Inside Story

The Great Assenters

Are we all the losers in the High Court’s quest for consensus?

Jeremy Gans 1 May 2018 2072 words

Above all, harmony? Susan Kiefel taking over as chief justice in January last year. Mick Tsikas/AAP Image

When the US Supreme Court recently split five judges to four on a new test for deporting criminals, Trump-appointee Neil Gorsuch joined the court’s four liberals for the first time. That was the court’s fourth five–four split for the month, alongside three more that were either six–three or seven–two. The world’s nine most powerful judges agreed just once during the month: to throw out a case that had been overtaken by new legislation.

In Australia’s top court, it’s a different story. All four decisions made in the High Court of Australia last month were approved by every judge who sat (even if they sometimes disagreed on the reasons). This contrast between Australia and the United States is new. The nine justices of the US Supreme Court have long divided, often sharply, in around half of their cases. Canada’s top court is the same. And, just a decade ago (and two chief justices back), so was Australia’s.

In recent years, though, the High Court has become like Britain’s top court, whose judges agree roughly three-quarters of the time. Only in about fifteen cases a year in each court does a judge disagree with the rest. Close decisions, like the five–four decisions that are common in America, now only happen here about once a year.

Many people like our newly harmonious top court. Our current chief justice, Susan Kiefel, says that she thinks the High Court’s judges should think long and hard before disagreeing with the majority: “It could just be that one is wrong.” The court reaches its decisions quickly and without rancour. Australian lawyers and law students have fewer messy rulings to deal with. But some people — I, for one — dissent.

What’s not to like about judicial agreement? Nothing at all, if the judges are judging easy cases. But the top courts in Britain, the United States, Canada and Australia usually hear only the toughest, most controversial cases. If top judges constantly reach the same decision on hard cases, we’re entitled to start wondering why.

The US Supreme Court learnt that hard lesson eight decades ago. In the 1930s, four of the court’s nine judges agreed so regularly on (often novel) constitutional challenges to the New Deal legislation that the media dubbed them “the four horsemen.” This pointed label allowed an aggrieved Franklin Delano Roosevelt to tell Americans, shortly after his thumping second election victory, that “in our courts we want a government of laws and not of men.”

Detailing the four’s shared decisions (in majority and dissent), he declared “a quiet crisis” and announced his plan to appoint extra judges “who will act as Justices” and “save our national Constitution from hardening of the judicial arteries.”

No politician will ever accuse Australia’s High Court of being a “third house” of parliament (a term FDR coined long before Malcolm Turnbull used it in a different context). Our Constitution places very few restrictions on what our parliaments can do. Indeed, the High Court only makes a couple of politically important decisions a year and the bulk of its work is made up of regular court appeals. That is why Australia’s High Court has never developed political blocs like the liberal and conservative wings of the US Supreme Court.

But Australia’s High Court has had a long and proud history of internal debate about Australian law, often propelled by particular judges — known as Great Dissenters — who routinely criticise the majority’s approach. Past examples are Sir Isaac Isaacs (the first Great Dissenter), Sir Owen Dixon (often regarded as our greatest judge) and Lionel Murphy (whose radical views became the orthodoxy when Sir Anthony Mason was chief justice). More recently, Michael Kirby and Dyson Heydon have taken on the role of “appealing to the future” with particular vigour, dissenting in up to half of their cases.

But no more. Since Heydon’s departure five years ago, the High Court has no Great Dissenters — or even middling ones. The closest thing to a regular dissenter is former solicitor-general Stephen Gageler, who has disagreed in barely one out of eight cases.

And that’s how Chief Justice Kiefel likes it. In a speech late last year, she hearkened to a time in England when judicial dissent was regarded as “a serious thing” reserved for the most important cases, lest it detract from the court’s authority. She declared that it was “perfectly proper” for “senior judges” to persuade dissenting judges to tone down their language in the name of dignity and others’ feelings. Dissents, she said, aren’t courageous and may even be cowardly if majority judges opt not to “enter the fray.”

Kiefel advises law students to pay more attention to “more mundane majority judgements” and legal commentators to stop encouraging dissenters’ “self-indulgence.” (In passing, she mentions a recent book edited by UNSW’s Andrew Lynch on Great Australian Dissents, which includes a chapter by me feting the dissenters in Lindy Chamberlain’s failed High Court appeal).

She certainly practises what she preaches. Kiefel now dissents in fewer than one in forty cases, or just one a year. It’s been more than two years since her last dissent (over the meaning of a trust deed).

The “court packing scheme” FDR proposed in 1937 never eventuated. Just as the scheme was announced, the court’s two swing voters swung behind the New Deal legislation, isolating the four horsemen. Shortly after, the bloc’s oldest member, Willis Van Devanter, retired to a Maryland farm and a freshly legislated pension. The Washington Post bid the judge a cold farewell:

Justice Van Devanter might have been called “The Great Assenter,” in contradistinction to the term “The Great Dissenter,” often applied to the late Justice Oliver Wendell Holmes. His record up until the last or present term of the court shows that of the forty-one cases in which acts of Congress were held unconstitutional, Van Devanter assented forty-one times and dissented none.

His replacement, Hugo Black, had voted for every New Deal statute as a senator.

By the Washington Post’s standards, Australia’s current High Court has three Great Assenters, each of whom has dissented in fewer than one in forty cases in the past four years. In addition to Chief Justice Kiefel, there are Justices Patrick Keane and Virginia Bell. Since the start of 2014, Bell has been the court’s Greatest Assenter, with just two dissents out of 164 decisions.

What is different about these three judges? After all, the entire current bench are a very agreeable bunch. But these three stand out in how often they agree with each other. Most pairs of judges on the court agree between 80 per cent and 90 per cent of the time. But, in the past four years, both Keane and Bell have sided with the chief justice in 97 per cent of the cases where they sat with her (and about 95 per cent of the time they sat with each other). The three reach the same decision in nine out of ten cases where they are together on the bench.

On a seven-member court with no political blocs, three judges routinely agreeing is enough to allow them to determine nearly all of the court’s orders. As a past judge, Michael McHugh, candidly admitted of his time on the bench in the 2000s:

I regard [chief justice] Murray [Gleeson] and myself as irrelevant players while we were on that court together, for the reason that [Bill] Gummow and [Ken] Hayne always seemed to come together. And they usually had Mary [Gaudron]… So, as long as those three were there, it didn’t matter what they decided, they would either pick up [Ian] Callinan or pick up [Michael] Kirby.

But that court’s power trio was much less constant than the current one — Gummow and Hayne agreed with each other in 95 per cent of cases, but with Gaudron much less.

The upshot is that a trio of current Great Assenters — Susan Kiefel, Virginia Bell and Patrick Keane — have quietly become the three most powerful judges in contemporary Australia. Indeed, they are almost certainly the most constant (and arguably therefore the most powerful) bloc of judges Australia’s High Court has ever seen. And, in a uniquely Australian twist, their bloc isn’t political, either in cause or effect.

Unlike New Deal America’s four horsemen (elderly, white, conservative), these three Great Assenters have little or nothing in common: Kiefel and Keane are both Queenslanders (and formerly on the Federal Court) but Bell is from the NSW Supreme Court. Keane and Bell are both Labor appointees; Kiefel was appointed by Coalition governments, both to the bench and as chief justice. Kiefel and Bell share no relevant characteristics at all. Unlike the horsemen, their agreement isn’t limited to constitutional cases, but applies to everything the High Court decides: criminal appeals, contract disputes, administrative challenges, whatever.

Rather than shared policy goals, the trio simply seem to have remarkably similar minds on everything. Australia’s answer to America’s sombre four horsemen (who notoriously shared a car to court to plan their judgements) is a much sunnier troika (who, coincidentally — because this is determined by seniority — always sit beside each other on the bench).

Strangely, their shared dance is relatively recent. When Kiefel and Bell first joined the court, they spent some five years disagreeing with one another (and dissenting) at the same rate as the court’s other judges. But, not long after Keane joined the bench in 2013, the pair’s rate of disagreement and dissent fell to just one decision a year and has stayed there ever since. Whether the change is mere coincidence or even conscious is impossible to know.

Is a court in which three out of seven judges routinely agree a bad thing? The arrangement certainly brings benefits. The High Court has, for instance, been enmeshed recently in several national political controversies about the same-sex marriage survey and the validity of the 2016 federal election. It has settled these disputes speedily and unanimously, avoiding both political instability and controversy. The court’s harmony on these topics is almost certainly aided by, and may have been the result of, that core alliance of three judges. The same may be true for many of the three-quarters of regular cases on which the court routinely agrees, settling hard case after hard case quickly and with little rancour or lingering questions.

But speed and stability aren’t the only measures of a top court, which must deliver wise answers to hard questions. Chief Justice Kiefel’s most famous slogan is “collegiality is not compromise,” but saying that does not make it true. The court’s last Great Dissenter, Dyson Heydon, famously disagreed, publishing a thinly veiled critique of his own bench — and especially the pairing of Gummow and Hayne — as “The Enemy Within,” a threat to judicial independence. While Heydon feared that strong judicial personalities were dominating weak ones, I suspect a less extreme explanation in the current bench: that three judges — consciously or otherwise, and whether for personal reasons or institutional ones — desire consensus above all.

Whatever the benefits or threats posed by the troika of Kiefel, Bell and Keane, they are not long-term ones. In contrast to the US Supreme Court, Australian judges must retire at seventy. That means that the current trio will be broken up in three years and all but gone in four. With them may well go a number of legal doctrines they established only by a slim margin (such as the role of proportionality in constitutional law, whether state tribunals can hear interstate disputes, and how to assess the weight of disputed evidence).

But even the short-term situation has potentially significant drawbacks. One worry I have is that Australia will largely be deprived of the independent thoughts of seven of its finest judicial minds over the better part of a decade, lost to the banality of reflex consensus, sidelined diversity and discouraged dissent. But my main concern is for ordinary litigants with cases before the nation’s highest court during this period — ranging from accused drug traffickers to private hospitals to alleged killers to restaurateurs to land councils to child abuse defendants — who have reason to worry that their disputes (and in some instances, their futures) may have been decided by a court, not of laws, but of men and women. ●