Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981-2003

DOI10.22145/flr.33.3.4
Date01 September 2005
Published date01 September 2005
Subject MatterArticle
DOES THE HIGH COURT DISAGREE MORE OFTEN IN
CONSTITUTIONAL CASES? A STATISTICAL STUDY OF
JUDGMENT DELIVERY 1981-2003
Andrew Lynch*
I INTRODUCTION
The central purpose of this article is to test the assumption that constitutional cases
generally produce a heightened level of disagreement amongst the members of the
High Court. In addition to extra-judicial statements indicating that is so, there are a
number of theoretical and pragmatic reasons why we would expect greater
individuality in the delivery of constitutional judgments than might be observed in
other areas. However, there has not been an empirical study of the Court's behaviour
in these cases which is of sufficient longitudinal scope so as to verify this suspicion, no
matter how compelling the arguments or anecdotal impressions.
This study attempts to overcome that deficiency. In order to do so, it adopts the
following structure. In Part II, the hypothesis under examination will be stated with
consideration of the reasons currently given for its acceptance. In Part III, the
methodology employed to test the hypothesis will be set out. In Part IV, results of the
study will be presented with accompanying analysis. In the concluding Part, the
findings of the study will be summed up and possible directions for future research
will be suggested.
II HYPOTHESIS
Sir Anthony Mason has stated that the role of the High Court in the interpretation of
constitutional provisions is one of two issues (the other being the hardly unrelated
matter of judicial law-making) 'that have generated strongly expressed conflicts of
opinion' amongst its members.1 There are several reasons why few should be
surprised by that indication that constitutional case law demonstrates higher than
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* Senior Lecturer, Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New
South Wales. The author wishes to thank Professor George Williams for his advice along
the course of this project and his comments on an earlier draft of this paper, the insightful
and valuable comments of the two anonymous referees and the editors of the Federal Law
Review. Any flaws are, as ever, my own.
1 Sir Anthony Mason, 'Personal Relations: A Personal Reflection' in Tony Blackshield,
Michael Coper and George Williams (eds), The Oxford Companion to the High Court of
Australia (2001) 531, 532.
486 Federal Law Review Volume 33
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normal levels of disagreement. Essentially these all stem from the paramountcy of the
Constitution itself.
It has been axiomatic for much of the High Court's life that, aside from any general
limitations arising in the context of a final court,2 the doctrine of stare decisis has a
particularly weakened operation in the field of constitutional law. In Australian
Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia, Isaacs J
insisted that the Justices'
sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If,
then, we find the law to be plainly in conflict with what we or any of our predecessors
erroneously thought it to be, we have, as I conceive, no right to choose between giving
effect to the law, and maintaining an incorrect interpretation.3
Members of the Court since Chief Justice Isaacs have similarly expressed the
opinion that ultimately their interpretation of the Constitution is to be conducted free
from the restraint of any contrary judicial authority.4 While there has certainly been
opposition from others on that question,5 it is clear that the objection is a matter of
degree rather than principle. Rather than simply discarding the values which
precedent is designed to serve, these are to be balanced against the desirability of
overruling an earlier decision. This has led to the espousal of various standards to
indicate that a decision will be vulnerable to overruling if it 'involves a question of
"vital constitutional importance" and is "manifestly wrong"'.6 But these semantic
formulations offer little clarity as to the extent to which Justices are actually
constrained by a precedent.7
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2 The High Court has never followed the practice of considering itself bound by its own
decisions: Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576, 582;
and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 554.
3 (1913) 17 CLR 261, 278–9.
4 Damjanovic and Sons Pty Ltd v Commonwealth (1968) 117 CLR 390, 396 (Barwick CJ); Buck v
Bavone (1976) 135 CLR 110, 137 (Murphy J); Queensland v Commonwealth (The Second
Territory Senators Case) (1977) 139 CLR 585, 594 (Barwick CJ), 630–31 (Aickin J); Re Nolan; Ex
parte Young (1990) 172 CLR 460, 492–3 (Deane J); Stevens v Head (1992) 176 CLR 433, 461–2
(Deane J), 464-5 (Gaudron J); Re Tyler; Ex parte Foley (1993) 181 CLR 18, 35 (Gaudron J);
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 331
(Callinan J).
5 Queensland v Commonwealth (The Second Territory Senators Case) (1977) 139 CLR 585, 599
(Gibbs CJ), 603–4 (Stephen J); Re Tyler; Ex parte Foley (1993) 181 CLR 18, 39–40 (McHugh J).
6 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 554.
7 Boeddu and Haigh suggest that 'while no exact guidelines can be formulated, it behoves
the Court to be direct and avoid reasoning by the use of easy, but unhelpful, terminology':
Gian Boeddu and Richard Haigh, 'Terms of Convenience: Explaining Constitutional
Overrulings by the High Court' (2003) 31 Federal Law Review 167, 194. For other significant
discussions of this issue, see J W Harris, 'Overruling Constitutional Interpretations' in
Charles Sampford and Kim Preston (eds), Interpreting Constitutions — Theories, Principles
and Institutions (1996) 231; Bryan Horrigan, 'Towards a Jurisprudence of High Court
Overruling' (1992) 66 Australian Law Journal 199; Sir Anthony Mason, 'The Use and Abuse
of Precedent' (1988) 4 Australian Bar Review 93, 111; Henry Monaghan, 'Stare Decisis and
Constitutional Adjudication' (1988) 88 Columbia Law Review 723; and R C Springall, 'Stare
Decisis as Applied by the High Court to its Previous Decisions' (1978) 9 Federal Law Review
483.
2005 Does the High Court Disagree More Often in Constitutional Cases? 487
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In addition to the status of constitutional law as commanding a special fealty from
those charged with its elucidation is the more pragmatic concern that, unlike other
areas of the law where the legislature may take steps to reverse the Court's holding,
this is not so easily accomplished in response to constitutional decisions.8 The
requirement of a referendum to alter the Commonwealth Constitution9 and the
consequential practical considerations of such a course mean that change is neither
lightly undertaken nor likely to be successful.10 The effect of this upon the attitude of
the High Court has been, perhaps surprisingly, further to promote the diminished role
of stare decisis. The unanimous judgment in Lange v Australian Broadcasting Corporation
was succinct:
Errors in constitutional interpretation are not remediable by the legislature, and the
Court's approach to constitutional matters is not necessarily the same as in matters
concerning the common law or statutes.11
The logic which says that the difficulty of constitutional amendment justifies
weaker regard for past judicial interpretati ons is not entirely satisfactory. It could well
be argued that the constraints implicit in the adoption of a rigid constitutional text and
the exercise of judicial review by the superior court are actually more obviously
complemented by a stringent approach to constitutional precedent.12 Nevertheless, the
High Court has pointedly not taken that stance and sees constitutional questions as
ones upon which its members should not be overly deferential to the opinions of their
predecessors.
One must realise that this more flexible attitude towards past authority is important
not just in the context of those choices, but also as an indication of the way in which
members of the Court respond to any other form of pressure towards conformity.
Obviously the doctrine of precedent is the law's foremost tool for achieving consensus
and certainty but it is definitely not the only means by which we should seek to
understand the occurrence of agreement or a failure to secure it. Apart from anything
else there are, of course, legal questions upon which no direct precedent provides
guidance. On those occasions, one should probably anticipate a splintering of judicial
opinion regardless of the area of law. Indeed, to some extent, disagreement is central to
the judicial process of any multi-member court of last resort, but I would suggest that,
in light of the pervasive rhetoric of individuality referred to above, this must be even
more likely in respect of constitutional questions.
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8 There are, as always, exceptions. The successful insertion of section 51(xxiiiA) into the
Constitution by the 1946 referendum result was a powerful response to the High Court's
finding the Pharmaceutical Benefits Act 1944 (Cth) invalid in A-G (Vic); Ex rel Dale v
Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237.
9 Constitution, s 128.
10 The cost of conducting constitutional referenda necessarily limits their frequency. This is
compounded by the low percentage of successful referendum results, with only 8 in 44
proposals receiving the approval of the electorate.
11 (1997) 189 CLR 520, 554. In its willingness to overrule past decisions, similar significance is
attached by the United States Supreme Court to the limited ability to amend the
constitutional document: Burnet v Coronado Oil & Gas Co, 285 US 393, 407–8 (1932)
(Brandeis J); Thomas v Washington Gas Light Co, 448 US 261, 272–3 (1980) (Stevens J).
12 See Larry Alexander, 'Constrained by Precedent' (1989) 63 Southern California Law Review 1,
57-8; and Frank Easterbrook, 'Stability and Reliability in Judicial Decisions' (1988) 73 Cornell
Law Review 422, 430–1.

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