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High Court Justices Agree to Agree

Dissenting is out and agreement is in vogue at the High Court of Australia, a study from the University of New South Wales has revealed.

The annual survey of the court’s decision making found an increase in unanimous decisions in 2014, with 43% of cases attracting unanimous judgments, up from 38% the year before.

“The last two years are very similar to the first two under Chief Justice French,” Professors Andrew Lynch and George Williams of their report. “In 2009 and 2010, the Court had very high rates of unanimous decisions (reaching 50% in 2010).”

In 2011 and 2012 unity at the court dropped with Justice Heydon delivering all of his judgments alone. Since Heydon J’s retirement in 2013, the rate of unanimous opinions has begun to rise again.

In the 49 cases decided by the court in 2014, Bell J was in the majority in every decision, while French CJ and Crennan and Kiefel JJ dissented once and Hayne and Keane JJ each dissented on two occasions.

As in 2013, Gageler J was the least likely to concur, clocking up eight dissents, or 19% of the cases he sat on last year.

“Justice Gageler provides a counterpoint, but his rate of disagreement should not be overstated,” Professors Lynch and Williams said.

“His dissents stand out because of the unusually high levels of agreement among the other members of the Court. Indeed, Justice Gageler comes nowhere close to the levels of disagreement of the great dissenters of other periods, such as Justices Kirby and Heydon, both of whom achieved rates of dissent of over 40%,” they said.

With the recent appointment of Justice Geoffrey Nettle to replace Crennan J, and Hayne J set to retire later this year, the decision making dynamics of the High Court will likely shift again.

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