugh JJ McHugh JJ
492
Re McJannet; Ex (1995) 184 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. parte Minister 620 Deane, concurrence Deane and for Employment, Dawson, Dawson JJ Training and Toohey, 2. Toohey, Industrial McHugh and McHugh and Relations (Q) Gummow JJ Gummow JJ Croome v (1996) 191 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. Tasmania 119 Dawson, concurrence Dawson and Toohey, Toohey JJ Gaudron, 2. Gaudron, McHugh and McHugh and Gummow JJ Gummow JJ Northern (1999) 196 CLR Gleeson CJ, (4:3) 1. Gleeson CJ McHugh, Kirby Territory v 553 Gaudron, and Gummow J and Callinan JJ GPAO McHugh, 2. McHugh and Gummow, Callinan JJ Kirby, Hayne and Callinan JJ Abebe v (1999) 197 CLR Gleeson CJ, (4:3) 1. Gleeson CJ Gaudron, Commonwealth 510 Gaudron, and McHugh J Gummow and McHugh, 2. Gummow and Hayne JJ Gummow, Hayne JJ Kirby, Hayne and Callinan JJ
493
Re Governor (1999) 200 CLR Gleeson CJ, (6:1) 1. Gleeson CJ, Kirby J Goulbourn CC; 322 Gaudron, McHugh and Ex parte McHugh, Callinan JJ Eastman Gummow, 2. Gummow and Kirby, Hayne JJ Hayne and Callinan JJ Truth about (1999) 200 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ None. Motorways v 591 Gaudron, concurrence and McHugh J Macquarie McHugh, Gummow, Kirby, Hayne and Callinan JJ Residual Assco (2000) 202 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. Group v Spalvins 629 Gaudron, concurrence Gaudron, McHugh, McHugh, Gummow, Gummow , Kirby, Hayne and Hayne and Callinan JJ Callinan JJ Re McBain; Ex (2002) 209 CLR Gleeson CJ, (7:0) – by 1. Gaudron and None. parte Catholics 372 Gaudron, concurrence Gummow JJ Bishops McHugh, Conference Gummow, Kirby, Hayne and Callinan JJ
494
MacLeod v ASIC (2002) 211 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. * McHugh J did 287 Gaudron, concurrence Gaudron, not sit but, with McHugh,* McHugh, the consent of Gummow, Gummow, the parties, read Kirby, Hayne and the transcript of Hayne and Callinan JJ argument and Callinan JJ participated in the judgment.
495 Section 80 – Trial by Jury
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Kingswell v The (1985) 159 CLR Gibbs CJ, Mason, (4:2) 1. Gibbs CJ, Brennan & Queen 264 Wilson, Wilson and Deane JJ Brennan, Deane Dawson JJ and Dawson JJ Brown v The (1985) 160 CLR Gibbs CJ, (3:2) None. Gibbs C.J. & Queen 171 Wilson, Brennan, Wilson J. Deane and Dawson JJ Cheatle v The (1993) 177 CLR Mason CJ, (7:0) – 1. Mason CJ, None. Queen 541 Brennan, Deane, unanimous Brennan, Deane, Dawson, Toohey, Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Re Tyler; Ex (1993) 181 CLR Mason CJ, (5:2) 1. Mason CJ & Deane & parte Foley 18 Brennan, Deane, Dawson J Gaudron JJ Dawson, Toohey, 2. Brennan & Gaudron and Toohey JJ McHugh JJ Byrnes v The (1999) 199 CLR Gaudron, McHugh, (5:0) – by 1. Gaudron, None. Queen 1 Gummow, Kirby concurrence McHugh, and Callinan JJ Gummow and Callinan JJ Katsuno v The (1999) 199 CLR Gleeson CJ, (4:2) 1. Gaudron, McHugh & Queen 40 Gaudron, McHugh, Gummow and Kirby JJ Gummow, Kirby Callinan JJ and Callinan JJ
496 Re Colina; Ex (1999) 200 CLR Gleeson CJ, (5:1) 1. Gleeson CJ Kirby J parte Torney 386 McHugh, and Gummow J Gummow, Kirby, Hayne and Callinan JJ Cheng v The (2000) 203 CLR Gleeson CJ, (5:2) 1. Gleeson, Gaudron & Queen 248 Gaudron, Gummow and Kirby JJ McHugh, Hayne JJ Gummow, Kirby, Hayne and Callinan JJ Brownlee v The (2001) 207 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ None. Queen 278 Gaudron, concurrence and McHugh J McHugh, 2. Gaudron, Gummow, Gummow and Kirby, Hayne JJ Hayne and Callinan JJ Cheung v The (2001) 209 CLR Gleeson CJ, (5:1) 1. Gleeson CJ, Gaudron J Queen 1 Gaudron, Gummow and Gummow, Hayne JJ Kirby, Hayne and Callinan JJ
497
Section 90 – Excise
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Hematite (1982) 151 CLR Gibbs C.J., (4:2) None. Gibbs CJ and Petroleum Pty 599 Mason, Murphy, Wilson J Ltd v Victoria Wilson, Brennan and Deane JJ. EVDA Nominees (1984) 154 CLR Gibbs C.J., (7:0) – by 1. Gibbs CJ, None. Pty Ltd v 311 Mason, Murphy, concurrence Mason, Murphy, Victoria Wilson, Brennan, Wilson, Brennan Deane and and Dawson JJ Dawson JJ. Gosford Meats (1984) 155 CLR Gibbs C.J., (4:3) 1. Mason and Gibbs CJ, Pty v NSW 368 Mason, Murphy, Deane JJ Wilson and Wilson, Brennan, Dawson JJ Deane and Dawson JJ. Phillip Morris (1989) 167 CLR Mason CJ, (5:2) 1. Mason CJ and Brennan and Ltd v 399 Brennan, Deane, Deane J McHugh JJ Commissioner of Dawson, Toohey, 2. Toohey and Business Gaudron and Gaudron JJ Franchises (Vic) McHugh JJ Coastace Pty Ltd (1989) 167 CLR Mason CJ (5:2) 1. Mason CJ and Brennan and v NSW 503 Brennan, Deane J McHugh JJ Deane, 2. Toohey and Dawson, Gaudron JJ Toohey, Gaudron and McHugh JJ
498 Harper v (1989) 168 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. Minister for Sea 314 Brennan, Deane, concurrence Deane and Fisheries Dawson, Toohey, Gaudron JJ Gaudron and 2. Dawson, McHugh JJ Toohey and McHugh JJ Capital (1992) 177 CLR Mason CJ, (4:3) 1. Mason CJ, Mason CJ, Duplicators Pty 248 Brennan, Deane, Dawson and Dawson and Ltd v ACT Dawson, Toohey, McHugh JJ McHugh JJ Gaudron and 2. Brennan, McHugh JJ Deane and Toohey JJ Capital (1993) 178 CLR Mason CJ, (4:3) 1. Mason CJ, Dawson, Toohey Duplicators Pty 561 Brennan, Deane, Brennan, Deane and Gaudron JJ Ltd v ACT [No. Dawson, Toohey, and McHugh JJ 2] Gaudron and 2. Gaudron and McHugh JJ Toohey JJ Rainsong (1993) 178 CLR Mason CJ (4:3) 1. Mason CJ, Dawson, Toohey Holdings Pty Ltd 634 Brennan Deane Brennan, Deane and Gaudron JJ v ACT Dawson Toohey and McHugh JJ Gaudron and 2. Toohey and McHugh JJ Gaudron JJ Ha v NSW (1997) 189 CLR Brennan CJ, (4:3) 1. Brennan CJ, Dawson, Toohey 465 Dawson, McHugh, and Gaudron JJ Toohey, Gummow and Gaudron, Kirby JJ McHugh, 2. Dawson, Gummow Toohey and and Kirby JJ Gaudron JJ
499
Section 92 – Freedom of Interstate Trade & Commerce
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features J. Bernard & Co (1980) 153 CLR Gibbs A.C.J., (5:1) None. Aickin J Pty Ltd v 650 Stephen, Mason, Langley Murphy, Aickin and Wilson JJ. Australian (1984) 157 CLR Gibbs C.J., (4:1) None. Brennan J See Appendix A, Coarse Grains 605 Mason, Wilson, Part III for Pool Pty Ltd v Brennan and clarification of Barley Dawson JJ. tallying of this Marketing Board report Ackroyd v (1986) 161 CLR Gibbs CJ, (6:0) – by None. None. McKechnie 60 Mason, Wilson, concurrence Brennan, Deane and Dawson JJ Miller v TCN (1986) 161 CLR Gibbs CJ, (1:6) None. Gibbs CJ, See Appendix A, Channel Nine 556 Mason, Murphy, Murphy, Wilson, Part III for Pty Ltd Wilson, Brennan, Deane clarification of Brennan, Deane and Dawson JJ tallying of this and Dawson JJ report Cole v Whitfield (1987) 165 CLR Mason CJ, (7:0) – 1. Mason CJ, None. 360 Wilson, unanimous Wilson, Brennan, Brennan, Deane, Deane, Dawson, Dawson, Toohey and Toohey and Gaudron JJ Gaudron JJ
500
Bath v Alston (1987) 165 CLR Mason CJ, (4:3) 1. Mason CJ, Wilson, Dawson Holdings Pty Ltd 411 Wilson, Brennan, Deane and Toohey JJ Brennan, and Gaudron JJ Deane, 2. Wilson, Dawson, Dawson and Toohey and Toohey JJ Gaudron JJ Castlemaine (1989) 169 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. Breweries Ltd v 436 Brennan, concurrence Brennan, Deane, SA Deane, Dawson and Dawson, Toohey JJ Toohey, 2. Gaudron and Gaudron and McHugh JJ McHugh JJ Barley (1990) 171 CLR Mason CJ, (7:0) – 1. Mason CJ, None. Marketing Board 182 Brennan, Deane, unanimous Brennan, Deane, (NSW) v Norman Dawson, Dawson, Toohey, Toohey, Gaudron and Gaudron and McHugh JJ McHugh JJ Nationwide (1991) 177 CLR Mason CJ, (6:1) 1. Deane and Brennan J See Appendix A, News Pty Ltd v 1 Brennan, Deane, Toohey JJ Part III for Wills Dawson, clarification of Toohey, tallying of this Gaudron and report McHugh JJ
501
Australian (1991) 177 CLR Mason CJ, (4:3) 1. Deane and Brennan, Capital 106 Brennan, Deane, Toohey JJ Dawson and Television Pty Dawson, McHugh JJ Ltd v The Toohey, Commonwealth Gaudron and McHugh JJ Cunliffe v The (1993) 182 CLR Mason CJ, (4:3) None. Mason CJ, Commonwealth 272 Brennan, Deane and Deane, Gaudron JJ Dawson, Toohey, Gaudron and McHugh JJ AMS v AIF (1999) 199 CLR Gleeson CJ, (6:1) 1. Gleeson CJ, Callinan J 160 Gaudron, McHugh and McHugh, Gummow JJ Gummow, Kirby, Hayne and Callinan JJ
502
Section 109 – Inconsistency of Laws
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features NSW v The (1983) 151 CLR Gibbs C.J., (4:1) 1. Gibbs CJ, Deane J Commonwealth 302 Mason, Murphy, Murphy and and Carlton Wilson and Wilson JJ Deane JJ. The Queen v (1982) 152 CLR Gibbs C.J., (3:1) None. Murphy J Winneke; Ex 211 Mason, Murphy parte Gallagher and Wilson JJ. Metal Trades (1983) 152 CLR Gibbs C.J., (7:0) – by 1. Gibbs CJ, None. Industry 632 Mason, Murphy, concurrence Wilson and Association v Wilson, Dawson JJ Amalgamated Brennan, Deana 2. Mason, Metal Workers and Dawson JJ. Brennan and and Shipwrights Deane JJ Union Victoria v (1981) 152 CLR Gibbs C.J., (4:3) None. Stephen, Murphy Australian 25 Stephen, Mason, and Brennan JJ Building Murphy, Aickin, Construction Wilson and Employees and Brennan JJ. Builders Labourers Association
503
Viskauskas v (1983) 153 Gibbs C.J., (5:0) – 1. Gibbs C.J., None. Niland CLR 280 Mason, Murphy, unanimous Mason, Wilson and Murphy, Brennan JJ. Wilson and Brennan JJ. Belton v General (1984) 154 Mason A.C.J., (5:0) – 1. Mason None. Motors-Holden Ltd CLR 632 Murphy, Wilson, unanimous A.C.J., Deane and Murphy, Dawson JJ. Wilson, Deane and Dawson JJ. University of (1984) 158 Gibbs CJ, (4:3) None. Mason, Wilson Wollongong v CLR 447 Mason, Murphy, and Dawson JJ Metwally Wilson, Brennan, Deane and Dawson JJ The Queen v (1982) 158 Gibbs CJ, (7:0) – by 1. Wilson and None. Duncan; Ex parte CLR 535 Mason, Murphy, concurrence Dawson JJ Australian Iron Wilson, and Steel Pty Ltd Brennan, Deane and Dawson JJ Gerhardy v Brown (1984) 159 Gibbs CJ, (7:0) – by None. None. CLR 70 Mason, Murphy, concurrence Wilson, Brennan, Deane and Dawson JJ Australian Mutual (1986) 160 Gibbs CJ, (5:0) – 1. Gibbs CJ, None. Provident Society v CLR 330 Mason, unanimous Mason, Goulden Brennan, Brennan, Deane and Deane and Dawson JJ Dawson JJ
504 Commercial Radio (1986) 161 Gibbs CJ, (5:0) – by 1. Gibbs CJ and None. Coffs Harbour v CLR 47 Wilson, concurrence Brennan J Fuller Brennan, Deane 2. Wilson, and Dawson JJ Deane and Dawson JJ Smith v Smith (1985) 161 Gibbs CJ, (6:0) – by 1. Gibbs CJ, None. See Appendix A, CLR 217 Mason, Wilson, concurrence Wilson and Part III for Brennan, Deane Dawson JJ clarification of and Dawson JJ 2. Mason, tallying of this Brennan and report Deane JJ Dao v Australian (1986) 162 Mason CJ, (5:0) – 1. Mason CJ, None. Postal Commission CLR 317 Wilson, Deane, unanimous Wilson, Deane, Dawson and Dawson and Toohey JJ Toohey JJ Flaherty v Girgis (1986) 162 Mason ACJ, (3:2) 1. Mason ACJ, Brennan and See Appendix A, CLR 574 Wilson, Wilson and Deane JJ Part III for Brennan, Deane Dawson JJ clarification of and Dawson JJ tallying of this report Union Steamship (1988) 166 Mason CJ, (7:0) – 1. Mason CJ, None. Co of Australia Pty CLR 1 Wilson, unanimous Wilson, Ltd v King Brennan, Deane, Brennan, Dawson, Toohey Deane, and Gaudron JJ Dawson, Toohey and Gaudron JJ
505
Mabo v (1988) 166 Mason CJ, (4:3) 1. Brennan, Mason CJ, Wilson Queensland [No 1] CLR 186 Wilson, Toohey and and Dawson JJ Brennan, Deane, Gaudron JJ Dawson, Toohey and Gaudron JJ McWaters v Day (1989) 168 Mason CJ, (7:0) – 1. Mason CJ, None. CLR 289 Brennan, Deane, unanimous Brennan, Dawson, Deane, Toohey, Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Breavington v (1987) 169 Mason CJ, (7:0) – by 1. Wilson and None. Godleman CLR 41 Wilson, concurrence Gaudron JJ Brennan, Deane, Dawson, Toohey and Gaudron JJ Perrett v Robinson (1987) 169 Mason CJ, (6:1) 1. Mason CJ Dawson J CLR 172 Wilson, and Deane J Brennan, Deane, 2. Wilson and Dawson, Toohey Gaudron JJ and Gaudron JJ Love v Attorney- (1987) 169 Mason CJ, (5:0) – 1. Mason CJ, None General (NSW) CLR 307 Brennan, unanimous Brennan, Dawson, Toohey Dawson, and Gaudron JJ Toohey and Gaudron JJ
506
Dobinson v Crabb (1990) 170 Brennan, (3:2) 1. Dawson and Brennan and CLR 218 Dawson, McHugh JJ Gaudron JJ Toohey, Gaudron and McHugh JJ The Queen v L (1991) 174 Mason CJ, (5:0) – by 1. Mason CJ, None. CLR 379 Brennan, Deane, concurrence Deane and Dawson and Toohey JJ Toohey J Botany Municpal (1992) 175 Mason CJ, (7:0) – 1. Mason CJ, None. Council v Federal CLR 453 Brennan, Deane, unanimous Brennan, Airports Authority Dawson, Deane, Toohey, Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Wallis v Downard- (1993) 179 Deane, Dawson, (5:0) – by 1. Deane and None. Pickford (North CLR 388 Toohey, concurrence Dawson JJ Queensland) Pty Gaudron and 2. Toohey and Ltd McHugh JJ. Gaudron JJ P v P (1994) 181 Mason CJ, (5:2) 1. Mason, CJ, Brennan and CLR 583 Brennan, Deane, Deane, Toohey Dawson JJ Dawson, and Gaudron JJ Toohey, Gaudron and McHugh JJ
507
WA v The (1994) 183 Mason CJ, (7:0) – by 1. Mason CJ, None. Commonwealth, CLR 373 Brennan, concurrence Brennan, (Native Title Act Deane, Deane, Toohey, Case) Dawson, Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ Re McJannett; Ex (1995) 184 Brennan CJ, (6:0) – by 1. Brennan CJ, None. parte Minister for CLR 620 Deane, concurrence Deane and Employment, Dawson, Dawson JJ Training and Toohey, 2. Toohey, Industrial McHugh and McHugh and Relations (Q) Gummow JJ Gaudron JJ Re Residential (1996) 190 Brennan CJ, (6:1) 1. Dawson, Kirby J Tenancies CLR 410 Dawson, Toohey and Tribunal (NSW); Toohey, Gaudron JJ Ex parte Defence Gaudron, Housing Authority McHugh, Gummow and Kirby JJ Croome v (1996) 191 Brennan CJ, (6:0) – by 1. Brennan CJ, None. Tasmania CLR 119 Dawson, concurrence Dawson and Toohey, Toohey JJ Gaudron, 2. Gaudron, McHugh and McHugh and Gummow JJ Gummow JJ
508
Commonwealth v (1999) 196 Gleeson CJ, (5:2) 1. Gleeson CJ Kirby and See Appendix A, WA CLR 392 Gaudron, and Gaudron J Callinan JJ Part III for McHugh, clarification of Gummow, tallying of this Kirby, Hayne report and Callinan JJ Telstra v Worthing (1999) 197 Gleeson CJ, (7:0) – 1. Gleeson CJ, None. CLR 61 Gaudron, unanimous Gaudron, McHugh, McHugh, Gummow, Gummow, Kirby, Kirby, Hayne and Hayne and Callinan JJ Callinan JJ AMS v AIF (1999) 199 Gleeson CJ, (6:1) 1. Gleeson CJ, Callinan J CLR 160 Gaudron, McHugh and McHugh, Gummow JJ Gummow, Kirby, Hayne and Callinan JJ Bond v The Queen (2000) 201 Gleeson CJ, (6:0) – 1. Gleeson CJ, None. CLR 213 Gaudron, unanimous Gaudron, McHugh, McHugh, Gummow, Gummow, Kirby and Kirby and Hayne JJ Hayne JJ
509
Residual Assco (2000) 202 Gleeson CJ, (7:0) – by 1. Gleeson CJ, Group v Spalvins CLR 629 Gaudron, concurrence Gaudron, McHugh, McHugh, Gummow, Gummow, Kirby, Hayne and Hayne and Callinan JJ Callinan JJ Re Macks; Ex (2000) 204 Gleeson CJ, (6:1) 1. Hayne and Kirby J parte Saint CLR 158 Gaudron, Callinan JJ McHugh, Gummow, Kirby, Hayne and Callinan JJ
510 Section 118 – Full Faith & Credit
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Breavington v (1988) 169 CLR Mason CJ, (7:0) – by 1. Wilson and None. Godleman 41 Wilson, Brennan, concurrence Gaudron JJ Deane, Dawson, Toohey and Gaudron JJ Perrett v (1988) 169 CLR Mason CJ, (6:1) 1. Mason CJ and Dawson J Robinson 172 Wilson, Deane J Brennan, Deane, 2. Wilson and Dawson, Toohey Gaudron JJ and Gaudron JJ McKain v RW (1991) 174 CLR Mason CJ, (4:3) 1. Brennan, Mason CJ, Miller & Co 1 Brennan, Deane, Dawson, Toohey Deane and (SA) Pty Ltd Dawson, Toohey, and McHugh JJ Gaudron JJ Gaudron and McHugh JJ Stevens v Head (1992) 176 CLR Mason CJ, (4:3) 1. Brennan, Mason CJ, 433 Brennan, Deane, Dawson, Toohey Deane and Dawson, Toohey, and McHugh JJ Gaudron JJ Gaudron and McHugh JJ Goryl v (1993) 179 CLR Mason CJ, (5:2) 1. Deane and Deane and Greyhound 463 Brennan, Deane, Gaudron JJ Gaudron JJ Australia Pty Ltd Dawson, Toohey, 2. Dawson and Gaudron and Toohey JJ McHugh JJ
511
P v P (1994) 181 CLR Mason CJ, (5:2) 1. Mason CJ, Brennan and 583 Brennan, Deane, Deane, Toohey Dawson JJ Dawson, Toohey, and Gaudron JJ Gaudron and McHugh JJ John Pfeiffer Pty (2000) 203 CLR Gleeson CJ, (7:0) 1. Gleeson CJ, None. Ltd v Rogerson 503 Gaudron, Gaudron, McHugh, McHugh, Gummow, Gummow and Kirby, Hayne Hayne JJ and Callinan JJ
512 Federal Jurisdiction/ Chapter III
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Hilton v Wells (1985) 157 CLR Gibbs C.J., (3:2) 1. Gibbs CJ, Mason CJ and 57 Mason, Wilson, Wilson and Deane J Deane and Dawson JJ Dawson JJ. 2. Mason and Deane JJ The Queen v (1985) 158 CLR Gibbs CJ, (6:0) – 1. Gibbs CJ, None Murphy 596 Mason, Wilson, unanimous Mason, Wilson, Brennan, Deane Brennan, Deane and Dawson JJ and Dawson JJ Australian (1986) 161 CLR Gibbs CJ, (5:0) – 1. Gibbs CJ, None. Building 88 Mason, Brennan, unanimous Mason, Brennan, Construction Deane and Deane and Employees and Dawson JJ Dawson JJ Builders Labourers Association v The Commonwealth Re Cram; Ex (1987) 163 CLR Mason CJ, (5:2) 1. Mason CJ, Wilson and parte Newcastle 140 Wilson, Brennan, Deane, Gaudron JJ Wallsend Coal Brennan, Deane, Dawson and Co. Pty Ltd Dawson, Toohey Toohey JJ and Gaudron JJ
513
Re Tracey; Ex (1988) 166 CLR Mason CJ, (6:1) 1. Mason CJ, Deane J parte Ryan 518 Wilson, Wilson and Brennan, Deane, Dawson JJ Dawson, Toohey 2.Brennan and and Gaudron JJ Toohey JJ Harris v (1990) 172 CLR Mason CJ, (5:2) 1. Mason CJ and Brennan and Caladine 84 Brennan, Deane, Deane J Toohey JJ Dawson, Toohey, Gaudron and McHugh JJ Re Nolan; Ex (1990) 172 CLR Mason CJ, (4:3) 1. Mason CJ and Deane, Gaudron parte Young 460 Brennan, Deane, Dawson J and McHugh JJ Dawson, 2. Brennan and Toohey, Toohey JJ Gaudron and McHugh JJ Polyukhovich v (1991)172 CLR Mason CJ, (4:3) None. Brennan, Deane Commonwealth 501 Brennan, Deane, and Gaudron JJ (War Crimes Act Dawson, Case) Toohey, Gaudron and McHugh JJ Precision Data (1991) 173 CLR Mason CJ, (7:0) - 1. Mason CJ, None. Holdings v Wills 167 Brennan, Deane, unanimous Brennan, Deane, Dawson, Dawson, Toohey, Toohey, Gaudron and Gaudron and McHugh JJ McHugh JJ
514
Leeth v The (1991) 174 CLR Mason CJ (4:3) 1. Mason CJ, Deane, Toohey Commonwealth 455 Brennan, Deane, Dawson and and Gaudron JJ Dawson, Toohey McHugh JJ Gaudron and 2. Deane and McHugh JJ Toohey JJ Chu Kheng Lim (1991) 176 CLR Mason CJ (4:3) 1. Brennan, Mason CJ, v Minister for 1 Brennan, Deane, Deane and Toohey and Immigration Dawson, Toohey Dawson McHugh JJ Gaudron and McHugh JJ Re Tyler; Ex (1993) 181 CLR Mason CJ, (5:2) 1. Mason CJ and Deane and parte Foley 18 Brennan, Deane, Dawson J Gaudron JJ Dawson, Toohey, 2. Brennan and Gaudron and Toohey JJ McHugh JJ Owners of “Shin (1994) 181 CLR Mason CJ, (7:0) – 1. Mason CJ, None. Kobe Maru” v 404 Brennan, Deane, unanimous Brennan, Deane, Empire Shipping Dawson, Toohey, Dawson, Co Inc Gaudron and Toohey, McHugh JJ Gaudron and McHugh JJ P v P (1994) 181 CLR Mason CJ, (5:2) 1. Mason, CJ, Brennan and 583 Brennan, Deane, Deane, Toohey Dawson JJ Dawson, Toohey, and Gaudron JJ. Gaudron and McHugh JJ
515
Brandy v Human (1994) 183 CLR Mason CJ, (7:0) – by 1. Mason CJ, None. See Appendix A, Rights and Equal 245 Brennan, Deane, concurrence Brennan and Part III for Opportunity Dawson, Toohey, Toohey JJ clarification of Commission Gaudron and 2. Deane, tallying of this McHugh JJ Dawson, report Gaudron and McHugh JJ Re Dingjan; Ex (1994) 183 CLR Mason CJ, (4:3) Mason CJ, parte Wagner 323 Brennan, Deane, Deane & Dawson, Toohey, Gaudron JJ Gaudron & McHugh JJ Grollo v Palmer (1995) 184 CLR Brennan CJ, (5:1) 1. Brennan CJ, McHugh J 348 Deane, Dawson, Deane, Dawson Toohey, McHugh and Toohey JJ and Gummow JJ Wilson v (1997) 189 CLR Brennan CJ, (6:1) 1. Brennan CJ, Kirby J Minister for 1 Dawson, Dawson, Aboriginal and Toohey, Toohey, Torres Strait Gaudron, McHugh and Islander Affairs McHugh, Gummow JJ Gummow and Kirby JJ Kable v Director (1996) 189 CLR Brennan CJ, (4:2) None. Brennan CJ and of Public 51 Dawson, Dawson J Prosecutions Toohey, (NSW) Gaudron, McHugh, and Gummow JJ
516
Kruger v The (1996) 190 CLR Brennan CJ, (4:2) None. Toohey and See Appendix A, Commonwealth 1 Dawson, Gaudron JJ Part III for Toohey, clarification of Gaudron, tallying of this McHugh and report Gummow JJ Harrington v (1996) 190 CLR Brennan CJ, (7:0) – by 1. Brennan CJ, None. Lowe 311 Dawson, Toohey, concurrence Dawson, Gaudron, McHugh, Toohey, Gummow and Gaudron, Kirby JJ McHugh and Gummow JJ Nicholas v The (1998) 193 CLR Brennan CJ, (5:2) None. McHugh and Queen 173 Toohey, Kirby JJ Gaudron, McHugh, Gummow, Kirby and Hayne JJ Bachrach (Ha) (1998) 195 CLR Gleeson CJ, (5:0) – 1. Gleeson CJ, None. P/L v 547 Gaudron, unanimous Gaudron, Queensland Gummow, Gummow, Kirby and Kirby and Hayne JJ Hayne JJ Attorney- (1999) 197 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. General (Cth) v 83 Gaudron, concurrence Gaudron, Breckler McHugh, McHugh, Gummow, Gummow, Kirby, Hayne and Hayne and Callinan JJ Callinan JJ
517 Abebe v (1999) 197 CLR Gleeson CJ, (4:3) 1. Gleeson CJ Gaudron, Commonwealth 510 Gaudron, and McHugh J Gummow and McHugh, 2. Gummow and Hayne JJ Gummow, Hayne JJ Kirby, Hayne and Callinan JJ Re Wakim; Ex (1999) 198 CLR Gleeson CJ, (4:3) 1. Gummow and McHugh, Kirby See Appendix A, parte McNally 511 Gaudron, Hayne JJ and Callinan JJ Part I for McHugh, clarification of Gummow, tallying of this Kirby, Hayne and report Callinan JJ Sue v Hill (1999) 199 CLR Gleeson CJ, (4:3) 1. Gleeson CJ, McHugh, Kirby 462 Gaudron, Gummow and and Callinan JJ McHugh, Hayne JJ Gummow, Kirby, Hayne and Callinan JJ Re Macks; Ex (2000) 204 CLR Gleeson CJ, (6:1) 1. Hayne and Kirby J parte Saint 158 Gaudron, Callinan JJ McHugh, Gummow, Kirby, Hayne and Callinan JJ ASIC v Edensor (2001) 204 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. See Appendix A, Nominees P/L 559 Gaudron, concurrence Gaudron and Part III for McHugh, Gummow JJ clarification of Gummow, 2. Hayne and tallying of this Kirby, Hayne and Callinan JJ report Callinan JJ
518
Pasini v United (2002) 209 CLR Gleeson CJ, (5:0) – by 1. Gleeson CJ, None. Mexican States 246 Gaudron, concurrence Gaudron, McHugh, McHugh and Gummow and Gummow JJ Kirby JJ Re McBain; Ex (2002) 209 CLR Gleeson CJ, (7:0) – by 1. Gaudron and None. parte Catholics 372 Gaudron, concurrence Gummow JJ Bishops McHugh, Conference Gummow, Kirby, Hayne and Callinan JJ Luton v Lessels (2002) 210 CLR Gleeson CJ, (6:0) – by 1. Gaudron and None. 333 Gaudron, concurrence Hayne JJ McHugh, Kirby, Hayne and Callinan JJ Solomons v (2002) 211 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. See Appendix A, District Court 119 Gaudron, concurrence Gaudron, Part III for McHugh, Gummow, clarification of Gummow, Hayne and tallying of this Kirby, Callinan JJ report Hayne and Callinan JJ MacLeod v ASIC (2002) 211 CLR Gleeson CJ, (7:0) – by 1. Gleeson CJ, None. *McHugh J did 287 Gaudron, concurrence Gaudron, not sit but, with McHugh,* McHugh, the consent of Gummow, Gummow, the parties, Kirby, Hayne and participated in Hayne and Callinan JJ the judgment. Callinan JJ
519 Implied Freedom of Political Communication
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Miller v TCN (1986) 161 CLR Gibbs CJ, Mason, (1:6)* None. Gibbs CJ, See Appendix A, Channel Nine 556 Murphy, Wilson, Murphy, Wilson, Part III for Pty Ltd Brennan, Deane Brennan, Deane clarification of and Dawson JJ and Dawson JJ tallying of this report Nationwide (1991) 177 CLR Mason CJ, (6:1) 1. Deane and Brennan J See Appendix A, News Pty Ltd v 1 Brennan, Deane, Toohey JJ Part III for Wills Dawson, Toohey, 2. clarification of Gaudron and tallying of this McHugh JJ report Australian (1992) 177 CLR Mason CJ, (4:3) 1. Deane and Brennan, Capital 106 Brennan, Deane, Toohey JJ Dawson and Television Pty v Dawson, Toohey, McHugh JJ The Gaudron and Commonwealth McHugh JJ Theophanous v (1994) 182 CLR Mason CJ, (4:3) 1. Mason CJ, Brennan, Herald & 104 Brennan, Deane, Toohey and Dawson and Weekly Times Dawson, Toohey, Gaudron JJ McHugh JJ Ltd Gaudron and McHugh JJ Stephens v West (1994) 182 CLR Mason CJ, (4:3) 1. Mason CJ, Brennan, Australian 211 Brennan, Deane, Toohey and Dawson and Newspapers Ltd Dawson, Toohey, Gaudron JJ McHugh JJ Gaudron and McHugh JJ
520
Cunliffe v The (1994) 182 CLR Mason CJ, (4:3) None. Mason CJ, Commonwealth 272 Brennan, Deane, Deane and Dawson, Toohey, Gaudron JJ Gaudron and McHugh JJ Langer v The (1996) 186 CLR Brennan CJ, (5:1) 1. Toohey and Dawson J Commonwealth 302 Dawson, Toohey, Gaudron JJ Gaudron, McHugh and Gummow JJ Muldowney v (1996) 186 CLR Brennan CJ, (6:0) – by None. None. South Australia 352 Dawson, Toohey, concurrence Gaudron, McHugh and Gummow JJ Lange v (1997) 189 CLR Brennan CJ, (7:0) – 1. Brennan CJ, None. Australian 520 Dawson, Toohey, unanimous Dawson, Broadcasting Gaudron, McHugh, Toohey, Corporation Gummow and Gaudron, Kirby JJ McHugh, Gummow and Kirby JJ Levy v Victoria (1997) 189 CLR Brennan CJ, (7:0) – by 1. Toohey and None. 579 Dawson, Toohey, concurrence Gummow JJ Gaudron, McHugh, Gummow and Kirby JJ ABC v Lenah (2001) 208 CLR Gleeson CJ, (5:1) 1. Gummow and Callinan J Game Meats Pty 199 Gaudron, Hayne JJ Ltd Gummow, Kirby, Hayne and Callinan JJ
521
Roberts v Bass (2002) 212 CLR Gleeson CJ, (6:1) 1. Gaudron, Gleeson CJ, See Appendix A, 1 Gaudron, McHugh, Gummow and Hayne and Part III for Gummow, Kirby, Hayne JJ Callinan JJ clarification of Hayne and tallying of this Callinan JJ report
522 Commonwealth-State Intergovernmental Relations
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Queensland (1985) 159 CLR Gibbs CJ, (4:2) None. Brennan and See Appendix A, Electricity 192 Mason, Wilson, Deane JJ Part III for Commission v Brennan, Deane clarification of The and Dawson JJ tallying of this Commonwealth report The (1986) 161 CLR Gibbs CJ, Mason, (5:1) 1. Gibbs CJ, Brennan J Commonwealth 254 Wilson, Brennan, Mason, Wilson, v Evans Deakin Deane and Dawson Deane and Industries Ltd JJ Dawson JJ State Bank of (1986) 161 CLR Gibbs CJ, Mason, (6:0) – 1. Gibbs CJ, None. NSW v 639 Wilson, Brennan, unanimous Mason, Wilson, Commonwealth Deane and Dawson Brennan, Deane Savings Bank of JJ and Dawson JJ Australia State Chamber (1987) 163 CLR Mason CJ, (5:2) 1. Mason CJ, Brennan and See Appendix A, of Commerce 329 Wilson, Brennan, Wilson, Dawson, Deane JJ Part III for and Industry v Deane, Dawson, Toohey and clarification of The Toohey and Gaudron JJ tallying of this Commonwealth; Gaudron JJ report The Second Fringe Benefits Tax Case Re Australian (1994) 184 CLR Mason CJ, (6:1) 1. Mason CJ, Dawson J Education 188 Brennan, Deane, Brennan, Deane, Union; Ex parte Dawson, Toohey, Toohey, Victoria Gaudron and Gaudron and McHugh JJ Toohey JJ
523 Victoria v The (1996) 187 CLR Brennan CJ, (6:0) – by 1. Brennan CJ, None. Commonwealth, 416 Dawson, Toohey, concurrence Toohey, The Industrial Gaudron, McHugh Gaudron, Relations Act and McHugh and Case Gummow JJ Gummow JJ Re Residential (1996) 190 CLR Brennan CJ, (6:1) 1. Dawson, Kirby J Tenancies 410 Dawson, Toohey, Toohey and Tribunal (NSW); Gaudron, McHugh, Gaudron JJ Ex parte Defence Gummow and Housing Kirby JJ Authority The (1996) 191 CLR Brennan CJ, (7:0) – by 1. Gummow and None. See Appendix A, Commonwealth 471 Dawson, Toohey, concurrence Kirby JJ Part III for v Mewett Gaudron, McHugh, clarification of Gummow and tallying of this Kirby JJ report Austin v (2003) 215 CLR Gleeson CJ, (5:1) 1. Gaudron, Kirby J Commonwealth 185 Gaudron, McHugh, Gummow and Gummow, Kirby, Hayne JJ Hayne JJ
524 Section 122 – Territories Power
Case Name Citation Judges Resolution Joint Dissenters Special Judgments Features Northern Land (1986) 161 CLR Gibbs CJ, (6:0) – 1. Gibbs CJ, None. Council v The 1 Mason, Wilson, unanimous Mason, Wilson, Commonwealth Brennan, Deane Brennan, Deane and Dawson JJ and Dawson JJ Davis v The (1988) 166 CLR Mason CJ, (7:0) – by 1. Mason, CJ Commonwealth 79 Wilson, concurrence Deane & Brennan, Deane, Gaudron JJ Dawson, Toohey 2. Wilson & and Gaudron JJ Dawson JJ Perrett v (1987) 169 CLR Mason CJ, (6:1) 1. Mason CJ and Dawson J Robinson 172 Wilson, Deane J Brennan, Deane, 2. Wilson and Dawson, Toohey Gaudron JJ and Gaudron JJ Australian (1992) 177 CLR Mason CJ, (4:3) 1. Deane and Brennan, Capital 106 Brennan, Deane, Toohey JJ Dawson and Television Pty v Dawson, McHugh JJ The Toohey, Commonwealth Gaudron and McHugh JJ Capital (1992) 177 CLR Mason CJ, (4:3) 1. Mason CJ, Mason CJ, Duplicators Pty 248 Brennan, Deane, Dawson and Dawson and Ltd v Australian Dawson, McHugh JJ McHugh JJ Capital Territory Toohey, 2. Brennan, Gaudron and Deane and McHugh JJ Toohey JJ
525
Skivart v Stewart (1993) 181 CLR Mason CJ, (5:2) 1. Mason CJ, Toohey and 548 Brennan, Deane, Deane, Dawson Gaudron JJ Dawson, and McHugh JJ Toohey, Gaudron and McHugh JJ Kruger v The (1996) 190 CLR Brennan CJ, (4:2) None. Toohey and See Appendix A, Commonwealth 1 Dawson, Gaudron JJ Part III for Toohey, clarification of Gaudron, tallying of this McHugh and report Gummow JJ Newcrest Mining (1996) 190 CLR Brennan CJ, (4:3) None. Brennan, Pty Ltd v The 513 Dawson, Dawson and Commonwealth Toohey, McHugh JJ Gaudron, McHugh, Gummow and Kirby JJ Northern (1999) 196 CLR Gleeson CJ, (4:3) 1. Gleeson CJ McHugh, Kirby Territory v 553 Gaudron, and Gummow J and Callinan JJ GPAO McHugh, 2. McHugh and Gummow, Callinan JJ Kirby, Hayne and Callinan JJ
526
Re Wakim; Ex (1999) 198 CLR Gleeson CJ, (4:3) 1. Gummow and McHugh, Kirby See Appendix A, parte McNally 511 Gaudron, Hayne JJ and Callinan JJ Part I for McHugh, clarification of Gummow, tallying of this Kirby, Hayne report and Callinan JJ Re Governor, (1999) 200 CLR Gleeson CJ, (6:1) 1. Gleeson CJ, Kirby J Goulbourn CC; 322 Gaudron, McHugh and Ex parte McHugh, Callinan JJ Eastman Gummow, 2. Gummow and Kirby, Hayne Hayne JJ and Callinan JJ
527