JUDGES IN the highest court are increasingly disagreeing with each other, with more than 50 per cent of cases in the past year resulting in a split bench, new analysis has shown.
According to a report by Dr Andrew Lynch and Professor George Williams from the Gilbert + Tobin Centre of Public Law, 2006 saw a significant increase in the number of High Court rulings decided by a split bench, up from 35 per cent in the previous year. Just 20 per cent of cases were decided unanimously in 2006.
In an interview with Lawyers Weekly, Lynch said last year was striking because it was the highest rate of dissent the court had ever seen. He attributed this in part to what has been called the ‘Kirby effect’, which refers to Justice Michael Kirby, who the report states has a “confirmed status as the Court’s outsider”.
“[The Kirby effect] means he accounts for a lot of the Court’s decisions which are made over a minority opinion. And that has been fairly constant at around 50 per cent. But with him taking more and more responsibility for that result, as it were, there are not a great deal of other minority voices on the court,” Lynch said.
Justice Kirby’s personal rate of dissenting judgements last year exceeded his record from previous years, disagreeing with the Court in 48 per cent of cases. Comparatively, Justice John Heydon dissented in 15 per cent of cases and Justice Susan Crennan, the Court’s newest member, did not dissent once.
According to Lynch, some argue that it is a positive attribute of the Court that there are not many minority voices, while others welcome a greater degree of judicial diversity. The latter is argued to be of assistance in shaping the law in the future, he said.
“In earlier years, a more common split was four judges against three, and it was much more of a moveable feast, if you like. That can be very frustrating because authorities are seen to have just made it in by one vote. So in some sense, there should be a great deal of contentment with a court that speaks with so much agreement as this one does,” said Lynch.
“The converse to that is to ask whether there are alternative answers to those problems. And Justice Kirby is someone who thinks that in one out of every two cases that there is one. It is just a question as to those alternatives not being very well represented on the current bench.”
Lynch added, however, that some might regret that disagreement with the majority’s approach to legal matters can so often be attributed to the same judge.
But Kirby has in the past attributed much of his dissenting to the current era in Australia, and the way its judges make decisions.
“Kirby would say his judgments are in line with the methodology seen in final courts in other jurisdictions overseas. And there is also a strong body of jurisprudence and academic writing to support his approach on, say, constitutional questions,” said Lynch.
“His own view is that had he been sitting in an earlier era of the Court’s history — and he points to the Mason Court — he would not have been in the minority as often as his methodology and approach to these problems would have found greater acceptance amongst the judges of that time.”
The report, entitled The High Court on Constitutional Law: The 2006 Statistics, was presented on Friday at the sixth Constitutional Law Conference, held at the Art Gallery of New South Wales.