NEW RESEARCH on the High Court has countered suggestions that contemporary judges deliver more multiple majority judgements than their predecessors.
The research, conducted by academics from Deakin Law School, shows that there is no evidence to suggest that the High Court is now more fragmented than it has been during other periods of history.
Such criticisms of the High Court impair its capacity to clarify and unify the law, thus making it more difficult for citizens to coordinate their affairs, the researchers suggest.
In an interview with Lawyers Weekly, Mirko Bagaric, head of Deakin Law School, said the High Court has recently been criticised for a supposed divided approach to decision making. But his research, conducted with Deakin Law School lecturer James McConvill, shows that there were as many separate majority judgements 50 years ago as there are now.
In a speech to the Constitutional Law Conference in Sydney earlier this year, Chief Justice Gleeson stated that the doctrine of precedent could be harmed by multiple majority judgements.
Spurred on by these comments, Bagaric decided to examine the presupposed argument and whether there is justification for the practice of joint majority judgements. His research provided a statistical breakdown of the structure of the High Court decisions in the most recent full calendar year (2003) and compare them with the figures from a decade ago (1993), 25 years ago and approximately 50 years ago (1954). The years were chosen at random, he said. Because the High Court has comprised seven judges only since 1946, the research does not go further back than this.
The figures show that the High Court is “in fact not now more divided in its judgement writing process than during any of the other periods,” Bagaric said.
The most telling statistic found in the research, Bagaric told Lawyers Weekly, is that the greater the number of judges there are, the greater the opportunity for disagreement. The principal criticism levelled at the Court recently has been the number of separate concurring judgements.
By dividing the percentage of cases where there is more than one majority decision by the average number of justices hearing a decision, the researchers found that the proportion of decisions involving at least one separate concurring judgement relative to the average number of justices hearing a case is relatively stable over the surveyed period. It stayed at about 12 per cent, except in 2003, when the fragmentation index halved.
“So when you go back 10, 25 or 50 years, there is no evidence that the High Court is more divided in its approach than it was in the past,” he said.
“The perceived individualistic approach taken by the High Court to decision making in recent years has been subject to a significant degree of criticism. This criticism is not sound,” the research paper states.