2006 saw a large increase in the number of High Court rulings decided by a split bench, according to a report that will be presented at the sixth Constitutional Law Conference on 16 February.
2006 saw a large increase in the number of High Court rulings decided by a split bench, according to a report that will be presented at the sixth Constitutional Law Conference on 16 February.
An analysis of the High Court's decisions by Dr Andrew Lynch and Professor George Williams from the Gilbert +Tobin Centre of Public Law, has found that cases in which the Justices formally disagreed with each other rose significantly from 35% in 2005 to just over 50% last year. The Court maintained a rate of over 20% of cases decided unanimously.
"Last year saw the Court return to its far more usual level of disagreement with one in every two cases decided by a split bench," says Dr Lynch. "What is striking though is that individual dissent rates for most Justices fell in 2006."
The high number of split decisions must be largely attributed to Justice Kirby whose personal rate of dissenting judgments exceeded even his own record from earlier years. Justice Kirby disagreed with the Court in 48 percent of cases. The next most frequent minority judge was Justice Heydon who dissented in 15 percent of cases. Justice Crennan, serving her first year on the Court, did not dissent even once.
"The fact that the Court does not achieve more unanimity is not such a bad thing. Indeed it may be strongly desirable that different voices are heard," says Dr Lynch. "But, some might regret that disagreement with the majority's approach to legal problems is found so often in the decisions of the same judge."
Other key findings• Justices Gummow and Hayne continued to share a remarkable consistency of opinion and issued joint opinions in all the constitutional cases of 2006. They wrote together in about 75 percent of cases overall. Their next most frequent collaborator was Justice Crennan, who joined them in every constitutional case on which she sat.• The Court's newest member, Justice Susan Crennan, has yet to disagree with the orders made by the Court. She was the only judge not to dissent at all last year.• At just over 15 percent of all his decisions, Justice Heydon issued about twice as many dissenting opinions as in previous years. He also wrote less frequently with Gummow and Hayne than usual.
"Justice Crennan has clearly found herself in sympathy with the prevailing approach on the Court. She has joined the solid core of its members who only rarely disagree," says Dr Lynch. "But with three retirements due in the next three years, the continued dominance of that group may be challenged by new appointments."
The 2007 Constitutional Law Conference, organised by the Gilbert +Tobin Centre of Public Law at UNSW, will be held at the Art Gallery of NSW on Friday 16 February. The conference will focus on developments in the High Court and other Australian courts in 2006 and beyond. For the full program of speakers see the Centre's website
The Hon Justice John D Heydon of the High Court of Australia, will speak at the Conference dinner at the NSW Parliament House. This year's Conference has been organised with the support of the Australian Association of Constitutional Law.
To see a full statistical analysis of the High Court decisions for 2006 please email vcollins@unsw.edu.au Note: this information is embargoed until 1AM Friday 16 February 2007.
For inquiries on this material, please contact Dr Andrew Lynch on 0402 424 233.