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High Court of Agreement: Dissents Decline in 2013


The High Court of Australia’s new composition led to renewed consensus between the justices in 2013, a new study has found.

The report The High Court on Constitutional Law: 2013 Statistics by UNSW Professors Andrew Lynch and George Williams charts the Court’s first year following the retirement of Justices William Gummow and Dyson Heydon, and the appointment of Justices Stephen Gageler and Patrick Keane.

The study found that the Court’s new members had brought with them lower levels of dissent. The higher levels of agreement between the justices in 2013 mirrored the early years of French CJ’s leadership of the High Court.

It’s a marked difference to 2011 and 2012, when unanimity among members of the bench was less common, and Justice Heydon dissented in more than 40% of cases.

“Justice Heydon ended his career on the High Court rivalling the most prominent dissenters in the Court’s history. His unwillingness to compromise made unanimity impossible,” Professors Lynch and Williams said.

“Significant differences certainly remain between members of the current High Court, both as to their views on the law and their judicial method. However, in 2013 this did not often manifest as differences in determinations. Hence, last year saw a high level of unanimity, along with a low rate of dissent by all members of the Court”, they added.

Newcomer Gageler J had the highest dissent rate last year, disagreeing with his fellow judges in 13.95% of cases, while Keane J was more likely to pen joint judgments.

However, the researchers pointed out that the approaches of Justices Gageler and Keane might not be a sign of things to come. “How judges begin their time on the High Court is not often indicative of the reputation they build over the years ahead.”

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