The High Court on Constitutional Law: The 2015 Statistics
22 Pages Posted: 5 Oct 2016
Date Written: January 1, 2016
This article is the latest instalment in a series, commenced in 2003, that reports the way in which the High Court as an institution and its individual judges decided the matters that came before them in the preceding calendar year. Both the totality of the Court’s decisions and the subset of constitutional cases are examined. These statistical ‘snapshots’ complement substantive analyses of the Court’s decision-making, providing evidence that transcends the mere anecdotal about how the Court functions as an institution by revealing patterns in the formation and decline of coalitions between the Justices, their individual rate of participation in unanimous and joint judgments and also the frequency of dissent. The results presented in this article have been compiled using the same methodology employed in earlier years. The limitations of an empirical study of the decisions of any final court over the space of a single calendar year are ones we have long acknowledged – particularly so in respect of the constitutional cases which comprise a small portion of the High Court’s caseload. Nevertheless, the fixed parameters of each successive study period enable us to identify emerging trends or developments. We offer a longitudinal reflection on the year’s results by contrasting and comparing them with those from earlier reports. One important caveat in interpreting the statistics is that it is important to avoid attributing influence to certain individuals simply on the basis of the frequency with which they appear in majority coalitions. The distinctive practice of the current High Court that requires the author of a judgment to ‘join in’ any judge who circulates a concurrence with the judgment means it is extremely difficult to say who is a thought-leader or coalition-builder. In the final courts of the United States and the United Kingdom, just to give two examples, the explicit assignment of an author for the majority or ‘lead’ judgment enables the role of particular individuals in shaping the Court’s reasons to be more reliably gauged. But as Kiefel J has remarked of the High Court’s practice, ‘[a] judge whose judgments are more often than not agreed in by his or her colleagues will not necessarily achieve the recognition or reputation of other judges. This may result in a misconception about influence’. In his remarks at the ceremonial sitting to farewell Hayne J in Canberra on 13 May 2015, French CJ addressed this point when he said that, in Justice Hayne’s 17 years and eight months on the Court, he ‘ha[d] written 412 judgments, 400 of them in Full Court matters … [m]any of them have been published as judgments in which other members of the Court have joined’. This comment might be seen as a small lifting of the veil on the Court’s practice with respect to joint judgments so as to acknowledge the full extent of the departing Justice’s contribution. While the difficulty of specific attribution is duly noted, it is still possible to contrast the varying extent to which some members of the Court find themselves either writing with colleagues or apart – as well, of course, as the frequency of their appearance in the majority or in dissent.
Keywords: Australia, High Court, Constitutional law, decision-making, statistics, majority decisions, judicial coalitions
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