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Bring back the great dissenters

Bring back the great dissenters

The current chief justice has garnered a new era of harmony on the country's highest court, according to new statistics released by the Gilbert + Tobin public law centre. But Kate Gibbs questions the cause.

The current chief justice has garnered a new era of harmony on the country's highest court, according to new statistics released by the Gilbert + Tobin public law centre. But Kate Gibbs questions the cause.

THE High Court of Australia handed down a record number of unanimous decisions in 2009, the first full year of Chief Justice Robert French's tenure, according to a report to be presented at the ninth annual Constitutional Law Conference this week. 

The study of the High Court’s decisions in 2009 by Dr Andrew Lynch and Professor George Williams, from the University of New South Wales’ Gilbert + Tobin Centre of Public Law, shows that for almost 45 per cent of all cases decided last year the court was able to reach a single opinion as to the outcome.

“This is a remarkable result,” Dr Lynch said. 

“If we look at the average rate of unanimity under the previous four Chief Justices, the highest figure is about one case in every four. Yet in 2009, the court decided almost half its cases with total agreement among its members.”

But as this makes the news in some widely read publications, eyebrows should be raised as to why unanimous decisions are important. And it has to be said, if the Court's Chief Justice can actually shape the way judges rule on various cases, should this be the case? Why is nobody worried that we no longer have a great dissenter?  

As former High Court judge Michael Kirby said in 2005, the words in the Constitution are contentious. The language of Acts of Parliament is frequently ambiguous. 

In rapidly changing times, there may be no exact precedent in the common law for a new problem of society or technology, as Kirby himself pointed out. It is the role of judges to have a creative role to solve such uncertainties.

The authors of the newly released report said the high level of consensus was not simply due to the retirement of Justice Michael Kirby in February last year. 

Justice Kirby was nicknamed "The Great Dissenter" on account of his regular disagreement with the views of his colleagues on the Court.

“The rate of dissent on the Court last year certainly fell,” said G+T public law's Lynch, “but that alone cannot account for the prevalence of unanimous opinions. A number of factors may be in play, quite aside from the nature of the cases that went before the Court".

Lynch and Williams argue that any change in the composition of the bench was likely to affect the inner workings of the Court, but this was particularly relevant when the change involved a new Chief Justice taking the reins.

“Our understanding of the ability of Chief Justices to shape consensus is limited,” said Lynch, “but depending on the individual, the office of Chief Justice provides a number of ways to effect change. In trying to understand the increase in unanimity and corresponding drop in dissenting opinions in 2009, the fact that this is now the ‘French Court’ is likely to be significant," Lynch said.

Data from the study showed, however, that the Court was still just as likely to split over constitutional issues as it was in the past. Lynch and Williams said: “2009 was an historically significant year in the development of constitutional doctrine, with cases such as the challenge to the Rudd government’s fiscal stimulus payments producing surprising results".

The report offers some interesting insights into why dissenting may have decreased in the past year but, as Kirby himself has noted, it also shows a general consensus in the current court's values. "Judges, like most mortals, have values," said Kirby. And he is right. Pretending that everything is certain in the law, and that judges operate on automatic pilot, is not completely honest. 

Justice Kirby himself has spoken on the matter of judicial dissent, and has compared judges' ability to dissent in Australia as affected by their resistance to pressures from government as well as from their colleagues. 

"Judicial independence includes independence from each other," he said in 2005. 

In the higher courts, disagreements over the law are inescapable and quite common, Kirby said. 

"The demand by observers for unanimity amongst judges is often infantile," the former High Court judge said.

If we are welcoming a reduction of dissenting judgements in our highest court, we are forgetting what the Court is there to do. As this report highlights the smooth-running agreements on more cases than in the recent past, we should question why these judges are agreeing. 

As the great dissenter himself said on the matter: "If it is an insistence that judges hide their disagreements from the public they serve, it denies the ultimate sovereign, the people, the right to evaluate, and criticise, judicial choices."

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