The Third Branch has just come across a recent article in the Australian Financial Review that has made us scratch our heads a little. The 13 November article entitled "High Court braces for change" asserts that within four years the last Labor appointees to the court will have retired, which must come as a bit of a surprise to Justice Bill Gummow, who is not due to retire until 2012. Either the AFR has secret plans for Justice Gummow, or else they are engaging in a little uncharacteristic fuzzy maths.
More perplexing, though, was the article's claim that:
In a period in which there have been an unusually high number of important decisions on the role of human rights in constitutional interpretation, Justices Gummow and [Chief Justice] Gleeson have had more in common with judge Michael Kirby, renowned for his high dissent rate.
The article then quotes leading constitutional law professor George
Williams of UNSW as saying:
In terms of fundamental shifts, what we really have to see is whether some of these alignments and positions are borne out over a couple of years, but these cases suggest that they are willing to take more of an interpretative approach, which is more likely to be protective of certain human rights.
We at the Branch think that the author has in mind Al-Kateb v Godwin
, the recent case upholding the legality of indefinite immigration detention. In that case, the Grinner, Gummow J and the Kirbster did in fact agree in dissent, but we wonder whether one case really does amount to the 'trend' spotted by both Professor Williams and the AFR.
At base, the issue is the myth of block voting on the High Court; an issue about which Professor Williams perhaps ought to know better. In truth, High Court voting patterns vary widely, even if there are some recurrent features.
Here are some of the themes that appear in voting patterns after Al-Kateb, which is Professor Williams' supposedly landmark case.
Justice Kirby is indeed very likely to be the lone dissenter, but his reasons for dissenting are not always to do with being 'leftist' or solicitous of the claims of 'human rights' plaintiffs. The common assumption might hold true in Electrolux Home Products Pty Ltd v Australian Workers' Union, Baker v The Queen, and Fardon v Attorney-General, but it cannot explain his lone dissent against the interests of a refugee in WACB v Minister for Immigration. Nor can the theory easily explain his lone dissents in Rich v Australian Securities and Investments Commission (denying privilege against penalty in corporations law proceedings), or in NT Power Generation Pty Ltd v Power and Water Authority (denying that trade practices law applied to a government instrumentality).
The 'Kirby as lone dissenter' theory also makes it difficult to explain Hayne J's unexpected lone dissent in Director of Public Prosecutions (NT) v WJI (a case about mens rea in NT sexual offences law).
Another common assumption is that the three 'Capital "C" conservatives' all vote together. This might have been true in Coleman v Power (about the constitutional freedom of political communication), but it cannot explain Singh v Commonwealth (a person born in Australia may nevertheless be an alien, and thus liable for deportation), in which the majority was Gleeson CJ, Gummow, Hayne, and Heydon JJ jointly, and Kirby J separately; with McHugh and Callinan JJ separately in dissent. And nor can it explain Re Colonel Aird; Ex parte Alpert (a case about the extent of the Commonwealth's 'defence' power), in which the majority was Gleeson CJ, McHugh, Gummow, and Hayne JJ; with Kirby, Callinan and Heydon JJ jointly in dissent.
Singh was unusual for its lack of a Kirby dissent. Colonel Aird was unusual since a Kirby-Callinan-Heydon dissent is hard to explain on the usual assumptions, and also because Heydon and Callinan rarely write together as a 'couple' (as opposed to a larger joint judgment).
Another oddity was Re Woolley; Ex parte Applicants M276/2003, the case about the constitutionality of holding children in immigration detention. While the children's appeal was unanimously dismissed, every judge wrote separately. Obviously, they each wanted to have their two cents' worth.
Another point about NT Power was that it gave McHugh J a rare opportunity to sit in the big chair in the middle of the bench. So far as we are aware, the only other time he's been ACJ this year was in the Panel case.
In other words, the AFR's theory of a Gleeson-Gummow-Kirby entente cordiale seems not to have much substance to it at all.