'The High Court on constitutional law: the 2011 statistics' by Andrew Lynch and George Williams in 35(3)
UNSW Law Journal (2012) 846-865 [
PDF] presents
statistical information about the High Court’s decision making for 2011 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total.
The authors emphasise the importance of acknowledging the limitations that inhere in an empirical study of the decision-making of the High Court over just one year. In particular, care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size, especially in respect of the smaller set of constitutional cases. Nevertheless, this annual exercise remains worthwhile in that it offers assistance to those followers of the Court’s decisions who are interested in the way in which the dynamics between its individual members translate into institutional outcomes. It provides simple empirical data about the functioning of the Court that may otherwise be left merely to impression.
The authors endeavour to draw readers’ attention to trends and patterns observed in earlier years where these enhance understanding of the significance of these results. As it turns out, the results of our 2011 survey of decision-making on the Court provide a clear demonstration of the value of looking at the Court on a yearly basis. They are, in several key respects, notably different from those of the immediately preceding years.
Statistical representations of the way in which the High Court and its Justices decided the cases of any given year are only a supplement, rather than any kind of substitute, for scholarship that subjects the legal reasoning contained in the cases to substantive analysis or examines the impact of the Court’s decisions upon government and the community.
The authors also refrain entirely from making the exercise one from which they presume to make inferences about the particular working relationships amongst the Court’s members. The results are drawn only from what may be observed from the public record of the Court’s decided cases. This remains inadequate source material from which to assess, for example, the level of influence which any Justice has amongst his or her colleagues.
They conclude -
2011 was the year that the French Court returned to the norm. Gone were the
historically high levels of unanimity of 2009 and 2010, with last year instead
presenting a more familiar, fractured Court. It is difficult for any bench
composed of seven independent judges to sustain high levels of agreement across
the work of the High Court, let alone in controversial constitutional cases. What
was remarkable was that the French Court did so for its first two years.
A central reason for why unanimity proved more elusive in 2011 was the so-called
‘Heydon effect’. Justice Heydon has been a more regular dissenter during
his tenure on the High Court than many of his colleagues, but in 2011 he greatly
exceeded his earlier results on this score. His rate of dissent across all cases for
the year tripled from a previous high of around 15 per cent to over 45 per cent.
This amount of formal disagreement has only been exceeded once in the annual
surveys we have conducted on decision-making in the Court – and that was by
the Court’s greatest ever dissenter, Kirby J, in 2006. Justice Kirby’s level of
dissent in other years during the Gleeson era was anything upwards of around 25
per cent but never as high as that of Heydon J last year.
2011 may prove to be an aberration in Justice Heydon’s rate of dissent.
Certainly it would seem difficult to sustain, but conversely it would be surprising
if it subsided dramatically. That the latter appears unlikely is borne out by other
indicators. There has been a gradual, but noticeable, change in tone and approach
in many of his judgments, with a greater willingness on his part to express his
legal opinion even more forcefully and in striking and colourful language. In
Momcilovic, for example, he went further than any other judge in holding, in
dissent, the whole of the Charter to be invalid. He did so in a judgment that was
dismissive of the Charter, and of human rights statutes and human rights
principles in general, stating at one point that:
The odour of human rights sanctity is sweet and addictive. It is a comforting drug
stronger than poppy or mandragora or all the drowsy syrups of the world. But the
effect can only be maintained over time by increasing the strength of the dose.
With Heydon J, a reader never need doubt where he stands on a legal
question, and his often sharply critical reaction to the judgments of other
members of the Court stands up well with the best traditions of High Court
dissent.
Justice Heydon will, however, have limited opportunities for future dissent.
The requirement in section 72 of the Constitution that High Court judges retire at
the age of 70 means that he must leave the Court in early 2013. He is not alone in
his impending departure. Going first is Gummow J, who retired in October 2012.
Justices Hayne and Crennan must then retire in 2015. All up, a majority of the
Court will depart in a little over three years, with only French CJ and Bell and
Kiefel JJ of the current bench then remaining (with their years of retirement
being, respectively, 2017, 2021 and 2024). The stability of membership that marked the early period of the French Court is about to end, as the Court’s
personnel undergoes rapid change.
Given the breakdown in 2011 of the trends of the French Court in its first two
years, it will be interesting to observe how the Court decides those matters before
it in the last remaining months of its present composition. Even more interesting
will be to see the changes that follow from the replacement of those two Justices
who appear to play such different roles on the High Court today – Gummow J
whose opinions have consistently reflected majority thinking on the Court since
his appointment in 1995 and Heydon J who now most regularly represents the
alternative minority voice on the institution.
