JAMES COOK UNIVERSITY

 

JUDICIAL DISSENT*

 

The Hon Justice Michael Kirby AC CMG**

 

Dissent in judicial opinions is a special feature of legal systems, like Australia's, that trace their origins to England. In the European legal tradition, judges generally have no right to dissent. This practice is commonly justified on the basis that expressing disagreement over decisions will undermine public confidence in the certainty of the law.

 

Australia's judicial tradition is different, probably because of the more libertarian history of England. Possibly it is because our leading judges are chosen in middle age from the most experienced advocates in the private sector. They are not promoted by government in a career judiciary. Our judges are therefore more resistant to pressures from government and also from their colleagues. Judicial independence includes independence from each other. Most judges are subject to correction on appeal or review. But the only masters of our judges are conscience and the judge's understanding of the law and the facts of the case.

 

In the higher courts, disagreements over the law are inescapable and quite common[1]. The words in the Constitution are contentious[2]. The language of Acts of Parliament is frequently ambiguous[3]. Especially in rapidly changing times, there may be no exact precedent in the common law for a new problem of society or technology[4]. So judges have a creative role to solve such uncertainties, however much some might suggest otherwise[5].

 

The demand by observers for unanimity amongst judges is often infantile. If it is an insistence that judges hide their disagreements from the public they serve, it denies the ultimate sovereign, the people, the right to evaluate, and criticise, judicial choices. Pretending that everything is certain in the law, and that judges simply operate on automatic pilot, will deceive relatively few. This is why the appointment of judges, especially to final courts, is such an important entitlement, correctly prized by governments.

 

Studies of judicial opinions demonstrate beyond argument a high consistency in the patterns of the decisions that different judges make[6]. Expressing the law is inescapably a process shaped by values. Judges, like most mortals, have values. As judges, they have a vision of the Constitution and of society, its fairness and justice. Some tend to be more concerned than others about protecting human rights and fundamental freedoms. Governments of all persuasions know this. It influences their judicial appointments. Rarely are they as candid as Tim Fischer was, after the Wik decision on native title in 1996[7], when he declared that the government would appoint "capital C conservative[s]" to the High Court. But whether they say it or not, governments of all political persuasions usually try to appoint judges who will be competent but also who they hope will be in general harmony with their values.

 

A recent analysis by Mr Andrew Lynch and Professor George Williams has shown divisions in the voting patterns of the current Justices of the High Court[8]. Except for a honeymoon period of three years when the Court was first established in 1903, there have always been divisions, reflecting the different philosophies and perspectives of the office-holders. A dissent, expressing disagreement over the outcome of a case, is an appeal to the future[9]. Before 1977, when the High Court served for life, they often lived long enough to see their dissents accepted. For example, Isaac Isaacs from 1907 insisted on a different way of interpreting our Constitution[10] that was not fully accepted until 1921[11]. It has survived ever since. Owen Dixon patiently laid down his approach to the law which was gradually embraced during his thirty-five year service[12]. Today, because High Court judges must retire at 70[13], the appeal of dissent must generally be addressed to the judge's successors, to the legal profession and to the young.

 

Lynch and Williams, by reference to last year's decisions in the High Court, showed the strong concurrence in the voting in individual cases of four of the current judges who generally share each other's viewpoint[14]. They disagree amongst themselves in very few instances. On the other hand, Justice McHugh dissented in 14% of cases, Justice Callinan in 22% and I in 38% of all cases[15]. My disagreement in constitutional cases last year, stood at 52% - the highest in the history of the High Court[16].

 

On their own, statistics tell little. To understand dissent it is necessary to look at the cases themselves to see what the disagreement has been about. Thus, in the year past, my dissents have concerned:

 

* The power of federal authorities to hold indefinitely in detention a stateless person who could not be deported to his own country[17];

 

* The power of federal officials potentially to expel more than half a million British subjects from Australia as "aliens"[18];

 

* The power of State parliaments to engage judges in the indefinite detention of prisoners who have completed serving their prison sentences[19]; and

 

* The expansion of the powers of military tribunals over civilian-type offences[20].

 

 

In these and other decisions, important values and notions of our Constitution and of Australian society were at stake. They are, of course, questions upon which informed people can have different opinions. Only by disclosing conflicts of judicial opinion do Parliament and the people secure the opportunity to evaluate the justice and direction of the laws in the nation's highest court.

 

Recently, an important book was published in the United States by Cass Sunstein, Law Professor at the University of Chicago. In the book, Why Societies Need Dissent[21], Sunstein explains why honesty, transparency and dissent are vital to the good health of all institutions, not just the courts. He instances President Johnson's gradual involvement in Vietnam, the Ford Motor Company's debacle with the Edsell motor car and judicial failings in Nazi Germany and Vichy France[22] as products of institutional silence where contrary voices should have been raised. He warns about the psychological tendency for judges in appellate courts to conform to majority opinions, describing a so-called "cascading effect" in group psychology that involves going along with the majority[23]. It is usually easier to agree. Concurring in someone else's opinion may be more congenial to colleagues. It certainly involves less work than expressing one's own contrary opinion.

 

Sunstein instances many cases in the United States Supreme Court where dissents have later been vindicated. They include the dissents in Dred Scott v Sandford[24] to the ruling upholding slave owners' rights and the dissents in Dennis v The United States[25] which upheld the laws against communists, similar to those struck down in the High Court of Australia a few months later[26]. In big cases, especially constitutional ones, it is vital that judges get it right. They are more likely to do so if they listen to, and hear, views different from their own first inclinations.

 

My dissent rate is higher than that of any High Court judge in the past[27]. However, this is probably a product of the changing composition of the Court, the types of legislation, federal and State, that have come under scrutiny and the introduction of the universal system of special leave that has influenced the types of case that now come before the Court. There are now no easy appeals. I agree with the assessment of Lynch and Williams that, had I been sitting in the High Court when Chief Justice Mason presided in the 1990s, my dissent level would have been closer to that of the current majority in the Court[28]. Timing is important in the law, as in life. If the Mabo case[29] on Aboriginal land rights, the Capital Television case[30] on constitutionally protected speech and the Dietrich case[31] on entitlements to representation in criminal trials had come to the High Court in its present composition, the outcomes might have been very different. In the business of judging, much depends on the time of one's appointment and the values of one's colleagues.

 

To check these propositions, I went back to my decisions in 1995 - the last year that I served as President of the New South Wales Court of Appeal. In that year, leaving aside formal decisions[32], there were 234 cases in which I participated and gave reasons. In 198 of these (84.6%) I was in the majority. In 36 (15.4%) was I in dissent. In 64 cases (27%) my reasons were given for a unanimous Court. In a further 27 (11.5%) at least one other judge agreed in my reasons, without adding any of his own. These figures tend to demonstrate that a judge's reputation as "the great dissenter" depends on whom he or she is dissenting from: on their approach to the law, their values and, where relevant, their vision of the Constitution and their view of Australian society.

 

During the Mason Court, Justice Daryl Dawson was often in dissent against the important constitutional and other decisions of that time[33]. I frequently disagreed with his reasons and conclusions. But I admired his expression of them and the tradition of our courts that constantly challenges us, as lawyers and citizens, with the choices being made. Just as Justice Dawson's values have now returned to the ascendancy, so, in due course, will the values of Justices Mason, Brennan, Deane, Toohey and Gaudron. In such ways, but at a distance, our highest courts tend to track the philosophical changes occurring in the nation, reflected, in turn, in periodic electoral changes. Those who deny such things are hopelessly na´ve or self-deceptive. It is just the way our institutions work.

 

Being in dissent can be uncongenial. In the New South Wales Court of Appeal, we had institutional procedures to reduce needless dissent for sometimes it is highly desirable to strive for a single, unanimous opinion[34]. Our techniques included the fair assignment to all judges of the writing of the primary draft and a culture of mutual respect, reinforced by happy social intercourse. These methods have never been features of the High Court of Australia. One day, perhaps, they will come; but not in my judicial lifetime.

 

There are many in society who hate disagreement, demand unanimity and insist on more consensus, including amongst appellate judges. They speak endlessly of the need for clarity and certainty in the law. Truly, these are goals to be attained if at all possible. But judges must not achieve them at the sacrifice of truth, independence and conscience. There are many failings in the judicial system of Australia for it is a human institution. But amongst its greatest strengths is the role it gives to judges to state their honest opinions. As citizens, we can agree or disagree with those opinions. But we must vigilantly protect, and cherish, these open procedures. And that includes the expression of disagreement, where it exists.

 

The dissenting judge may, or may not, be vindicated by history. However, the true vindication for the dissenting judge arises at the moment of the decision when truth, as it is seen, is spoken and conscience is clear. The right and duty to dissent signals that every Australian judge, whatever his or her values, honestly states the law and its application to the case as conscience dictates. If we think about it, we would not have it any other way. Going along with the numbers and with sheer power may work in Tammany Hall. It has no place in an Australian courtroom.

 

Footnotes

 

(*) Text on which was based an address delivered to Inter Alia, the Law Students' Society of James Cook University at Cairns, Saturday 26 February 26, 2005.

 

(**) Justice of the High Court of Australia.

 

[1] M D Kirby, Judicial Activism (Hamlyn Lectures, 2003), (2004), 78-83.

 

[2] M D Kirby, "Are We all Nominalists Now?" (2004) 9 Deakin Law Review 523, referring to recent decisions of the High Court of Australia on the word "alien" in s 51(xix) of the Constitution and "jury" in s 80.

 

[3] Newcastle City Council v GIO General Ltd (1998) 191 CLR 85 at 109; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]-[71].

 

[4] See eg Cattanach v Melchior (2003) 215 CLR 1.

 

[5] Contrast J D Heydon, "Judicial Activism and the death of the Rule of Law (2004) Otago Law Review 493 and M D Kirby, "Judicial Activism? A Riposte to the Counter-Reformation?" (2005) 11 Otago Law Review 1.

 

[6] A R Blackshield, "Quantative Analysis: The High Court of Australia 1964-1969" (1972) 3 Lawasia 1; G Schubert, "Political Ideology and the High Court" (1968) 3 Politics, 21.

 

[7] N Savva, "Fischer seeks a more conservative court" The Age (Melbourne), 5 March 1997, at pp 1-2.

 

[8] A Lynch and G Williams, "The High Court on Constitutional Law: The 2004 Statistics", unpublished paper delivered to a conference, Sydney, 18 February 2005 reported Sydney Morning Herald 18 February 2005, p 9 (hereafter "Lynch and Williams").

 

[9] Chief Justice Charles E Hughes, The Supreme Court of the United States (1936), p 68; cf A Lynch, "Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia" (2003) 27 Melbourne University Law Review 724 at pp 744-748.

 

[10] eg Federated Engine-Drivers and Firemen's Association of Australia v The BHP Company Ltd [No 2] (1913) 16 CLR 245 at 278; Federated Municipal & Shire Council Employees' Union of Australia v Melbourne Corporation (1919) 26 CLR 508 at 526.

 

[11] Amalgamated Society of Engineers v Adelaide steamship Co Ltd (1920) 28 CLR 129 at 144; (1921) 29 CLR 406 at 413.

 

[12] K M Hayne, "Owen Dixon" in T Blackshield, M Coper and G Williams (eds) The Oxford Companion to the High Court of Australia (2001) 218 at 220.

 

[13] Constitution, s 72, following the Constitution Alteration (Retirement of Judges) 1977.

 

[14] Lynch and Williams, above n 8, p 6.

 

[15] Ibid, Table D(I), p 6. For dissent rates over the history of the High Court of Australia, see M Groves and R Smyth, "A Century of Judicial Style - Changing Patterns in Judgment Writing on the High Court of Australia 1903-2001" (2004) 32 Federal Law Review 255 at 269 (Figure 5).

 

[16] Lynch and Williams, above n 8, p 7, Table D(II).

 

[17] Al-Kateb v Godwin (2004) 78 ALJR 1099; 208 ALR 124.

 

[18] Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203; 203 ALR 143.

 

[19] Baker v The Queen (2004) 78 ALJR 1483; 210 ALR 1; Fardon v Attorney-General (Qld) (2004) 78 ALJR 1519; 210 ALR 50.

 

[20] Re Colonel Aird; Ex parte Alpert (2004) 78 ALJR 1451; 209 ALR 311.

 

[21] (2003). See review essay: A Lynch, "Taking Delight in Being Contrary, Worried about Being a Loner or Simply Indifferent: How Do Judges Really Feel About Dissent?" (2004) 32 Federal Law Review 311; cf M D Kirby, "Tradition and Diversity - Twin Strengths of the Judiciary" (2004) 42 Law Society Journal (NSW) 76 at 78.

 

[22] M Curtis, Verdict on Vichy: Power and Prejudice in the Vichy France Regime (2004) 105, 305, 347.

 

[23] Sunstein, above n 21. See Lynch (2004) 32 Federal Law Review 311 at 320-322 ("Dampening - The Pull of Conformity).

 

[24] 60 US (19 Howard) 393 (1857).

 

[25] 341 US 494 (1951).

 

[26] Australian Communist Party v The Commonwealth (1951) 83 CLR 1.

 

[27] cf A Lynch, "The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years" (2003) 26 University of New South Wales Law Journal 32; M Bagaric and J McConnill, "Illusions of disunity" (2004) 78 Law Institute Journal (Vic), (9), p 37; A Lynch, "Dissent"- Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia" (2002) 24 Sydney Law Review 470.

 

[28] Quoted in Lynch (2004) 32 Federal Law Review 311 at 326.

 

[29] Mabo v Queensland [No 2] (1992) 175 CLR 1. See Heydon, above n 5, at p 510.

 

[30] Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106. See Heydon, above n 5 at p 506.

 

[31] Dietrich v The Queen (1992) 177 CLR 292; contrast McInnes v The Queen (1979) 143 CLR 575. See Heydon above n 5, at p 510.

 

[32] The figures do not include many cases, especially in the motions list, where orders were pronounced, with unanimity and reasons of no more than a sentence or two were given. They also omit the residue of appeals in which orders were made and reasons published between 1 January 1996 and 5 February 1996 before the author's commission in the High Court took effect on 6 February 1996.

 

[33] For example, Dawson J alone dissented in Mabo (1992) 175 CLR 1 at 120; he dissented in Australian Capital Television (1992) 177 CLR 106 at 177; and in Dietrich (1992) 177 CLR 292 at 338. However, see the comment of C Saunders , "Darryl Dawson" in Blackshield, Coper and Williams, Oxford Companion, above n 12, 190 at 192.

 

[34] cf C Moisidis, "Dispelling misconceptions about appellate judgments" (2004) 78 Law Institute Journal (Vic) (12), pp 70-73.