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Illusions of disunity: dispelling perceptions of division in High Court decision making

Cover Story

Cite as: (2004) 78(9) LIJ, p. 36

Despite belief to the contrary, the High Court of Australia is as unified in its judgment writing process as it has ever been.

By Professor Mirko Bagaric and James McConvill

The High Court of Australia has supposedly become increasingly divided in its approach to decision making.[1] It has been especially criticised for an increase in the number of multiple majority judgments.

There are potential problems stemming from a fragmented approach to decision making. The most obvious is that it ostensibly undermines several important maxims which have traditionally been regarded as fundamental to the rule of law.

There have been suggestions that the High Court should follow the model of courts in other jurisdictions, such as the US and Canada, and deliver single majority judgments. To this end it has been noted that:

“The justices of the US Supreme Court have accepted that they must wait their turn to be assigned the task of writing the opinion of the majority camp. The justices of the High Court on the other hand appear to be unwilling to make such a concession, even though the practice of assigning the writing of draft judgments and the production of single majority judgments appears to be the norm among Australia’s courtsof appeal”.[2]

It appears that the criticisms pertaining to lack of unity in the High Court recently are unsound. There are two reasons for this. The first is that the evidence does not suggest a more divided Court. A statistical breakdown of the High Court decisions for 2003 compared with figures one decade ago (1993), a quarter of a century ago (1978) and about 50 years ago (1954) show that the High Court is in fact not now more divided in its judgment writing process than it was in the previous periods.

Second, the rule of law virtues of certainty and predictability will not be advanced by a mover towards more consensual decision making by the High Court. The actual reasoning towards a decision, as opposed to the conclusion, is cardinal to development and understanding of legal principle. To understand the full implications of any decision requires an awareness of the actual premises leading to the ultimate conclusion. These are lost in the process of coerced joint decision making.

The High Court’s trend toward fragmented judgments?

Number of justices and years covered by the survey
Presently there are seven justices on the High Court. This number has been almost constant since 1946. Before this it ebbed and flowed between three and seven justices. Thus, the time periods we focus on for comparative purposes do not extend earlier than 1946. As a comparison we have gone back 10, 25 and 49 years, rather than 10, 25 and 50 years since the last of these periods relates to around the time of one of two reductions in the number of judges, in this case caused by the gap between the retirement of Latham CJ and Dixon J’s elevation to Chief Justice.

Results of survey
The survey of High Court decision making considered all High Court decisions in the above four years. The raw data and the detailed findings of the survey are to be reported in an upcoming article.[3] However, the main findings are summarised below.

The main variable relevant to the study is the number of separate judgments in a decision. Of particular interest is the number of separate judgments forming part of the majority decision. Separate dissenting judgments have not been as heavily criticised as separate majority judgments, which have been labelled as “merely self-indulgent”.[4] Nevertheless, dissenting judgments contribute to the sense of division within the Court and remain relevant for the purpose of this study, the number of unanimous and split decisions, and the type of dissents that form the minority decisions.

Strictly speaking, a concurring judgment that offered no further comment (e.g. “I agree with Smith J”) is a separate and not a joint judgment. However, such judgments will be treated as effectively joint.

Statistics on the High Court’s decision making

Broad outcomes of High Court cases

Type of decision

1954

1978

1993

2003

Unanimous

42

31

29

37

Split

22

29

27

35

Single judge

11

0

18

2

Total

75

60

74

74






Total excluding cases where
a single justice presided

64

60

56

72






In relation to these decisions the following data emerged. For purposes of the analysis, the cases where the Court was constituted by a single justice are ignored.

  1. The portion of unanimous decisions in the respective periods is: 66 per cent in 1954 and 52 per cent in 1978, 1993 and 2003. In this regard, it is important to note that thisis simply the number of cases where there is no dissent in outcome, as opposed to the number of judgments in each case.
  2. The percentage of single unanimous decisions in the respective years is as follows:
    1954: 36 per cent; 1978: 10 per cent; 1993: 32 per cent and 2003: 17 per cent.
  3. In relation to the split decisions, the percentage of single majority judgments in the respective years is:
    1954: 36 per cent; 1978: 10 per cent; 1993; 74 per cent and 2003: 23 per cent.
  4. Combing the raw data underpinning points 2 and 3 it emerges that the number of cases in the respective years where there is a single judgment expressing the majority position is:
    1954: 31; 1978: 9; 1993: 38 and 2003: 20.
    In percentage terms, the percentage of cases where the majority is a single decision is:
    1954: 48 per cent; 1978: 15 per cent; 1993: 68 per cent and 2003: 28 per cent.
  5. The number of judgments in each of the years is:
    1954: 143; 1978: 217; 1993: 127 and 2003: 222.
  6. Thus, the average number of judgments per case in each of the respective years is:
    1954: 2.2; 1978: 3.6; 1993: 2.3 and 2003: 3.1.
  7. The average number of justices sitting per case over the respective years is 1954:
    4.1; 1978: 5.2; 1993: 5.5 and 2003: 5.5.
  8. In determining the cohesiveness of a Court, it is necessary to consider not only the amount of non-single majority decisions, but also the number of judges on the Bench. The greater the number of judges, the greater the opportunity for disagreement. The principle criticism levelled at the Court recently has been the number of separate majority judgments. A fragmentation index can best be represented by dividing the percentage of cases where there is more than one majority decision by the average number of justices hearing a decision (i.e. the converse of the percentages at point 4 divided by the figures at point 7). The fragmentation index for the respective years is:
    1954: 35 per cent; 1978: 16 per cent; 1993: 6 per cent; and 2003: 13 per cent.
    The most telling statistic for the purposes of this article is contained at point 8. The portion of decisions involving at least one separate concurring judgment relative to the average number of justices hearing a case is relatively stable at around 12 per cent over the surveyed period. The only exception to this is 1993, where the fragmentation index is about half this figure. However, even if one includes 1993 in the total assessment, the fragmentation index in 2003 is only marginally higher than the average for the entire surveyed period (13 per cent as opposed to an average of 12 per cent).
  9. If one focuses on the total number of judgments (including minority judgments) in each surveyed year, a similar picture emerges. The fragmentation index derived by dividing the total number of judgments by the average number of justices sitting on the Bench and then by the number of cases in each of the years is as follows:
    1954: 0.54; 1978: 0.70; 1993: 0.41; and 2003: 0.56.
    Thus, the data from the surveyed years indicates that the High Court was not significantly more fragmented in 2003 and certainly the portion of separate majority decisions had not increased.

Arguments against multiple majority judgments

There are two main lines of criticism most commonly advanced against multiple majority judgments. The first criticism is based on rule of law considerations which can be separated into two basic kinds, though they can be seen as cumulative. These are (i) multiple majority judgments obscure the ratio decidendi; and (ii) multiple majority judgments make the law less predictable.

A second criticism is that multiple majority judgments amount to an inefficient deployment of judicial and other resources.

Analysis of the arguments against multiple majority judgments

These arguments are not as persuasive as may first have been thought.

Discerning ratio in multiple majority judgments is not insurmountable
We accept that there is little doubt that it is usually more difficult to ascertain the proposition of law that is being expounded by a case where there is more than one judgment. Reading always involves an element of interpretation and judgment. Multiple judgments introduce another difficulty: the need to make comparison between judgments. This then introduces need for more interpretation. This extra dimension often introduces so many complications that, in the context of court judgments, it has sometimes proved to be an insurmountable obstacle for even those with the largest of legal minds to discern a ratio. For example, the Privy Council in Candlewood Navigation Corporation v Mitsui[5] declared that the High Court’s reasoning in Caltex Oil v The Dredge “Willemstad”[6] was so disparate that it was “unable to extract from them any single ratio decidendi”.

The difficulty of ascertaining the ratio in decisions with multiple majority judgments should not, however, be overrated. This is because a ratio decidendi can always be extracted from a decision. The common law has developed strategies in order to preserve the principle that every decision will have its ratio decidendi.

As Mason CJ put it in 1988:

“Every decision has its ratio decidendi, even the decision for which no reasons are given. Then the case is only authority for what it actually decides, that is, for the proposition of law to be derived from the order of the court and the material facts”.[7]

Thus, a ratio will exist – or be constructable – even where the judge offered no actual reasons for decision, as Mason CJ pointed out. In such cases, simply because a decision was made in relation to some facts there is enough to construct a ratio. This, in effect, is to generate a “minimalist” ratio from the material facts and the decision.

The fact that the ratio is narrower in scope than may otherwise be the case is not necessarily a problem. The worst case scenario is that each decision will be strictly confined to its facts and Parliament will even more clearly be the main state institution that develops the law. This takes us to the issue of the proper role of courts and in particular an evaluation of the desirability of judicial activism. An analysis of the merits of judicial activism is beyond the scope of this article, other than to assert that there is no demonstrable reason to think that judicial activism enhances the rule of law – and indeed the most recent appointee to the High Court has argued strongly to the contrary.[8]

Predictability and multiple majority judgments
Closely related to the argument that separate majority judgments obscure the ratio is the view that joint judgments will inject greater predictability in the law because there is less scope for confusion concerning the basis for the decision. However, the advantages that emerge from brevity and formal agreement may well be more than offset by the loss of transparency that is likely to stem from consensus – especially where the consensus is forced or even merely encouraged as court policy.

In order to predict the manner in which a person is likely to behave or think in the future, or to understand the exact message that he or she intended to convey in the past, it is necessary to have a detailed understanding of the person’s reasoning process. In the context of legal judgments it is necessary to be aware of each premise that led to the particular conclusion. The more we know about the jurisprudence that drive our judges the better we are at discerning the scope that ought to be given to their decisions and how they would deal with similar facts.

As a result it is important to place a premium on transparency and openness in decision making. This is necessarily eroded by joint decisions unless of course the justices happen to employ the identical reasoning process. The process of decisions by committee invariably hides the real pressures and influences that may have swayed a particular justice. In this regard it is important to note that courts that do have formal conferences are not in the habit of publishing minutes of their conferences.

The efficiency of multiple majority judgments
As a general rule, single majority judgments contain fewer words than multiple majority judgments. However, this does not provide a strong reason to think that they will enhance judicial efficiency. A committee approach to decision writing can be long and drawn out. As is noted by Michael Coper, the seven individual judgments in the Tasmanian Dams Case, prepared in about one month after hearing of the case, seemed to be the product of a shortage of time to explore possible areas of convergence, whereas the 11 months between argument and decision in Cole v Whitfield facilitated a unanimous decision.[9]

The efficiency argument focusing on the time demands on lawyers (and law students) stemming from multiple decisions is overrated. There is no evidence that a body of law is made less complex and readily ascertainable by the absence of a High Court decision dealing with the matter which has multiple concurring decisions. As noted above this can often clarify the law. Moreover, there is certainly no evidence that areas of law which are regularly considered by the High Court result in higher fees. The High Court, for example, rarely entertains tax cases. It hears a large number of criminal and migration (especially refugee) cases. Yet, tax lawyers certainly do not come cheaper than criminal or migration lawyers.

Finally, it would be impertinent for courts to “dumb down” or reduce the length of their decisions to save lawyers and law students time. Lawyers are servants to the law, not the other way around. A call by the profession for a simplification of the law so that its working days are shorter is misguided. It is indicates a lack of insight into the proper role of lawyers in the community, and perhaps an over-inflated sense of importance of the role of the profession.

Further argument in defence of multiple majority judgments
A further benefit of a system that allows for multiple majority judgments is that separate judgments permit individual justices to fully develop and articulate their jurisprudence, that is, the basic concepts and principles which structure and guide the formulation of more particular propositions of law.[10] This is an important function of the High Court. As was noted by US Supreme Court Justice Antonin Scalia, the ultimate court of appeal “is not just the central organ for legal judgment; it is a centre stage for significant legal debate”.[11]

Of course, if the High Court adopted the practice of joint majority judgments, individual justices could still have an opportunity to articulate their own jurisprudence. However, this would be confined to minority judgments, where they dissent on the result reached by the majority of the Court. However, it would seem incongruous if they should only express their opinions on such fundamental matters when they are in dissent.

Justice Charles Hughes of the US Supreme Court once said that:

“A dissent ... is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed”.[12]

There is no reason to think that concurring judgments should not have the same opportunity to contribute to the law’s brooding spirit and to future intelligence. A move down the path toward single majority judgments would diminish the prospects of a unified and coherent jurisprudence emanating from the High Court.

Conclusion

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 study cited in this article shows that the Court is not more divided now than in previous years.

Moreover, the quest for convergence in the approach to decision making can be counter-productive and in fact serve to undermine the clarity, ascertainability and predictability of the law.

It would be regrettable if justices of the High Court felt pressured to participate in the process of joint decision making. Where considerable differences do exist on fundamental premises which are relevant to the outcome of a case, a joint decision would be barely more than a declaration of the winning party.

The true reasons for the conclusion would forever be the lost in the black box above the judicial committee room.

This process would transform the craft of judicial decision writing to something akin to the legislation writing process, where brevity and outcomes have long trumped purpose and reasoning.

The inadequacy of the guidance that derives from legislation has resulted in moves by lawyers to unlock the true intention and values underpinning statutory provisions. The key to this is found in the statements which give some insight into the intentions of those who contributed to the legislative scheme.

Coerced judgment writing would provide even less context and background than legislation given that, one assumes, the committee deliberations of the Court would not be publicly available.


PROFESSOR MIRKO BAGARIC is head of Deakin Law School. JAMES MCCONVILL is a lecturer at Deakin Law School. The authors acknowledge Keith Akers for his exacting research and diligence in compiling the statistics in section 2 of this article.


[1] Jason Silverii, “High Court chief encourages joint judgments” (2004) 78 LIJ, 20; Cosmas Moisidis, “Achieving world’s best practice in the writing of appellate judgments” (2002) 76 (10) LIJ 30.

[2] See J Silverii article, note 1 above.

[3] M Bagaric and J McConvill, “The splendour of multiple majority judgments”, (2004, forthcoming).

[4] Michael Coper, “Separate and concurring judgment”, in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 367, 368.

[5] [1986] 1 AC 581, 677.

[6] .(1976) 136 CLR 539.

[7] As cited in Tony Blackshield, “Ratio decidendi” in Blackshield et al, note 4 above, 579, 581.

[8] See Heydon J, “Judicial activism and the death of the rule of law” (2004) 10 Otago Law Review 493.

[9] Coper, note 3 above, 368.

[10] Bryan Horrigan refers to this as “the higher order legal principles and conceptions that serve to unify the body of legal doctrine” in “Jurisprudence”, in Blacksield et al, note 4 above, 385, 387.

[11] David O’Brien, “Norms and opinion” in M Cornell Clayton and Howard Gillman (eds), Supreme Court Decision-Making (1999) 91, 112.

[12] Charles Hughes of the US Supreme Court, as cited in Andrew Lynch, “Dissenting judgments”, in Blackshield et al, note 4 above, 216.

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