Lynch, Andrew --- "The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years" [2003] UNSWLawJl 2; (2003) 26(1) UNSW Law Journal 32
[*] Senior Lecturer, University of Technology, Sydney. A much abbreviated version of this paper was presented at the 2003 Gilbert + Tobin Centre of Public Law Constitutional Law Conference, Sydney, 21 February 2003. The author wishes to thank Professor George Williams, Lawrence McNamara and the three anonymous referees for their comments upon earlier drafts of this paper. I alone am responsible for any flaws.
[1] Stephen Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ [2002] UNSWLawJl 8; (2002) 25 UNSW Law Journal 194.
[2] The first such piece is Paul A Freund, ‘The Supreme Court, 1951 Term: Foreword: The Year of the Steel Case’ (1952) 66 Harvard Law Review 89.
[3] ‘The Supreme Court, 1948 Term’ (1949) 63 Harvard Law Review 119.
[4] Gageler’s success in doing so has been repeated by Justice Susan Kenny: Susan Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ (Paper presented at the Gilbert + Tobin Centre of Public Law Constitutional Law Conference, Sydney, 21 February 2003).
[5] There have, of course, been notable exceptions to this: see Tony Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964–1969’ (1972) 3 Lawasia 1; Tony Blackshield, ‘X/Y/Z/N Scales: The High Court of Australia, 1972–1976’ in Roman Tomasic (ed), Understanding Lawyers – Perspectives on the Legal Profession in Australia (1978) 133. In recent years there has been more activity on this front, chiefly by Russell Smyth: see Russell Smyth, ‘Academic Writing and the Courts: A Quantitative Study of the Influence of Legal and Non-Legal Periodicals in the High Court’ [1998] UTasLawRw 12; (1998) 17 University of Tasmania Law Review 164; Russell Smyth, ‘“Some are More Equal than Others” – An Empirical Investigation into the Voting Behaviour of the Mason Court’ (1999) 6 Canberra Law Review 193; Russell Smyth, ‘Other than “Accepted Sources of Law”? A Quantitative Study of Secondary Source Citations in the High Court’ [1999] UNSWLawJl 40; (1999) 22 University of New South Wales Law Journal 19; Russell Smyth, ‘What do Judges Cite? An Empirical Study of the “Authority of Authority” in the Supreme Court of Victoria’ [1999] MonashULawRw 2; (1999) 25 Monash University Law Review 29; Russell Smyth, ‘What do Intermediate Appellate Courts Cite? A Quantitative Study of the Citation Practice of Australian State Supreme Courts’ [1999] AdelLawRw 3; (1999) 21 Adelaide Law Review 51; Russell Smyth, ‘Law or Economics? An Empirical Investigation into the Influence of Economics on Australian Courts’ (2000) 28 Australian Business Law Review 5; Russell Smyth, ‘Who Gets Cited? An Empirical Study of Judicial Prestige in the High Court’ [2000] UQLawJl 2; (2000) 21University of Queensland Law Journal 7; Russell Smyth, ‘The Authority of Secondary Authority: A Quantitative Study of Secondary Source Citations in the Federal Court’ (2001) 9 Grifith Law Review 25; Russell Smyth, ‘Judicial Prestige: A Citation Analysis of Federal Court Judges’ [2001] DeakinLawRw 7; (2001) 6 Deakin Law Review 120; Russell Smyth, ‘Citation of Judicial and Academic Authority in the Supreme Court of Western Australia’ [2001] UWALawRw 1; (2001) 30 University of Western Australia Law Review 1; Russell Smyth, ‘Judicial Interaction on the Latham Court: A Quantitative Study of Voting Patterns on the High Court 1935–1950’ (2001) 47 Australian Journal of Politics and History 330; Russell Smyth, ‘Explaining Voting Patterns on the Latham High Court 193 5– 50’ [2002] MelbULawRw 5; (2002) 26 Melbourne University Law Review 88; and Russell Smyth, ‘Acclimation Effects for High Court Justices 1903–1975’ (2002) 6 University of Western Sydney Law Review 167. See also Richard Haigh, ‘“It is Trite and Ancient Law”: The High Court and the Use of the Obvious’ [2000] FedLawRw 4; (2000) 28 Federal Law Review 87; Patrick Keyzer, ‘The Americanness of the Australian Constitution: The Influence of American Constitutional Jurisprudence on Australian Constitutional Jurisprudence: 1988 to 1994’ (2000) 19 Australasian Journal of American Studies 25; and Paul E von Nessen, ‘The Use of American Precedents by the High Court of Australia, 1901–1987’ [1992] AdelLawRw 8; (1992) 14 Adelaide Law Review 181.
[6] Above n 3.
[7] Felix Frankfurter and James M Landis, ‘The Business of the Supreme Court at October Term, 1928’ (1929) 43 Harvard Law Review 33; Felix Frankfurter and James M Landis, ‘The Business of the Supreme Court at October Term, 1929’ (1930) 44 Harvard Law Review 1; Felix Frankfurter and James M Landis, ‘The Business of the Supreme Court at October Term, 1930’ (1931) 45 Harvard Law Review 271; Felix Frankfurter and James M Landis, ‘The Business of the Supreme Court at October Term, 1931’ (1932) 46 Harvard Law Review 226; Felix Frankfurter and Henry M Hart Jr, ‘The Business of the Supreme Court at October Term, 1932’ (1933) 47 Harvard Law Review 245; Felix Frankfurter and Henry M Hart Jr, ‘The Business of the Supreme Court at October Term, 1933’ (1934) 48 Harvard Law Review 238; Felix Frankfurter and Henry M Hart Jr, ‘The Business of the Supreme Court at October Term, 1934’ (1935) 49 Harvard Law Review 68; and Felix Frankfurter and Adrian S Fisher, ‘The Business of the Supreme Court at October Terms, 1935 and 1936’ (1938) 51 Harvard Law Review 577.
[8] Frankfurter was appointed to the United States Supreme Court on 30 January 1939. The series was concluded by his earlier co-author: Henry M Hart Jr, ‘The Business of the Supreme Court at October Terms, 1937 and 1938’ (1940) 53 Harvard Law Review 579.
[9] This was acknowledged by the editors in ‘The Supreme Court, 1967 Term’ (1968) 82 Harvard Law Review 63, 301.
[10] ‘The Supreme Court, 1960 Term’ (1961) 75 Harvard Law Review 40, 84–92.
[11] Above n 9.
[12] See Andrew Lynch, ‘Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia’ (2002) 24 Sydney Law Review 470.
[13] Above n 3.
[14] As Blackshield has said, ‘like any intellectual method, quantitative analysis involves great simplifications, as one seeks to reduce a disorderly mass of empirical data to conceptual manageability’: Blackshield, ‘X/Y/Z/N Scales: The High Court of Australia, 1972–1976’, above n 5, 134.
[15] This is something of a balancing act. Again, Blackshield admitted: ‘we need a set of categories simple enough to be usable, but complex enough to illuminate the intricacies and inconsistencies of the human mind’: Blackshield, ‘X/Y/Z/N Scales: The High Court of Australia, 1972–1976’, above n 5, 134. Admittedly, this was in the context of his much more sophisticated ‘scalogram’ project but the essential tension which he highlights would seem universal in any research aiming to quantify an aspect of human existence.
[16] This is the central theme and substance of my paper above n 12.
[17] It is a similar story in respect of the Harvard Law Review which admitted that the construction of similar tables ‘is accomplished primarily through tabulations as mechanical and simple as counting’: above n 9, 302.
[18] See, eg, above n 5.
[19] At the time of writing, the Australian Law Reports were so up to date as to be almost complete. The date of the last judgment delivered by the High Court and reported in that series is 5 December 2002 (R v Carroll [2002] HCA 55; (2002) 194 ALR 1). By comparison, the Commonwealth Law Reports had only just reported the judgments in Yarmirr v Northern Territory (2001) 208 CLR 1 which was delivered on 11 October 2001. This case was reported in (2001) 184 ALR 113. The reason AustLI was not simply used for the entire study is that the organisation of material on that site would have posed difficulties in ensuring all cases for the relevant period were included. With the exception of recent cases, case law is not organised chronologically by AustLI. Thus, the possibility of overlooking relevant cases in the alphabetical lists or through use of the search engines mitigated against use of that resource for the bulk of the study.
[20] The justices in the natural court under study and their dates of appointment are Gleeson CJ (22 May 1998), Gaudron J (6 February 1987), McHugh J (14 February 1989), Gummow J (21 April 1995), Kirby J (6 February 1996), Hayne J (22 September 1997), and Callinan J (3 February 1998).
[21] Russell Smyth, ‘Judicial Interaction on the Latham Court’, above n 5, 334. For a detailed example of selecting a ‘natural court’ to study, see Tony Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964–1969’, above n 5, 11.
[22] Youngsik Lim, ‘An Empirical Analysis of Supreme Court Justices’ Decision Making’ (2000) 29 Journal of Legal Studies 721, 724; and Blackshield, ‘X/Y/Z/N Scales: The High Court of Australia, 1972–1976’, above n 5, 139.
[24] In doing so, I am both acting to my own preference and aiming to be consistent with the approach taken by Gageler, above n 1, 195. For an example of the reverse approach, see Peter J McCormick, ‘The Most Dangerous Justice: Measuring Judicial Power on the Lamer Court 1991–97’ (1999) 22 Dalhousie Law Journal 93, 97.
[25] See <http://www.austlii.edu.au> at 10 June 2003 .The ten cases are Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; Dow Jones & Co Inc v Gutnick [2002] HCA 56; Roberts v Bass [2002] HCA 57; Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; Re Minister for Immigration and Multicultural and Indigenous Afairs; Ex parte Applicants S134/2002 [2003] HCA 1; Plaintif S157/2002 v Commonwealth of Australia [2003] HCA 2; Austin v Commonwealth of Australia [2003] HCA 3; New South Wales v Lepore; Samin v Queensland; Rich v Queensland [2003] HCA 4; Boral Besser Masonry Limited (now Boral Masonry Ltd) v ACCC [2003] HCA 5.
[26] [2000] HCA 51; (2000) 175 ALR 1.
[27] Chiefly those involving a yearly breakdown such as Table A (II), below.
[28] Gageler, above n 1, 195.
[29] These cases were Egan v Willis [1998] HCA 71; (1998) 158 ALR 527; Durham Holdings Pty Ltd v New South Wales (2001) 177 ALR 436; and Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; (2002) 189 ALR 161 (which also involved a question of Commonwealth judicial power).
[30] See, eg, DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659.
[31] See, eg, the catchwords prefacing Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 173 ALR 619. These concern s 51(i) and s 51(xxxi) but do not indicate the Court’s concern in that decision with distinguishing a fee for services from a tax. I am grateful to one of the anonymous referees for this example.
[32] Above n 9, 302.
[33] Lynch, above n 12.
[34] See Smyth, ‘Judicial Interaction on the Latham Court’, above n 5, 333; Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935–50’, above n 5, 101; Smyth, ‘Acclimation Effects for High Court Justices 1903–1 975’, above n 5, 175.
[35] A simple ‘I agree’ judgment ‘is no different in substance from being a party to a joint judgment, although care must be taken to leave no doubt about what it is with which the Justice agrees’: Michael Coper, ‘Concurring Judgments’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 129–3 0.
[36] It must be admitted that this is hardly a problem of much practical significance to the cases involved in this study. My central concern with allowing a fluidity between these two situations is that it risks obscuring the significance of when the justices choose to speak together by writing jointly, as opposed to the many instances where they simply defer to the solution proposed by one of their number. Even apart from any symbolic importance or enhanced precedential value which may attach to a unanimous opinion, clearly a different process has taken place in the Court’s determination of the matter than when an individual author is agreed with. It seems undesirable to lose that nuance unless necessary for a particular purpose. Additionally, the level of agreement between the justices can be reflected in other ways (such as the tallying of voting alignments in Tables E (I) and (II) of this paper, below) which do not threaten this distinction.
[37] Additionally, this rule will not apply in cases where the final orders are determined by application of a procedural rule (for example, resolution of deadlock between an even number of justices through use of the Chief Justice’s casting vote). This type of case should be discounted from any study attempting to quantify dissent. No case of this sort arose in the period under examination here.
[38] See, eg, (1988) 102 Harvard Law Review 143, 350.
[39] There have been complaints in recent times that the Court’s ‘opinions sometimes exhibit a Byzantine complexity that borders on self-caricature, to such an extent that it becomes a “Herculean task” to try to determine “whether an actual majority exists behind any proposition”’: McCormick, above n 24, 98. It is not a problem of which the Supreme Court justices are unaware: Ruth Bader Ginsburg, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133, 148–50.
[40] See John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221, 240; Coper, above n 35; Ijaz Hussain, Dissenting and Separate Opinions at the World Court (1984) 8; Michael Kirby, ‘Law at Century’s End’ [2001] MqLawJl 1; (2000) 1 Macquarie Law Journal 1, 13; Donald E Lively, Foreshadows of the Law: Supreme Court Dissents and Constitutional Development (1992) xx; Andrew Lynch, ‘Dissenting Judgments’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001), 216–8; Lynch, above n 12, 476–7; McCormick, above n 24, 102–3.
[41] Above n 38.
[42] Lynch, above n 12, 481–3, 487–91, 498–500.
[44] Mark A Kadzielski and Robert C Kunda, ‘The Unmaking of Judicial Consensus in the 1930s: An Historical Analysis’ (1983) 15 University of West Los Angeles Law Review 43, 47.
[45] Lie v Refugee Review Tribunal (S89 of 1999) reported at Muin v Refugee Review Tribunal (2002) 190 ALR 601. The two matters contained in this report were each tallied separately (see explanatory notes), though only Lie v Refugee Review Tribunal resulted in a majority of dissenters. The orders in that matter were arrived at by composite of the various diverse opinions (no fewer than five). Only Justice Gaudron’s judgment completely reflects the final orders of the Court in this matter. Consequently, and in accordance with the methodological constraints requiring absolute concurrence in order to avoid dissent, there are six dissenting opinions.
[46] All percentages given in this table are of the total of constitutional cases (62).
[47] For those intrigued by which constitutional matters were resolved in this way, the bench in United Mexican States v Cabal [2001] HCA 60; (2001) 183 ALR 645 was comprised of only Gleeson CJ, McHugh and Gummow JJ. The five member benches sat for HA Bachrach Pty Ltd v State of Queensland [1998] HCA 54; (1998) 156 ALR 563; Rudolphy v Lightfoot [1999] HCA 61; (1999) 167 ALR 105; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39; (2000) 173 ALR 619; and Pasini v United Mexican States (2001) 187 ALR 409. All bar Rudolphy v Lightfoot involved a question of judicial power.
[48] Telstra Corporation Ltd v Worthing [1999] HCA 12; (1999) 161 ALR 489.
[49] Leslie Zines, ‘The Present State of Constitutional Interpretation’ in Adrienne Stone and George Williams (eds), The High Court at the Crossroads – Essays in Constitutional Law (2000) 238.
[50] The references in Table C are to the Australian Law Reports citations by volume and page number. The reader will notice that a few of the cases appear under two topics – one is listed thrice – these are denoted by use of italics in respect of the repetition. This means that if you totalled the figures given in respect of the number of cases for each topic you would exceed the total of 62 given in Table A (II), above. In actual fact there are less than 62 original references in Table C. If one discounts the 11 repeated references, one is left with only 56 original references. But what is the significance of this figure and where did the total of 62 in Table A (II) come from? The answer lies in the multiple tallying of four of the cases listed. Although there are only 56 case reports in constitutional law, 62 matters in total have been tallied. This practice is discussed in the explanatory notes and employed in respect of all tables but this one and Table F (III), below. Table C requires identification with the case report and cannot easily accommodate any finer distinction, thus in this context the multiple matters present in (162/1); (163/270); (176/644) and (193/3 7) are suppressed and each report stands as a single unit.
[51] Justice Kirby has indicated that he is aware of his high rate of dissent: Kirby, above n 40.
[52] I say ‘most commonly’ as there is room for debate on this accolade. In support of Holmes as America’s ‘Great Dissenter’, see Alan Barth, Prophets with Honor (1974) 6; Percival E Jackson, Dissent in the Supreme Court (1969) 3. Even in commentary which seeks to apply the label to other US justices, it is clear that Holmes is the benchmark, if not the solitary wearer of the title. See, eg, Toni J Ellington, ‘Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero’ (1998) 20 Hawaii Law Review 797, 818 (involving comparison to the second Justice Harlan – and then extending that comparison to Justice Bader Ginsburg at 82 1–5); Thomas F Shea, ‘The Great Dissenters: Parallel Currents in Holmes and Scalia’ (1997) 67 Mississippi Law Journal 397, 398 (involving comparison, obviously, to Justice Scalia); Karl M ZoBell, ‘Division of Opinion in the Supreme Court: A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186, 202 (involving comparison to the first Justice Harlan).
[53] Shea, above n 52.
[54] Tony Blackshield et al (eds), The Judgments of Justice Lionel Murphy (1986) xvii–xix. Though, one must be wary of a direct comparison given the Court’s gaining control over its own docket and the abolition of appeals from State Supreme Courts to the Privy Council since the time of Murphy J. I am grateful to Professor Michael Coper for alerting me to this point.
[55] This will be confirmed more directly by Tables E (I) and (II) and F (I) and (II), below.
[56] Chief Justice Gleeson has acknowledged the ‘individualistic spirit of [the Court’s] members’: Murray Gleeson, The Boyer Lectures – The Rule of Law and the Constitution, Sydney, 2000 at 89.
[57] See High Court of Australia, Annual Report 1998–99, 5–6. The report states:
In the past, there has always been informal discussion on such matters. The new series of meetings has formalized the arrangements to a greater extent and provide the occasion for the review of current thinking of the Justices concerning the cases reserved for decision. … The discussions will not always secure agreement between the Justices and this is not their purpose. Even where important differences exist, discussion can help to clarify and refine opinions and reasoning.
On conferencing generally, see Troy Simpson, ‘Conferences’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001), 130–3.
[58] ‘Two Justices are considered to have agreed whenever they joined the same opinion, as indicated by either the reporter or the explicit statement of a Justice in the body of his or her own opinion. The table does not treat two Justices as having agreed if they did not join the same opinion, even if they agreed in the result of the case and wrote separate opinions revealing very little philosophical disagreement’: (1996) 110 Harvard Law Review 135, 369.
[59] Smyth, ‘“Some are More Equal than Others”’, above n 5, 197; Smyth, ‘Judicial Interaction on the Latham Court’, above n 5, 333; and Smyth, ‘Explaining Voting Patterns on the Latham High Court 1935–50’ above n 5, 99. Smyth expands upon this:
If a Justice dissents from the outcome of the case it is clear that he or she is not part of the successful coalition that decided the case. However, it might be less obvious that a Justice who writes a separate judgment agreeing with the outcome, but not the reasons, of the other Justices should be treated the same. But this follows once it is accepted that the reasons are more important than the outcome.
[60] Ibid. For a Canadian example, see McCormick, above n 24, 108–9; and Peter McCormick, ‘Birds of a Feather: Alliances and Influences on the Lamer Court 1990–1997’ (1998) 36 Osgoode Hall Law Journal 339.
[61] Smyth himself acknowledges this point in the context of his most recent study when he says, ‘in the majority of cases during the period in which Latham was Chief Justice, all of the Justices delivered separate judgments; therefore this study focuses on a by-product of High Court practice’: ‘Explaining Voting Patterns on the Latham High Court 1935–50’ above n 5, 108.
[62] For a very clear example, see George Williams, ‘Reading the Judicial Mind: Appellate Argument in the Communist Party Case’ [1993] SydLawRw 1; (1993) 15 Sydney Law Review 3.
[63] Though there are notable exceptions: see, eg, Clem Lloyd ‘Not Peace but a Sword! – The High Court Under JG Latham’ [1987] AdelLawRw 9; (1987) 11 Adelaide Law Review 175. The emergence of the Dixon diaries and their use in a new biography (Philip Ayres, Owen Dixon (2003)) may herald more research in this vein being carried out in respect of the High Court. Certainly, this kind of thing seems much more prevalent in respect of the United States Supreme Court. A recently published and fascinating resource is Del Dickson (ed), The Supreme Court in Conference (1940–1985) – The Private Discussions Behind Nearly 300 Supreme Court Decisions (2001). A lot of leaking seems to occur through that Court’s associates. In addition to Bob Woodward and Scott Armstrong’s notorious The Brethren (1979), see the more recent controversial book by Edward P Lazarus, Closed Chambers (1998). The latter has been the subject of much debate as to its propriety – for a potted summary of which, see Michael C Dorf, ‘In Memoriam: In Praise of Justice Blackmun’ (1999) 99 Columbia Law Review 1397, 1398 (text of n 6).
[64] Further to my earlier caveat about these statistics, this seems a useful description. Justice Gummow may or may not make the constitutional weather – but he certainly is the most reliable indicator as to what it is going to be.
[65] [1997] HCA 38; (1997) 190 CLR 513, 657–61. See also Justice Kirby’s dissent in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337.
[66] Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1.
[67] See Re Wakim; Ex parte McNally (1999) 198 CLR 1, 549–53; and Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 44–51.
[68] Because all joint writing, whether for the majority or minority, has been recorded in the foregoing tables, two of the case references do appear twice. These have been italicised. Additionally, for the same reasons present in respect of Table C, above, a simple tallying of the cases here is not going to produce parity with the raw figures used in other tables in this paper: see above n 50.
[69] In particular, he seems to share a similar view to that of the Chief Justice in respect of the ability of legalism to avert the dangers of activism: see Chief Justice Murray Gleeson, ‘Judicial Legitimacy’ (Paper presented at the Australian Bar Association Conference, New York, 2 July 2000); Justice Dyson Heydon, ‘Judicial Activism’s Threat to the Rule of Law’ January–February 2003, Quadrant, 9.
[70] For a recent sample, see John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221; Bader Ginsburg, above n 39; Robert G Flanders Jr, ‘The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable’ (1999) 4 Roger Williams University Law Review 401; Claire L’Heureux-Dubé, ‘The Dissenting Opinion: Voices of the Future?’ (2000) 38 Osgoode Hall Law Journal 495; Robert K Little, ‘Reading Justice Brennan: Is There a “Right” to Dissent?’ (1999) 50 Hastings Law Journal 683; Kevin M Stack, ‘The Practice of Dissent in the Supreme Court’ (1996) 105 Yale Law Journal 2235; William J Brennan, ‘In Defense of Dissents’ (1986) 37 Hastings Law Journal 427.
[71] Above n 9.
[72] I have argued elsewhere that multiple tallying of case reports containing more than one matter may well be justified where the matters are distinct and this is recapped below n 74. But conversely, multiple tallying should be dispensed with where it is not absolutely necessary to convey the true extent of consensus and disagreement amongst the bench. Such cases are those where there is so little difference between the two or more separate matters in the report that the Court draws little distinction on the basis of their separate facts, and even parties. In short, the one answer will ‘do’ for all matters. The obvious example of such a case is where a number of States challenge the same Commonwealth law, but private law cases can be similarly treated where the Court makes little or no distinction between the matters within its written opinions.
[73] There are six matters in (1 77/329) (ASIC v Edensor Nominees Pty Ltd (2001)) which are essentially the fallout from Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 163 ALR 270 (see below n 78). M20 is the central matter and the common fact substratum was used to justify single tallying.
[74] The purpose behind multiple tallying in such circumstances – and the competing arguments – are considered at length in Lynch, above n 12, 500–2. By tallying some case reports on the number of separate matters they contain, the risk of inconsistency across subsequent statistics is alleviated. For an example of the circumstance I am trying to avoid, see (1961) 75 Harvard Law Review 40, 92: ‘Some distortion is introduced into the Table [showing voting alignments between justices] by the fact that when the same Justices join in more than one opinion applying to a single decision, the Review notes two agreements but only one decision; thus it is theoretically possible for two Justices to agree more times than the number of cases in which they participate together’.Separate tallying also allows disagreement amongst the bench to be isolated to one specific matter, rather than having it magnified in instances where there is actually a great deal of consensus. An example of this is the report found at (190/60 1) which if tallied singly would have required all seven members of the Court to be noted as dissenting despite the presence of a clear majority in respect of one of the two matters contained in that report (the peculiarities of (190/601) and how it was treated in compiling these statistics are noted below under ‘Decisions to tally dissents warranting explanation’; see also, above, n 45).
Of course, there are drawbacks to such an approach as well. This arises through distortion of the true number of opinions written – with particular effects upon the statistics for joint judgment authorship (as an example, see below n 78 with respect to tallying of the judgments in Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 163 ALR 270 – the case in this sample with the most expansive effect in this regard). But while this inflates raw data, the distorting effect is minimised through greater reliance upon the percentage figures. And once again, identifying which cases have involved discretion on the part of the researcher is vital in the interests of a transparent methodology. The choice to multiple tally should be noted and justified – hence the inclusion of this table here. The sentiment from the Harvard Law Review accompanying n 71, above, is the guiding principle here.
[75] Abebe v Commonwealth [1999] HCA 14; (1999) 162 ALR 1 is tallied twice for the purposes of compiling statistics on the total number of cases, but only once with respect to constitutional cases. This is because of the substance of the two matters dealt with by the judgments, (a) the jurisdiction of the Federal Court and the meaning of ‘matter’; and (b) Abebe’s application for prerogative relief under s 75(v), only the former involves a constitutional question.
[76] There are actually four matters in (178/421) – two appeals by the Minister for Immigration and Multicultural Affairs and two applications for prerogative relief under s 75(v) of the Constitution by different visa applicants. (178/42 1) is tallied twice. The appeal and application concerning each individual visa applicant have enough common ground to be treated together (It should be noted that, despite immediate appearances, this is not equivalent to what is occurring in (162/1) which, although only involving one visa applicant was nevertheless tallied twice due to the considerations raised by the Minister’s appeal being quite distinct from those arising through the applicant’s case for prerogative relief under s 75(v)). However, as distinctions are drawn between the different facts applying to each applicant in (178/421), their respective litigation cannot simply be joined as a whole and is best treated as two separate matters.
[77] Exactly the same situation as for (178/421).
[78] Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 163 ALR 270 is tallied as four cases – both for the constitutional subset and in general. Although the four matters dealt with in the report have significant features of commonality, there are enough distinctions to lead to members of the Court dealing with them separately in their judgments. Additionally, three judges (McHugh, Kirby and Callinan JJ) arrive at different conclusions in respect of some of the matters and not others. Whilst it was judged that multiple tallying was preferable in this case, it must also be noted that this has a potentially distorting effect. This is particularly so in two respects: first, on the statistics for constitutional cases specifically where the sample size is smaller; and second, on the incidents of authorship of joint judgments between Gummow and Hayne JJ.
[79] The apparent illogicality, yet necessity of arriving at, this result is considered in discussing rule (c) in Part III, above, of this paper. See also Lynch, above n 12, 492–8 which discusses the problems of many dissenters and institutional coherence across multiple issues.