¹ SirAnthony, 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) 531Google Scholar, 532.

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, 194Google Scholar. 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) 231Google Scholar; Bryan, Horrigan, ‘Towards a Jurisprudence of High Court Overruling’ (1992) 66 Australian Law Journal 199Google Scholar; SirAnthony, Mason, ‘The Use and Abuse of Precedent’ (1988) 4 Australian Bar Review 93, 111Google Scholar; Henry, Monaghan, ‘Stare Decisis and Constitutional Adjudication’ (1988) 88 Columbia Law Review 723Google Scholar; and R C, Springall, ‘Stare Decisis as Applied by the High Court to its Previous Decisions’ (1978) 9 Federal Law Review 483Google Scholar.

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 1Google Scholar, 57-8; and Frank, Easterbrook, ‘Stability and Reliability in Judicial Decisions’ (1988) 73 Cornell Law Review 422, 430–1Google Scholar.

¹³ Andrew, Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of Its First Five Years’ (2003) 26 University of New South Wales Law Journal 32Google Scholar; Andrew, Lynch and George, Williams, ‘The High Court on Constitutional Law: The 2003 Statistics’ (2004) 27 University of New South Wales Law Journal 88Google Scholar; Andrew, Lynch and George, Williams, ‘The High Court on Constitutional Law: The 2004 Statistics’ (2005) 28 University of New South Wales Law Journal 14Google Scholar.

¹⁴ Andrew, Lynch, ‘Dissent: The Rewards and Risks of Judicial Disagreement in the High Court of Australia’ (2003) 27 Melbourne University Law Review 724Google Scholar, 759–62.

¹⁵ See JusticeRuth, Bader Ginsburg, ‘Remarks on Writing Separately’ (1990) 65 Washington Law Review 133, 136Google Scholar; Robert, 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 401Google Scholar. Wald’s claim that ‘most judges dissent more than concur’ (Patricia, Wald, ‘The Rhetoric of Results and the Results of Rhetoric: Judicial Writings’ (1995) 62 University of Chicago Law Review 1371, 1413Google Scholar) reflects how very different the notion of concurrence is due to the United States Supreme Court’s practice of delivering a core majority opinion.

¹⁶ See Russell, Smyth, ‘Explaining Historical Dissent Rates in the High Court of Australia’ (2003) 41 Commonwealth & Comparative Politics 83Google Scholar; Russell, Smyth, ‘What Explains Variations in Dissent Rates? Time Series Evidence from the High Court’ (2004) 26 Sydney Law Review 221Google Scholar; Matthew, Groves and Russell, Smyth, ‘A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903–2001’ (2004) 32 Federal Law Review 255Google Scholar.

¹⁷ Three such matters — two being constitutional in character — were included in the reports found in volume 148. Additionally, several cases outside the timeframe of this study were reported in volume 180 which was a special release by the Law Book Company of cases whose subsequent importance had not been predicted by the editors at the time they were first decided.

¹⁸ The last case to be included in the study is Chief Executive Officer of Customs Pty Ltd v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, heard on 11 December 2002 before Justice Gaudron’s departure. Her Honour did not sit on the bench for that decision, in which judgment was handed down on 5 September 2003.

¹⁹ In addition to those studies cited above n 16, see Mirko, Bagaric and James, McConvill, ‘Illusions of Disunity: Dispelling Perceptions of Division in High Court Decision Making’ (2004) 78 Law Institute Journal 36Google Scholar; A R, Blackshield, ‘Quantitative Analysis: The High Court of Australia, 1964–1969’ (1972) 3 Lawasia 1Google Scholar; A R, 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) 133Google Scholar; Paul, von Nessen, ‘The Use of American Precedents by the High Court of Australia, 1901–1987’ (1992) 14 Adelaide Law Review 181Google Scholar.

²⁰ Stephen, Gageler, ‘The High Court on Constitutional Law: The 2001 Term’ (2002) 25 University of New South Wales Law Journal 194Google Scholar, 195.

²¹ Justice Kenny, in assessing the 2002 term of the High Court, made it clear that her use of the phrase ‘constitutional cases’ included those involving the constitution of an Australian State: JusticeSusan, Kenny, ‘The High Court on Constitutional Law: The 2002 Term’ (2003) 26 University of New South Wales Law Journal 210Google Scholar, 210.

²² See Appendix B for identification of the few decisions so affected.

²³ For example, the case of Wong v The Queen is reported at (2001) 207 CLR 584 as simply a criminal law matter, despite the submission of constitutional arguments which received attention in the opinions of some of the Court’s members. By contrast, in the report at (2001) 185 ALR 233, the catchwords clearly indicate the constitutional aspects of the case. While those arguments were not decisive of the outcome, that can often be said of cases which are readily described as constitutional in character. The differing levels of importance of constitutional issues in cases and the effect of this upon inclusion in this study are discussed in the following paragraph of the above text.

²⁴ See, for example, Australian Broadcasting Corporation v Lenah Game Meats (2001) 208 CLR 199, which is included because of Callinan J’s comments regarding the constitutionally implied freedom of political communication which had been raised by the appellant but which did not form the basis for any Justice’s resolution of the case. As explained in Appendix A, even when a majority of the Court chose to avoid a constitutional issue, the case will still be tallied as such if (a) the parties have raised one; and (b) especially when at least one Justice discusses it.

²⁵ A good example is the case of McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 in which a majority of the Court certainly did not decide the matter ‘in the application of legal principle identified by the Court as being derived from the Australian Constitution’: cf Gageler, above n 20, 195.

²⁶ JusticeRonald, Sackville, ‘The High Court on Constitutional Law: The 2003 Term: The Inaccessible Constitution’ (2004) 27 University of New South Wales Law Journal 66, 83Google Scholar. The heavy reliance upon the descriptors of each case in the reports is justified by the practice of other empirical studies. See, for example, Lee, Epstein, Jeffrey, Segal and Timothy, Johnson, ‘The Claim of Issue Creation on the US Supreme Court’ (1996) 90 American Political Science Review 845, 848Google Scholar.

²⁷ See Blackshield, ‘Quantitative Analysis’, above n 19, 11; Youngsik, Lim, ‘An Empirical Analysis of Supreme Court Justices’ Decision Making’ (2000) 29 Journal of Legal Studies 721, 724Google Scholar; 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, 334Google Scholar.

²⁸ The best evidence of this are the various entries in this vein in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001)Google Scholar, though note the existence of titles such as Cheryl, Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996)Google Scholar. Additionally, it should be noted that equivalent empirical studies in other jurisdictions may adopt incumbency of the office of Chief Justice as the means of isolating a particular court: see Peter, McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99Google Scholar.

²⁹ For example, see Justice Michael McHugh, ‘The Constitutional Jurisprudence of the High Court 1989–2004’ (Speech delivered at the University of Sydney’s Inaugural Sir Anthony Mason Lecture in Constitutional Law, Banco Court, Sydney, 26 November 2004); and Justice Kirby quoted in text accompanying n 65.

³⁰ So, for example, Waterford v Commonwealth (1987) 163 CLR 54, despite being handed down on 24 June 1987 when Mason’s Chief Justiceship had begun, is a Gibbs Court decision. It was heard by a bench comprised of Mason, Wilson, Brennan, Deane and Dawson JJ on 30 October 1986 when Gibbs was still Chief Justice.

³¹ See, for example, Federal Commissioner of Taxation v Myer Emporium Ltd (1987) 163 CLR 199.

³² So, for example, Fox v Percy (2003) 214 CLR 118, which was heard in September 2002 and handed down in April 2003 and on which Justice Gaudron did not sit, is included as a case heard by the first Gleeson Court for the purposes of this study.

³³ It is a curious fact that since the introduction of the mandatory retirement age, only Chief Justices Gibbs, Mason and Brennan and Justice McHugh have actually stayed on the Court right up to the point at which they were constitutionally required to vacate it. All other departures, including, obviously, those due to death in office, have pre-empted attainment of that age.

³⁴ See David, Jackson, ‘The Brennan Court’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001), 68–70Google Scholar.

³⁵ Andrew, Lynch, ‘Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia’ (2002) 24 Sydney Law Review 470Google Scholar.

³⁶ These were applied in order to produce the statistics found in the papers cited above n 13.

³⁷ In 1968, the editors of the Harvard Law Review provided greater detail as to how the annual Supreme Court statistics which that journal provides were compiled because: ‘…it was felt, the nature of the errors likely to be committed in constructing the tables should be indicated so that the reader might assess for himself the accuracy and value of the information conveyed’: ‘The Supreme Court, 1967 Term’ (1968) 82 Harvard Law Review 63, 301-2CrossRefGoogle Scholar. The editors’ use of the word ‘errors’ is inapt for what they are describing is really only those inevitable decisions about which different researchers may have legitimate disagreement. Nevertheless, the aim of greater transparency in respect of those choices is a worthwhile one. To that end, this paper is accompanied by detailed Appendices which explain the more challenging tallying decisions made in respect of the compilation of the following statistics.

³⁸ Smyth, ‘What Explains Variations in Dissent Rates?’, above n 16, 230. See also, Groves and Smyth, above n 16, 257.

³⁹ Smyth, ‘What Explains Variations in Dissent Rates?’, above n 16, 232. In the collaborative piece by Groves and Smyth, this passage appears but is varied by use of the phrase ‘we made a judgment call’ in the final sentence: Groves and Smyth, above n 16, 257.

⁴⁰ Kevin, McGuire and Barbara, Palmer, ‘Issue Fluidity on the US Supreme Court’ (1995) 89 American Political Science Review 691, 692Google Scholar. See also Kevin, McGuire and Barbara, Palmer, ‘Issues, Agenda, and Decision-Making on the Supreme Court’ (1996) 90 American Political Science Review 853Google Scholar.

⁴¹ See the authorities cited and discussed in Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 476, 493–8. Although Groves and Smyth have purported to embrace use of the term ‘dissenting’ so as to be consistent with this classic understanding (Groves and Smyth, above n 16, 256), it is clear that classifying opinions by reference only to an ‘important issue or issues’ in isolation from the rest of the judgment significantly undermines the purity of the concept of ‘dissent’ as a label traditionally arrived at through disparity between the orders favoured by the individual judge and those of the Court. It is for this reason that both the methodology employed by the Harvard Law Review in presenting statistics on the United States Supreme Court and the modified version of those rules as applied by myself to the High Court of Australia (above n 13) insist that ‘a Justice is considered to have dissented when he or she voted to dispose of the case in any manner different from the final orders’. To focus only on some issues in a case and not all in classifying judgments is inconsistent both with the true concept of dissent and those other empirical studies which have sought accurately to reflect that.

⁴² Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 483; Lynch, ‘The Gleeson Court’, above n 13, 41.

⁴³ Smyth, ‘What Explains Variations in Dissent Rates?’, above n 16, 232; Groves and Smyth, above n 16, 257.

⁴⁴ Epstein and King insist that all empirical studies should meet a replication standard — that is, the methodology should be such that other researchers should be able to apply it to obtain the same results: see Lee, Epstein and Gary, King, ‘The Rules of Inference’ (2002) 69 University of Chicago Law Review 1, 38–45Google Scholar.

⁴⁵ That seems a preferable approach when compared with a methodology by which the researcher makes a ‘judgment call’ as to which issues — and thus which disagreements — are to be reflected in the tallying of opinions as dissenting or not. At least with a methodology applying a strict classification of ‘dissent’ we know that the figures will be slightly inflated in their representation of disagreement. The chief trouble with an approach based upon a selective reading of the cases is that we are unable to say how the distortion occurs since it is not the result of application of a consistent standard but the subjective discretion of the researcher.

⁴⁶ Groves and Smyth, above n 16.

⁴⁷ Ibid 276 n 100.

⁴⁸ Lynch, ‘The Gleeson Court’, above n 13.

⁴⁹ Sir Anthony Mason has said:

My own view has been that the Court should deliver joint or majority judgments, if they can be achieved. While I was Chief Justice, we made a more concerted effort to achieve that result, particularly by inviting one of our number to write an initial judgment or draft. That practice had some success but the degree of success was less than we had hoped.

SirAnthony, Mason, ‘The Centenary of the High Court of Australia’ (2003) 5 Constitutional Law and Policy Review 41, 42Google Scholar.

⁵⁰ Ginsburg, above n 15, 148; Michael, Coper, Encounters with the Australian Constitution (1988) 139–40Google Scholar; Martin, Davies, ‘Common Law Liability of Statutory Authorities: Crimmins v Stevedoring Industry Finance Committee’ (2000) 8 Torts Law Journal 133Google Scholar; Geoffrey, Sawer, Australian Federalism in the Courts (1967) 50–1Google Scholar; Jason, Silverii, ‘High Court Chief Encourages Joint Judgments’ (2004) 78 Law Institute Journal 20Google Scholar. This complaint was raised by the Attorney-General at the swearing in of Chief Justice Gleeson: Bernard Lane, ‘Gleeson Calls for Reorder in the Court’, The Weekend Australian (Sydney), 23–24 May 1998, 4. Cf Mirko, Bagaric and James, McConvill, ‘The High Court and the Utility of Multiple Judgments’ (2005) 1 High Court Quarterly Review 1Google Scholar.

⁵¹ (1997) 189 CLR 520.

⁵² The unlikelihood of this case being the Brennan Court’s sole unanimous constitutional decision is acknowledged in Nicholas, Aroney, ‘The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger Cases a Return to Normal Science?’ (1998) 21 University of New South Wales Law Journal 645, 653–4Google Scholar; Geoffrey, Lindell, ‘Expansion or Contraction? Some Reflections about the Recent Judicial Developments on Representative Democracy’ (1998) 20 Adelaide Law Review 111, 137Google Scholar; Andrew, Lynch, ‘Unanimity in a Time of Uncertainty: The High Court Settles Its Differences in Lange v Australian Broadcasting Corporation’ (1997) 6 Griffith Law Review 211Google Scholar.

⁵³ All percentages in this table are given as of the total number of constitutional cases across the study (234).

⁵⁴ Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556. As only Mason J concurred precisely in the final orders all other six judges who disagreed by varying degrees — but nonetheless significantly on the central question of substance — are tallied as dissenting. For consideration of the phenomenon of a greater number of minority than majority judgments see Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 492-3.

⁵⁵ The majority in Mabo v Queensland [No 2] (1992) 175 CLR 1 was 6:1 in finding that the Murray Islands are not Crown land, but that majority was then split over the further question of whether extinguishment of native title gives rise to compensation — Mason CJ, Brennan and McHugh JJ denied this, whereas Deane, Toohey and Gaudron JJ made orders for a declaration that such is the case. But as Dawson J (in dissent on the central question) indicated support for no compensation, the final order did not include this restraint upon the Queensland Parliament. While admittedly the question of compensation is somewhat hypothetical on the facts of the case (the native title in question not having been extinguished), Deane, Toohey and Gaudron JJ were at pains to include it in their orders and the brief judgment of Mason CJ and McHugh J is entirely dedicated to clarifying that such was not the finding of the Court as a body. This result is only reflected in the opinions of three judges of the Court — Mason CJ, Brennan and McHugh JJ. The remaining four are tallied as dissenting.

⁵⁶ This title is most commonly associated with Justice Oliver Wendell Holmes of the United States Supreme Court, though there is room for debate. In support of Holmes as America’s ‘Great Dissenter’, see Alan, Barth, Prophets with Honor (1974) 6Google Scholar and Percival, Jackson, Dissent in the Supreme Court: A Chronology (1969) 3Google Scholar, though the irony of this, given Holmes’ jurisprudential method, is well observed in Richard, Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243, 287–8Google Scholar. 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, for example, Toni, Ellington, ‘Ruth Bader Ginsburg and John Marshall Harlan: A Justice and Her Hero’ (1998) 20 Hawaii Law Review 797Google Scholar, 818 (involving comparison between Holmes and the second Justice Harlan — and then extending that to Justice Ginsburg at 821–5); Thomas, Shea, ‘The Great Dissenters: Parallel Currents in Holmes and Scalia’ (1997) 67 Mississippi Law Journal 397Google Scholar, 398 (involving comparison between Holmes and, obviously, Justice Scalia); Karl, ZoBell, ‘Division of Opinion in the Supreme Court: A History of Judicial Disintegration’ (1959) 44 Cornell Law Quarterly 186Google Scholar, 202 (involving comparison between Holmes and the first Justice Harlan). The title has entered Australian parlance, most pointedly in recent times in Haig, Patapan, Judging Democracy — The New Politics of the High Court of Australia (2000) 192Google Scholar.

⁵⁷ Charles, Hughes, The Supreme Court of the United States: Its Foundation, Methods and Achievements: An Interpretation (1928) 68Google Scholar.

⁵⁸ Paul, Edelman and Suzanna, Sherry, ‘All or Nothing: Explaining the Size of Supreme Court Majorities’ (2000) 78 North Carolina Law Review 1225Google Scholar.

⁵⁹ This figure is almost exactly the same as the one Tony Blackshield produced when calculating the percentage of dissents across Justice Murphy’s entire judicial service on the High Court. Blackshield said that his Honour dissented in 137 cases out of 632 (which comes to 21.67 per cent): A R, Blackshield, ‘Introduction’ in A R, Blackshield et al (eds), The Judgments of Justice Lionel Murphy (1986) xixGoogle Scholar.

⁶⁰ Sir Anthony Mason has also made this direct link between Chief Justice Gibbs’ federalist outlook and his dissent rate: SirAnthony, Mason, ‘The High Court of Australia: A Personal Impression of its First 100 Years’ (2003) 27 Melbourne University Law Review 864, 885Google Scholar.

⁶¹ The results for Justices Stephen and Aickin are statistically insignificant.

⁶² Cf Smyth, ‘What Explains Variations in Dissent Rates?’, above n 16, 238–9. For consideration of the effect of these developments upon the Court’s judicial style generally, see Groves and Smyth, above n 16, 259–62.

⁶³ Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 484–7.

⁶⁴ ABC Radio, ‘Justice Michael Kirby’, Sunday Profile, 16 November 2003 at <http://www.abc.net.au/sundayprofile/stories/s982503.htm> at 18 October 2005.

⁶⁵ See generally, John, Williams, ‘Murphy, Lionel Keith’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), The Oxford Companion to the High Court of Australia (2001), 484–6Google Scholar; and Mason, ‘Personal Relations’, above n 1, 531.

⁶⁶ (1997) 189 CLR 520.

⁶⁷ See above n 52.

⁶⁸ For discussions of just some of the major questions which still hang over the implied freedom see Dan, Meagher, ‘What is “Political Communication“? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28 Melbourne University Law Review 438Google Scholar; Adrienne, Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar; and Adrienne, Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374Google Scholar.

⁶⁹ (1996) 186 CLR 140.

⁷⁰ (1997) 190 CLR 1.

⁷¹ (1998) 195 CLR 337.

⁷² (1997) 189 CLR 465.

⁷³ (1996) 189 CLR 51.

⁷⁴ (1998) 195 CLR 337.

⁷⁵ For a discussion of this decision, see Sydney, Tilmouth and George, Williams, ‘The High Court and the Disqualification of One of Its Own’ (1999) 73 Australian Law Journal 72Google Scholar.

⁷⁶ Smyth, ‘What Explains Variations in Dissent Rates?’, above n 16, 239; Groves and Smyth, above n 16, 275.

⁷⁷ Separate inquiry into verifying this is beyond the scope of the present paper and awaits future attention.

⁷⁸ This would seem to be supported by Groves and Smyth’s findings that joint judgments per 100 judgments (by which they mean any authored by two or more Justices) remained high (and climbed) in the first three years of the Gleeson Court, while the number of single-author concurring opinions, although not as low as under Chief Justice Mason, was still at much lower levels than in the Court’s past: Groves and Smyth, above n 16, 267–8 (Figures 2 and 3). Additionally, Bagaric and McConvill have performed their own, much more limited study, in order to expose as false the perception that the High Court is presently beset by multiple concurring opinions: Bagaric and McConvill, ‘Illusions of Disunity’, above n 19. Cf Davies, above n 50, 145–51.

⁷⁹ Lynch, ‘The Gleeson Court’, above n 13, 49.

⁸⁰ See above n 77.

⁸¹ It is worth noting though that none of those decisions was constitutional in character: see Lynch and Williams, ‘The 2004 Statistics’, above n 13.

⁸² (1999) 197 CLR 510.

⁸³ His Honour’s dissents are found in Wong v The Queen (2001) 207 CLR 584 (see comments above n 23) and a partial dissent in Roberts v Bass (2002) 212 CLR 1.

⁸⁴ The results produced for these four Justices are those which we might have expected to bear the closest similarity with the figures produced by Groves and Smyth in tabulating the method of judgment delivery for every member of the High Court since its inception: above n 16, 279–80. However, the figures here do not simply repeat those provided by those authors for Justices Deane, Dawson, Toohey and Gaudron. There are a number of reasons for this. First, in respect of the last named Justice, Groves and Smyth’s study concludes in 2001 whereas this one takes her Honour’s departure from the High Court as its finishing point. Secondly, of the remaining three Justices whose careers on the High Court are covered by both studies, the different results can be explained by different methodologies. The number of judgments provided in Table H(I) above is slightly more for all three than that given by Groves and Smyth — reflecting this author’s greater willingness to multiple tally those reports which can be sensibly be seen as containing more than one matter. As for the breakdown of the opinions themselves, it should be clear that the two studies have a very different approach. Groves and Smyth do not separately identify unanimous judgments, but rather include them in the category of joint judgments which may have two or more authors so long as they concur in the orders given. This, plus the isolation of ‘short concurring judgments’ means that the figures provided by those authors for ‘concurring judgments’ (by which they mean only those single author opinions which agree with the final orders) must necessarily be at variance with what is provided here. In saying this, I am certainly not saying that the results produced by Groves and Smyth in the categories as they have defined them are in any way in error. They are simply a different way of looking at the same raw material and in so doing cast their own particular illumination on the opinion delivery practices of the High Court. One might expect more commonality in the number of dissenting opinions since this is a stand-alone category in both studies, but for the reasons already detailed in Part III of this paper there is a crucial difference in the way in which the two studies have classified dissent. This is reflected in the varied results between the two studies. In this respect, I do think there are competing strengths in the two approaches but maintain that consistency and accuracy is best served by a strict application of the concept of dissent as it is formally understood.

⁸⁵ Groves and Smyth, above n 16, 277.

⁸⁶ Admittedly, the entries for Justices Stephen and Aickin do not lend support of any great significance.

⁸⁷ Lynch, ‘The Rewards and Risks of Judicial Disagreement’, above n 14.

⁸⁸ Patapan, above n 56, 139.

⁸⁹ The three tax matters here are differentiated in the judgments delivered but they are all contingent upon interpretation of one statutory provision which dictates the result in each.

⁹⁰ The case of Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188 contains fifteen separate matters. I have previously discussed (see Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 500–2) the dilemma regarding tallying of this decision (in which Dawson J dissents in fourteen of the matters and concurs in one). While in the abstract, I was prepared to follow the precedent of the Harvard Law Review (see above n 41) and recognise the fifteen individual matters, the practical result of such a course is to distort so grossly the figures in respect of all members of the Mason Court (not just Dawson J) that the matter has eventually been tallied just once, with Dawson J in dissent. Although there is a degree of distinction made between matters in the judgments, the driving factor in tallying singly (aside from practicality) has been to recognise the central constitutional questions which determine those related actions on their facts.

⁹¹ See ‘Clarification of particular tallying decisions’ below regarding individual judgments in this case.

⁹² The purpose behind multiple tallying in such circumstances — and the competing arguments — are considered at length in Lynch, ‘Towards a Methodology for Measuring Judicial Disagreement’, above n 35, 500–2. By tallying some case reports on the number of separate matters they contain, the risk of distortion is alleviated. The researcher is able to isolate the disagreement and convey its true extent and by so doing avoid the possibly inflationary effects of a strict application of the tallying rule (b). Of course, in the interests of a transparent methodology, it is vital that the choice to multiple tally be noted — hence the inclusion of this table here.

⁹³ The timing of Justice Aickin’s death means that this report effectively comprises two hearings of differently composed courts.

⁹⁴ There are two individual matters — staggered over a 3:2 decision on leave, appeal pending filing of affidavit from ASIO; and then 4:1 on dismissal.

⁹⁵ There are three matters in this report and although there is a common factual substratum, one matter (R v Nowytarger) is kept significantly distinct from the other two. Thus the report is tallied twice. This results in the recording of two concurring judgments from Mason CJ, Brennan and Toohey JJ; two dissents from Deane J who refused special leave in all three matters; and a concurrence and dissent from McHugh J.

⁹⁶ Abebe v Commonwealth (1999) 197 CLR 510 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 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.

⁹⁷ There are actually four matters in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 — 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. 205/507 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 197/510 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 205/507, their respective litigation cannot simply be lumped together as a whole and is best treated as two separate matters — neither of which is constitutional.

⁹⁸ Exactly the same situation as in respect of 205/507.

⁹⁹ There is a common factual substratum but sufficient difference remains to be reflected in the orders of the three matters. Brennan and Dawson concur in the orders of 167/94(ii) and (iii) but dissent in 167/94(i).

¹⁰⁰ Re Wakim; Ex parte McNally (1999) 198 CLR 511 is tallied as four cases — both for the statistics on the constitutional subset and in general. The only table in which this is not reflected is Table C(II). 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) arrived 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, particularly so in respect of the raw figure of joint judgments between Justices Gummow and Hayne.