The High Court on Constitutional Law: The 2013 Statistics

21 Pages Posted: 9 Sep 2014

See all articles by Andrew Lynch

Andrew Lynch

University of New South Wales

George Williams

University of New South Wales (UNSW) - Faculty of Law

Date Written: September 7, 2014

Abstract

This article presents statistical information about the High Court’s decision-making for 2013 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total. The results have been compiled using the same methodology employed in earlier years.

It is important to note the reservations made in previous years, regarding the limitations inherent to an empirical study of the decision-making of the High Court over just one year. Care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size. This is most evident in respect of the subset of constitutional cases. However, despite that qualification, an annual examination of the way in which the Court decides the cases it hears is nevertheless illuminating – both about the cases themselves and the degree of consensus or diversity of approach amongst its individual members in their resolution. Finally, we have always been careful to emphasise that we do not presume to attribute greater 'influence' to particular individuals within the Court’s majority in any specific case or the cases as a collection. We reiterate all those sentiments for this article and essentially regard them as read for this and subsequent statistical studies.

The previous article in this series noted that 2012 was the final year for two judges, Gummow and Heydon JJ after 17 and 10 years respectively on the High Court bench. As a result, 2013 was the first full year of service for Gageler J, and Keane J joined the Court in March 2013.

What does the Court now look like with its new composition? Has the institutional picture been dramatically or even discernibly altered by the exchange of two of its members? Asking these questions enables us to test the strength of the observations drawn and reflections offered in earlier studies about the part played on the Court by certain individuals and their impact upon the way in which, as a multi-member institution, it reaches its decisions.

There have been two markedly consistent features of the Court’s decision-making throughout this series of surveys (the results of which stretch back to 1998). Those features have been: (1) a pronounced rate of joining in opinion between a pair of judges amongst the ranks of the majority (Gummow and Hayne JJ); and (2) the presence of one member (having been first Kirby J and then Heydon J) with an especially high rate of minority opinions relative to his colleagues. In light of the personnel changes, will these steady features of the Court’s institutional dynamic fade or even disappear entirely? Or will they continue as the present incumbents develop their own work practices and their role within the institution.

Insights into these and other questions lie in the information we present in the tables of this article.

Keywords: High Court of Australia, decision making, 2013, constitutional cases

Suggested Citation

Lynch, Andrew and Williams, George, The High Court on Constitutional Law: The 2013 Statistics (September 7, 2014). University of New South Wales Law Journal, Vol. 37, No. 2, 2014; UNSW Law Research Paper No. 2014-43. Available at SSRN: https://ssrn.com/abstract=2492781 or http://dx.doi.org/10.2139/ssrn.2492781

Andrew Lynch

University of New South Wales ( email )

Kensington
High St
Sydney NSW 2052
Australia

George Williams (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Kensington, New South Wales 2052
Australia

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